United States District Court, N.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF APPEALABILITY
HAYWOOD S. GILLIAM, JR. United States District Judge
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.
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. 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.
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judgment in an unpublished decision.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.
STATEMENT OF FACTS
following background facts describing the crime and
proceedings at trial are from the October 29, 2014 opinion of
the California Court of Appeal.
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
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.
evidence reviewed under the proper standard showed the
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.
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.
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
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.”
Clara County Jail
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.
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.
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
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.
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.
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.
there is not a qualified NR member, a northerner may be asked
to act as the tier security or a BC.
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.
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.
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.
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.
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
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.
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.
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
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.”
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.”
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.
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.
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
“educated person” who participates in the chain
of command of the NF organization in the jail understands why
rosters are needed.
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.
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.
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.
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.
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.
Under Abeyta, who was very briefly the jail's OA,
removals were done with hands.
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