NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARQUICE D. GARRETT, No. 20-55578
Petitioner-Appellant, D.C. No.
2:18-cv-09282-JFW-SHK
v.
RAYMOND MADDEN, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted June 11, 2021**
Pasadena, California
Before: MURGUIA, BADE, and LEE, Circuit Judges.
Marquice Garrett appeals the district court’s denial of his petition for a writ
of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C.
§§ 1291 and 2253(a), and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review de novo a district court’s denial of a habeas petition. See Hurles
v. Ryan, 752 F.3d 768, 777 (9th Cir. 2014). At the same time, our review is governed
by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Under
the AEDPA, a federal court may grant habeas relief only if the state court decision
was (1) “contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States,” or (2) “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). Under this standard, the state
court’s decision must be “so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” See Harrington v. Richter, 562 U.S. 86, 103 (2011). In applying
this standard, federal courts look to the last reasoned state-court decision that finally
resolves the claim at issue. Wilson v. Seller, 138 S. Ct. 1188, 1192 (2018). In
circumstances where there is no reasoned decision at any level, “the habeas
petitioner’s burden still must be met by showing there was no reasonable basis for
the state court to deny relief.” Richter, 562 U.S. at 98.
Garrett was convicted in a California state court on three counts of home
invasion robbery. The jury also found true a gang enhancement allegation which
required the prosecution to prove that the crime Garrett committed was “for the
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benefit of, at the direction of, or in association with” a criminal street gang. See Cal.
Penal Code § 186.22(b)(1).
1. Garrett argues that under the facts presented, the prosecution could not
prove the gang-enhancement allegation absent evidence linking Eddie Brodney
McFadden, Garrett’s co-defendant, to the Pasadena Denver Lane Bloods (PDLB)
gang. He further argues that to establish this link, the prosecution relied on improper
case-specific testimonial hearsay from expert witness Officer Jordan Ling in
violation of his Sixth and Fourteenth Amendment rights to confront and cross-
examine his accusers. Specifically, Garrett argues Officer Ling relied on
“departmental resources” — including Field Identification Cards and police reports
prepared by another officer — to identify McFadden as the son of “Denver Ed,” who
sat at the top of the PDLB gang hierarchy.
We find the state court’s conclusion that any error was “harmless beyond a
reasonable doubt” was not “contrary to,” or based on “an unreasonable application
of,” “clearly established Federal law.” See 28 U.S.C. § 2254(d)(1). There was
substantial independent evidence of McFadden’s gang membership, including: (1)
McFadden’s opportunity and decision to commit robbery in concert with Garrett, a
person the jury concluded was a PDLB member based on other uncontested
evidence; (2) photographs of McFadden in the company of individuals making
PDLB gang-related hand signs or wearing gang-related colors; and (3) Detective
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David Duran’s prior detention of McFadden in an apartment along with other
individuals then known to Detective Duran as PDLB members.
Additionally, we find fair-minded jurists could disagree about whether
admitting the challenged evidence violated clearly established federal law,
especially given substantial ambiguity in this area. See Williams v. Illinois, 567 U.S.
50, 65 (2012) (noting the lack of clarity regarding what hearsay violates the
Confrontation Clause “has resulted in a steady stream of new cases” to the U.S.
Supreme Court); id. at 58 (casting reasonable doubt on Garrett’s claim by noting
out-of-court statements offered by an expert “solely for the purpose of explaining
the assumptions on which that [expert’s] opinion rests” “fall outside the scope of the
Confrontation Clause”); id. at 84 (casting reasonable doubt on Garrett’s claim
because the Field Identification Cards at issue arguably were “not prepared for the
primary purpose of accusing” Garrett, or McFadden, of wrongdoing); see also
id. at 141 (Kagan, J., dissenting) (“What comes out [of Williams] . . . is—to be
frank—who knows what.”)
2. We also find Garrett’s claim that Detective Duran may have relied on case-
specific testimonial hearsay to identify certain individuals in a photograph as gang
members is too speculative to warrant habeas relief. See Jones v. Gomez, 66 F.3d
199, 204–05 (9th Cir. 1995). Detective Duran testified he had “multiple contacts”
with each of the men he identified as gang members, and there is nothing in the
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record to suggest he failed to learn of their gang membership through these
interactions. Moreover, we find that given the gang-related hand signs displayed by
individuals in this same photograph — as well as other independent evidence
connecting McFadden to the PDLB gang — the state court could reasonably have
denied relief on the basis of harmless error, as it did with the challenged testimony
of Officer Ling. See Richter, 562 U.S. at 102.
3. Lastly, Garrett argues the evidence presented at trial was insufficient to
support the jury’s true finding on the gang enhancement allegation because even if
co-defendant McFadden was shown to be a member of the PDLB gang, there was
no evidence that the crime was committed “for the benefit of, at the direction of, or
in association with” a criminal street gang. See Cal. Penal Code § 186.22(b)(1); see
also People v. Albillar, 244 P.3d 1062, 1072 (Cal. 2010) (noting “it is conceivable
that several gang members could commit a crime together, yet be on a frolic and
detour unrelated to the gang”) (citation omitted).
We find the state court could reasonably have concluded — especially when
“viewing the evidence in the light most favorable to the prosecution” — that the
evidence was sufficient to support a jury’s true finding on the gang enhancement
allegation. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). First, even after
Albillar, evidence a defendant committed a crime in concert with fellow gang
members is still evidence from which a jury may begin to infer — especially in
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absence of evidence to the contrary — that a crime was committed in “association”
with a gang. See People v. Garcia, 199 Cal. Rptr. 3d 399, 413–14 (Ct. App. 2016);
People v. Leon, 197 Cal. Rptr. 3d 600, 614 (Ct. App. 2016). Second, one of the
victims testified McFadden acted as a “ringleader” who told the other two men “what
to do and they did it.” This was evidence from which a jury could reasonably infer
Garrett and McFadden “came together as gang members” because it could indicate
the hierarchal nature of the gang was employed. See Albillar, 244 P.3d at 1072.
Third, the jury was entitled to credit Officer Ling’s expert opinion that the robbery
was committed for the benefit of, at the direction of, or in association with the PDLB
gang. Cf. People v. Perez, 226 Cal. Rptr. 3d 820, 830–33 (Ct. App. 2017).
AFFIRMED.
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Marquice Garrett v. Raymond Madden
Combined Opinion