United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT
OF HABEAS CORPUS
K. OBERTO, UNITED STATES MAGISTRATE JUDGE
Jesus Enrique Serrano-Aguilar,  is a state prisoner proceeding
pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. He alleges three grounds
for relief: (1) a due process violation arising from the
trial court's abusing its discretion and denying
Petitioner's Pitchess motion; (2) ineffective
assistance of trial counsel based on counsel's failure to
articulate the need for a continuance; and (3) submission of
the gang enhancement to the jury on an erroneous theory.
Respondent contends that ground three is procedurally barred
and that, in any event, Petitioner has failed to establish a
basis for habeas relief on any of his claims.
Factual Background 
The Underlying Incident
April 3, 2011, Bakersfield Police Officers Matthew Tramel and
Joe Cooley, both of whom were members of the gang unit, were
on patrol in a marked car when they observed Petitioner
riding a bicycle against traffic. When Tramel activated his
lights and siren, Petitioner began to pedal vigorously in an
apparent attempt to escape the officers. Tramel pulled the
squad car parallel with Petitioner, and repeatedly ordered
Petitioner to stop. Petitioner continued to accelerate while
telling the officers that he had no brakes.
Petitioner finally stopped, Tramel got out of the squad car
and ordered Petitioner to turn around and put his hands on
his head. Instead of turning, Petitioner took a step away,
then pulled away when Tramel grabbed his hand. By each
seizing one of Petitioner's hands, Tramel and Cooley were
able to control and handcuff Petitioner.
asked Petitioner if he had anything illegal “on
him.” Petitioner disclosed that he had a gun in his
right front pants pocket. Tramel removed a loaded .32-caliber
pistol loaded with three live rounds from Petitioner's
pocket. The gun was operational.
reading Petitioner the Miranda warnings, Tramel
asked him why he was fleeing the officers. Petitioner replied
that he did not want to go to jail. Tramel testified that:
[Petitioner] stated that he was delivering it to another
member of the Colonia Bakers. I believe his words were to the
effect of he was delivering the gun to a “Colonia
homie.” Which I had him elaborate on. Which I asked him
to elaborate on. He said it was another member of the Colonia
Bakers criminal street gang.
stated that he was a member of the Colonia Bakers criminal
street gang. He had friends and family in the gang.
Gang Expert Testimony
Police Officer Isaac Aleman, who was assigned to the gang
unit, testified to his opinion that Petitioner was a member
of the Colonia Bakers criminal street gang on April 3, 2011.
The Colonia Bakers, a subset of the Sureño criminal
street gang, engage in an ongoing pattern of criminal
activity including illegal weapons possession, robbery, and
murder. Petitioner's membership was evidenced by his
tattoos and self-identification as a gang member.
bore a tattoo across the back of his head that read
“Colonia” in five-inch letters.
“Eastside” was tattooed on Petitioner's right
forearm, and Colonia was tattooed on his left hand. The
letter C was tattooed on Petitioner's index finger, and a
skull typical of the Colonia Bakers street gang was tattooed
on the top of his hand. Tattooed on his shoulder was
“RIP colonieros” and the names
“Shrek” and “Crow.” Shrek and Crow
were the monikers of two Colonia Bakers gang members murdered
by members of a rival gang.
ensure prisoner safety, when booking an individual into jail
or prison, officers typically ask the prisoner whether he is
a gang member or has other enemies. When booked into the
county jail on April 3, 2011, Petitioner stated that he
belonged to “South” and his clique was Colonia.
Petitioner also claimed South and Colonia in bookings on July
28, 2002; July 31, 2009, and September 12, 2010. On December
2, 2004, and May 6, 2007, Petitioner claimed South. In the
course of the September 2010 booking, Petitioner told Officer
Ryan Kroeker that he had belonged to the Colonia Bakers gang
“for a long time.”
trial, a Kern County jury convicted Petitioner of (1)
possession of a firearm as a felon (former Cal. Penal Code
§ 12021(a)(1)), (2) active participation in a criminal
street gang (Cal. Penal Code § 186.22(a)), and (3)
resisting a police officer (Cal. Penal Code §
148(a)(1)). The jury found true the allegation that
Petitioner committed the firearm offense for the benefit of,
at the direction of, or in association with a criminal street
gang with specific intent to promote, further, or assist in
criminal conduct by gang members (Cal. Penal Code §
186.22(b)(1)). The parties stipulated to Petitioner's
prior felony convictions. The trial court sentenced
Petitioner to an aggregate term of 15 years in prison.
filed a direct appeal to the California Court of Appeal,
which reversed Petitioner's conviction on count two but
affirmed the remainder of the judgment. The California
Supreme Court summarily denied the petition for review.
February 23, 2015, Petitioner filed a federal petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Standard of Review
person in custody as a result of the judgment of a state
court may secure relief through a petition for habeas corpus
if the custody violates the Constitution or laws or treaties
of the United States. 28 U.S.C. § 2254(a); Williams
v. Taylor, 529 U.S. 362, 375 (2000). On April 24, 1996,
Congress enacted the Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA"), which applies to all
petitions for writ of habeas corpus filed thereafter.
Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Under
the statutory terms, the petition in this case is governed by
AEDPA's provisions because Petitioner filed it after
April 24, 1996.
corpus is neither a substitute for a direct appeal nor a
device for federal review of the merits of a guilty verdict
rendered in state court. Jackson v. Virginia, 443
U.S. 307, 332 n. 5 (1979) (Stevens, J., concurring). Habeas
corpus relief is intended to address only "extreme
malfunctions" in state criminal justice proceedings.
Id. Under AEDPA, a petitioner can prevail only if he
can show that the state court's adjudication of his
claim, on the merits:
(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;
(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); Lockyer v. Andrade, 538
U.S. 63, 70-71 (2003); Williams, 529 U.S. at 413.
its terms, § 2254(d) bars relitigation of any claim
'adjudicated on the merits' in state court, subject
only to the exceptions set forth in §§ 2254(d)(1)
and (d)(2)." Harrington v. Richter, 562 U.S.
86, 98 (2011).
threshold matter, a federal court must first determine what
constitutes "clearly established Federal law, as
determined by the Supreme Court of the United States."
Lockyer, 538 U.S. at 71. To do so, the Court must
look to the holdings, as opposed to the dicta, of the Supreme
Court's decisions at the time of the relevant state-court
decision. Id. The court must then consider whether
the state court's decision was "contrary to, or
involved an unreasonable application of, clearly established
Federal law." Id. at 72. The state court need
not have cited clearly established Supreme Court precedent;
it is sufficient that neither the reasoning nor the result of
the state court contradicts it. Early v. Packer, 537
U.S. 3, 8 (2002). The federal court must apply the
presumption that state courts know and follow the law.
Woodford v. Visciotti, 537 U.S. 19, 24 (2002). The
petitioner has the burden of establishing that the decision
of the state court is contrary to, or involved an
unreasonable application of, United States Supreme Court
precedent. Baylor v. Estelle, 94 F.3d 1321, 1325
(9th Cir. 1996).
federal habeas court may not issue the writ simply because
the court concludes in its independent judgment that the
relevant state-court decision applied clearly established
federal law erroneously or incorrectly."
Lockyer, 538 U.S. at 75-76. "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." Harrington, 562 U.S. at
101 (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). Thus, the AEDPA standard is difficult to satisfy
since even a strong case for relief does not demonstrate that
the state court's determination was unreasonable.
Harrington, 562 U.S. at 102.
Due Process: Denial of Pitchess
first ground for habeas relief, Petitioner contends that the
trial court violated his right to due process by denying a
continuance to permit Petitioner to file a Pitchess motion.
Respondent counters that because Petitioner has failed to
show that denying ...