FILED
NOT FOR PUBLICATION NOV 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAMIRO ALEX HUERTA, No. 12-55815
Petitioner - Appellant, D.C. No. 8:11-cv-01045-RGK-JPR
v.
MEMORANDUM*
DERRAL G. ADAMS, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted November 5, 2013**
Pasadena, California
Before: McKEOWN, GOULD, and BYBEE, Circuit Judges.
Ramiro Huerta was sentenced to seventeen years to life in prison by a California
state court based on his role in a jailhouse attack on a fellow inmate. He presents two
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
issues on appeal from the district court’s denial of his habeas corpus petition. First,
he argues that the California Court of Appeal unreasonably applied clearly established
federal law because there was constitutionally insufficient evidence to support his
gang-related sentencing enhancement and street terrorism conviction. Second, he
raises an uncertified ineffective assistance of counsel claim. We affirm the district
court’s judgment with respect to the gang enhancement, reverse with respect to the
street terrorism conviction, and dismiss the uncertified issue for lack of jurisdiction.
Under Jackson v. Virginia, 443 U.S. 307, 319, 324 (1979), Huerta’s
insufficiency of the evidence claims can only succeed if, viewing all the evidence in
the light most favorable to the prosecution, no rational trier of fact could have found
that the essential elements of the crime were proven beyond a reasonable doubt.
“Insufficient evidence claims are reviewed by looking at the elements of the offense
under state law.” Emery v. Clark, 643 F.3d 1210, 1214 (9th Cir. 2011) (per curiam);
accord Jackson, 443 U.S. at 324 n.16. The California Court of Appeal did not
unreasonably apply clearly established federal law in concluding that Huerta’s gang
enhancement under California Penal Code § 186.22(b)(1) was supported by sufficient
evidence. See 28 U.S.C. § 2254(d)(1). The prosecution presented evidence that
Huerta and his codefendant were gang members who carried out a vicious jailhouse
assault on another gang member for the benefit of, or in association with, their
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respective street gangs. Huerta principally disputes the prosecution’s use of
gang-expert testimony to prove the elements of this enhancement, but the jury was
entitled to consider such testimony, which focused on gang culture and also included
specific hypotheticals tailored to the facts of this case. See, e.g., Emery, 643 F.3d at
1214; People v. Albillar, 244 P.3d 1062, 1073–74 (Cal. 2010). Accordingly,
sufficient evidence supports Huerta’s gang enhancement, and the California Court of
Appeal’s decision is not contrary to clearly established federal law. See Jackson, 443
U.S. at 319.
By contrast, the California Court of Appeal unreasonably applied clearly
established federal law in concluding that Huerta’s street terrorism conviction under
California Penal Code § 186.22(a) was supported by sufficient evidence. See 28
U.S.C. § 2254(d)(1). This offense requires that the defendant “willfully promote[d]
. . . any felonious criminal conduct by members of that gang.” Cal. Penal Code
§ 186.22(a) (emphasis added). In People v. Rodriguez, 290 P.3d 1143, 1147 (Cal.
2012), the California Supreme Court unambiguously stated that the “that gang” phrase
in the street terrorism statute “clearly refers back to the gang in which the defendant
is an active participant.” Huerta and his codefendant, Carlos Luna, were members of
separate gangs when they attacked the victim. The prosecution did not present
evidence that any member of Huerta’s gang was present at the assault other than
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Huerta. Thus, there was no evidence showing that Huerta participated in felonious
conduct with other members of his own gang. See id. at 1146–48. Consequently, the
California Court of Appeal’s decision is contrary to clearly established federal law.
See Jackson, 443 U.S. at 319; see also Luna v. Herrington, No. 12-55443 (9th Cir.
May 21, 2013) (memorandum disposition) (holding that the California Court of
Appeal unreasonably applied clearly established federal law in concluding that
sufficient evidence supported the defendant’s street terrorism conviction when he was
the only member of his gang who participated in the assault).
Finally, we construe Huerta’s inclusion of an uncertified ineffective assistance
of counsel claim as a motion to expand the Certificate of Appealability. See 9th Cir.
R. 22-1(e). To prevail on such a motion, Huerta must make a substantial showing of
the denial of a constitutional right by demonstrating that this issue is debatable among
jurists of reason, that a court could resolve the issue in a different manner, or that the
question is adequate to deserve encouragement to proceed further. See Doe v.
Woodford, 508 F.3d 563, 567 (9th Cir. 2007).
Huerta has failed to make such a showing here. The record establishes that
Huerta’s counsel asked for and received permission to interview the victim about
whether “he is going to testify or not,” and the court ordered a recess. After the
recess, Huerta’s counsel indicated that he had spoken with the victim and decided not
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to call the victim as a defense witness after evaluating Huerta’s position. As an
informed strategic choice, Huerta’s counsel’s decision is “virtually unchallengeable.”
See Strickland v. Washington, 466 U.S. 668, 690 (1984). Accordingly, we decline
to expand the Certificate of Appealability and dismiss Huerta’s uncertified issue for
lack of jurisdiction. See Doe, 508 F.3d at 569.
This matter is remanded to the district court with instructions to grant the writ
consistent with this disposition.
AFFIRMED in part; REVERSED in part and REMANDED.
Each party shall pay its own costs on appeal.
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