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Solano v. Lewis

United States District Court, C.D. California

April 19, 2014

ERIC JERRY SOLANO, Petitioner,
v.
GREG LEWIS, Warden, Respondent.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Virginia A. Phillips, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on September 5, 2012. On October 9, 2012, Petitioner filed a "First Amended Petition, etc." ("Pet."), the operative pleading. Respondent filed an Answer on April 4, 2013, asserting, inter alia, that Ground Five of the Petition was unexhausted. On April 22, 2013, Petitioner filed a Traverse, expressing a desire to dismiss Ground Five.

On May 1, 2013, the Court issued an "Order re Exhaustion, " ordering Petitioner to file either: (1) a document requesting dismissal of Ground Five of the Petition without prejudice; or (2) a motion for a stay. On May 28, 2013, Petitioner filed a "Motion for a Stay, etc., " evincing a desire not to dismiss Ground Five.

On June 24, 2013, the Court issued an Order deeming Ground Five of the Petition to be exhausted, denying Petitioner's Motion for a Stay, etc. as moot, and ordering Respondent to file a Supplemental Answer addressing the merits of the Petition. On August 23, 2013, Respondent filed a Supplemental Answer. On January 9, 2013, Petitioner filed a Traverse and a supporting memorandum ("Trav. Mem.").

BACKGROUND

An Information charged Petitioner with: (1) the wilful, deliberate and premeditated attempted murder of a peace officer in violation of California Penal Code sections 664 and 187(a) (Count 1); (2) assault with a firearm on five peace officers in violation of California Penal Code section 245(d)(1) (Counts 2, 3, 4, 7 and 8); (3) possession of marijuana for sale in violation of California Health and Safety Code section 11359 (Count 5); and (4) possession of a firearm while in breach of a probation condition in violation of former California Penal Code section 12021(d) (Count 6)[1] (Clerk's Transcript ["C.T."] 206-12). The Information further alleged that: (1) Petitioner committed the offenses for the benefit of, at the direction of or in association with a criminal street gang within the meaning of California Penal Code section 186.22(b)(1); and (2) Petitioner personally used and personally and intentionally discharged a firearm in the commission of the attempted murder and the assaults within the meaning of California Penal Code sections 12022.53(b) and (c) (C.T. 206-12).

A jury found Petitioner guilty of the marijuana and firearm possession counts, and found true the allegation that Petitioner possessed the firearm for the benefit of a criminal street gang (Reporter's Transcript ["R.T."] 2406-07; C.T. 534-35). The jury deadlocked on the other counts and on the gang allegation with respect to the marijuana count (R.T. 2402-05; C.T. 538). The court declared a mistrial as to Counts 1, 2, 3, 4, 7 and 8 (R.T. 2405; C.T. 538).

At a second trial, a different jury found Petitioner guilty of the attempted murder of a peace officer, Officer Shawn Blackburn, and assault with a firearm on three peace officers, Officers Shawn Blackburn, Christopher Kuberry and Gregory Coley (R.T. 6302, 6304-07; C.T. 6302-07). The jury also found true the allegations that: (1) Petitioner committed the attempted murder while the victim was a peace officer engaged in the performance of his duty within the meaning of California Penal Code section 664(e); (2) Petitioner committed the attempted murder and the assaults for the benefit of, at the direction of or in association with a criminal street gang within the meaning of California Penal Code section 186.22(b)(1)(C); (3) Petitioner personally and intentionally discharged a firearm in the commission of the attempted murder and the assaults within the meaning of California Penal Code section 12022.53(c); and (4) Petitioner personally used a handgun in the commission of the attempted murder and the assaults within the meaning of California Penal Code section 12022.53(b) (R.T. 6303-08; C.T. 6303-07). The jury found not true the allegation that the attempted murder was wilful, deliberate and premeditated, and found Petitioner not guilty of the two other assaults (R.T. 6303, 6308-09; C.T. 6303, 6308-09). Petitioner received a sentence of eighty-eight years, eight months to life (R.T. 6617-19; C.T. 893-96).

The Court of Appeal affirmed the judgment (Respondent's Lodgment 1; see People v. Solano, 2011 WL 1833375 (Cal.App. May 16, 2011). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 3).

Petitioner filed a habeas corpus petition in the California Supreme Court asserting that: (1) the jury had considered evidence allegedly not admitted at trial; and (2) Petitioner's trial counsel allegedly rendered ineffective assistance (Respondent's Lodgment 4). The California Supreme Court denied the petition with citations to People v. Duvall , 9 Cal.4th 464, 474, 37 Cal.Rptr.2d 259, 886 P.2d 1252 (1995) ("Duvall") and In re Dixon , 41 Cal.2d 756, 759, 264 P.2d 513 (1953) ("Dixon") (Respondent's Lodgment 5).

SUMMARY OF TRIAL EVIDENCE

The following summary is taken from the opinion of the California Court of Appeal in People v. Solano, 2011 WL 1833375 (Cal.App. May 16, 2011). See Runningeagle v. Ryan , 686 F.3d 758, 763 n.1 (9th Cir. 2012), cert. denied, 133 S.Ct. 2766 (2013) (presuming correct statement of facts drawn from state court decision); Slovik v. Yates , 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).

2. The First Trial

a. The People's evidence

A search warrant for the home in which Solano and members of his extended family were living was obtained based on information Solano, a suspected member of the Northside Bolen Parque gang, was selling illegal drugs from the residence. At 5:00 a.m on February 27, 2008, 13 officers of the Baldwin Park Police Department's special response team and additional police personnel executed the warrant. Officers knocked on the front door and announced their presence in Spanish and English. After hearing what sounded like someone running away from the door, officers began to forcibly enter the home. Because officers were having a difficult time prying open the metal security door, another officer broke a nearby window to cause a distraction and to see into the residence while officers continued making announcements. About 10 seconds later, as officers were entering through the front door, Solano fired a gun at them. Officers returned fire, hitting Solano in the chest and neck.
Eight people, including children, were in the home when the search warrant was executed. Guillermo Solis, the long-time boyfriend of Solano's mother, Leticia, and father of two children with her, testified he was sleeping in the living room with Leticia and their son when he was awakened by pounding on the door. After the window broke he saw police officers wearing uniforms and helmets and heard them say, "Police, open the door." Solano's younger sister, Crystal Solano, testified she was sleeping in one of the two bedrooms with three people when she was awakened by banging on the doors and windows and screaming. Crystal ran into the living room to see what was happening, and her mother was screaming Guillermo's name. Crystal heard officers yelling, "search warrant, search warrant." Crystal began pulling her mother toward the bedroom when the shooting began.
Officers recovered a revolver from under Solano's leg, 400 grams of marijuana from the bedroom, two scales and two boxes of plastic sandwich bags. Baldwin Park Police Officer Mike Hemenway, one of the officers who executed the search warrant and an expert on possession of narcotics for sale, opined, given "the packaging material, the scales, the amount of marijuana, and the firearm, " [that] the marijuana, valued at between $350 and $6, 000, was possessed for sale. Officer Hemenway explained the purpose of the firearm was "to protect [Solano] from people that want to steal from him or the police."
Baldwin Park Police Detective Mark Adams, also a member of the special response team, testified both as a participant in the incident and as an expert on criminal street gangs. In addition to testifying to the primary criminal activities of Northside Bolen Parque (vandalism, theft, robbery, witness intimidation and violent crimes), the gang's alliance with the Mexican Mafia and evidence of Solano's membership in the gang), [2] Detective Adams opined, "The act of shooting at a police officer, without a doubt, has an effect on [Solano's] status within the gang." Detective Adams explained, "Each and every time that a police officer is assaulted by a member of a gang, the members of that gang hold that individual in higher esteem. They know that he's ruthless, that he's basically instilled in the community a fear that the gang is willing to assault anybody." "It allows the gang to operate with impunity because they definitely don't fear that the community is going to call the police when they are that ruthless. They are willing to take out a member of the community if they are willing to take out a police officer."
Detective Adams identified photographs of graffiti taken near Solano's home approximately nine months after the incident. One photo stated, "FUCK THE PIGS!" with an NSBP notation near it; another photo taken near the first had graffiti including, "FUCK THE COPS."
Detective Adams denied on cross-examination that what occurred could have been "an attempted suicide by cop" - that is, where a person provokes officers to fire at him or her in an effort to commit suicide - even though it is likely firing a gun at 13 police officers with high-powered weapons will provoke them to fire back with potentially lethal consequences.

b. The defense's evidence

Testifying on his own behalf, Solano, who was 20 years old at the time of trial, admitted he had been associated with the Northside Bolen Parque gang since he was 16 years old. Solano claimed he was not an actual member of the gang because he had never been "jumped in, " that is, given the beating most gang members must endure to be initiated, because his brother, Oscar Solano, who was sentenced in January 2005 to life in prison, is a gang member. Solano explained he would have been permitted to leave the gang life because he had not been jumped in and had been planning to move to Washington with his pregnant girlfriend to live with her mother, who was going to give him a job.[3]
Solano admitted he was selling marijuana at the time the search warrant was executed. He testified he was sleeping in a bedroom when he heard loud noises, banging on the bedroom door and his mother screaming his name. Solano jumped out of bed, opened the bedroom door and saw the front door shaking like someone was trying to break in; his mother also told him someone was trying to break in. Solano ordered his mother to go to her room and call the police. He then went back into the bedroom and retrieved a gun he kept for protection.[4] As he was leaving the bedroom, he saw the window break. In response he fired a warning shot below the broken window not knowing police officers were outside. Solano explained he probably would have thrown the marijuana in the toilet and the gun out the window if he had known the police were there. Solano also testified three people in the neighborhood had been murdered a few days earlier, and he was frightened that could happen to him.
On redirect examination Solano admitted [that] harming a police officer enhances a gang member's reputation within the gang and [that], had he killed a police officer during the incident, he believed it would have enhanced his reputation within the gang.
...

4. The Second Trial

a. The People's evidence

Many of the witnesses from the first trial presented largely consistent testimony at the second trial. Detective Adams testified again that gangs benefit from engaging in violence against police officers because it dissuades citizens from reporting crimes and testifying against gang members and that gang members who engage in such violence gain the respect of their fellow gang members. On cross-examination Detective Adams acknowledged a gang member who kills a police officer could attract undesirable attention to the gang as law enforcement searches for the perpetrator, but denied he had seen or heard gang experts opine that murdering a police officer would cause a gang member to be ostracized.
As at the first trial, defense counsel asked whether "suicide by cop" was a reasonable explanation for Solano's conduct and urged Detective Adams to "[p]retend you're on the jury in your own mind." After Adams responded it was difficult for him to do that because he knew all the facts, defense counsel asked, "But your opinion is - " Adams responded, "My opinion is that he shot at the police to promote his gang, to promote himself, to avoid apprehension, because he has a long-standing dislike of the police. And the gang culture has taught him that the police are about the worst thing on earth and shooting at them doesn't seem like it's as awful as it would seem to regular citizens like the jury."

b. The defense's evidence

Solano testified there was an old, noisy air conditioning unit in his bedroom that was "banging and clanging" the morning the search warrant was executed even though the outside air temperature was in the 50s. Solano explained, "I like to turn it on because in the morning where my room is at, the sun always hits it... so I just leave it on so I don't have to wake up in the morning and turn it on." Although Solano testified at the first trial he woke to loud banging outside his bedroom and his mother screaming his name, at the second trial he stated his mother was screaming, but "I couldn't hear her. I don't know if she was screaming my name but she was screaming loud."
Solano also presented the testimony of gang expert Dr. James Shaw. Dr. Shaw opined that it is uncommon for a gang member to deliberately shoot at a police officer and that gangs have punished their members for such conduct because it incites the police to conduct raids and arrests in their territory and invites other forms of retaliation. Dr. Shaw also explained the increased police scrutiny damages gangs' ability to generate revenue from drug and weapon sales, which adversely affects their reputation among other gangs.
On cross-examination Dr. Shaw's credibility was challenged by the prosecutor. For example, the prosecutor established Dr. Shaw knew virtually nothing about the Northside Bolen Parque gang, was not sure if he had ever spoken with anyone from that gang and had never interviewed Solano. Essentially the only preparation he had done in connection with the case was to review an email from Solano's counsel, which was admitted into evidence, meet with counsel for about an hour and talk to Solano's mother. Dr. Shaw was unfamiliar with several specific cases in which police officers had been shot by gang members, did not know generally how many officers annually were the victims of attempted murder or assault by southern Hispanic gang members and was not familiar with a unit in the district attorney's office devoted to crimes against police officers.
The prosecutor also questioned Dr. Shaw about an internet social media profile Dr. Shaw had posted, but had removed before trial. The profile, which was admitted into evidence, stated in part, "If you don't have an Expert, the court can treat you like dirt. If you don't want time in jail, and don't want to be somebody's shemale, then tell your lawyer to call me. If you don't want time in the state pen, and don't want to be somebody's bitch-twin, then tell your lawyer to call me. If you want to be free to go home, instead of going to prison to be somebody's maricon, tell your lawyer to call me.... Your lawyer and I can work together for your defense. Judges, lawyers, and police buy and read my book (Jack and Jill, Why They Kill') all over Los Estados Unidos. When lawyers introduce me in Court, Judges and Juries respect that. Estoy serio. Rich folks have Experts supporting them in court. Why don't you?" Dr. Shaw explained he had removed the profile "[b]ecause it was brought up by one of your colleagues in a different court not so long ago, and... and one of your colleagues was trying to embarrass me in court by making it look like I had something solicitous up there, and I didn't."

(Respondent's Lodgment 1, pp. 3-9; see People v. Solano, 2011 WL 1833375, at *1-5).

PETITIONER'S CONTENTIONS[5]

Petitioner contends:

1. The trial court's denial of Petitioner's motion to bifurcate the trial of the criminal street gang enhancement allegedly violated Due Process (Ground One);

2. The trial court's admission of "highly inflammatory and irrelevant evidence" that Petitioner's brother assertedly had been convicted of a gang-related double murder allegedly violated Due Process (Ground Two);

3. The trial court assertedly erred in dismissing a juror for alleged misconduct (Ground Three);

4. The trial court allegedly erred by: (1) failing to instruct the jury "on what evidence to view on Petitioner's cell phone"; and (2) failing to grant Petitioner's motion for a mistrial based on the jury's alleged consideration of information on Petitioner's cell phone which assertedly was not introduced into evidence (Ground Four); and

5. Petitioner's trial counsel allegedly rendered ineffective assistance, assertedly by failing to call "key witnesses to provide exonerating testimony" (Ground Five).

STANDARD OF REVIEW

Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody 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." 28 U.S.C. § 2254(d); Woodford v. Visciotti , 537 U.S. 19, 24-26 (2002); Early v. Packer , 537 U.S. 3, 8 (2002); Williams v. Taylor , 529 U.S. 362, 405-09 (2000).

"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher , 132 S.Ct. 38, 44 (2011); Lockyer v. Andrade , 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts... materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer , 537 U.S. at 8 (citation omitted); Williams v. Taylor , 529 U.S. at 405-06.

Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade , 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti , 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts). A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor , 529 U.S. at 407 (citation omitted).

"In order for a federal court to find a state court's application of [Supreme Court] precedent unreasonable, ' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith , 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad , 555 U.S. 179, 190 (2009); Davis v. Woodford , 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, ... or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter , 131 S.Ct. 770, 786 (2011). This is "the only question that matters under § 2254(d)(1)." Id . (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. at 786-87 ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").

In applying these standards, the Court looks to the last reasoned state court decision. See Delgadillo v. Woodford , 527 F.3d 919, 925 (9th Cir. 2008). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine what arguments or theories... could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Cullen v. Pinholster , 131 S.Ct. 1388, 1403 (2011) (citation, quotations and brackets omitted). If the state court did not decide a federal constitutional issue on the merits, this Court must consider that issue under a de novo standard of review. See Scott v. Ryan , 686 F.3d 1130, 1133 (9th Cir. 2012), cert. denied, 134 S.Ct. 120 (2013).

Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey , 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).

DISCUSSION[6]

I. The Trial Court's Denial of Petitioner's Motion to Bifurcate Does Not Merit Habeas Relief.

A. Background

Prior to the first trial, Petitioner's counsel filed a motion to preclude the admission of gang evidence or alternatively to bifurcate the trial of the gang allegations (C.T. 329-55). Following a hearing, the trial court denied the motion, finding there would not be "any particular overreaching prejudice that would accrue for not bifurcating" (R.T. 12; C.T. 385). Prior to the second trial, Petitioner's counsel renewed the motion (R.T. 3303; C.T. 639-48). The court again denied the motion, ruling that the gang evidence could explain Petitioner's motive for his assaultive behavior and Petitioner's state of mind at the time of the incident (R.T. 3307). The Court of Appeal agreed, ruling that, because a "key" issue at trial was whether Petitioner knew or reasonably should have known he was shooting at police officers, evidence concerning why a gang member might shoot at police was "fundamental to the prosecution's case" (Respondent's Lodgment 1, p. 16; see People v. Solano, 2011 WL 1833375, at *9). The Court of Appeal also took note of the trial court's limiting instruction cautioning the jury it could not consider the gang evidence as evidence of criminal character or propensity (see R.T. 5463-64; C.T. 775). The Court of Appeal ruled that the record did not show that the admission of the gang evidence had resulted in "such gross unfairness" as to violate Due Process (Respondent's Lodgment 1, p. 16 n.11; see People v. Solano, 2011 WL 1833375, at *9 n.11).

B. Discussion

In California, a trial court has discretion to bifurcate trial of a criminal street gang enhancement allegation. People v. Hernandez , 33 Cal.4th 1040, 1049-51, 16 Cal.Rptr.3d 880, 94 P.3d 1040 (2004). However, bifurcation is unnecessary where the evidence supporting the gang enhancement allegation would be admissible at a separate trial on the charged offense. Id. at 1049-50. Moreover, even if some of the evidence offered to prove the enhancement allegation would be inadmissible at the trial on the charged offense, a court may deny bifurcation where additional factors favor a unitary trial. Id. at 1050. The defendant bears the burden "to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried." Id. at 1050-51 (citation omitted).

To the extent Petitioner argues the trial court violated state law in failing to bifurcate, Petitioner's argument does not entitle him to federal habeas relief. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws or treaties of the United States. Estelle v. McGuire , 502 U.S. 62, 68 (1991). Habeas relief is not available for an alleged error in the interpretation or application of state law. Id. at 67-68; see also Swarthout v. Cooke , 131 S.Ct. 859, 861 (2011); Jammal v. Van de Kamp , 926 F.2d 918, 919 (9th Cir. 1991).

To the extent Petitioner contends the court's refusal to bifurcate the trial of the gang enhancement allegations violated the Constitution, the United States Supreme Court has never held that any such bifurcation is constitutionally mandated. See Romo v. Biter, 2013 WL 3336892, at *21 (C.D. Cal. June 30, 2013); Allison v. McDonald, 2010 WL 5563567, at *13 (C.D. Cal. Dec. 13, 2010), adopted, 2011 WL 91030 (C.D. Cal. Jan. 11, 2011). Indeed, in Spencer v. Texas , 385 U.S. 554, 565-66 (1967), the Court stated that "[t]wo-part jury trials are rare in our jurisprudence" and "have never been compelled by this Court as a matter of constitutional law."

To the extent Petitioner argues the gang evidence inflamed the jury by suggesting Petitioner's propensity to commit crimes (see Pet., Attachment D, p. 2), Petitioner's argument does not entitle him to federal habeas relief. The United States Supreme Court has never ruled that the admission of propensity evidence violates the Constitution. See Estelle v. McGuire , 502 U.S. at 75 n.5 ("we express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of prior crimes' evidence to show propensity to commit a charged crime"). Therefore, Petitioner cannot obtain habeas relief on any such claim. See Jennings v. Runnels , 493 Fed.App'x 903, 906 (9th Cir. 2012) (the Supreme Court has not held that propensity evidence violates Due Process, and the "absence of Supreme Court precedent on point forecloses any argument that the state court's decision [denying challenge to admission of propensity evidence] was contrary to or an unreasonable application of clearly established federal law") (citation omitted); Mejia v. Garcia , 534 F.3d 1036, 1046 (9th Cir. 2008), cert. denied, 555 U.S. 1117 (2009) (rejecting habeas petitioner's challenge to introduction of propensity evidence, where petitioner could point to no Supreme Court precedent establishing that admission of otherwise relevant propensity evidence violated the Constitution); Alberni v. McDaniel , 458 F.3d 860, 864 (9th Cir. 2006), cert. denied, 549 U.S. 1287 (rejecting challenge to admission of propensity evidence in light of Supreme Court's express refusal to consider the issue in Estelle v. McGuire ); see generally Moses v. Payne , 555 F.3d 742, 758-59 (9th Cir. 2009) (habeas relief unavailable where the Supreme Court had articulated no "controlling legal standard" on the issue); Larson v. Palmateer , 515 F.3d 1057, 1066 (9th Cir.), cert. denied, 555 U.S. 871 (2008) (where Supreme Court "expressly left [the] issue an open question, '" habeas relief unavailable).

In any event, the denial of the motion to bifurcate did not violate state law, much less render Petitioner's trial unfair. Under Ninth Circuit standards, the admission of evidence can violate due process "only when there are no permissible inferences the jury may draw from the evidence." Windham v. Merkle , 163 F.3d 1092, 1103 (9th Cir. 1998) (original emphasis; citation and internal quotations omitted). To the extent evidence supporting the gang enhancement would be admissible at the guilt phase, "any inference of prejudice is dispelled, and bifurcation is unnecessary." People v. Hernandez , 33 Cal.4th at 1049-50. For example, bifurcation is unnecessary where, as here, "evidence of a defendant's gang affiliation - including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries and the like - can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to the charged crime." Id. at 1049.

Petitioner's defense was that he purportedly was unaware that the victims were police officers at the time Petitioner fired the shot, and that he fired the shot in an alleged attempt to protect himself and his family. The prosecution's theory was that Petitioner knowingly shot at the officers to advance his status in the gang and the status of the gang. As the Court of Appeal reasonably observed, "[u]nderstanding why a gang member might shoot at police officers was fundamental to the prosecution's case" (see Respondent's Lodgment 1, p. 16; see also People v. Solano, 2011 WL 1833375, at *9). Additionally, the trial court gave a limiting instruction cautioning the jury that it could not consider the gang evidence as evidence of Petitioner's bad character or disposition to commit crimes (R.T. 5463; C.T. 775). The jury is presumed to have followed its instructions. See Weeks v. Angelone , 528 U.S. 225, 226 (2000). In view of the fact that the gang evidence was relevant to the issues of intent and motive, and in view of the limiting instruction, the trial court's refusal to bifurcate did not render Petitioner's trial fundamentally unfair. See Monarrez v. Alameda , 268 Fed.App'x 651, 652 (9th Cir.), cert. denied, 555 U.S. 859 (2008) (evidence of gang membership relevant to show motive); Roel v. Salazar, 2010 WL 2593518, at *8 (C.D. Cal. Mar. 24, 2010), adopted, 2010 WL 2594802 (C.D. Cal. June 22, 2010) (gang expert's testimony relevant to issues of intent and motive); People v. Martinez , 113 Cal.App.4th 400, 7 Cal.Rptr.3d 49 (2003) (same).

For the foregoing reasons, the Court of Appeal's rejection of this claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S. § 2254(d); Harrington v. Richter , 131 S.Ct. 770, 785-87 (2011). Petitioner is not entitled to habeas relief on Ground One of the Petition.

II. Petitioner's Challenge to the Trial Court's Admission of Evidence Concerning the Murder Conviction of Petitioner's Brother Does Not Merit Habeas Relief.

A. Background

Petitioner's sister Crystal testified on direct examination that Petitioner was close to his older brother, Oscar Solano, Sr., known as "Sinner" (R.T. 4275). Crystal testified that Oscar, whom she allegedly knew to be a gang member, was in prison after suffering two murder convictions (R.T. 4275). Crystal testified that Petitioner took his brother's name and was known as "L'il Sinner" (R.T. 4277). Crystal said Oscar was incarcerated at the time the family moved to the house at which the incident took place (R.T. 4277).

The gang expert, Detective Adams, testified that Oscar Sr. was a Northside Bolen Parque gang member who used the name "Sinner" (R.T. 4520-21). Petitioner assertedly joined the gang after Oscar's conviction (R.T. 4590-91).

Petitioner testified that Oscar was in prison for killing two rival gang members (R.T. 5138). Asked whether the crime enhanced Oscar's reputation in the community of Northside Bolen Parque gang members, Petitioner responded: "Yeah, I guess." (R.T. 5138). Petitioner subsequently amended his response to "Yeah" (R.T. 5138).

Petitioner's girlfriend Renee Miller testified that after she began dating Petitioner she became aware that Oscar was a long-time Northside Bolen Parque gang member and had committed a gang-related double murder (R.T. 4988).

Petitioner contends the admission of evidence concerning Oscar's crimes "constituted the impermissible use of propensity evidence to prove the charged crimes" (Pet., Attachment D, p. 3). The Court of Appeal rejected this claim, ruling, inter alia, that "[t]he evidence of Oscar's conviction and the inferences the People argued should be drawn from it - that [Petitioner] harbored more animus toward law enforcement than the typical gang member and was committed to the gang life notwithstanding the consequences he witnessed his brother experience - were relevant to the People's theory [that Petitioner] knowingly shot at police officers and was not, as he claimed, merely trying to defend his home" (Respondent's Lodgment 1, p. 20; see People v. Solano, 2011 WL 1833375 at *11).

B. Discussion

Petitioner's claim fails for at least two reasons. First, the United States Supreme Court "has not yet made a clear ruling that admission of irrelevant or overly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Holley v. Yarborough , 568 F.3d 1091, 1101 (9th Cir. 2009) (citation omitted). Second, as discussed above, Petitioner's challenge to the alleged propensity evidence does not merit habeas relief because the United States Supreme Court has never ruled that the admission of propensity evidence violates the Constitution. See Estelle v. McGuire , 502 U.S. at 75 n.5; Jennings v. Runnels , 493 Fed.App'x at 906; Mejia v. Garcia , 534 F.3d at 1046; Alberni v. McDaniel , 458 F.3d at 864. Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See Harrington v. Richter , 131 S.Ct. at 785-87; 28 U.S.C. § 2254(d). Petitioner is not entitled to habeas relief on Ground Two of the Petition.

III. Petitioner's Challenge to the Trial Court's Dismissal of a Juror Does Not Merit Habeas Relief.[7]

A. Background

During deliberations, the bailiff found a book in the jury room titled "Prison to Praise" which was of "a generally religious bent" (R.T. 6001). The cover of the book bore the word "Prison, " among others, in a "big color print" (R.T. 6050). The first page of the book described the author's arrest by the FBI (R.T. 6045). According to the Court of Appeal, "[t]he book, an autobiography, recounts how Merlin Carothers went from serving in the military to becoming a criminal, to finally finding salvation and redemption in religious teachings. As described on the back cover, PRISON TO PRAISE is not about a prison with bars, but about a prison of circumstances - and how to be set free!'" (Respondent's Lodgment 1, p. 23 n.14; see People v. Solano, 2011 WL 1833375, at *13 n.14).

After conferring with counsel, the court conducted an inquiry of each of the jurors, separately. The jury foreman, Juror No. 10, said Juror No. 6 had brought the "books" into the jury room and possibly had one in his pocket (R.T. 6004). Asked whether any jurors had referred to the book or any of the religious concepts or tenets found therein, Juror No. 10 said she had discussed the matter only with Juror No. 6 (R.T. 6005). Juror No. 10 explained: "I don't know that - - I don't know that there was anything specifically noted out of that book, but feelings were expressed, religious feelings were expressed, and I did have to at that time say, you know, we need to separate" (R.T. 6005).

Two jurors, Jurors Nos. 3 and 12, said they had not seen the book (R.T. 6012, 6035-36). Three jurors, Jurors Nos. 2, 7 and 9, said they had seen the book in the hallway (R.T. 6009-10, 6023, 6027). Juror No. 5 said Juror No. 6 brought the book into the jury room (R.T. 6018). Juror No. 1 took a copy of the book into the jury room but did not open it (R.T. 6007-08). Juror No. 8 took a copy of the book home (R.T. 6026).

Juror No. 4 brought a copy of the book into the courtroom and left it under her chair (R.T. 6014). Juror No. 4 also recalled seeing the book on a seat in the jury room (R.T. 6014). Asked whether jurors had engaged in religious discussions in deliberations, the juror said someone, whom Juror No. 4 thought was Juror No. 6, had made a reference "to the defendant and being young and he has his whole life ahead of him..., " but Juror No. 4 did not know whether this comment had been made in the jury room (R.T. 6015, 6017). Juror No. 4 said a juror, "I think [Juror No.] 6, " had made a comment about salvation and had said Petitioner was "still young enough... to be saved or rehabilitated...." (R.T. 6015-17)

Juror No. 11 saw the book first in the hallway and later in the jury room (R.T. 6029-30). Juror No. 6 was passing the book out and "talking and preaching about his church" (R.T. 6030). Juror No. 11 said that Juror No. 6 had a copy of the book in the jury room on the table in front of him, and had the book in his pocket every day (R.T. 6030). Juror No. 11 thought this was inappropriate and had spoken to the jury foreman about the situation that morning (R.T. 6030). Asked whether anyone had referred to the book or to salvation or redemption or religious rules during deliberations, Juror No. 11 said Juror No. 6 had made a statement in the jury room that the defendant was "young" and "immature" and had made "bad choices, " and had not found God or had the opportunity to become "redeemed" (R.T. 6031, 6033).[8]

Juror No. 11 said the jury foreman had responded that jurors were not supposed to use religious beliefs to decide the case, but rather were supposed to decide the case on the basis of the evidence (R.T. 6033). The court asked Juror No. 11 whether Juror No. 6 appeared to accept the foreman's admonition, and Juror No. 11 responded that Juror No. 6 "was not able to" (R.T. 6034). Juror No. 11 based this conclusion on the body language of Juror No. 6 as well as "things that were said" (R.T. 6034). Juror No. 11 said Juror No. 6 still had the book in his pocket that morning (R.T. 6035).

Juror No. 6 admitted bringing the book to court (R.T. 6037). Juror No. 6 said the book had nothing to do with prison, but was a "war story" concerning D-Day and the author's participation in three different wars (R.T. 6038). Juror No. 6 denied using any of the religious tenets in the book or his own religious experiences in his discussions with other jurors (R.T. 6038).

Following the interviews with the jurors, the court discussed the issue with counsel (R.T. 6040-50). The court found Juror No. 10 and Juror No. 11 to be "highly credible witnesses, " and found Juror No. 6 not credible with respect to his statements to the court (other than his admission that he was the source of the books) (R.T. 6050-51). The court found Juror No. 6 had committed actual misconduct and excused Juror No. 6 for cause (R.T. 6050).[9]

The Court of Appeal upheld this decision, ruling that Juror No. 6's responses to the court's questions "revealed, at best, a complete lack of self-awareness of the pervasive nature of his religious views and their impact on the deliberative process" (Respondent's Lodgment 1, p. 26; see People v. Solano, 2011 WL 1833375, at *15). The Court of Appeal reasoned that the juror's distribution of the book to other jurors and his "disingenuous responses" to the trial court's questions showed the juror could not deliberate impartially (Respondent's Lodgment 1, p. 26; see People v. Solano, 2011 WL 1833375, at *15).

B. Discussion

A criminal defendant has a federal constitutional right to a fair and impartial jury. Duncan v. Louisiana , 391 U.S. 145, 149 (1968); Irvin v. Dowd , 366 U.S. 717, 722 (1961); Estrada v. Scribner , 512 F.3d 1227, 1239-40 (9th Cir.), cert. denied, 554 U.S. 925 (2008). "The bias or prejudice of even a single juror would violate" this right. Dyer v. Calderon , 151 F.3d 970, 973 (9th Cir.), cert. denied, 525 U.S. 1033 (1998). Accordingly, "[t]he Sixth Amendment does not entitle a defendant to... retention of a biased juror." Bell v. Uribe, ___ F.3d ___, 2014 WL 211814, at *10 (9th Cir. Jan. 21, 2014). "Instead, a defendant is only entitled to a jury composed of jurors who will conscientiously apply the law and find the facts [citation], and that is capable and willing to decide the case solely on the evidence before it [citation]." Id . (internal quotations omitted).

Section 1089 of the California Penal Code provides in pertinent part that "[i]f at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, ... the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box...." The Ninth Circuit has upheld the facial constitutionality of section 1089. Miller v. Stagner , 757 F.2d 988, 995 (9th Cir. 1985), cert. dism'd, 475 U.S. 1048 (1986) and cert. denied, 475 U.S. 1049 (1986). Therefore, if there exists "good cause" for the replacement of a deliberating juror, such replacement does not violate the defendant's federal constitutional right to a fair and impartial jury. See Perez v. Marshall , 119 F.3d 1422, 1426 (9th Cir. 1997), cert. denied, 522 U.S. 1096 (1998).

The question of the partiality of a particular juror is "plainly one of historical fact" presumed correct on federal habeas review. Patton v. Yount , 467 U.S. 1025, 1036 (1984); Fields v. Brown , 503 F.3d 755, 767 (9th Cir. 2007) (en banc), cert. denied, 552 U.S. 1314 (2008) ("[w]hether a juror is dishonest is a question of fact") (citation omitted); Tinsley v. Borg , 895 F.2d 520, 525 (1990), cert. denied, 498 U.S. 1091 (1991). Petitioner bears the burden to rebut the trial court's factual finding of Juror No. 6's bias "by clear and convincing evidence." Burt v. Titlow , 134 S.Ct. 10, 15 (2013); 28 U.S.C. § 2254(e)(1).

The trial court found credible the descriptions of events provided by Jurors Nos. 10 and 11, and found Juror No. 6 not to be credible. A federal habeas court has "no license to redetermine credibility of witnesses whose demeanor has been observed by the trial court, but not by [the habeas court]." Marshall v. Lonberger , 459 U.S. 422, 434 (1983); see also Ortiz v. Stewart , 149 F.3d 923, 936 (9th Cir. 1998), cert. denied, 526 U.S. 1123 (1999). The trial court found that Juror No. 6 harbored actual bias, "a state of mind that leads to an inference that the person will not act with entire impartiality." See Fields v. Brown , 503 F.3d at 767 (citations omitted). The record and the trial court's credibility findings support this conclusion, showing that during deliberations Juror No. 6: (1) shared a book with other jurors which contained information concerning a prisoner's recourse to religion and a criminal offender's purported "redemption" or "salvation" through God; (2) misrepresented the contents of the book to the judge; (3) discussed with other jurors allegedly mitigating factors pertaining to Petitioner's crime and potential punishment, including religious concepts of salvation and redemption; and (4) misrepresented to the judge that the juror had not had such discussions with other jurors. Juror No. 6 also had disobeyed the trial court's previous instructions that jurors: (1) not be influenced by sympathy, passion or prejudice; (2) refrain from performing independent investigations; and (3) not consider issues of penalty or punishment (see R.T. 3609, 3615, 5411, 5413, 5584; C.T. 715, 718, 780). Petitioner has neither rebutted the presumption of correctness accorded to the trial court's finding of juror bias nor shown that the Court of Appeal acted unreasonably in rejecting Petitioner's claim. See Johnson v. Williams , 133 S.Ct. 1088, 1092 (2013) (petitioner not entitled to habeas relief on claim that trial court improperly excused juror, where juror raised issue of nullification and expressed doubt about applying the law, and, when court made inquiry, initially falsely denied having discussed nullification);[10] United States v. Vartanian , 476 F.3d 1095, 1098-99 (9th Cir.), cert. denied, 552 U.S. 891 (2007) (district court did not err in dismissing juror who violated court's instructions and responded untruthfully to court's inquiries).

Therefore, the Court of Appeal's rejection of Petitioner's claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d). Petitioner is not entitled to habeas relief on Ground Three of the Petition.

IV. Petitioner's Claims of Trial Court Error With Respect to the Cell Phone Evidence Do Not Merit Habeas Relief.

After taking Petitioner into custody, officers searched Petitioner's room and seized a cell phone (R.T. 3752, 4011). Officers recovered from the cell phone a contact list of names and addresses and text messages concerning marijuana sales (R.T. 3755, 4011, 4527, 5171). Of the names on the contact list, 28 were known Northside Bolen Parque gang members (R.T. 4541-45). Several photographs on the cell phone depicted the young son of Petitioner's brother Oscar, Oscar Jr., throwing a Northside Bolen Parque gang sign (R.T. 4528, 5179-80). Detective Adams documented a number of incoming and outgoing calls which he recognized to be to or from Northside Bolen Parque gang members (R.T. 4543). At the time of Petitioner's trial, the phone had been recharged and could be opened and examined (R.T. 4542). At the conclusion of the prosecution's case, the cell phone itself was admitted into evidence, as well as photographs taken by law enforcement officials of the items on the contact list, the photographs and the text messages discussed at trial (R.T. 4807).

During deliberations, the jury sent the judge the following note: "There was evidence on the cell phone that was not discussed in the trial, can we use this evidence[?]" (R.T. 5701; C.T. 699). In a conference outside the presence of the jury, the court discussed the note with counsel (R.T. 5701-10). The court initially proposed a response to the jury's question telling jurors that they could use the phone "as intended by the manufacturer or user" but could not access the Internet (R.T. 5701). The court added: "But what was admitted into evidence was the phone and obviously its contents" (R.T. 5702). Petitioner's counsel expressed the concern that the jury had reviewed evidence "that was never received or published" and moved for a mistrial (R.T. 5702). The court responded that its recollection was that the phone had been admitted into evidence (R.T. 5703).

The prosecutor observed, without contradiction, that the phone was not a smart phone with Internet access (R.T. 5703). The prosecutor stated that the phone and its contents "all were in evidence" (R.T. 5703). The prosecutor nevertheless said he would concur with the defense request for an instruction forbidding the jury from considering items on the phone other than those contained in the photographs introduced at trial (R.T. 5704-06). Petitioner's counsel asked the court for such an admonishment (R.T. 5707). The court reiterated its belief that it could "tell them to use the cell phone for whatever they wanted to use it for and consider anything that they found in it, " but said the court did not have a problem with the limitation proposed by the prosecutor (R.T. 5705-06). Defense counsel asked the court to give the admonishment proposed by the prosecutor (R.T. 5707). The court sent the following note to the jury: "Please do not consider the cell screens & information on the cell phone that are not contained in the photos or other evidence" (C.T. 699). The court denied the motion for a mistrial (R.T. 5707).

Petitioner contends the trial court erred by failing to give the jury a "limited instruction on what evidence to view on Petitioner's cell phone" and by failing to "investigate what non admissed [sic] evidence was viewed by the jury" (Pet., Attachment D, p. 6). Petitioner raised the cell phone claims in a habeas petition, which the California Supreme Court denied on procedural grounds without reaching the merits.[11] Because no state court decided Petitioner's cell phone claims on the merits, this Court's review is de novo. See Scott v. Ryan , 686 F.3d 1130, 1133 (9th Cir. 2012), cert. denied, 134 S.Ct. 120 (2013).

Instructional error "does not alone raise a ground cognizable in a federal habeas corpus proceeding." Dunckhurst v. Deeds , 859 F.2d 110, 114 (9th Cir. 1988) (citation omitted). When a federal habeas petitioner challenges the validity of a state jury instruction, the issue is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire , 502 U.S. 62, 72 (1991); Clark v. Brown , 450 F.3d 898, 904 (9th Cir.), cert. denied, 549 U.S. 1027 (2006). "The relevant inquiry is whether there is a reasonable likelihood that the jury has applied the challenged instruction' in an unconstitutional manner." Houston v. Roe , 177 F.3d 901, 909 (9th Cir. 1999), cert. denied, 528 U.S. 1159 (2000) (quoting Boyde v. California , 494 U.S. 370, 380 (1990)). In challenging the failure to give an instruction, a habeas petitioner faces an "especially heavy" burden. Henderson v. Kibbe , 431 U.S. at 155.

Petitioner argues that the trial court should have instructed the jury, prior to the commencement of deliberations, not to consider any information on the cell phone other than that which the prosecutor expressly presented to the jury in the form of photocopies.[12] Petitioner contends the jury unlawfully viewed evidence on the cell phone which the court allegedly had not admitted into evidence (see Pet., Attachment D, p. 6; Trav., p. 24).

The basic premise of Petitioner's cell phone claims is fundamentally flawed. Because the court admitted the entire phone into evidence, the contents of the phone also necessarily were admitted into evidence. See People v. Garrison , 303 P.3d 117, 235 (Colo.App. 2012), cert. denied, 2013 WL 3171889 (Colo. June 24, 2013) (jury properly could consider text messages and photographs from cell phone admitted into evidence; such information was not extrinsic evidence; "by turning on the cell phone to discover the text messages, the jury used the cell phone as it was intended to be used and discovered information within the scope and purview of the evidence"); Haniffy v. Gerry, 2010 WL 347037 (D.N.H. Jan. 26, 2010) (information on cell phone admitted into evidence was not "extrinsic" evidence; "once the cell phone was admitted, the jury was entitled to examine it without violating Haniffy's constitutional rights"); Drammeh v. State , 285 Ga.App. 545, 548, 646 S.E.2d 742 (2007) (trial court did not err in allowing jury to consider contents of cell phones which were admitted into evidence); see generally United States v. Rincon , 28 F.3d 921, 926-27 (9th Cir.), cert. denied, 513 U.S. 1029 (1994) (display of defendant next to surveillance photograph during jury deliberations not error, where all of the evidence used in the display was introduced at trial). The court had no obligation to instruct the jury to disregard evidence which had been admitted or to investigate the nature of the evidence the jury specifically had viewed. Indeed, during the conference regarding the jury's note, the court correctly recognized that the jury properly could consider any of the information on the cell phone. The court agreed to give a limiting admonishment only after the prosecution concurred in Petitioner's request for such an admonishment.

To the extent Petitioner contends the admission of the cell phone and all of its contents (including information on the phone not presented at trial in photocopy format) rendered Petitioner's trial fundamentally unfair, any such claim fails. Petitioner (presumably aware of the contents of his own cell phone) fails to describe any of the contents of the cell phone which were not expressly presented in photocopy format at trial, much less demonstrate how any of those contents could have prejudiced Petitioner. Conclusory allegations are insufficient to merit habeas relief. See Greenway v. Schriro , 653 F.3d 790, 804 (9th Cir. 2011) (a "cursory and vague claim cannot support habeas relief") (citation omitted); Jones v. Gomez , 66 F.3d 199, 204-205 (9th Cir. 1995), cert. denied, 517 U.S. 1143 (1996) (same). Petitioner has not shown the admission of the phone and its contents rendered Petitioner's trial fundamentally unfair. See Holley v. Yarborough , 568 F.3d 1091, 1101 (9th Cir. 2009). Therefore, Petitioner is not entitled to habeas relief on Ground Four of the Petition.

V. Petitioner Is Not Entitled to Habeas Relief on His Claim of Ineffective Assistance of Counsel.

Petitioner contends trial counsel rendered ineffective assistance by failing to call three witnesses at Petitioner's second trial: Petitioner's mother Leticia Solano and neighbors Ricardo Guerra and Jose Fernandez (Pet., Attachment D, p. 7; Trav. Mem., pp 29-31). Because, as indicated above, the California Supreme Court denied this claim in Petitioner's habeas petition on procedural grounds, this Court's review is de novo. See Scott v. Ryan , 686 F.3d at 1133.

A. Governing Legal Standards

To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington , 466 U.S. 668, 688, 694, 697 (1984) ("Strickland"). A reasonable probability of a different result "is a probability sufficient to undermine confidence in the outcome." Id. at 694. The court may reject the claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697; see Gentry v. Sinclair , 705 F.3d 884, 889 (9th Cir.), cert. denied, 134 S.Ct. 102 (2013) ("[f]ailure to meet either [Strickland] prong is fatal to a claim"); Rios v. Rocha , 299 F.3d 796, 805 (9th Cir. 2002) ("Failure to satisfy either prong of the Strickland test obviates the need to consider the other.") (citation omitted).

Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford , 384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (quoting Strickland , 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland , 466 U.S. at 690. The court may "neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight...." Matylinsky v. Budge , 577 F.3d 1083, 1091 (9th Cir. 2009), cert. denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see Yarborough v. Gentry , 540 U.S. 1, 8 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.") (citations omitted). Petitioner bears the burden to show that "counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington v. Richter , 131 S.Ct. 770, 787 (2011) (citation and internal quotations omitted); see Strickland , 466 U.S. at 689 (petitioner bears burden to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy") (citation and quotations omitted). If the court can conceive of a reasonable tactical reason for counsel's action or inaction, the court need not determine the actual explanation. Morris v. California , 966 F.2d 448, 456-57 (9th Cir.), cert. denied, 506 U.S. 831 (1992).

"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently." Id. at 791-92 (citations omitted). Rather, the issue is whether, in the absence of counsel's alleged error, it is "reasonably likely'" that the result would have been different. Id. at 792 (quoting Strickland , 466 U.S. at 696). "The likelihood of a different result must be substantial, not just conceivable." Id.

B. Discussion

1. Leticia Solano

Petitioner's mother, Leticia Solano, did not testify at trial. At the preliminary hearing Mrs. Solano testified that on the morning of the incident she was in the living room when she heard something hitting the front door (C.T. 43-44). Mrs. Solano said she began screaming because she thought someone was trying to break in, and she ran to Petitioner's bedroom door (R.T. 44-45). Mrs. Solano allegedly knocked on the door and told Petitioner someone was trying to break in (R.T. 45). Mrs. Solano allegedly heard a window break and also heard shooting (R.T. 45). Mrs. Solano said she did not hear any yelling before or during the banging, but also said that, after the window broke, she heard the people hitting the door say they had a warrant (R.T. 45-46, 48).

Counsel reasonably could have decided that, if Mrs. Solano had testified at trial (consistent with her preliminary hearing testimony) that she heard the people at the door say they had a warrant, such testimony might have undercut Petitioner's testimony that he did not hear the people say anything (R.T. 5124, 5225-26). Counsel also reasonably could have decided that, if Mrs. Solano testified at trial and denied hearing anyone mention a warrant, the prosecutor could use her preliminary hearing testimony to impeach her.

Petitioner nevertheless argues that his mother was a "key witness" because her alleged statement to Petitioner that someone was breaking in assertedly showed Petitioner believed that non-police intruders were attempting to break in (Trav. Mem., p. 31). However, in addition to considering the problems above, Petitioner's counsel reasonably could have decided that the proposed "break in" testimony would not have appreciably aided Petitioner. As discussed below, both Mrs. Solano's boyfriend and her daughter gave testimony inconsistent with the mother's proposed testimony.

Guillermo Solis, Mrs. Solano's boyfriend, testified that after the window broke he heard the people outside say "police, open the door" and saw that the people outside were police officers (R.T. 4228-29). According to Solis, less than ten seconds later the officers broke the door and entered the house (R.T. 4229).[13] Solis also testified that when the banging began Petitioner's mother was in the living room lying on a mattress with Guillermo (R.T. 4232). Solis said Petitioner's mother arose when she heard the noise and was running to the girls' room when the window broke (R.T. 4232). Furthermore, Solis did not hear her make any sound before or after the window broke (R.T. 4232).

Crystal Solano ("Crystal") testified at trial that, after she heard banging and ran out of her room, Crystal saw her mother standing in the living room "just staring towards the window" (R.T. 4288-89, 4296). Crystal said she heard screaming and banging and the words "search warrant" (R.T. 4289). Crystal did not say her mother was screaming or that her mother ran to Petitioner's room or told Petitioner someone was trying to break in (R.T. 4292). Crystal said that, at the time the glass broke and the door opened, Crystal pulled her mother toward her (Crystal's) room (R.T. 4293). According to Crystal, her mother was yelling something to Guillermo (R.T. 4296-97). Furthermore, Crystal testified that, as she pulled her mother past the corner of the wall, Crystal saw Petitioner's hand holding a gun (R.T. 4297-98).

Under all of these circumstances, counsel reasonably could have determined that calling Mrs. Solano as a defense witness would not have aided Petitioner's defense.

2. Ricardo Guerra

Petitioner's neighbor Ricardo Guerra testified at Petitioner's first trial that on the morning of the incident Guerra heard people yelling "open the door" and heard three shots (R.T. 615). Guerra denied previously telling an officer that Guerra heard people yell "police" approximately three times (R.T. 616-17). However, Guerra also said that he had told the truth in a conversation he had with the prosecutor and a translating police officer that morning (R.T. 619). Detective Noe Cervantes testified that, prior to testifying at the first trial, Cervantes had participated in a conversation with the prosecutor and Guerra, during which Guerra stated that he had heard a lot of loud noises and the word "police" yelled in conjunction with the words "open the door" (R.T. 629-30).

Petitioner asserts that Guerra's proposed testimony would have shown that everything "happened fast" and that Petitioner purportedly could not hear the announcements by police (Trav. Mem., p. 30). Petitioner's counsel reasonably could have determined that calling Guerra at the second trial would not have aided Petitioner's defense. If counsel had called Guerra to testify at the second trial, and Guerra testified that he did not hear the word "police, " the prosecutor doubtlessly would have called Cervantes to impeach Guerra's testimony in the same fashion as occurred at the first trial. Counsel reasonably could have decided that the net positive effect of Guerra's testimony, if any, would have been negligible.

3. Jose Fernandez

Jose Fernandez, Petitioner's neighbor, testified at the preliminary hearing that he heard officers say "open the door" as they attempted to break the door down (C.T. 191-92). Fernandez testified at Petitioner's first trial that before officers broke the window they yelled "open the door" (R.T. 1538). Fernandez said the "police" did not enter the house but the "SWAT team" did go inside (1536-37). Asked whether Fernandez heard the "SWAT people" say "we are the police, search warrant, " Fernandez replied, "Yes. Yes. Yes." (R.T. 1539). Fernandez said that before the officers knocked they said "open up" and the word "police" (R.T. 1544). Fernandez said the entire incident happened very rapidly (R.T. 1539).

Petitioner contends Fernandez' testimony would have shown that even if the police did announce their presence, the pounding on the door allegedly made it more difficult to hear any announcement, and that events allegedly unfolded so quickly that Petitioner still supposedly could have fired out of fear (Trav. Mem., pp. 29-30). However, Petitioner's counsel reasonably could have decided that, if Fernandez testified at the second trial consistent with his preliminary hearing testimony, such testimony would not have aided Petitioner's defense. Fernandez' testimony would have undercut Petitioner's position that he never heard the people trying to break into the house say anything and did not know that the people were police trying to serve a warrant (R.T. 5124, 5225-26). Counsel also reasonably could have decided that, if Fernandez testified at trial and denied hearing anyone mention the police or a warrant, the prosecutor would use Fernandez' preliminary hearing testimony to impeach him, thereby damaging Fernandez' credibility and the value of his testimony.

For the foregoing reasons, Petitioner has not proven that his counsel's failure to call Mrs. Solano, Ricardo Guerra or Jose Fernandez was either unreasonable or prejudicial. Therefore, Petitioner is not entitled to habeas relief on his claims of ineffective assistance of counsel.

RECOMMENDATION

For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.


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