United States District Court, C.D. California
February 13, 2015
FAUSTINO RODRIGUEZ VILLA, Petitioner,
AMY MILLER, Warden, Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable George H. Wu, 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.
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on April 17, 2014. Respondent filed an Answer on August 1, 2014. Petitioner did not file a Reply within the allotted time.
A jury found Petitioner guilty of; (1) possession of methamphetamine for sale in violation of California Health and Safety Code section 11378 (Count 1); (2) transportation of methamphetamine in violation of California Health and Safety Code section 11379(a) (Count 2); (3) possession of methamphetamine in violation of California Health and Safety Code section 11377(a) (Count 3); and (4) being an active participant in a criminal street gang in violation of California Penal Code section 186.22(a) (Count 4) (Reporter's Transcript ["R.T."] 363-64; Clerk's Transcript ["C.T."] 323-24, 333-36). The jury found true the allegations that Petitioner committed the offenses alleged in Counts 1 and 2 for the benefit of a criminal street gang within the meaning of California Penal Code section 186.22(b) (R.T. 363-64; C.T. 323-24, 333-36). Petitioner admitted that he had suffered two prior convictions qualifying as strikes within the meaning of California's Three Strikes law, California Penal Code sections 667(b) - (i) and 1170.12(a) - (d),  and two prior convictions for which he had served prison terms within the meaning of California Penal Code section 667.5(b) (R.T. 359-61; C.T. 323). Petitioner received a total sentence of 54 years to life (R.T. 383-85; C.T. 390-91).
The Court of Appeal reversed Petitioner's conviction for simple possession and stayed sentence on the gang participation conviction, but otherwise affirmed the judgment (Respondent's Lodgment 6; see People v. Villa 2012 WL 5359171 (Cal.App. Oct. 31, 2012)). The California Supreme Court denied Petitioner's petition for review and petition for writ of habeas corpus "without prejudice to defendant's right to seek whatever relief he might be entitled to under Penal Code section 1170.126 [effective Nov. 7, 2012]" (Respondent's Lodgment 8) (brackets in original). The California Supreme Court denied Petitioner's subsequent habeas corpus petition summarily (Respondent's Lodgment 9).
SUMMARY OF TRIAL EVIDENCE
The following summary is taken from the opinion of the California Court of Appeal in People v. Villa 2012 WL 5359171 (Cal.App. Oct. 31, 2012). 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).
On the evening of December 7, 2006, officers of the Riverside Police Department were undertaking a surveillance of defendant's house in Corona. The officers had received a tip that someone in the home was selling methamphetamine.
About 7:30 p.m., defendant arrived, driving a silver car. The stakeout team moved in immediately; about five or six officers dressed in raid jackets burst from the surveillance van and approached defendant. Defendant saw the officers and sprinted toward his front door. The officers, shouting that they were the police, pursued him. Defendant reached the front door, pushed it open slightly, and tossed something inside. Some of the officers heard a metallic clank, as if a metal object struck the floor.
Defendant surrendered and the officers handcuffed him. One of the officers found a small mints tin on the floor behind the front door. Family members emerged from bedrooms and came into the front room. One of the occupants of the house claimed that the tin belonged to him or her.
The tin contained two small baggies of methamphetamine - 3 grams in one, and 0.8 grams in the other - as well as 13 empty baggies. The laboratory did not fingerprint the tin.
The officers searched defendant and found a digital scale in his front pocket. There was some crystalline residue on the scale. Defendant was also carrying $630 in currency in his wallet and a cellular telephone. A search of the residence turned up more digital scales in defendant's bedroom, another empty mints tin, and a "hide-a-can."
While the officers were conducting their investigation, two of defendant's associates, Rodolfo Pena and Blas Gutierrez, arrived at the house. Pena was driving and Gutierrez was in the front passenger seat of the newly-arrived car. The officers had Gutierrez get out of the car and they handcuffed him. Gutierrez denied having a gun, but admitted that he did have some methamphetamine in his pocket. Gutierrez had a baggie of six grams of methamphetamine, as well as $201 in cash, in his left front pocket. He also had a cellular telephone in his right front pocket. Pena was carrying $600 cash in his wallet.
Another detective searched Pena's car. In the center console, concealed under the cup holder, the detective found a digital scale, a glass smoking pipe, and a pay/owe sheet. One of the names on the pay/owe sheet was "Bola." When the officers began the investigation, they had been told that "Bola" was the nickname of the drug dealer living at the residence under surveillance. The officers determined that defendant was "Bola."
At trial, one of the police officers testified as a narcotics expert. He opined that the 3.8 grams of methamphetamine found in the tin were possessed for sale. Another police officer testified as a gang expert. The Corona Varrio Locos (or Corona Vatos Locos, or CVL) was a large gang with about 200 members in December of 2006. The gang's primary activities were possession of drugs for sale, transportation of drugs, robbery, and assault. The gang was especially known to deal in methamphetamine. Defendant had in the past admitted being a member of CVL. When defendant was booked into jail on his arrest in December 2006, defendant told the booking officer that he was a member of the "Fourth Street" gang in Corona; Fourth Street is a symbol associated with CVL. Defendant reported at booking that his gang moniker was "Bolla" (sic: Bola). Defendant has gang-related tattoos. Gutierrez, the passenger in Pena's car, was also a member of CVL at the time of his and defendant's arrest. The expert opined that both the possession of methamphetamine for sale and the transportation of methamphetamine were committed for the benefit of CVL or in association with another CVL member.
(Respondent's Lodgment 6, pp. 2-5; see People v. Villa, 2012 WL 5359171, at *1-3 (Cal.App. Oct. 31, 2012)) (footnote added).
1. Petitioner's trial counsel allegedly rendered ineffective assistance by assertedly: (a) failing to interview and call Petitioner's sister, Marrisa Tinoco,  to testify that she purportedly was "solely responsible for the drugs that Petitioner is incarcerated for"; and (b) failing to have the tin containing the drugs fingerprinted; and
2. The trial court allegedly abused its discretion in admitting the gang expert testimony.
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).
"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, 562 U.S. 86, 131 S.Ct. 770, 786 (2011). This is "the only question that matters under § 2254(d)(1)." Id., 131 S.Ct. at 786 (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., 131 S.Ct. 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');"> 131 S.Ct. 1388, 1403 (2011) (citation, quotations and brackets omitted).
I. Petitioner's Claims of Ineffective Assistance of Counsel Do Not Merit Habeas Relief.
Petitioner faults counsel for failing to call Petitioner's sister, Marrisa Tinoco, as a trial witness (Petition, ECF Docket No. 1, pp. 15-19). Ms. Tinoco allegedly could have testified that she purportedly was the owner of the methamphetamine found in the Altoids tin reportedly tossed by Petitioner inside the door of the house (id.). Petitioner also contends counsel should have had the Altoids tin fingerprinted (id., pp. 23-27). Because the California Supreme Court denied these claims summarily, this 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 [United States Supreme] Court." Cullen v. Pinholster, 131 S.Ct. at 1403 (2011).
B. 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; 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. at 787 (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).
A state court's decision rejecting a Strickland claim is entitled to "a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Harrington v. Richter, 131 S.Ct. at 785. "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id., 131 S.Ct. at 788.
"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., 131 S.Ct. 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., 131 S.Ct. at 792 (quoting Strickland, 466 U.S. at 696). "The likelihood of a different result must be substantial, not just conceivable." Id., 131 S.Ct. at 792.
C. Factual Background
After police apprehended Petitioner, several occupants of the house, including Tinoco, came into the living room (R.T. 86, 129, 131). Petitioner's counsel elicited trial testimony that someone other than Petitioner then had claimed possession of the drugs found at the house (R.T. 228). The police report stated that a female identified as "O-1" told police that the Altoids tin found in the living room allegedly belonged to her and that she allegedly must have dropped it on the floor (R.T. 231). Police disbelieved "0-1" because, among other things, there had been no one in the room at the time police recovered the item (R.T. 229-30, 232). The officer who reportedly picked up the tin testified that there was no other person in the general vicinity, the other people in the house did not enter the room until "[p]robably a minute later, " and the person who claimed ownership was "nowhere near" the tin (R.T. 249-51).
Petitioner's counsel questioned a detective concerning whether anyone had tested the Altoids tin for fingerprints (R.T. 115-17). Counsel thereby elicited testimony that the detective did not know whether the tin had been tested for fingerprints, and that the detective would have been made aware of any fingerprints that had been found (id.).
During trial, the prosecutor expressed an intent to call Tinoco as a witness (R.T. 267). Tinoco appeared in court during trial (R.T. 276). The prosecutor and Petitioner's counsel discussed with the court whether the court should appoint counsel for Tinoco because the statute of limitations might not have run on offenses possibly committed by Tinoco (R.T. 276-81). Petitioner's counsel said that, in light of conversations he previously had with Tinoco, counsel did not believe Tinoco would be subject to criminal prosecution for "the specific things that she did in this case" (R.T. 277). However, counsel also said that, based on a statement Tinoco had made to him concerning what had been going on at the house over the past four years, counsel thought Tinoco might invoke her Fifth Amendment privilege not to testify (R.T. 277). After more discussion, the Court decided not to appoint counsel for Tinoco (R.T. 278). The prosecutor expressed a desire to interview Tinoco immediately, and acceded to the request of Petitioner's counsel to be allowed to sit in on the interview (R.T. 280). Later, however, the prosecutor said he would not call Tinoco (R.T. 293). Tinoco previously had been convicted of a felony (see R.T. 16-17).
In closing, Petitioner's counsel argued that the police had rushed to a judgment that the Altoids tin and its contents belonged to Petitioner, contending that police had not investigated the possibility that someone other than Petitioner owned the tin and its contents and had not tested the tin for fingerprints (R.T. 316, 319-21). Counsel argued that the prosecutor had not called any of the other occupants of the house to testify, including the person who had claimed ownership of the tin (R.T. 322). Counsel argued that, in the absence of fingerprint evidence linking Plaintiff to the tin or evidence that the person who claimed ownership of the tin had lied, the prosecution had not met its burden of proof (R.T. 323).
a. Failure to Call Marrisa Tinoco
Petitioner's counsel reasonably could have determined that calling Tinoco would not have helped the defense. Contrary to Petitioner's contention, his counsel did not fail to investigate Tinoco; the record reflects that counsel knew of Tinoco's existence and was aware of the nature of her proposed testimony. Tinoco's proposed testimony that she purportedly owned and had dropped the Altoids tin on the floor conflicted with prosecution evidence concerning the tin. Prosecution evidence showed that, directly after Petitioner made a throwing motion, officers heard a metallic sound and then almost immediately recovered the tin from an area behind the door in a room containing no other persons. Tinoco's absence from the witness stand permitted Petitioner's counsel to make arguably the best argument that could be made in light of the strength of the prosecution's evidence: the argument that the prosecution had not met its burden of proof because it had failed to refute (by testimony, fingerprint evidence or otherwise) the unnamed witness' claim of ownership of the tin. Moreover, if Tinoco had testified, she could have been impeached with her felony conviction. See United States v. Harden, 846 F.2d 1229, 1231-32 (9th Cir.), cert. denied, 488 U.S. 910 (1988) (counsel's decision not to call witness who was a convicted felon was reasonable). At a minimum, a reviewing court reasonably could believe that counsel's strategic decision not to call Tinoco satisfied Strickland's deferential standard.
Furthermore, Petitioner has failed to show a reasonable probability of a different result had Tinoco testified concerning her supposed ownership of the Altoids tin. The jury heard testimony that an unidentified occupant of the house had claimed ownership of the tin. The jury nevertheless convicted Petitioner. Evidence that the previously unidentified occupant claiming ownership was Petitioner's sister probably would have undermined rather than bolstered the believability of Petitioner's "other owner" defense. See McCauley-Bey v. Delo, 97 F.3d 1104, 1106 (8th Cir. 1996), cert. denied, 520 U.S. 1178 (1997) (no prejudice from counsel's failure to call witnesses because witnesses' close relationship would have rendered negligible the impact of their testimony); Bergman v. McCaughtry, 65 F.3d 1372, 1380 (7th Cir. 1995), cert. denied, 517 U.S. 1160 (1996) (counsel was not ineffective for failing to call family members who would easily have been impeached for bias); United States ex rel. Maxwell v. Gilmore, 37 F.Supp.2d 1078, 1089 (N.D. Ill. 1999) (counsel reasonably could have thought that petitioner's mother and girlfriend would not be credible alibi witnesses given their "obvious personal interest in his acquittal"); Scott v. Harrington, 2014 WL 3571732, at *20 (C.D. Cal. June 10, 2014), adopted, 2014 WL 3589828 (C.D. Cal. July 18, 2014) (counsel reasonably could have decided not to call petitioner's sister, who "most likely would be perceived as motivated to help him, reducing the value of her testimony"). Furthermore, as previously mentioned, Tinoco's felony conviction also would have undermined her believability as a witness.
b. Failure to Secure Fingerprint Testing on the Altoids Tin
Counsel's decision not to have the Altoids tin tested for fingerprints was also reasonable. Particularly given the strength of the evidence against Petitioner, counsel reasonably could have feared that the results of fingerprint testing would not be favorable to the defense. See Grisby v. Blodgett, 130 F.3d 365, 372-73 (9th Cir. 1997) (failure to test blood on carpet not ineffective, where counsel reasonably could have feared test results would be inculpatory); Mack v. Sisto, 2012 WL 3018205, at *13 (C.D. Cal. May 9, 2012), adopted, 2012 WL 3018159 (C.D. Cal. July 23, 2012) (counsel reasonably decided that performing blood and fingerprint tests on knife found at crime scene would be "too risky" "since petitioner's fingerprints or DNA might be found"). Counsel reasonably chose instead to argue to the jury that the police investigation was deficient for failing to test the tin for fingerprints. Furthermore, Petitioner's speculation that the results of fingerprint testing would have been favorable to the defense is insufficient to show Strickland prejudice. See Grisby v. Blodgett, 130 F.3d at 373 ("Speculation about what an expert would have said is not enough to establish [Strickland] prejudice"); Cooks v. Spaulding, 660 F.2d 738, 740 (9th Cir. 1981), cert. denied, 455 U.S. 1026 (1982) (speculation is insufficient to prove Strickland prejudice).
For the foregoing reasons, the California Supreme Court's rejection of Petitioner's claims of ineffective assistance of counsel 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); Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 785-87 (2011). Petitioner is not entitled to habeas relief on his claims of ineffective assistance of counsel.
II. Petitioner's Challenge to the Gang Expert's Testimony Does Not Merit Habeas Relief.
California Penal Code section 186.22(b)(1) authorizes a sentence enhancement for any person who is convicted of a violent felony which was "committed for the benefit or, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." Petitioner asserts that the trial court allegedly abused its discretion by admitting the testimony of Detective Dan Bloomfield, the prosecution's gang expert, that Petitioner committed the offenses of possession for sale and transportation of methamphetamine for the benefit of and in association with a criminal street gang (Petition, ECF Docket No. 3, pp. 31-34; see R.T. 219-20). Petitioner contends that Bloomfield expressed an opinion which allegedly was the product of "mere speculation" and which concerned the "ultimate issues" of Petitioner's knowledge and intent (id., pp. 31-32). Because the California Supreme Court denied this claim summarily, this 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');"> 131 S.Ct. 1388, 1403 (2011).
"The admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process.'" Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (citation omitted); see also Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991) (proper analysis on federal habeas review is "whether the admission of the evidence so fatally infected the proceedings as to render them fundamentally unfair"). "The Supreme Court has made very few rulings regarding the admission of evidence as a violation of due process." Holley v. Yarborough, 568 F.3d at 1101. "Although the Court has been clear that a writ should issue when constitutional errors have rendered the trial fundamentally unfair [citation], it 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." Id. Furthermore, the United States Supreme Court has not held "that the Constitution is violated by the admission of expert testimony concerning an ultimate issue to be resolved by the trier of fact." Moses v. Payne, 555 F.3d 742, 761 (9th Cir. 2009); see also Briceno v. Scribner, 555 F.3d 1069, 1078 (9th Cir. 2009). In the absence of clearly established Supreme Court law supporting Petitioner's claim, Petitioner cannot obtain habeas relief. See 28 U.S.C. § 2254(d); Carey v. Musladin, 549 U.S. 70, 77 (2006).
Additionally, to the extent Petitioner contends that Detective Bloomfield's testimony was inadmissible under state law, any such contention fails to state a cognizable claim for federal habeas relief. See Wilson v. Corcoran, 562 U.S. 1, 131 S.Ct. 13, 16 (2010) ("it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts") (original emphasis); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (mere errors in the application of state law are not cognizable on federal habeas review). Moreover, contrary to Petitioner's contention, the gang expert's opinion was not the product of "mere speculation." Detective Bloomfield testified that he based his opinion on the evidence, including evidence of Petitioner's participation in CVL, the arrival of another self-admitted CVL member at Petitioner's residence with a pay/owe sheet showing the "working relationship" between Petitioner and that gang member, and Bloomfield's conversations with gang members, including members of CVL, concerning their narcotics trafficking (R.T. 219-20).
For all of the foregoing reasons, the California Supreme Court's rejection of Petitioner's claim that the trial court improperly admitted gang expert testimony 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); Harrington v. Richter, 131 S.Ct. at 785-87. Petitioner is not entitled to habeas relief on this claim.
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.
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.