FILED

NOT FOR PUBLICATION

DEC 17 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

VINCENT GINO CHAVEZ, No. 19-15543

Petitioner-Appellant, D.C. No. 2:18-cv-00952-JKS

v.

MEMORANDUM*

SULLIVAN, Warden,

Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of California James K. Singleton, District Judge, Presiding

Submitted December 11, 2020** San Francisco, California

Before: W. FLETCHER, IKUTA, and VANDYKE, Circuit Judges.

California prisoner Vincent Chavez petitions for review of the district court's

denial of his habeas petition under 28 U.S.C. § 2254. We have jurisdiction

pursuant to § 2253(a) and 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). Chavez was convicted of first degree murder for the fatal stabbing of Sue

Saeturn. The jury also found true special allegations that Chavez used a deadly

weapon, and that the murder was gang-related. On appeal, the California Court of

Appeal reversed the gang-related special circumstance and enhancement, but

otherwise found no reversible error. Chavez subsequently filed a habeas petition

pursuant to § 2254 in district court. The district court denied his petition but

certified his cumulative error claim for appeal.

First, Chavez argues that the Superior Court’s decision not to instruct the

jury as to the “heat of the passion” lesser-included offense violated state law and

his right to present a defense. See Solis v. Garcia, 219 F.3d 922, 929 (9th Cir.

2000). The California Court of Appeal held that the trial court's decision not to

give the jury instruction was proper under state law because there was no evidence

of provocation, a required element of the offense. That determination is binding on

this court. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005). The jury instruction

was not required under federal law because, without any evidence to satisfy the

provocation element, a reasonable jury could not have found in Chavez’s favor.

See Mathews v. United States, 485 U.S. 58, 63 (1988).

Second, Chavez contends that the testimony of one of the prosecution's gang

experts violated People v. Sanchez, 63 Cal. 4th 665 (2016). In Sanchez, the

2 California Supreme Court held that expert witnesses’ use of case-specific

testimonial hearsay runs afoul of Crawford v. Washington, 541 U.S. 36 (2004).

Sanchez, 63 Cal. 4th at 684. Chavez does not, however, cite any U.S. Supreme

Court decision applying Crawford in the same manner as Sanchez.

Third, Chavez claims that because the prosecutor and expert witness referred

to him by name in hypothetical questions, the expert improperly opined on his

guilt, thereby depriving him of due process and violating People v. Vang, 52 Cal.

4th 1038 (2011). But in his brief, Chavez agreed with the district court that expert

testimony “on the ultimate issue is not contrary to or an unreasonable application

of Supreme Court precedent.”

Because the state appellate court could reasonably conclude that the only

two potential trial court errors—the heat of passion instruction and the gang

expert’s testimony—did not together render the trial fundamentally unfair, the state

appellate court’s rejection of Chavez’s cumulative error claim was not an

unreasonable application of Chambers v. Mississippi, 410 U.S. 284 (1973) for

purposes of Section 2254(d)(1).

We note that Chavez raises a number of additional arguments in his briefs,

some of which are framed as a motion to expand the certificate of appealability.

3 These claims were not presented to the district court and are not cognizable on

appeal. See King v. Rowland, 977 F.2d 1354, 1357 (9th Cir. 1992).

AFFIRMED.

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