Green

MEMORANDUM **

The facts and procedural posture of the case are known to the parties, and we do not repeat them here. Petitioner was convicted of attempted murder under CaLPenal Code §§ 187 and 664, second-degree robbery under CaLPenal Code § 211, and active participation in a street gang under CaLPenal Code § 186.22(a). [ER 128-29] Petitioner’s sentence reflects a three-year enhancement imposed pursuant to Cal.Penal Code § 186.22(b). [Tr. 1074] In his habeas petition, Petitioner challenges the findings that sufficient evidence existed to support the application of the enhancement under § 186.22(b) and that the admission of testimony by a gang expert did not violate Petitioner’s due process rights.

Because Petitioner’s claims are governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), habeas relief may be granted only upon a finding that the last reasoned state court decision rejecting Petitioner’s claims “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the…

dissenting in part:

I concur in the majority’s holding that Green is not entitled to habeas relief with respect to his conviction. I dissent, however, from its holding that the enhancement is consistent with Jackson v. Virginia, even under AEDPA. The enhancement is applicable only one of three conditions is met: The defendant must be “convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang.” Cal. Pen.Code § 186.22(b). It is clear from the state court’s opinion that it concluded that the first of these conditions, the defendant’s desire to benefit the gang, was the sole basis for the jury’s finding. I do not believe that the majority could say that the state court erred in this regard. Nor would it be appropriate for it to reject the state court’s characterization of jury’s verdict. Moreover, although, under AEDPA, we may be able to look to legal theories other than those on which the state court relied when we examine whether the court’s decision constitutes an unreasonable application of Supreme Court law, we cannot change the basis of a jury’s verdict in order to uphold a decision that violates a defendant’s…