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Paigly v. Frauenheim

United States District Court, N.D. California

July 13, 2017

JEREMY PAIGLY, Petitioner,
v.
SCOTT FRAUENHEIM, Warden, Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY

          HAYWOOD S. GILLIAM, JR. United States District Judge

         Before the Court is the above-titled petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254 by petitioner Jeremy Paigly, challenging the validity of a judgment obtained against him in state court. Respondent has filed an answer to the petition, and petitioner has filed a traverse. For the reasons set forth below, the petition will be denied.

         I. PROCEDURAL HISTORY

         On January 8, 2010, a Santa Clara County jury found petitioner guilty of active participation in a criminal street gang, in violation of California Penal Code section 182.22(a). 2CT 438; 16RT 3971-72.[1] Petitioner admitted four prior strike convictions, one prior serious felony conviction, and two prior prison terms. 2CT 439; 16RT 3982-87. After striking one of the prior convictions, the trial court sentenced petitioner to 25 years to life consecutive to 7 years as follows. 3CT 810-13; 18RT 4575-79. He was sentenced to 25 years to life for participating in a street gang, with an additional 5-year term pursuant to penal code section 667(a) and 2 additional years pursuant to penal code section 667.5. Id.[2]

         On October 29, 2014, the California Court of Appeal affirmed the judgment in an unpublished decision. Ex. 7. On January 28, 2015, the California Supreme Court denied review. Ex. 9. Petitioner did not pursue state collateral review. The instant petition was filed on November 10, 2015.

         II. STATEMENT OF FACTS

         The following background facts describing the crime and proceedings at trial are from the October 29, 2014 opinion of the California Court of Appeal.[3]

          Expert witnesses

A number of witnesses testified as experts at trial. Sergeant Dan Livingston, the investigation supervisor in the special enforcement division of the Campbell Police Department, testified as an expert on the organization and structure, operation, activities, rules and procedures, members and associates, and culture of the Nuestra Familia (NF) organization. Officer Dennis Gillotte was working for the Santa Clara County Department of Correction in the intelligence unit of the classification division at the time of trial and he testified as an expert with respect to the activities and organization of the NF organization within the Santa Clara County jail. Criminologist John Bourke, a supervising criminologist with the Santa Clara County Crime Laboratory, was recognized as an expert in handwriting analysis.
Former members of the NF organization, members of either NF or Nuestra Raza (NR), were called as witnesses by the prosecution. Witnesses Chris Klipp and Joseph Abeyta each testified he was a former NR member. Sammy Ramirez testified he was a former NF member, category two and John Mendoza testified he was a former NF member, category three. They were recognized as experts in the organization, structure, and operation of the NF organization. [FN 2]
FN 2: Klipp and Abeyta testified under a grant of immunity. Klipp went into protective custody on November 7, 2008. Abeyta went into protective custody in April 2009.

         The evidence reviewed under the proper standard showed the following.

         The NF Organization

          NF developed as a rival Hispanic gang of the Mexican Mafia and primarily operates in Northern California. The NF organization is highly structured, regimental, and hierarchical. The NF organization encompasses NF members, NR, a group subordinate to NF, and northerners in street regiments or gangs.

         NF members constitute the top tier of NF organization. NR members are the second tier. In more recent times, NF has referred to NR members as “Nortenos, ” which means northerners in Spanish, or “Hermanos, ” which means brothers in Spanish. [FN 3] The next tier includes the Northern California street gang members who have not reached the status of NR or NF members. NF refers to them as northerners. The NF organization also has associates who help it, such as by stashing weapons or drugs, laundering money, or facilitating communications.

FN 3: For the sake of clarity, we will still refer to NR members. The word “Norteños” is sometimes used to refer to Hispanic gangs generally originating in Northern California whose enemies are Sureños, Hispanic gangs generally located in Southern California. The evidence at trial indicated that the NF now uses the word “northerner” in English to refer to any northern Hispanic street gang member and it has reserved the term “Norteños” for the group previously known as NR and prohibited common street gang members from referring to themselves as Norteños.

         Three generals, each with different responsibilities, are at the top of the NF organization's command structure. NF's council includes “the generals plus some trusted advisors, high-ranking NF members, ” who were elected to their positions. The “inner council” advises the NF generals. In 2007, it had five to seven members. The governing constitution, “a very detailed document, ” specifies the decisions that must go to the council for a vote and the responsibilities of the inner council and the generals.

         One NF general is in charge of the streets, a second general is in charge of prisons, and a third general is responsible for conducting internal investigations of particular NF members or a conflict between members. The general in charge of the streets oversees street regiments and communicates with the regimental commanders and makes sure that they follow the directives or policies he sets.

         At the time of trial, one of the reputed generals operating out of Pelican Bay State Prison was Antonio Guillan, an NF member from San Jose whose moniker was Chuco. Guillan was the general in charge of street operations and regiments. Guillan oversaw San Jose's street regiments and controlled the NF organization in Santa Clara County. The general was “kept apprised” of parolees being released to the streets so he could “assign manpower to certain areas” or send parolees “to function with different street regiments.” His authority could not be questioned and his directives had to be followed.

         NF's current constitution basically provides that its leadership will be located in Pelican Bay State Prison. Under the constitution, the organization comes before anything else; family is second. Women are regarded “more like property” and they cannot be NF members. There are “14 bonds” that constitute NF's policies; an NF member is required to memorize them and is held accountable for them. One of those bonds mandates “no cowardice [when] dealing with police officers” and no traitors. The inner council and the generals constitute the top leadership of NF and NF controls NR and northerners on the streets.

         NF members are ranked by category from one to three, the highest status. Mendoza estimated that, in 2007, there were perhaps 15 to 20 NF members in category three statewide and 100 to 200 NF members in the lower two categories statewide. Sergeant Livingston testified that there are about 20 to 30 category-three NF members at any given time. He estimated there were roughly 200 to 300 NF members.

         NF members in all categories are expected to be familiar with NF's constitution, bonds, organization and structure, and activities. To become a member of NF, a person must be sponsored by at least one existing NF member and voted in.

         Category one is the entry level for NF membership but even category-one members are “extremely seasoned, experienced gang members.” The category-one stage of NF membership is a period of “induction” and “indoctrination.” It is a time to study NF's constitution and gain a better understanding of a member's obligations to the organization. A category-two member can educate and train other NF members. A category-three NF member must have been in the NF organization for at least 10 years, be well educated in NF's philosophies and principles, and be completely committed to the organization.

         NR is a subsidiary group and is subordinate to NF; NR members number in the thousands. Although NF reasserted itself over NR some time ago and stripped its name, many NR members were still identifying themselves by that name in 2007. To become an NR member, a person must be sponsored by an NF member.

         NF and NR members are well-educated about the NF organization's history and its activities and their responsibilities to the organization. A member goes through many months or years of training. The former NF or NR members who testified at trial had gone through an indoctrination process and moved up in the NF organization while in prison.

         In prison, NF members are segregated from the general population in higher security housing. NR members in a prison's main line (the general inmate population) are NF's eyes, ears, and arms. NR members try to be placed in the main line of Pelican Bay so that NR can reach a broader prison population and bring more people into the NF organization.

         When a person becomes a member of NF or NR, the person understands that he may have to kill for the organization. The NF phrase “blood in, ” “blood out” means that an NF or NR member must be willing to spill the blood of anyone who is an enemy of the organization and may be required to spill his own blood.

         NF's street regiments are supposed to generate money for NF. The NF general in charge of street operations and regiments might assign a parolee being released to a street regiment. When Mendoza was released on parole in 1999, he left with instructions to establish a regiment in Mendocino County, where he was being released.

         But not all northerner street gangs, especially first generation gangs, are involved with NF on the streets. Once a northerner gang member is taken into custody, however, he is under NF's umbrella. Someone without any former gang association who goes into custody and chooses to align with the NF organization and act on its behalf will be considered a northerner as well. In a county jail or prison, northerners are educated by members of the NF organization.

         NF holds power in jails and prisons. Generally, a northerner in custody must “function with” the NF organization or go into protective custody to avoid “removal, ” which is a targeted assault.

         While in prison and before becoming an NR member, Klipp began assisting the NF organization by doing such things as holding contraband or performing assaults of persons not in good standing. A removal order would reach him through the chain of command, either verbally or in writing. Klipp executed three removal orders. He accomplished two removals with his hands and the third time he cut the victim's face with a razor blade. A gang member who refuses to obey a removal order is removed himself.

         While he was an NR member in prison, Abeyta received a removal order to remove or assault his own cellmate. Even though Abeyta liked his cellmate and they were “pretty tight, ” Abeyta did it because he had to.

         Even the testifying defense expert acknowledged the discipline within the NF organization was top-down. In his opinion, a subordinate had no right to decline to perform an instruction given by a superior. He indicated that if a subordinate did not comply with a superior's order, the subordinate risked his life. He stated that discipline in the NF organization was “everything.”

         Santa Clara County Jail

          The NF organization has a structured chain of command in the Santa Clara County jail (the jail). The NF organization refers to the top NF authority in the jail as the overall authority (OA) or, sometimes, the “regimental commander.” The jail's OA sets the policies for the jail. He decides who is in charge of a particular section of the jail and whether there should be a change of command. The jail's OA decides whether a “hit” or “removal” should be done. Lorenzo Guzman, an NF member whose moniker is Lencho, was the jail's OA at the time of trial and he had been the OA since 2007.

         Usually, there is a second in command, another NF member or seasoned NR member who handles lesser, day-to-day decisions and serves as a “buffer” to protect the identity of the jail's OA. Underneath the jail's OA in the command structure are the individuals in each section or unit of the jail, variously called the “building channel” or “block channel” (BC) or the “overall authority” of that area. Ordinarily, an NR member in custody in a particular area of the jail will have authority over the northerners housed there. If an NF member is also present in that area, typically the NF member would enjoy greater authority than any NR member.

         Each pod within a unit of the jail generally has an inmate serving as “tier security, ” who handles day-to-day matters and sensitive paperwork, and reports to the BC. A “pod” is a block of cells. The jail's fourth floor has three units, 4A, 4B, and 4C. 4B and 4C are each divided into three pods, each containing 16 cells. 4A of the jail is a less secure area than 4B and 4C, which are maximum security areas. 4A is not divided into pods and contains 48 cells. Inmates in 4B and 4C are allowed out of their cells one at a time for one hour every other day. In contrast, an inmate in 4A is allowed out of his cell at various times each day and may interact with other inmates in an open environment.

         The person holding the position of tier security initiates contact with a new inmate entering his area of the jail. Another function of tier security is to inventory weapons, including razor blades, which would be used for removals and assaults. Tier security keeps track of scheduled court dates for inmates in his pod.

         While Klipp was the tier security of 4C following his arrest in August 2008, his job included noting suspicious activities, making sure other inmates carried out their responsibilities, and collecting inmates' written reports. For example, Klipp would report any suspicious inmate communications with officers and any information provided by inmates who went out of the pod for any reason and were required to report to him whatever they saw. Klipp made his reports on “kites.” A “kite” is a communication written in very tiny letters, “micro writing, ” on a small piece or strip of paper. Kites were also passed through Klipp and he was responsible for holding them and passing them on, along with his weekly reports, to his BC, who in turn would pass them on to OA Guzman. It was Klipp's responsibility to be familiar with the reports coming from inmates in his pod but it was not his business to look at kites not intended for him.

         In general, information of concern to the NF organization is passed up the chain of command to the jail's OA. Directives are sent down the chain.

         If there is not a qualified NR member, a northerner may be asked to act as the tier security or a BC.

         Kites

          On a kite, as many as five handwritten lines fit within the space of a single line of lined, yellow paper. A kite is sometimes called a “filter.” Messages are sent and conversations are carried on in kites; code words are used.

         Kites are generally rolled up and covered in something like plastic wrap so that they can be concealed on a person's body or in clothing. Kites are secreted in a person's mouth, nose, or rectum.

         Secretive communications are passed on kites up and down the chain of command in the jail hierarchy. Kites are “used heavily” within county jails and prisons and kites are passed between those institutions and out to the NF organization's leadership in the streets. Messages may move indirectly through different jail units until the messages reach their destination in the jail, which may take some time, perhaps days or months.

         The person in the position of tier security is responsible for possession of kites. Klipp explained that kites are passed on a “personal basis” to individuals believed to be trustworthy. They are usually passed when someone goes to court but sometimes through jail visits. A kite is transferred in the court's holding tank and the recipient either puts it in his mouth or “keester[s] it, ” which means putting it in his rectum.

         New Arrivals

          Upon entering custody in a particular area of the jail, a Hispanic new arrival (NA) is required by the NF organization to provide specific information and all his paperwork, including police reports. The pagination of the police report may be checked to make sure the NA is not withholding any pages. The police report discloses the circumstances of arrest and whether the suspect cooperated with law enforcement or made negative or incriminating statements against fellow gang members. The NA is thoroughly questioned and information is also gathered from others to identify the individual and decide whether he should be cleared and allowed to participate in the organization. The NF organization wants to make sure important information is not disclosed to traitors or informants.

         An NA is asked for basic information, including, for example, his name, his date of birth, his aka, where he is coming from, his PFN (personal filing number), his booking number (CEN), his neighborhood, and his street gang. Information, good or bad, about the newcomer is gathered by filter from the “manpower, ” persons in the NF organization. A person acting as tier security may conduct in-depth questioning to find out more information, such as any CDC number, prison history, and status in the NF organization.

         Officer Gillotte had found kites containing written questions on multiple occasions, either hidden in personal belongings in a jail dorm or on an inmate. The questionnaires asked for general information, including name, PFN, booking number, current charges, prison history, tattoos, gang affiliation and neighborhood. If an NA does not comply with such a questionnaire, the inmate will be viewed as going against gang rules and put himself in danger of being assaulted.

         “On Freeze”

         An NA, regardless of status within the NF organization, is placed “on freeze, ” which means he is on hold and has no right to intervene in the NF organization's business until he is cleared. Ordinarily, an NA has no access to any NF information, such as who in the organization currently holds authority in the jail or whom is going to be “hit.”

         A person on freeze ordinarily cannot hold any position of authority within the organization in the jail, such as tier security, BC, or OA. An NF member who is on freeze might nevertheless hold a lot of weight in a section of the jail if he is the most experienced gang member and other northerners might rely on him and he might “step up and do things that he thinks he's supposed to do.”

         An inmate on freeze may still be asked to assist the NF organization. If an inmate on freeze is assigned to an area out of communication with the jail's OA, he has an obligation to initiate contact with the OA, especially if the person is an NF or NR member. An inmate on freeze in such an area may still take the initiative and try to get his section “in line with the OA.”

         Rosters

         Every part of the jail is required to submit weekly rosters and file incident reports with the jail's OA. A basic roster contains personal information regarding the manpower housed in a specific area of the jail. It provides complete identifying information regarding those individuals and permits the NF organization to keep tabs on them. Rosters generally contain inmates' court dates, which are important for passing information from one inmate to another.

         Rosters are sent up the chain of command to the jail's OA. Rosters enable secretive communications by the NF organization within the jail, which assist in the commission of felonies within the jail. A roster plays an important role in creating a strong and effective organization in all parts of jail, which in turn makes it easier to do removals and extort money. Sergeant Livingston confirmed that, in general, rosters “facilitate, promote, further, [and] assist” in the NF organization's “felonious criminal conduct.” Individuals listed on a manpower roster may be compared to a “bad news list” (BNL), which is a list of people in bad standing with the NF organization. The jail's OA decides whether action will be taken against anyone listed on a roster.

         A roster may be used to select someone for a position of authority in the NF organization within the jail or to make an assignment, including the job of doing a removal. A roster is essential to accomplishing a removal. If the jail's OA determines that an individual must be removed, he knows, based on the roster, where that individual is located and where the removal order should be sent within the jail. Birthdays are included in rosters and the master BNL to make sure the correct person is identified, otherwise someone innocent with the same name might be “hit” by mistake. The roster's personal information allows the OA to correctly identify and target the person in bad standing. Knowledge of inmates' next court dates, which are reported in a manpower roster, facilitate the passing of a removal order.

         An “educated person” who participates in the chain of command of the NF organization in the jail understands why rosters are needed.

         Bad News List

         A person may be on a BNL because he is an informant, he owes a fine to NF, or he is otherwise “deemed no good.” A person who drops out of the NF organization and cooperates with law enforcement becomes an enemy of the organization. Dropouts may be put on a BNL. If someone goes into protective custody, he is going to be put on a BNL.

         The punishment for being on the BNL ranges from physical assault to murder. Dropouts are sometimes attacked and severely injured or killed. In Sergeant Livingston's opinion, there is an ongoing effort to commit crimes against incoming inmates who are in bad standing with the NF organization.

         Even if a NA has been cleared within his unit and his name is on a roster, he may still be checked against the names on the OA's BNL. When Mendoza was the jail's OA, it was his responsibility to compare rosters to a master BNL on a weekly basis. A BNL is regularly updated. The BNL available in the NA's section of the jail might be out of date. An updated BNL may leave a state prison with an inmate who secrets it in his rectum and goes to court or is released on parole and then may make its way to a county jail.

         Removals

         A person may be ordered removed because he was on a BNL, he owed money to NF, or he committed some other wrongdoing, such as child molesting. It is part of the responsibility of an OA of a facility, either a jail or a prison, to order removals. The jail's OA does not need to obtain the approval from higher-ups in Pelican Bay before ordering the removal of a person who is not on a BNL. Persons active in, or associates of, the NF organization housed in the unit of a targeted person are selected to carry out a removal directive. A removal order from the jail's OA controls even if the targeted individual was previously cleared.

         Removals are an ongoing activity required to keep the NF organization's structure strong in the county jail. “[T]aking care of security” in the NF organization is “synonymous with doing removals.” When Mendoza was the jail's OA from about 2004 until late 2005, Mendoza's policy was that removals were done with weapons because that was NF's way to do it. [FN 4] A removal takes a person permanently out of the NF organization and identifies the person as a traitor.

         FN 4: Under Abeyta, who was very briefly the jail's OA, removals were done with hands.

         In 2007, Guzman took over as the jail's OA. Guzman's established policy was that removals had to be done with a weapon, ordinarily a razor blade. A removal ordered by the NF organization in the jail is typically orchestrated so that an initial assailant quickly slices the targeted victim's face with a razor blade, cutting him from the corner of the mouth, across the cheek, and up toward the ear. Immediately other attackers assault the victim with hands and feet, which allows the initial assailant time to dispose of his weapon. If an officer notices the altercation, he sees only a fist ...


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