JAMES K. SINGLETON, Jr., Senior District Judge.
Joshua Latham, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Latham is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at the California Correctional Center in Susanville, California. Respondent has answered, and Latham has replied.
On August 21, 2007, Latham and co-defendant Kyle Vigil were charged with two counts of shooting at an inhabited dwelling (counts 1 and 2) and one count of participating in a criminal street gang (count 3). The information also alleged as to counts 1 and 2 that the crimes were committed for the benefit of, or at the direction of, a criminal street gang. Upon direct appeal of his conviction, the California Court of Appeal summarized the following facts underlying the charges against Latham:
People v. Vigil, 120 Cal.Rptr.3d 643, 645-47 (Cal. Ct. App. Jan. 24, 2011).
On August 25, 2008, Latham and Vigil proceeded to jury trial. At the conclusion of trial roughly a month later, the jury found Latham guilty of shooting at an inhabited dwelling as charged in count 2 (the Santoni Lane shooting). While it found Latham not guilty as to shooting at an inhabited dwelling as charged in count 1 (the Donnelly Circle shooting), it convicted him of discharging a firearm in a grossly negligent manner as a lesser included offense of that count. It found Latham not guilty of participating in a criminal street gang as alleged in count 3 but found true the two criminal street gang allegations attached to counts 1 and 2.
Both Latham and Vigil appealed their convictions. Through counsel, Latham argued that the true findings on the gang enhancements must be vacated because there was insufficient evidence that the Norteños consistently and repeatedly engaged in the primary activities necessary to constitute a criminal street gang. He also joined in all claims raised in Vigil's appellate brief. In a counseled brief, Vigil argued that: 1) a juror committed prejudicial misconduct that warranted reversal of his conviction; 2) there was insufficient evidence to corroborate Chaney's accomplice testimony; 3) there was insufficient evidence to support the primary activities element of the gang enhancement; and 4) the true finding on the gang enhancement was inconsistent with the jury's finding that Vigil and Latham were not guilty of active membership in a street gang.
On January 24, 2011, the Court of Appeal reversed the judgment of conviction against Vigil in a reasoned, partially-published opinion concluding that the misconduct of Juror No. 2, who had conducted an experiment outside the courtroom based on evidence presented at trial, raised a presumption of prejudice which had not been rebutted. Vigil, 120 Cal. Rptr. at 654. The Court affirmed the judgment against Latham, however, holding that, although Latham joined in the juror misconduct claim, he was not entitled to reversal because it was "self-evident that the juror misconduct . . . affected only Vigil's conviction." Id. at n.6. The court additionally made clerical corrections to Latham's abstract of judgment which are not relevant here. Id. at 654. In the unpublished portion of the opinion, the appellate court rejected the accomplice corroboration claim on the basis that the jury impliedly found that Chaney was not an accomplice. The court likewise concluded that the gang expert's testimony at trial adequately supported the primary activities element of the gang enhancement and their acquittal on the substantive gang offense was not fatally inconsistent with the true findings on the gang enhancements because they each contained different elements.
Latham petitioned the California Supreme Court for review, raising the claims that were unsuccessful in the Court of Appeal and additionally asserting that he was entitled to the same relief as Vigil on the juror misconduct claim and that appellate counsel was ineffective for failing to secure that relief. The Supreme Court summarily denied the petition for review on April 27, 2011.
On July 18, 2012, Latham timely filed a pro se Petition for a Writ of Habeas Corpus to this Court. On the same day, he filed a habeas petition in the California Supreme Court in which he re-asserted his ineffective assistance of appellate counsel claim. The Supreme Court denied his state habeas petition on October 24, 2012, with citations to In re Waltreus, 397 P.2d 1001, 1005 (Cal. 1965) (barring relitigation on habeas of claims previously raised and rejected on direct appeal) and In re Dixon, 264 P.2d 513, 514 (Cal. 1953) (holding that habeas relief is unavailable if "the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction").
In his pro se Petition, Latham raises four grounds for relief. First, he argues that the true finding on the gang enhancement is fatally inconsistent with the jury's finding that Vigil and Latham were not guilty of active membership in a street gang. He next asserts that there was insufficient evidence to support the primary activities element of the gang enhancements. Third, Latham contends that he also is entitled to a new trial based on the juror misconduct. Finally, he relatedly argues that his appellate counsel was ineffective because his co-appellant was granted a new trial because of juror misconduct while his conviction was affirmed. With respect to his first ground, Latham requests a stay and abeyance. Latham also requests an evidentiary hearing as to all claims.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision." Id. at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court `unreasonabl[y] appli[ed] clearly established Federal law.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the "last reasoned decision" by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Preliminarily, Latham's Petition indicates that he requests a stay and abeyance with respect to this claim. A district court has discretion to stay a petition which it may validly consider on the merits once a petitioner has exhausted his remedies in state court. Rhines v. Weber, 544 U.S. 269, 276 (2005). A stay and abeyance, however, is available only in limited circumstances. First, there must be good cause for the petitioner's failure to exhaust his claims first in the state courts. Id. at 277. Second, even if cause is shown, a district court would abuse its discretion if it were to grant a stay as to unexhausted claims that are plainly meritless. Id.
Latham does not explain in his Petition why he requests to stay the proceedings. The record indicates that, on the day Latham filed the instant Petition, he concurrently filed in the California Supreme Court a petition for a writ of habeas corpus. The record further indicates that the Supreme Court denied his state habeas petition on October 24, 2012. It therefore appears that a stay is unnecessary as his state court proceedings appear to have been resolved.
Moreover, Latham fails to satisfy the second prong enumerated above. For the reasons that follow, Latham's claim is without merit and thus does not warrant the stay and abeyance that Latham seeks.
The Court of Appeal rejected Latham's inconsistent verdict claim as follows:
The appellate court's holding fully comports with federal law, under which "it is well-established that inconsistent verdicts may stand, even when a conviction is rationally incompatible with an acquittal, provided there is sufficient evidence to support a guilty verdict." United States v. Suarez, 682 F.3d 1214, 1218 (9th Cir. 2012) (citation, internal quotation marks and bracketing omitted). As discussed in more detail with regard to claim 2, the true finding was adequately supported by legally sufficient evidence. Thus, while the jury's true finding on the gang enhancement may seem somewhat logically inconsistent with the jury's acquittal on the gang participation charge, that alleged inconsistency is not grounds for habeas review because substantial evidence supports the jury's verdict. Accordingly, Latham is not entitled to relief on this claim nor is he entitled to a stay and abeyance to further pursue it in the state courts.
A "criminal street gang" means "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." CAL. PENAL CODE § 186.22(f). Latham argues in claim 2 that the gang enhancement findings must be reversed for insufficient proof because there is insufficient evidence that any of the offenses enumerated in the gang statute constituted one of the Norteño gang's "primary activities."
As articulated by the Supreme Court in Jackson, the federal constitutional standard for sufficiency of the evidence is 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." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in the original); see McDaniel v. Brown, 558 U.S. 120, 132-33 (2010) (reaffirming this standard). This Court must therefore determine whether the California court unreasonably applied Jackson. In making this determination, this Court may not usurp the role of the finder of fact by considering how it would have resolved any conflicts in the evidence, made the inferences, or considered the evidence at trial. Jackson, 443 U.S. at 318-19. Rather, when "faced with a record of historical facts that supports conflicting inferences," this Court "must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and defer to that resolution." Id. at 326.
It is a fundamental precept of dual federalism that the States possess primary authority for defining and enforcing the criminal law. See Engle v. Isaac, 456 U.S. 107, 128 (1982). Consequently, although the sufficiency of the evidence review by this Court is grounded in the Fourteenth Amendment, it must take its inquiry by reference to the elements of the crime as set forth in state law. Jackson, 443 U.S. at 324 n.16. A fundamental principle of our federal system is "that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus." Bradshaw v. Richey, 546 U.S. 74, 76 (2005); see West v. AT&T, 311 U.S. 223, 236 (1940) ("[T]he highest court of the state is the final arbiter of what is state law. When it has spoken, its pronouncement is to be accepted by federal courts as defining state law. . . ."). "Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension." Sanchez-Llamas v. Oregon, 548 U.S. 331, 345 (2006) (quoting Smith v. Philips, 455 U.S. 209, 221 (1982)) (internal quotation marks omitted). It is through this lens that this Court must view an insufficiency of the evidence claim.
As aforementioned, the gang enhancement statute enumerates a number of offenses which may be used to establish a "pattern of criminal gang activity" that is "one of its primary activities." See CAL. PENAL CODE § 186.22(f). These offenses include assaults with firearms, homicides, drug dealing, drive-by shootings, and burglaries. Id. In this case, the prosecution relied on Detective Cordova's testimony that the commission of those included offenses is one of the gang's primary activities, finding it "soundly based on his extensive training and expertise in Hispanic gangs, and specifically on the Norteño gang in the Woodland area." The appellate court observed that Detective Cordova had attended law enforcement conferences on street gangs and had personally investigated more than 30 gang cases. Detective Cordova also testified about the convictions of validated Norteño members for the enumerated offenses, which was supported by certified copies of court records evidencing the convictions.
California law provides that the prosecution may rely on a properly qualified gang expert's testimony or "evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute" to establish the primary activities element. People v. Sengpadychith, 27 P.3d 739, 744 (Cal. 2001). As the appellate court noted, Latham did not challenge Detective Cordova's qualifications as an expert on direct appeal, nor does he challenge them in the instant Petition. Nor does he challenge the accuracy of the documented evidence of other members' convictions. Accordingly, a rational factfinder could easily draw from Detective Cordova's testimony and the documented evidence of other convictions the inference that one of the Norteño gang's "primary activities" is the commission of predicate offenses. CAL. PENAL CODE § 186.22(f). Latham is therefore not entitled to relief on his insufficiency of the evidence claim.
Latham next contends that he is entitled to the same relief as Vigil for prejudicial juror misconduct. On direct appeal, the Court of Appeal laid out the following facts surrounding Vigil's juror misconduct claim:
Vigil, 120 Cal. Rptr. 3d at 648-49.
The Court of Appeal subsequently concluded that the misconduct was prejudicial:
Vigil, 120 Cal. Rptr. 3d at 653-54 (footnote omitted).
The Court of Appeal further found no prejudice to Latham. It noted in a footnote that "[a]lthough Latham purports to join in all of Vigil's appellate arguments he is not entitled to a reversal on this ground. It is self-evident that the juror misconduct we have cited affected only Vigil's conviction." Id. at 654 n.6. Latham presents no argument in his Petition in support of his contention that he was prejudiced by the juror misconduct. The unauthorized experiment was intended to resolve only whether the driver (Vigil) would have been aware that the shooter (Latham) was going to shoot at the residence at Santoni Lane. That experiment thus had no effect on the jury's determination that Latham fired the bullets, and it was undisputed that Vigil — and not Latham — was driving the car. The Court of Appeal's conclusion that Latham was not prejudiced by the jury misconduct is thus neither unreasonable nor contrary to federal law. Accordingly, Latham is not entitled to relief on this claim.
In a related claim, Latham asserts that his appellate counsel was ineffective for failing to secure for him the same relief that Vigil received. To demonstrate ineffective assistance of counsel under Strickland v. Washington, a defendant must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense. 466 U.S. 668, 687 (1984). A deficient performance is one in which "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id.
The Supreme Court has explained that, if there is a reasonable probability that the outcome might have been different as a result of a legal error, the defendant has established prejudice and is entitled to relief. Lafler v. Cooper, 132 S.Ct. 1376, 1385-86 (2012); Glover v. United States, 531 U.S. 198, 203-04 (2001); Williams, 529 U.S. at 393-95. Where a habeas petition governed by AEDPA alleges ineffective assistance of counsel, the Strickland prejudice standard is applied and federal courts do not engage in a separate analysis applying the Brecht v. Abrahamson, 507 U.S. 619, 623 (1993),
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted); see also Runningeagle v. Ryan, 686 F.3d 758, 775 (9th Cir. 2012).
Thus, Latham must show that defense counsel's representation was not within the range of competence demanded of attorneys in criminal cases, and there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been different. See Hill v. Lockhart, 474 U.S. 52, 57 (1985). An ineffective assistance of counsel claim should be denied if the petitioner fails to make a sufficient showing under either of the Strickland prongs. See Strickland, 466 U.S. at 697 (courts may consider either prong of the test first and need not address both prongs if the defendant fails on one).
In this case, Latham's claim fails to meet either of the Strickland prongs. On direct appeal, appellate counsel joined in Vigil's claim of juror misconduct. To the extent Latham argues that counsel's failure to argue that Latham was prejudiced by the misconduct evidences a deficient performance, such claim must fail because, as discussed above, Latham fails to advance in his Petition an argument that he was actually prejudiced by the misconduct and thus fails to show that counsel had a valid basis for making such an argument on direct appeal. Likewise, because Latham cannot show that he was prejudiced by the misconduct, Latham fails to establish that he was subsequently prejudiced by counsel's omission. Accordingly, Latham's ineffective assistance of appellate counsel claim must fail.
Finally, Latham requests an evidentiary hearing on all claims. However, Latham has failed to specify what evidence he wishes to present for each claim. A district court may not hold an evidentiary hearing on a claim for which a petitioner failed to develop a factual basis in state court unless the petitioner shows that: (1) the claim relies either on (a) a new rule of constitutional law that the Supreme Court has made retroactive to cases on collateral review, or (b) a factual predicate that could not have been previously discovered through the exercise of due diligence, and (2) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact finder would have found the petitioner guilty of the underlying offense. 28 U.S.C. § 2254(e)(2).
Where the failure to develop the factual basis for the claim in the state court proceedings is not attributable to the petitioner, to receive an evidentiary hearing, the petitioner must make a colorable claim for relief and meet one of the factors set forth in Townsend v. Sain, 372 U.S. 293 (1963). Insyxiengmay v. Morgan, 403 F.3d 657, 670-71 (9th Cir. 2005). In Townsend, the Supreme Court concluded that a federal habeas petitioner is entitled to an evidentiary hearing on his factual allegations if: (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing. Id. at 670 (quoting Townsend, 372 U.S. at 313), overruled in part by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).
As discussed above, Latham has failed to assert a colorable claim for relief as to any of his claims. Because Latham does not cite to new laws or underlying facts that were not developed on the record before the state courts with respect to those claims, he has failed to satisfy his burden of proof under 28 U.S.C. § 2254(e)(2). Accordingly, Latham's request for an evidentiary hearing is denied.
Latham is not entitled to relief on any ground raised in his Petition.
The Clerk of the Court is to enter judgment accordingly.
