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Robins v. R.T.C. Grounds

United States District Court, C.D. California, Western Division

November 19, 2014

R.T.C. GROUNDS, Respondent

Maurice Davon Robins, Plaintiff, Pro se, Soledad, CA.

For R T.C. Grounds, Respondent: Kenneth C Byrne, CAAG - Office of Attorney General, California Department of Justice - Supervising Deputy AG, Los Angeles, CA; Shira Seigle Markovich, CAAG - Office of the Attorney General, California Department of Justice, Los Angeles, CA.



This Report and Recommendation is submitted to the Honorable John F. Walter, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California. For the reasons discussed below, the Magistrate Judge recommends that the Petition for Writ of Habeas Corpus be dismissed with prejudice.



On October 9, 2008, a Los Angeles County Superior Court jury convicted petitioner of two counts of assault with a firearm (Cal. Penal Code § 245(a)(2)), and one count of attempted voluntary manslaughter (Cal. Penal Code § 664, 192(a)). (Reporter's Transcript (" RT") 2703-07; Clerk's Transcript (" CT") 114-16). The jury also found true the allegations that petitioner personally used a firearm within the meaning of California Penal Code § 12022.5(a), and personally inflicted great bodily injury upon his victim within the meaning of California Penal Code § 12022.7(a). (RT 2704-06; CT 114-16). Petitioner was sentenced to a term of sixteen years in state prison. (RT 3307-11; CT 147-52).

Petitioner filed a direct appeal, and the California Court of Appeal affirmed the judgment on June 17, 2010, in an unpublished decision. (July 10, 2013, Lodgment Nos. 3-5; Petition for Writ of Habeas Corpus (" Petition"), Attached Pages at 10-27). The California Supreme Court denied review on September 22, 2010. (January 2, 2013, Lodgment Nos. 4, 5). Petitioner then sought habeas relief in the California courts. His first petition, filed in the Los Angeles County Superior Court, was denied on March 1, 2011.[1] (Petition, Attached Pages at 29). His next petition, filed in the California Court of Appeal, was denied on April 21, 2011. (January 2, 2013, Lodgment Nos. 6, 7). His final petition, filed in the California Supreme Court, was denied on December 14, 2011. (January 2, 2013, Lodgment Nos. 8, 9).

On October 30, 2012, petitioner filed the instant federal Petition. On July 10, 2013, respondent filed an Answer. On August 16, 2013, petitioner filed a Traverse.

This matter is deemed submitted and is ready for a decision.



The Court adopts the following factual summary set forth in the California Court of Appeal's Opinion affirming petitioner's conviction.[2]

A. Prosecution Evidence

1. Richard Alvarez

On May 2, 2008, Richard Alvarez (Richard) lived on Alep Street in Lancaster, five houses away from [petitioner]. Richard and his brother, Robert Alvarez (Robert), collectively, the Alvarez brothers, were barbecuing in the front yard with two friends and Richard's two-year-old daughter. Richard was wearing pocketless board shorts and so he had tucked his cell phone and wallet into the waistband.
Richard was walking down the street with his daughter on her tricycle when they were approached by two barking dogs, a shepherd mix and a smaller lap dog. The child became frightened. Seeing people standing by the door at the house where he believed the owner of the dogs lived, Richard tried to get their attention to ask them to get the dogs away from his daughter and himself. They ignored him. When he yelled to get their attention again, [petitioner] appeared at the door. [Petitioner] told Richard not to worry about the dogs and to keep on walking.
[Petitioner] came out to the street where his dog was still circling Richard's daughter. As Richard placed his daughter behind him, his wallet and cell phone fell out onto the street. He grabbed his wallet. [Petitioner] grabbed Richard's cell phone and threw it on the street repeatedly, smashing it into pieces. Richard picked up his daughter and her tricycle and walked back to his home. He did not threaten [petitioner] or say he would return, and he did not swing the tricycle at [petitioner].
When Richard reached his home, he told Robert what had happened. Robert began walking toward [petitioner's] house. Richard asked his roommate to watch his daughter and also began walking toward [petitioner's] house. He intended to retrieve his SIM card from his broken cell phone. He was unarmed. Robert was already heading back to Richard's house, but when Richard walked by him, he turned and followed Richard toward [petitioner's] house.
Richard was angry. He did not, however, intend to harm [petitioner]. He believed a fight might ensue, but he did not anticipate weapons would be involved.
When Richard reached [petitioner's] house, he did not immediately see anyone. Robert was directly behind him. Richard turned and approached the front door. As he turned, he saw [petitioner] standing just inside the front door, holding a shotgun at his side. [Petitioner] was standing approximately 15 to 20 feet from Richard. [Petitioner] raised the gun and fired. Richard was hit in the neck. Had he not moved when he saw the gun, he would have been shot directly in the face.
Richard felt heat in his throat and tasted gunpowder. He was aware he was bleeding. He ran home, took his shirt off and wrapped it around his neck. One of the neighbors called 911 and paramedics arrived approximately 20 minutes later.
Richard was hospitalized for seven days. He suffered gunshot injuries to his face and neck, requiring 15 staples. Richard lost some movement and control of his neck. He continued to have daily pain and limited mobility due to tightness. He had permanent scarring from the injury.

2. Robert Alvarez

On May 2, 2008, during the barbecue at Richard's home, Richard's daughter said she wanted to ride her tricycle, so Richard took her out. When they returned, Richard looked confused and angry. His daughter appeared scared and was crying. Richard said that a dog down the street had tried to attack her. Richard told Robert that when he asked a person nearby to get the dog, the person came over and tried to jump him.
Robert was angry and walked toward [petitioner's] house. Based on what Richard had told him, it would not have surprised Robert if a fight started, and he intended to defend his brother if it did. Robert was unarmed. He was wearing a pair of swimming trunks that had pockets, but he never put his hands in the pockets.
As Robert approached [petitioner's] property, he observed four to six people, including [petitioner], sitting in front of the house. Robert asked if one of them owned the dog involved in the incident, but he got no response.
Robert may have cursed at the group of people. As he walked away he thought he heard someone say, " I grabbed a shotgun." The group went into the house. Robert began walking back to Richard's home. Robert did not threaten anyone.
Robert saw Richard walking toward [petitioner's] house. As Richard passed him, Robert turned around and followed Richard. Robert was prepared for a fight. If one ensued, he would not back down and would back up Richard. He did not tell Richard someone had mentioned getting a gun.
The Alvarez brothers entered [petitioner's] driveway and walked toward his house. Robert could see someone standing in the front door. Richard did not say anything when he saw the gun. Neither of the brothers advanced toward the person with the gun. Robert never reached into his pocket as if to draw a weapon. The gun was not pointed up in the air; it was pointed at Richard's face.
As Richard followed by Robert rounded the corner to the walkway toward the door, someone swung a gun up and shot. Robert heard the gunshot right when they turned the corner. Richard was shot in the face and neck. Robert was hit by pellets in the chest. He removed the pellets and did not suffer any lasting injury. [Petitioner] never tried to close the door, apologize, or seek a non-violent resolution of his dispute with Richard.
The Alvarez brothers ran back to Richard's home. Robert yelled for neighbors to call 911. By this time, Richard was pale and was not responding to questions. Subsequently, he was airlifted to the hospital. Robert stayed behind to speak with the police officers. While he answered questions, he was worried about his brother dying and wanted to get to the hospital. He answered quickly and did not give a thorough or accurate description of what had happened.

3. David J .

On May 2, 2008, 16-year-old David J. and his friend, Rod, rode their bikes to [petitioner's] house to hang out and watch television. Prior to this day, David had never met [petitioner] and had never seen or met the Alvarez brothers.
David was standing outside [petitioner's] house when he saw Richard and his daughter coming down the street and then a dog " brushed up" against the daughter. Richard started yelling and cursing at David to get the dog.
When David called him, [petitioner] came out of the house. [Petitioner] got mad and started cursing at Richard. [Petitioner] was on the sidewalk. Richard was in the middle of the street with his daughter and the tricycle. They were approximately 6 or 7 feet apart. Richard grabbed the tricycle, took two steps toward [petitioner] and swung the tricycle toward him.
As Richard swung the tricycle, his wallet and cell phone dropped to the ground. He picked up his wallet. [Petitioner] grabbed the cell phone and smashed it on the ground. David did not remember noticing Richard's daughter crying, but she did appear to be scared.
As Richard left, he said, " I'll be back." Richard appeared angry but David did not recall that Richard threatened to kill anyone.
David went into the house and told [petitioner] that Richard might come back. Then David looked outside and saw Richard and a man with tattoos coming toward the house. [Petitioner] picked up a shotgun that was against the couch.
As the two men approached, [petitioner] went to the doorway, holding the shotgun, but not pointing it at anyone. Neither of the men appeared to have any weapons. David was scared. He could hear the men cursing, but at trial could not remember the exact words.
[Petitioner] stepped in front of David in the doorway and said to Richard and the other man, " You all need to get off my property." [Petitioner] appeared scared and was shaking. No other words were exchanged. The men advanced a couple of steps. As they did this, [petitioner] lifted the gun and fired once. The men took off running. David did not think anyone had been hit. [Petitioner] " racked" the shotgun, ran to the street and looked around the corner to make sure nobody else was there. David was glad [petitioner] was there. He felt [petitioner] protected him.
David did not see [petitioner] with a baseball bat or weapon other than the shotgun. [Petitioner] never called the police.

4. Detective Jeffrey Knittel

Detective Jeffrey Knittel of the Los Angeles County Sheriff's Department responded to the location of a reported shooting and took over as the investigating officer. When he arrived, numerous patrol cars were in the area and other officers were conducting witness interviews. Richard had already been transported to the hospital. Detective Knittel saw [petitioner] in the back of one of the patrol cars.
Detective Knittel and Detective Owen asked [petitioner] if he would speak to them. Detective Owen informed [petitioner] of his Miranda[3] rights, and [petitioner] waived them. He agreed to speak with the detectives if he could have his grandmother present. The detectives called his grandmother over and she stood next to him. [Petitioner] denied he had a shotgun and denied shooting Richard. The interview was taped.
Approximately 45 minutes later, Deputy Welle conducted a second interview, which Detective Knittel listened to on audiotape. During the interview, [petitioner] admitted he had shot the gun. He stated that after the shooting, he gave the gun to his sister, Myisha, who took it to the house across the street. [Petitioner] directed the detective to the house where they recovered a loaded Ithaca Model 37 shotgun. The shotgun is a field grade gun commonly used for hunting birds. Deputy Welle subsequently searched [petitioner's] house and recovered shotgun ammunition from [petitioner's] backpack.
According to Detective Knittel, the shells in the shotgun could kill human beings at a range of 15 to 20 feet. The shotgun fires multiple pellets instead of a single bullet. The pellets spread continually until they run out of energy and fall to the ground. Detective Knittel opined that the pellets traveled in a manner consistent with a gun being fired from the doorway of [petitioner's] house.
Detective Knittel interviewed Richard at a later time. Richard told him that he had a heated exchange with [petitioner] and that he believed there was going to be a fight when he and Robert went to [petitioner's] home.

B. Defense Evidence

1. Rod G.

On May 2, 2008, Rod G. was with David at [petitioner's] house. He observed Richard complaining about a dog that had run into the street. He heard Richard cursing and angrily telling [petitioner] to get the dog. Richard's daughter was on a tricycle next to him.
When [petitioner] came out of his house, Rod heard him tell Richard to keep walking. Richard responded, but Rod could not hear the words. Richard then picked up the tricycle and swung it at [petitioner]. Richard's phone dropped to the ground. [Petitioner] picked it up and threw it. The little girl stood next to Richard, crying.
Richard walked away and returned with Robert. When they reached the middle of [petitioner's] driveway, [petitioner] told them to stop. One of the men said, " Come here." Rod was scared. He believed the two men were going to try to enter [petitioner's] house. He did not see anything in either man's hands but believed one of them could be hiding a weapon.
[Petitioner] went to the door with a gun and told the men to get off his property. The men did not move. [Petitioner] then fired the gun one time. In Rod's opinion, [petitioner] was being protective. All the young people in [petitioner's] house were scared.

2. D.R .

On May 2, 2008, D.R. was at [petitioner's] house[4] with her brothers, Donwan and [petitioner], and her friends David and Rod. She went outside and saw Richard approaching the house. He started cursing and yelling to get the dog. He threatened to kill the dog if someone did not restrain it.
When D.R. called him, [petitioner] came outside and asked Richard what was wrong. Richard continued to curse and tell him to get the dog. [Petitioner] responded that it was not their dog. He then told Richard to go home. By that time, the dog was on the neighbor's lawn and was no longer barking.
The little girl next to Richard began to cry. Richard picked up the girl's tricycle and swung it at [petitioner]. His cell phone dropped to the ground. [Petitioner] picked up the phone and threw it in the street. Richard started to walk away. As he left, he stated that he would return with more people. He said that he was going to beat them all.
Approximately five minutes later, D.R.'s sister told her to go into the house because there were a bunch of people coming down the street. As she went inside, she could see two men running toward the front door. She heard one of them say they were going to injure the people inside.
[Petitioner] told the men to get off the property. At some point, [petitioner] grabbed the shotgun and had it at his side. The men kept coming towards the door. They were trying to fight and to come into the house. D.R. heard a gunshot. [Petitioner] turned around and closed the door. D.R. never saw a gun in either man's hands. One of the men had his hand in his shirt.

3. Detective Steve Owen

On May 2, 2008, Detective Steve Owen of the Los Angeles County Sheriff's Department responded to the reported shooting location. He spoke with Robert and wrote up an incident report. Robert told the detective that he witnessed a man kick or shove his niece into the street. He stated he ran down the street, grabbed his niece and took her home. Then he and Richard walked back to [petitioner's] house. Robert heard someone yell, " Get the shotgun."
Robert stated that when Richard saw [petitioner] holding the gun, Richard grabbed [petitioner] and the two men began to wrestle over the shotgun. As they wrestled, Richard slipped away from [petitioner]. [Petitioner] then shot Richard in the neck. Robert told the detective that [petitioner] destroyed Richard's phone, but never mentioned anything about Richard trying to retrieve the cell phone SIM card.
On cross-examination rebuttal, Detective Owen estimated that his interview with Robert was about 10 to 15 minutes, and he had a difficult time trying to get Robert to remain there for an interview. Robert did not want to be there; he wanted to be with his brother at the hospital.
Detective Owen testified that he interviewed [petitioner] at the shooting location. [Petitioner] told the detective that he panicked, hid the gun, washed his hands, changed his clothes and put cocoa butter on his hands so that law enforcement could not detect any gunpowder on his hands. When Detective Owen retrieved the gun, it was loaded, with one round in the chamber and one in the barrel. [Petitioner] told the detective that he was scared and what he had done was dumb.
Detective Owen testified that he also interviewed David and Rod. David said that [petitioner] got mad, kicked the little girl and knocked her out on the street. Rod said that [petitioner] retrieved the gun from the couch just inside the door. He added that he never saw Richard or Robert with any weapons.

4. [Petitioner]

[Petitioner] testified that, at the time of the incident on May 2, 2008, he was 18 years old, approximately five feet, seven inches tall, and weighed 140 to 150 pounds. He was attending college.
He was at home watching television with his girlfriend. His sister, Lakisha, told him that there was a man outside yelling at her, complaining about a dog. [Petitioner] went outside. He saw Richard standing in the street, yelling and cursing, telling him to get the dog. He told Richard that the dog did not belong to him and it was not even barking, so he could keep on walking.
Richard said, " So I can keep walking?" and repeated it over and over. He picked up his daughter and then her tricycle. He started coming toward [petitioner] with the tricycle and swung it at him. When Richard swung the tricycle, his wallet and cell phone fell to the ground. [Petitioner] picked up the phone and threw it on the ground across the street. [Petitioner] threw the phone because he was mad that Richard had tried to hit him with the tricycle. [Petitioner] denied that he pushed or kicked Richard's daughter.
Richard picked up his wallet and walked away with his daughter. Before he walked down the street, Richard told [petitioner] that he was going to come back and injure him.
Soon thereafter, [petitioner] saw the Alvarez brothers running up the street toward him. Richard had a shirt on, and Robert had no shirt on and had tattoos. [Petitioner] felt afraid because it looked like the man had gang tattoos. [Petitioner] got the other people who had been in the house to go back into the house. The Alvarez brothers were right behind [petitioner]. He was afraid they were going to harm him and his family because one of them had threatened him.
[Petitioner] grabbed the shotgun from under the couch. [Petitioner] was standing just inside the door of his house. He turned around holding the shotgun and told the Alvarez brothers to get off his property. They were standing on the walkway leading to the door. [Petitioner] never saw either of the men with a weapon, but he was afraid they might have one.
Richard looked at the gun and said, " So what?" as he was running toward [petitioner]. To protect himself, [petitioner] raised the gun and fired it. He did not see what happened. The Alvarez brothers ran away. [Petitioner] did not know someone was actually shot until officers later told him. After [petitioner] fired the shot, he called his sister, Myisha, and told her to call the police.
When [petitioner] shot the gun, he was not intending to kill Richard. [Petitioner] testified he had just been planning to show it so the men would get scared and not come into his house. He never wrestled with either of the men.

(Petition, Attached Pages at 11-20 (footnotes in original, renumbered)).



1. Trial counsel provided ineffective assistance by failing to object to the " improper use" of aggravating factors used to sentence petitioner to the upper term of the gun enhancement. (Petition at 5).

2. The trial court relied on improper aggravating factors to sentence petitioner to the upper term of the gun enhancement. (Petition at 5).

3. The trial court excluded evidence in violation of petitioner's right to present a defense. (Petition at 6).

4. There was insufficient evidence to convict petitioner of attempted voluntary manslaughter. (Petition at 6).



The Petition was filed after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (" the AEDPA"). Pub. L. No. 104-132, 110 Stat. 1214 (1996). Therefore, the Court applies the AEDPA in its review of this action. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

Under the AEDPA, a federal court may not grant a 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). As explained by the Supreme Court, section 2254(d)(1) " places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In Williams, the Court held that:

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 this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the " unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams, 529 U.S. at 412-13; see Weighall v. Middle, 215 F.3d 1058, 1061-62 (9th Cir. 2000) (discussing Williams). A federal court making the " unreasonable application" inquiry asks " whether the state court's application of clearly established federal law was objectively unreasonable." Williams, 529 U.S. at 409; Weighall, 215 F.3d at 1062. The Williams Court explained that " 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. Rather, that application must also be unreasonable." Williams, 529 U.S. at 411; accord: Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Section 2254(d)(1) imposes a " highly deferential standard for evaluating state-court rulings, " Lindh, 521 U.S. at 333 n.7, that " demands that state court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam). A federal court may not " substitut[e] its own judgment for that of the state court, in contravention of 28 U.S.C. § 2254(d)." Id. at 25; Early v. Packer, 537 U.S. 3, 11, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam) (holding that habeas relief is not proper where state court decision was only " merely erroneous").

The only definitive source of clearly established federal law under the AEDPA is 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. While circuit law may be " persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court law (Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999)), only the Supreme Court's holdings are binding on the state courts and only those holdings need be reasonably applied. Williams, 529 U.S. at 412; Moses v. Payne, 555 F.3d 742, 759 (9th Cir. 2009). Furthermore, under 28 U.S.C. § 2254(e)(1), factual determinations by a state court " shall be presumed to be correct" unless the petitioner rebuts the presumption " by clear and convincing evidence."

A federal habeas court conducting an analysis under § 2254(d) " must determine what arguments or theories supported, or, [in the case of an unexplained denial on the merits], 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 [the Supreme Court]." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (" A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision."). In other words, to obtain habeas relief 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." Id. at 786-87.

The United States Supreme Court has held that " [w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). Here, the California Supreme Court summarily denied Grounds Two through Four on direct review and Ground One in petitioner's state habeas corpus petition. (See January 2, 2013, Lodgment Nos. 4, 5, 8, 9). The California Court of Appeal rejected Grounds Two through Four in a reasoned opinion on direct review, and the Los Angeles County Superior Court considered Ground One in a reasoned opinion rejecting petitioner's state habeas corpus petition. (See July 10, 2013, Lodgment Nos. 3-5; Petition, Attached Pages at 10-27, 29). Accordingly, this Court reviews the California Court of Appeal's reasoned opinion rejecting Grounds Two through Four and the Los Angeles County Superior Court's opinion rejecting Ground One under the AEDPA standards. See Ylst, 501 U.S. at 803; Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000) (district court " look[s] through" unexplained California Supreme Court decision to the last reasoned decision as the basis for the state court's judgment); see also Cannedy v. Adams, 706 F.3d 1148, 1159 (9th Cir. 2013) (continuing the " practice of 'looking through' summary denials to the last reasoned decision -- whether those denials are on the merits or denials of discretionary review"), amended by 733 F.3d 794, cert. denied, __ U.S. __, 134 S.Ct. 1001, 187 L.Ed.2d 863 (2013).




In Grounds One and Two, petitioner claims that the trial court erred in sentencing petitioner to the upper term on the gun enhancement by relying on improper aggravating factors without considering the circumstances in mitigation, and that counsel's failure to object at sentencing, on these grounds, constituted ineffective assistance. (Petition at 5; Traverse at 3-6).

Here, petitioner was sentenced to 16 years in state prison, which consisted of three years for attempted voluntary manslaughter (the middle term), plus 10 years for the firearm enhancement (the upper term), and three years for the great bodily injury enhancement. (CT 147-50). Prior to sentencing, the court read and considered the parties' sentencing memoranda, which listed the circumstances in aggravation and mitigation, as well as the probation report. (See CT 120-24, 126-32, 149). At the time of sentencing, the court noted the mitigating factors of petitioner's youth and that the victims sought out petitioner at his home, but also found aggravating factors that the crime exhibited sophistication and that petitioner showed a lack of candor to the police and to the jury and a lack of remorse for the victims. (CT 149; RT 3305-06, 3309). In addition, the court noted that it was imposing the upper term on the gun enhancement in part because it was sentencing petitioner to a concurrent -- rather than a consecutive -- term on the assault on the second victim. (RT 3309).

The California Court of Appeal denied petitioner's claim of sentencing error, in part, because petitioner failed to object to the " imposition of the upper term for the gun enhancement or the factors used in deciding to impose the upper term sentence." (Petition, Attached Pages at 26). The failure to comply with a state's contemporaneous objection rule results in a procedural default that bars federal consideration of the claim, unless petitioner can demonstrate both " cause" for his failure to raise the objection in the trial court and actual " prejudice" accruing from the error.[5] See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Garrison v. McCarthy, 653 F.2d 374, 377 (9th Cir. 1981) (absent a showing of cause and prejudice, a petitioner is barred from raising a claim on federal habeas review where he failed to meet the state's contemporaneous objection rule). In order to demonstrate " cause" for a procedural default, 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, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

Here, petitioner has not attempted to show " cause" or " prejudice." (See Traverse at 5-6). Nor does he suggest that California's contemporaneous objection rule is unclear, inconsistently applied, or not well-established, either as a general matter or as applied to him. See Melendez v. Pliler, 288 F.3d 1120, 1124 (9th Cir. 2002). Accordingly, it appears that petitioner has procedurally defaulted on this claim.

Regardless of any procedural default, however, this claim does not warrant federal habeas relief. In denying relief, the state appellate court also found that in selecting the upper term the trial court considered the mitigating factors and did not rely on any improper aggravating factor:

In the sentencing hearing, the trial court identified [petitioner's] youth and the absence of an adult criminal record as mitigating factors. In mitigation, the court also noted that the victims had a part in initiating the situation by seeking [petitioner] out at his home, and the victims were not particularly vulnerable in comparison to other victims. Among aggravating factors the court identified were [petitioner's] deliberate decision to escalate the violence by smashing the cell phone, [petitioner's] sophistication and lack of candor in the investigation and court proceedings, [petitioner's] lack of remorse, together with the associated potential for violence in neighborhood disputes, such as the dispute over a dog in this case.

(Petition, Attached Pages at 26).

As a threshold matter, petitioner's claim that the trial court violated state sentencing law is not cognizable, as it is well established that federal habeas review is available only for violations of the United States Constitution or other federal law, and not for state law sentencing errors. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (" [I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."); see also Souch v. Schaivo, 289 F.3d 616, 622-23 (9th Cir. 2002) (state prisoner's challenge to trial court's exercise of discretion under state sentencing law fails to state federal habeas claim); Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) (holding that sentencing error claim under California Penal Code § 654 is not cognizable on federal habeas review); Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989) (court need not address petitioner's claim that the trial court improperly applied " state sentencing law" on federal habeas review).

In any event, the record does not support the sentencing error of which petitioner complains. Rather, the record is abundantly clear that the trial court considered both the aggravating and mitigating circumstances prior to selecting the upper term for the gun enhancement. (See RT 3305-06, 3309). Furthermore, there was nothing improper in the trial court's finding that petitioner's actions in escalating the violence along with his sophistication and lack of candor and remorse, as well as his potential for violence, justified the imposition of the upper term. See, e.g., People v. Thomas, 219 Cal.App.3d 134, 148-49, 267 Cal.Rptr. 908 (Cal.App. 4 Dist. 1990) (finding defendant's conduct indicated a " serious danger to society" and it " alone support[ed] the upper term"); People v. Holguin, 213 Cal.App.3d 1308, 1319, 262 Cal.Rptr. 331 (Cal.App. 2 Dist. 1989) (finding defendant's " lack of remorse another aggravating factor warranting imposition of the upper term"). For all these reasons, the state court's rejection of this claim was reasonable and petitioner is not entitled to habeas relief.[6] 28 U.S.C. § 2254(d).

Petitioner also claims that trial counsel was ineffective at sentencing because he failed to object to the " improper use of aggravating factors" the trial court used in sentencing petitioner to the upper term on the gun enhancement. (Petition at 5; Traverse at 4). The Los Angeles County Superior Court denied the claim, finding that petitioner failed to show a prima facie case for relief. (Petition, Attached Pages at 29). The superior court stated that petitioner's attorney made a " strong argument for the lower term by highlighting certain mitigating factors. However, the court weighed the aggravating and mitigating factors and found the aggravating factors outweighed the mitigating factors and thus imposed the high term." (Petition, Attached Pages at 29).

Petitioner's ineffective assistance of trial counsel claim is governed by a two-step analysis under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, petitioner must prove that his attorney's representation fell below an objective standard of reasonableness. Id. at 687-88. In order to establish this, petitioner must identify the acts or omissions that rendered the representation objectively unreasonable. Id. at 690. Second, petitioner must show that he was prejudiced by counsel's deficient performance. Id. at 692. Petitioner bears the burden of establishing both components. Id. at 687. Failure to satisfy either prong requires that an ineffective assistance claim be denied. Id. at 697 (no need to address deficiency of performance if prejudice is examined first and found lacking); 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.").

Courts generally maintain a " 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Rios, 299 F.3d at 805 (citing Strickland, 466 U.S. at 689). Indeed, the Supreme Court dictates that " [j]udicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689 . In order to show that his counsel performed objectively unreasonably, petitioner must overcome the strong presumption that the challenged action might be considered sound trial strategy under the circumstances. Id. The Court does not consider whether another lawyer with the benefit of hindsight would have acted differently than petitioner's trial counsel. Id. Instead, the Court looks only to whether trial counsel made errors so serious that counsel failed to function as guaranteed by the Sixth Amendment. Id. at 687.

Petitioner also must prove that he was prejudiced by demonstrating a reasonable probability that, but for his counsel's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. " A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. To satisfy this requirement, petitioner must demonstrate that his counsel's error rendered the result unreliable or the trial fundamentally unfair. Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); Strickland, 466 U.S. at 694.

Here, petitioner cannot succeed on either prong under Strickland. The record supports the state court's finding that counsel made a strong argument at sentencing to minimize the term imposed by the court. (See CT 126-32; RT 3302-03). Despite petitioner's argument that counsel's failure to object caused a " waiver" of any improper sentencing claim on appeal, petitioner has not demonstrated that there was any improper conduct by the trial court at sentencing to which counsel could have successfully objected. The failure to make a futile objection does not constitute ineffective assistance of counsel. See James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994); Morrison v. Estelle, 981 F.2d 425, 429 (9th Cir. 1992). Accordingly, the state court's denial of this claim was not contrary to, or an unreasonable application of, Supreme Court precedent. See 28 U.S.C. § 2254(d).


In Ground Three, petitioner claims that the trial court excluded evidence in violation of his right to present a defense. (Petition at 6). He argues that the trial court abused its discretion by not allowing him to present evidence that the victims, Richard and Robert Alvarez, were members of the same gang to show bias in their testimony at trial. (Traverse at 6).

A. The California Court of Appeal's Opinion

In denying petitioner's claim, the California Court of Appeal concluded that the trial court properly excluded any evidence that the brothers belonged to the same gang because the evidence was more prejudicial than probative of the issues at trial:

In the instant case, the trial court carefully considered the defense's request to admit gang membership evidence on multiple occasions during the trial. Each time, the court articulated a reasonable basis for its exclusion pursuant to [California] Evidence Code section 352 as being more prejudicial than probative. For example, the trial court explained that the fact Richard and Robert were brothers was already evidence of the possibility of bias in their testimony. Such evidence of bias was far less inflammatory than gang membership as evidence of bias. There were no gang-related allegations in the case for the jury to decide. The possibility of confusing the jury with gang membership evidence outweighed its probative value of bias.
We agree with the trial court that addressing the possible gang membership of the brothers before the jury for the limited purpose of showing the brothers' bias could not only be unduly inflammatory, but also cause confusion among the jurors about the evidence in the case unrelated to bias. (People v. Garceau, supra, 6 Cal.4th at p. 178.) Accordingly, we conclude that the trial court did not abuse its discretion and affirm its exclusion of the gang evidence. (People v. Smithey ( 1999) 20 Cal.4th 936, 973; People v. Rodriguez ( 1999) 20 Cal.4th 1, 9-10.)

(Petition, Attached Pages at 25).

B. Federal Law and

The Sixth Amendment gives a defendant the right to a " fair opportunity to defend against the State's accusations." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In that regard, the Confrontation Clause guarantees the right of an accused in a criminal prosecution to confront and cross-examine the witnesses against him. See Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). In general, this right allows the defendant " to test the witness' perceptions and memory" and " to impeach, i.e., discredit, the witness." Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). The Confrontation Clause, however, only " guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (emphasis in original). A criminal defendant " does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988); see also LaGrand v. Stewart, 133 F.3d 1253, 1266 (9th Cir. 1988) (holding that there is no requirement " that a defendant must be allowed to put on any evidence he chooses"). Moreover, the Constitution gives " wide latitude" to state court judges who must make evidentiary decisions to exclude evidence that is repetitive, only marginally relevant, or that poses an undue risk of prejudice or issue confusion. See Crane v. Kentucky, 476 U.S. 683, 689-90, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986); see also United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) (" A defendant's right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions.").

Here, on three separate occasions the trial court considered counsel's request to cross-examine the victims on their mutual gang membership and, in each instance, the court concluded that the prejudicial effect of the gang evidence would be more prejudicial than probative as to any bias in the victims' testimony. (See RT 607-08, 1203-04, 2207-10). To the extent petitioner asserts that the trial court " abused its discretion" in its weighing process under California Evidence Code § 352[7] (see Traverse at 6), his claim is not cognizable because federal habeas relief is not available for state law errors. See Wilson v. Corcoran, 562 U.S. 1, 131 S.Ct. 13, 16, 178 L.Ed.2d 276 (2010); Estelle, 502 U.S. at 67-68; see also Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir. 1998) (" We have no authority to review alleged violations of a state's evidentiary rules in a federal habeas proceeding."); Williams v. Borg, 139 F.3d 737, 740 (9th Cir. 1998) (holding federal habeas relief is available " only for constitutional violation, not for abuse of discretion"); Green v. Busby, 886 F.Supp.2d 1150, 1159 (C.D. Cal. Jul. 27, 2012) (" [P]etitioner's contention that the trial court erred in failing to conduct a proper balancing analysis under California Evidence Code § 352 is not cognizable on federal habeas corpus review.").

Furthermore, the trial court's limitation on petitioner's cross-examination of the victims was not an unreasonable application of clearly established federal law as determined by the United States Supreme Court. Petitioner was entitled to an opportunity to cross-examine the victims in an " effective" manner, not in " whatever way, and to whatever extent" petitioner wished. See Fensterer, 474 U.S. at 20. Here, the trial court allowed petitioner to challenge the credibility of the victims' testimony by cross-examining Richard and Robert on their prior felony convictions, previous false statements to police, and time spent in prison, as well as the brothers' familial relationship, to argue that they lied at trial. (See RT 683-84, 1256, 1259-60, 2498-99). There was no evidence at trial, however, that the fight was gang-related or that the two brothers were acting jointly on behalf of their gang. Where, as here, the exclusion of evidence was only marginally relevant and the jury was given sufficient information to appraise the bias and motive of the victim, there is no violation of petitioner's right to present a defense. See, e.g., Hayes v. Ayers, 632 F.3d 500, 518 (9th Cir. 2011) (finding limitation on cross-examination did not violate defendant's constitutional rights because the jury had " ample opportunity to appraise [the witness's] biases and motivations"); Evans v. Lewis, 855 F.2d 631, 633-34 (9th Cir. 1988) (finding limitations on cross-examination were proper so long as jurors could evaluate " the biases and motivations" as well as the " general credibility" of the witness) (internal quotations and citations omitted).

Moreover, the Supreme Court has never " squarely addressed" whether a trial court's discretionary exclusion of evidence violates a criminal defendant's constitutional right to present a defense. See Moses, 555 F.3d at 758-59. In the absence of Supreme Court precedent, petitioner is not entitled to habeas corpus relief on this claim because the California Court of Appeal's decision upholding the trial court's exercise of its discretion cannot be contrary to, or an unreasonable application of, clearly established federal law. Id. at 760; see also Brown v. Horell, 644 F.3d 969, 983 (9th Cir. 2011) (noting that the Supreme Court has not decided any case squarely addressing the discretionary exclusion of evidence).

Petitioner also argues that the trial court " exclud[ed] evidence of a videotape of the incident in the street." (Traverse at 6). The record, however, rebuts this assertion. After defense counsel's closing argument had been made, the prosecutor notified the trial court that one of petitioner's next-door neighbors telephoned him to let him know that he had a videotape of the incidents that took place in the street. (RT 2518). According to the prosecutor, the video showed petitioner " had earlier run after the victim and [said] he was marked and that the victims had come asking for the SIM card and then running back when one of them was shot." (RT 2518). The prosecutor described the video as " largely all inculpatory material, " but told the court that it was not planning to call the neighbor as a rebuttal witness or attempt to introduce the video. (RT 2519). Defense counsel agreed that the witness was not needed and the prosecutor commenced with his rebuttal argument to the jury. (RT 2519-20). Thus, there is no evidence that the trial court excluded the evidence as petitioner suggests. Moreover, even if it had, there is no reasonable possibility that excluding the video prejudiced the outcome of petitioner's case. If the exclusion of certain evidence violates a petitioner's right to present a defense, habeas corpus relief can only be granted if the constitutional error was not harmless, that is, error that resulted in actual prejudice, or had a substantial and injurious effect or influence in determining the jury's verdict. See Fry v. Pliler, 551 U.S. 112, 121-22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007); Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); DePetris v. Kuykendall, 239 F.3d 1057, 1063 (9th Cir. 2001). The prosecutor's description and characterization of the videotape as " inculpatory" has not been challenged by petitioner. He has presented no evidence demonstrating how the videotape would have aided his defense. Accordingly, any error in excluding the videotape was harmless.[8] See, e.g., Pacheco v. Chavez, 2013 WL 6799036, at *6 (E.D. Cal. Dec. 20, 2013) (" The court assumes without deciding that the exclusion of the gang evidence violated petitioner's Sixth Amendment right to present a defense, but finds this error was harmless"). For all these reasons, the state court's rejection of this claim was reasonable and petitioner is not entitled to habeas relief. 28 U.S.C. § 2254(d).


In Ground Four, Petitioner argues that there was insufficient evidence at trial to convict him of attempted voluntary manslaughter. (Petition at 6). He contends that the evidence established that he shot the gun in self-defense and acted without an intent to kill. (Petition at 6; Traverse at 7-8).

A. The California Court of Appeal's Opinion

In denying petitioner's claim, the California Court of Appeal found that there was sufficient evidence for the jury to conclude that petitioner did not act in reasonable self-defense when he fired at the Alvarez brothers:

n As to [petitioner's] claim of self-defense, a defendant who commits an " unlawful killing of a human being without malice" is guilty of manslaughter. ([California Penal Code] § 192.) The defendant " lacks malice only in limited, explicitly defined circumstances: either when the defendant acts in a 'sudden quarrel or heat of passion' (§ 192, subd. (a)), or when the defendant kills in 'unreasonable self-defense' -- the unreasonable but good faith belief in having to act in self-defense [citations]." (People v. Barton ( 1995) 12 Cal.4th 186, 199.) " The sole difference between true self-defense[, an actual defense, ] and 'unreasonable self-defense' is that the former applies only when the defendant acts in response to circumstances that cause the defendant to fear, and would lead a reasonable person to fear, the imminent infliction of death or great bodily injury (§ § 197, 198); unreasonable self-defense, on the other hand, does not require the defendant's fear to be reasonable. [Citation.]" (Barton, supra, at pp. 199-200, italics omitted.) The crime of attempted voluntary manslaughter, like attempted murder, requires a specific intent to kill a human being. (People v. Montes ( 2003) 112 Cal.App.4th 1543, 1549-1550; see also § 21a.)
[Petitioner] argues that he acted in reasonable self-defense, in that he had a reasonable fear that the Alvarez brothers had come back to his house so quickly in order to inflict death or great bodily injury on him. As the People assert, however, there was ample evidence from which a rational jury could have found that [petitioner's] belief in the need to use deadly force was unreasonable. After [petitioner] refused to curb the dogs and destroyed Richard's cell phone, the only evidence that could possibly be interpreted as a threat of harm to [petitioner] was defense witnesses' testimony that Richard swung his daughter's tricycle in [petitioner's] direction. There is no testimony that either Richard or Robert was yelling threats of imminent death or great bodily harm as they approached [petitioner's] house. [Petitioner] testified that he did not see either of the men with a weapon. Their clothing -- Richard's pocketless board shorts and Robert's bare torso -- was not conducive to hiding weapons. The men walked (rather than making a more aggressive approach by, for example, running or lunging) toward [petitioner's] house and as they approached the door. Yet, [petitioner] leveled a shotgun at them and pulled the trigger. We conclude that substantial evidence supports a finding that the circumstances would not cause a reasonable person to fear the imminent infliction of death or great bodily injury and, therefore, that any such fear that [petitioner] may have had was unreasonable. (People v. Barton, supra, 12 Cal.4th at pp. 199-200.) Consequently, substantial evidence supports a finding that [petitioner] acted in unreasonable self-defense. (Ibid.)

(Petition, Attached Pages at 21-22).

The state appellate court also found the evidence sufficient to prove that petitioner had the specific intent to kill Richard Alvarez when he shot him:

Here, [petitioner] fired a shotgun, a gun that would propel metal shot with fatal force over a relatively wide area, toward Richard. ( See People v. Arias, supra, 13 Cal.4th at p. 162.) Although [petitioner] testified that he did not intentionally aim the gun at Richard, he also confirmed that he was holding the gun, already " racked" and ready to fire, in Richard's direction, rather than pointing it at the ground or upward into the air. ( See People v. Smith, supra, 37 Cal.4th at p. 742; People v. Lashley, supra, 1 Cal.App.4th at p. 946.) Without warning, [petitioner] intentionally fired the shotgun toward Richard, who was unarmed and within lethal range from [petitioner].[9] We conclude that substantial evidence supports a determination that [petitioner] had the intent to kill required for conviction of attempted voluntary manslaughter. (People v. Avila, supra, 46 Cal.4th at pp. 701-702.)

(Petition, Attached Pages at 24 (footnote in original, renumbered)).

B. Federal Law and Analysis

In a federal habeas proceeding, a petitioner challenging the sufficiency of the evidence may obtain relief only if " it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). " [T]he relevant question 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." Id. at 319 (emphasis in original); see also Schell v. Witek, 218 F.3d 1017, 1023 (9th Cir. 2000). A reviewing court's " reversal for insufficiency of the evidence is in effect a determination that the government's case against the defendant was so lacking that the trial court should have entered a judgment of acquittal." McDaniel v. Brown, 558 U.S. 120, 131, 130 S.Ct.665, 175 L.Ed.2d 582 (2010) (quoting Lockhart v. Nelson, 488 U.S. 33, 39, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988)) (internal quotations omitted).

" [I]t is the responsibility of the jury -- not the court -- to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury." Cavazos v. Smith, __ U.S. __, 132 S.Ct. 2, 4, 181 L.Ed.2d 311 (2011) (per curiam). Accordingly, the reviewing court " must respect the province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts by assuming that the jury resolved all conflicts in a manner that supports the verdict." Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). If the record supports conflicting inferences, the 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 must defer to that resolution." Jackson, 443 U.S. at 326.

Federal courts must look to state law to determine what evidence is sufficient. Jackson, 443 U.S. at 324 n.16. Moreover, a reviewing habeas court applies " an additional layer of deference" under AEDPA: habeas relief is not warranted unless " the state court's application of the Jackson standard [was] 'objectively unreasonable.'" Juan H. v. Allen, 408 F.3d 1262, 1274, 1275 n.13 (9th Cir. 2005) (as amended) (citation omitted); see also Cavazos, 132 S.Ct. at 4 (" [A] federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was 'objectively unreasonable.'") (citation omitted).

The California Court of Appeal's rejection of petitioner's claim that there was insufficient evidence to support the attempted voluntary manslaughter conviction was not objectively unreasonable. Here, the jury was free to disbelieve petitioner's claim that he shot at the Alvarez brothers while acting in fear that the brothers were going to kill him or inflict great bodily injury when they returned to petitioner's home. See United States v. Cordova Barajas, 360 F.3d 1037, 1041 (9th Cir. 2004) (holding that " the jury was free to disbelieve [the defendant] and infer the opposite of his testimony to support its verdict"). As noted by the state appellate court, petitioner admitted he never saw either victim with a weapon and escalated the confrontation by smashing Richard's cell phone. Thus, the jury could rightfully have rejected petitioner's testimony of being in fear as untrue. See Kansas v. Ventris, 556 U.S. 586, 594 n.*, 129 S.Ct. 1841, 173 L.Ed.2d 801 (2009) (" Our legal system, however, is built on the premise that it is the province of the jury to weigh the credibility of competing witnesses . . . ."); see also United States v. Croft, 124 F.3d 1109, 1125 (9th Cir. 1997) (rejecting sufficiency of evidence challenge and recognizing that reviewing courts " are powerless to question a jury's assessment of witnesses' credibility"). Moreover, there was substantial evidence from which the jury could conclude that any fear of great bodily injury or death by petitioner was unreasonable. Not only did petitioner admit he saw no weapons, but the brothers were dressed in a way that made it unlikely that they could be carrying weapons. Nor was there evidence of threats from the brothers toward petitioner that might have reasonably caused petitioner to fear for his well-being and necessitate firing his gun at the two unarmed men. Under these circumstances, there was sufficient evidence for the jury to conclude that petitioner acted in unreasonable self-defense.

Petitioner's claim that there was a lack of evidence to support the jury's finding that he shot with the specific intent to kill is equally unavailing. Here, there was evidence that petitioner went and got a shotgun after the initial verbal confrontation with Richard Alvarez, " racked" the gun when the Alvarez brothers approached his house, pointed the gun at Richard's face while standing at his front door, and shot at them, without warning, from only 15 to 20 feet away. (RT 641-46, 681-82, 920-25, 1223-28). Under California law, this evidence was certainly sufficient to support the jury's conclusion that petitioner acted with the specific intent to kill. See People v. Houston, 54 Cal.4th 1186, 1218, 144 Cal.Rptr.3d 716, 281 P.3d 799 (2012) (" The act of shooting a firearm toward a victim at close range in a manner that could have inflicted a mortal wound had the shot been on target is sufficient to support an inference of an intent to kill."); People v. Mayfield, 14 Cal.4th 668, 768, 60 Cal.Rptr.2d 1, 928 P.2d 485 (1997) (Shooting at the victim's face " is consistent with a preexisting intent to kill.").

Because the California Court of Appeal's rejection of this claim was not contrary to, or an unreasonable application of, Supreme Court precedent, habeas relief for Ground Four is denied. 28 U.S.C. § 2254(d).



It is recommended that the District Court issue an Order: (1) accepting this Report and Recommendation; and (2) directing that judgment be entered denying the Petition and dismissing this action with prejudice.

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