UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WAYNE DINSMORE GRAY, Case No. 2:20-cv-01844-SB-SP

Petitioner,

ORDER ACCEPTING FINDINGS,

v.

CONCLUSIONS, AND

KELLY SANTORO, RECOMMENDATIONS OF THE

U.S. MAGISTRATE JUDGE

Respondent.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the petition (Dkt. No. 1), the records on file, the Report and Recommendation (R&R) of the United States Magistrate Judge (Dkt. No. 20), and the Objections thereto (Dkt. No. 23). After conducting a de novo review of the challenged portions of the R&R, the Court ACCEPTS AND ADOPTS the findings and conclusions of the Magistrate Judge.

Objections

Petitioner’s objections to the R&R are without merit for the reasons explained in the R&R, as briefly discussed below. First, Petitioner contends that he is entitled to relief because the trial court erred in failing to instruct the jury on the accomplice corroboration rule in connection with statements made by Javier Pellecer. Even assuming the trial court violated this state rule, Petitioner is not entitled to habeas relief. See Laboa v. Calderon, 224 F.3d 972, 979 (9th Cir. 2000) (noting that “the [corroboration rule] is not required by the Constitution or federal law”). Petitioner neglects to address this point.

Second, Petitioner contends that the trial court erred by failing to sever the homicide offenses. But he has not shown that any such error would entitle him to habeas relief for a violation of clearly established federal law. See Runningeagle v. Ryan, 686 F.3d 758, 776 (9th Cir. 2012) (noting that misjoinder has not been found to rise to the level of a constitutional violation). In any event, his conclusory assertions do not demonstrate that the trial court erred or that the joinder of claims rendered his trial fundamentally unfair. Third, Petitioner contends that the admission of Pellecer’s statements violated the Sixth Amendment’s Confrontation Clause by running afoul of the rule established in Bruton v. United States, 391 U.S. 123 (1968). This contention fails to consider Ninth Circuit law stating that “Bruton’s rule now applies only to testimonial out-of-court codefendant statements.” Lucero v. Holland, 902 F.3d 979, 988 (9th Cir. 2018). In finding that Pellecer’s statements to a confidential informant was not testimonial, the California Court of Appeal did not contravene clearly established law nor rely on an unreasonable determination of the facts. Indeed, this finding is consistent with the conclusion reached by a number of federal courts. See, e.g., United States v. Saget, 377 F.3d 223, 229 (2d Cir. 2004) (Sotomayor, J.) (concluding that statements made to a confidential information were not testimonial).

Fourth, Petitioner contends that he was deprived of a fair trial as a result of cumulative error. However, he has not demonstrated any error.

Finally, Petitioner contends that Senate Bill 620 must be applied retroactively, and that this Court should remand the case to state court to give it an opportunity to decide whether to strike his firearm enhancements. He fails to consider, however, the threshold question whether his quintessential state claim is subject to federal habeas review. It is not. Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) (noting the general rule that “a state court’s misapplication of its own sentencing laws does not justify federal habeas relief”).

Request for Leave to Amend

Petitioner requests leave to amend so that he can raise an ineffective assistance of counsel claim. At the end of his objections, he asserts:

Petitioner would ask to be allowed to amend a new Ineffective Assistance of trial counsel claim to appellants Habeas Corpus. Failure tocall defense witness, Sylvia Westby, Stevie Lamont Jenkins (jail house informant), Nipsey Hustle AKA Ermias Asgherdom, and second (jail house informant), and Queron Batteys brother Dante, who accussed Battey of the Westby murder and ultimately was held from defense before trial which is exculpatory evidence that more likely than not, the outcome would be favorable to appellants outcome at trial.

Dkt. No. 23. Leave to amend should be freely given “when justice so requires,” Fed. R. Civ. P. 15(a), but leave may be denied for “futility of amendment,” among other reasons. Foman v. Davis, 371 U.S. 178, 182 (1962); see also 28 U.S.C. § 2242 (directing courts to apply the civil rules for amendment to habeas petitions). Because a state prisoner must exhaust the remedies available in state court before seeking federal habeas relief, 28 U.S.C. § 2254(b)(1)(A), an amendment would be futile if a petitioner seeks to add an unexhausted claim. See Caswell v. Calderon, 363 F.3d 832, 837 (9th Cir. 2004) (affirming denial of leave to amend when the petitioner had not presented the claim to the California Supreme Court).

In seeking to pursue his claim for ineffective assistance of counsel, Petitioner has not shown that he has exhausted his state remedies. He did not mention this theory or claim in his briefs before the California Court of Appeal or the California Supreme Court. See Dkt. No. 11. Petitioner’s request suffers from an additional flaw: he provides only conclusory information about the claim he belatedly seeks to advance. A petitioner who challenges his counsel’s trial performance bears the burden of overcoming the presumption that the challenged action or omission was the product of “sound trial strategy.” Strickland v. Washington, 466 U.S. 668, 689 (1984). Petitioner contends that his trial counsel was ineffective by failing to call certain witnesses, but his contention is wholly conclusory. Indeed, he does not even disclose what the witnesses would have stated if called, except cursorily for one witness—the brother of Queron Battey (who allegedly accused Battey of one of the murders for which Petitioner was convicted). Even then, he does not provide sufficient information to evaluate whether his trial counsel spoke with these witnesses and made a strategic decision not to call them. Nor does he explain how he could satisfy the Strickland standard for prejudice in light of weighty evidence against him at trial. Dkt. No. 11-22 at 16–17 of 20 (noting the “overwhelming evidence that [Petitioner] committed the murder”).

Accordingly, the Court finds that amendment would be futile and denies Petitioner’s request for leave to amend.

Conclusion

IT IS THEREFORE ORDERED that:

1. The findings, conclusions, and recommendations in the Report and Recommendation are accepted. 2. Judgment shall be entered denying and dismissing with prejudice the Petition for a Writ of Habeas Corpus. 3. The Clerk shall serve copies of this Order, the Report and Recommendation, and the Judgment on Petitioner and all counsel of record.

IT IS SO ORDERED.

Date: May 10, 2023 ___________________________ Stanley Blumenfeld, Jr. United States District Judge

cc: SP Chambers 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 WAYNE DINSMORE GRAY, ) Case No. 2:20-cv-01844-SB (SP) ) 12 Petitioner, ) REPORT AND ) RECOMMENDATION OF UNITED 13 v. ) STATES MAGISTRATE JUDGE ) 14 ) KELLY SANTORO, Warden, ) 15 ) Respondent. ) 16 ) ) 17 18 This Report and Recommendation is submitted to the Honorable Stanley 19 Blumenfeld, Jr., United States District Judge, pursuant to the provisions of 28 20 U.S.C. § 636 and General Order 05-07 of the United States District Court for the 21 Central District of California. 22 I. 23 INTRODUCTION 24 On February 26, 2020, petitioner Wayne Dinsmore Gray filed a Petition for 25 Writ of Habeas Corpus by a Person in State Custody (“Petition”). Petitioner 26 challenges his 2017 convictions in Los Angeles County Superior Court for three 27 counts of murder with firearm and gang enhancements, and one count of 28 1 possession of a firearm by a felon, for which he was sentenced to two consecutive 2 terms of life without the possibility of parole plus 100 years to life. 3 Petitioner raises five grounds for relief: (1) error in not giving an accomplice 4 jury instruction; (2) error in refusing to sever the murder counts; (3) Confrontation 5 Clause violation when the trial court allowed the prosecution to introduce a 6 transcript of a co-defendant’s conversation into evidence; (4) cumulative error; and 7 (5) a state sentencing law applies retroactively to his case. 8 For the reasons discussed below, petitioner’s claims do not merit habeas 9 relief. It is therefore recommended that the Petition be denied with prejudice. 10 II. 11 STATEMENT OF FACTS1 12 Prosecution’s Evidence 13 The October 6, 2008 Murders of Columbus Campbell and Kavette 14 Watson 15 The Rollin’ 60’s are a criminal street gang with approximately 2,000 16 members. Their primary activities include robberies, burglaries, homicides, and 17 vandalism. Members of the gang are known to murder each other to gain respect 18 and prestige. The gang has a slogan related to these in-house murders: “[Y]ou are 19 not really a true Rollin’ 60 until you kill a Rollin’ 60 gang member.” 20 Petitioner was a member of the Rollin’ 60’s. Columbus Campbell was also a 21 Rollin’ 60’s Crips gang member. In September 2008, petitioner was involved in a 22 fight with Campbell in the presence of a famous rapper and Rollin’ 60’s gang 23 member. During the fight, Campbell struck petitioner “in a blind-sided shot and 24 cut his eye.” Petitioner suffered a black eye. Campbell won the fight. 25 26 1 The facts set forth are drawn substantially verbatim from the California Court of Appeal’s decision on direct appeal. See Lodgment 7 at 3-7. Such 27 statement of facts is presumed correct. 28 U.S.C. § 2254(e)(1); Vasquez v. 28 Kirkland, 572 F.3d 1029, 1031 n.1 (9th Cir. 2009). 1 On October 6, 2008, petitioner asked Javier Pellecer, a fellow Rollin’ 60’s 2 gang member, to help him kill Campbell. Pellecer agreed. They found Campbell 3 sleeping in a parked car with Kavette Watson on 63rd Street and Crenshaw 4 Boulevard. Pellecer pulled his car next to Campbell’s car, a white Mercedes. 5 Petitioner got out of the car and shot Campbell and Watson. Pellecer then drove 6 away. The murders occurred within Rollin’ 60’s territory. 7 Los Angeles Police Department officer Thomas Callen arrived at the scene. 8 He saw the white Mercedes with the windows shot out. Campbell’s and Watson’s 9 bodies were inside; they both had been shot in the head. The police recovered 11 10 .40-caliber casings and an expended bullet. 11 A gang expert opined that a hypothetical crime based on the facts of 12 Campbell and Watson’s murders were committed for the benefit of, at the direction 13 of, and in association with the Rollin’ 60’s. Campbell got the best of petitioner in a 14 fight, and petitioner needed to retaliate. The killing raised petitioner’s status in the 15 gang and benefitted the gang by instilling fear and intimidation in the community. 16 June 2, 2013, Murder of Charles Westby 17 Dorset Village is an apartment complex within the Rollin’ 60’s territory. In 18 June 2013, five or six members of the gang lived in the apartment complex, 19 including petitioner, Jerry Wilson, and Leon Panting. Petitioner, Wilson, and 20 Panting were all members of the Dorset Village Clique, a subset of the Rollin’ 21 60’s. The clique claimed Dorset Village as its territory. Charles Westby lived in 22 Dorset Village, but was not a member of a gang. 23 Wilson and petitioner were “real close,” like “father and son.” On June 2, 24 2013, Wilson noticed petitioner looked irritated and asked petitioner what was 25 wrong. Petitioner stated that he was with three other individuals in the apartment 26 manager’s garage shed when Westby approached them. Petitioner and Westby had 27 an argument. Petitioner told Westby to leave. Westby pulled a gun on petitioner. 28 1 Westby pointed the gun at petitioner; he pulled the trigger, but the gun did not fire. 2 Wilson tried to calm petitioner down, but was unsuccessful. Petitioner 3 stated that he was going to kill Westby. Panting arrived, and petitioner devised a 4 plan to murder Westby. Panting’s role was to call Westby downstairs in the 5 middle of the apartment complex. Wilson’s role was to call petitioner when 6 Westby was on his way back to the back of the apartment complex. 7 Wilson and Panting left petitioner’s apartment together. They walked 8 towards a tree in the middle of Dorset Village. At some point, the two men 9 separated, but Wilson heard Panting call Westby down. Wilson then borrowed 10 another Dorset Village’s resident’s cell phone to call petitioner. Petitioner asked 11 where Westby was, and Wilson told him. Five to seven seconds after petitioner 12 hung up the phone, Wilson heard six to seven “rapid-fire” gunshots. 13 Los Angeles Police Department Officer Jose Bonilla arrived at the scene; 14 Westby was visibly injured and taken to the hospital. He later died from his 15 injuries. 16 A gang expert opined that a hypothetical crime based on the facts of the 17 murder of Westby was committed for the benefit of, at the direction of, and in 18 association with the Rollin’ 60’s because petitioner felt disrespected when Westby 19 pulled a gun on him in Rollin’ 60’s territory. Everyone who participated in the 20 murder had their gang status elevated. The gang benefitted by instilling hear and 21 intimidation in the community. 22 Subsequent Events 23 Shortly after the murders, petitioner visited Queron Battey’s apartment in 24 Dorset Village. Petitioner asked Battey for a drink, and Battey invited him inside. 25 Battey gave petitioner a glass of water. Petitioner then went to Battey’s bedroom. 26 Five minutes later, Battey went to the bedroom. Petitioner was praying. Battey 27 and petitioner then had a conversation during which petitioner told Battey that he 28 1 had murdered Westby, and detailed how he had committed the murder. 2 Meanwhile, on October 16, 2013, Pellecer was detained by police and placed 3 in a jail cell with a confidential informant (“CI”). Pellecer explained to the CI how 4 he and petitioner had murdered Campbell and Watson. He also admitted to getting 5 rid of the gun used by petitioner to murder Westby. 6 On February 9, 2017, Wilson reached a plea agreement. He spoke to the 7 police and provided the details of the Westby murder. At trial, he also testified that 8 petitioner admitted to killing Campbell and Watson and detailed the events 9 surrounding Westby’s murder. 10 Defense Evidence 11 Petitioner rested without testifying or providing an affirmative defense. 12 III. 13 PROCEEDINGS 14 On March 16, 2017, following a jury trial, petitioner was convicted of the 15 first degree murders of Charles Westby, Columbus Campbell, and Kavette Watson 16 (Cal. Penal Code § 187(a)) (counts one, two, and three), and of possession of 17 firearm by a felon (Cal. Penal Code § 29800(a)(1)) (count five). Lodgment 1 18 (Clerk’s Transcript (“CT”)) at 1337-46. As to all the murder counts, the jury found 19 true that petitioner committed the offenses for the benefit of, at the direction of, or 20 in association with a criminal street gang (Cal. Penal Code § 186.22(b)(1)(C)) and 21 that petitioner personally and intentionally discharged a firearm (Cal. Penal Code 22 § 12022.53(d)). CT at 1337-45. In count one, the jury also found true the special 23 circumstance of lying in wait (Cal. Penal Code § 190.2(a)(15)). CT at 1337. 24 Petitioner was sentenced to two consecutive sentences of life without the 25 possibility of parole plus 100 years to life. CT at 1359-60, 1367. 26 Petitioner, represented by counsel, appealed his conviction, raising claims of 27 instructional error, severance denial error, violation of the Confrontation Clause, 28 1 cumulative error, and state sentencing law remand. Lodgment 4. On January 15, 2 2019, the California Court of Appeal, in a reasoned decision, affirmed the 3 judgment. Lodgment 7. 4 Petitioner filed a petition for review in the California Supreme Court, 5 presenting the same issues raised below except for the cumulative error claim. 6 Lodgment 8. The California Supreme Court summarily denied the petition for 7 review on April 24, 2019. Lodgment 9. 8 IV. 9 STANDARD OF REVIEW 10 This case is governed by the Antiterrorism and Effective Death Penalty Act 11 of 1996 (“AEDPA”). AEDPA provides that federal habeas relief “shall not be 12 granted with respect to any claim that was adjudicated on the merits in State court 13 proceedings unless the adjudication of the claim – 14 (1) resulted in a decision that was contrary to, or involved an unreasonable 15 application of, clearly established Federal law, as determined by the Supreme 16 Court of the United States; or 17 (2) resulted in a decision that was based on an unreasonable determination of 18 the facts in light of the evidence presented in the State court proceeding.” 28 19 U.S.C. § 2254(d)(1)-(2) (emphasis added). 20 In assessing whether a state court “unreasonably applied” Supreme Court 21 law or “unreasonably determined” the facts, the federal court generally looks to the 22 last reasoned state court decision as the basis for the state court’s justification. 23 Wilson v. Sellers, __ U.S. __, 138 S. Ct. 1188, 1192, 200 L. Ed. 2d 530 (2018) 24 (“the federal court should ‘look through’ the unexplained decision to the last 25 related state-court decision” and “presume that the unexplained decision adopted 26 the same reasoning”). Here, the California Court of Appeal’s opinion on January 27 15, 2019 stands as the last reasoned decision on all Grounds raised in the Petition. 28 Lodgment 7. 1 V. 2 DISCUSSION 3 A. Petitioner Is Not Entitled to Relief on His Instructional Error Claim 4 In Ground One, petitioner argues his rights to due process and a fair trial 5 were violated when the trial court failed to sua sponte instruct the jury on the 6 state’s accomplice corroboration rule with respect to the statements of Javier 7 Pellecer. Petition at 5, 17-18, 46-57.2 Specifically, petitioner contends the missing 8 instruction “effectively lightened the state’s burden of proof” because there “was 9 no identification” of petitioner as the shooter in the 2008 murders of Campbell and 10 Watson. Id. at 46, 50. Moreover, petitioner argues that the state appellate court’s 11 “error in the interpretation or application of state law was so egregious as to offend 12 federal due process standards under the Sixth and Fourteenth Amendment,” citing 13 Hicks v. Oklahoma, 447 U.S. 343, 346, 100 S. Ct. 2227, 65 L. Ed. 175 (1980). Id. 14 at 18. 15 Pellecer made numerous admissions regarding the murders to a confidential 16 informant (“CI”) when he shared a jail cell with the CI in 2013. CT at 1224-48. 17 In those statements, Pellecer discussed his and petitioner’s involvement in both the 18 2008 and 2013 murders. Regarding the 2008 murders, Pellecer stated that 19 petitioner got out of Pellecer’s car, which Pellecer drove, and shot into another car 20 killing a man who previously upset petitioner and a “sixteen-year old girl” who 21 was also in the car. CT at 1237-38. He noted that both victims were sleeping in 22 the car when they were shot. CT at 1237. Pellecer also gave the cross streets 23 where the murders occurred. CT at 1238. Additionally, Pellecer told the CI that he 24 helped petitioner get rid of the gun used in the 2013 murder. CT at 1239-40. 25 At petitioner’s trial, the prosecution tried to call Pellecer as a witness, but 26 27 2 Citations to pages in the Petition are to the electronic page numbers supplied 28 by the court’s CM/ECF system. 1 Pellecer refused to take the oath or testify and was held in contempt. Lodgment 3 2 (Reporter’s Transcript (“RT”)) at 1948-51. The court found Pellecer was 3 unavailable, and the prosecution introduced a recording and transcript of the 4 conversation between Pellecer and the CI into evidence. RT at 1981-82, 2514-15. 5 The court had previously determined Pellecer’s statements in the recording were 6 admissible as statements against interest. RT at S-37. In addition to Pellecer’s 7 prior statements, the prosecution presented testimony by Wilson – one of 8 petitioner’s co-defendant’s from the 2013 murder – that petitioner confessed to 9 Wilson that he killed Campbell because Campbell punched petitioner, and he also 10 killed the girl with Campbell because she started screaming. RT at 1877-78. 11 California Penal Code § 1111 commands that a “conviction cannot be had 12 upon the testimony of an accomplice unless it be corroborated by such other 13 evidence as shall tend to connect the defendant with the commission of the 14 offense.” But not all statements given out of court constitute testimony for 15 purposes of § 1111. In particular, “‘when the out-of-court statements are not given 16 under suspect circumstances, those statements do not qualify as ‘testimony’ and 17 hence need not be corroborated under . . . section 1111.’” People v. Williams, 16 18 Cal. 4th 153, 245, 66 Cal. Rptr. 2d 123, 940 P.2d 710 (1997) (citation omitted). 19 “‘The most obvious suspect circumstances occur when the accomplice has been 20 arrested or is questioned by the police.’” Id. (citation omitted). 21 Here, the California Court of Appeal rejected petitioner’s contentions. The 22 court found the “trial court properly admitted Pellecer’s statements into evidence 23 under the hearsay exception for statements against penal interest.” Lodgment 7 at 24 8 (citing Cal. Evid. Code § 1230). The court further found “Pellecer’s confession 25 was sufficiently trustworthy and reliable” to warrant admission given that he made 26 it “in a noncoercive setting” to someone he thought was a “fellow inmate” and he 27 took responsibility for his role in the killings, giving “specific details of the 28 crimes.” Id. at 9. The Court of Appeal concluded that “‘no corroboration was 1 necessary, and the [trial] court was not required to instruct the jury to view 2 [Pellecer’s] statement with caution and to require corroboration.’” Id. at 10 3 (quoting People v. Brown, 31 Cal. 4th 518, 556, 3 Cal. Rptr. 3d 145, 73 P.3d 1137 4 (2003)). The Court of Appeal also found that “any assumed error was ‘manifestly 5 harmless.’” Id. (citation omitted). The court reasoned that there was “ample 6 corroborating evidence in the record,” noting Wilson’s testimony and the other 7 eyewitness accounts of a shooter who matched petitioner’s description. Id. 8 Normally, challenges to jury instructions given in state court trials do not 9 provide a basis for federal habeas relief because they concern state law. Estelle v. 10 McGuire, 502 U.S. 62, 68, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991) (questions of 11 state law are not cognizable on federal habeas review); Van Pilon v. Reed, 799 F.2d 12 1332, 1342 (9th Cir. 1986) (“Claims that merely challenge the correctness of jury 13 instructions under state law cannot reasonably be construed to allege a deprivation 14 of federal rights.”). A challenge to a jury instruction based on a state law violation 15 may be entitled to federal habeas relief only when the instruction implicates 16 fundamental fairness. Estelle, 502 U.S. at 72. “‘[T]he ailing instruction by itself 17 [must have] so infected the entire trial that the resulting conviction violates due 18 process.’” Id. (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 38 L. 19 Ed. 2d 368 (1973)). 20 To determine whether an instruction “infected the entire trial,” the 21 “challenged instruction must be considered in light of the full set of jury 22 instructions and the trial record as a whole.” Gibson v. Ortiz, 387 F.3d 812, 821 23 (9th Cir. 2004) (overruled on other grounds); see Waddington v. Sarausad, 555 24 U.S. 179, 191, 129 S. Ct. 823, 172 L. Ed. 2d 532 (2009); Doe v. Busby, 661 F.3d 25 1001, 1018 (9th Cir. 2011) (isolated statements may seem prejudicial but are not 26 when considered in the context of the entire trial). Moreover, “[t]he omission of an 27 instruction is ‘less likely to be prejudicial than a misstatement of the law.’” See 28 Walker v. Endell, 850 F.2d 470, 475 (9th Cir. 1987) (quoting Henderson v. Kibbe, 1 431 U.S. 145, 154, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977)). Thus, a petitioner 2 “whose claim involves a failure to give a particular instruction bears an especially 3 heavy burden.” Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (internal 4 quotation marks omitted). 5 Here, petitioner’s claim of jury instruction error is merely a matter of state 6 law. Thus, the claim is not cognizable. Even assuming error, the error did not 7 implicate fundamental fairness. 8 Petitioner has made no showing, and nothing in the record would indicate, 9 that the trial court’s failure to instruct the jury that Pellecer was an accomplice and 10 therefore his statements had to be viewed with caution and required corroboration 11 infected the entire trial, particularly in light of Wilson’s testimony that petitioner 12 confessed to the 2008 murders. Moreover, while a state violates a criminal 13 defendant’s due process right when it arbitrarily deprives the defendant of a state 14 law entitlement (Hicks, 447 U.S. at 346; Laboa v. Calderon, 224 F.3d 972, 979 15 (9th Cir. 2000)), no such arbitrary denial occurred here. As set forth above, the 16 Court of Appeal reasonably determined the trial court committed no error in 17 omitting an accomplice instruction as to Pellecer’s statements because, under 18 California law, the statements do not constitute testimony for purposes of § 1111. 19 This court is bound by the state court’s finding that Pellecer’s statements were 20 admissible under state law without need for corroboration. See Bradshaw v. 21 Richey, 546 U.S. 74, 76, 126 S. Ct. 602, 163 L. Ed. 2d 407 (2005). In short, the 22 trial court’s failure to give a jury instruction on accomplice testimony with respect 23 to Pellecer’s statements did not implicate fundamental fairness. 24 Moreover, the Supreme Court has never decided a state court must instruct a 25 jury on accomplice testimony. The Ninth Circuit has said that this “state law 26 requirement that a conviction be based on more than uncorroborated accomplice 27 testimony” is “not required by the Constitution or federal law.” Laboa, 224 F.3d at 28 979. Therefore, the Court of Appeal’s rejection of the claim cannot be contrary to 1 clearly established federal law. Wright v. Van Patten, 552 U.S. 120, 126, 128 S. 2 Ct. 743, 169 L. Ed. 2d 583 (2008) (finding that when the Supreme Court has not 3 provided a clear answer to the legal question, “it cannot be said that the state court 4 unreasonabl[y] appli[ed] clearly established Federal law”) (internal quotations 5 omitted); Carey v. Musladin, 549 U.S. 70, 77, 127 S. Ct. 649, 166 L. Ed. 2d 482 6 (2006) (same); see also Gonzalez v. Johnson, 2021 WL 5701385, at *12 (C.D. Cal. 7 July 8, 2021) (collecting cases finding no cognizable claim where petitioner only 8 challenges that accomplice testimony was uncorroborated). 9 Accordingly, petitioner is not entitled to relief on Ground One, which does 10 not present a cognizable federal habeas claim. 11 B. Petitioner Is Not Entitled to Relief on His Confrontation Clause Claim 12 Petitioner argues in Ground Three that the introduction of Pellecer’s 13 statements to the CI into evidence violated his rights under the Confrontation 14 Clause. In particular, petitioner argues that the admission of the statements by 15 Pellecer, his co-defendant, violated Bruton v. United States, 391 U.S. 123, 88 S. Ct. 16 1620, 20 L. Ed. 2d 476 (1968). Petition at 6, 86-114. 17 The Sixth Amendment’s Confrontation Clause “guarantees the right of an 18 accused in a criminal prosecution to be confronted with the witnesses against him.” 19 Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 89 L. Ed. 2d 674 20 (1986) (internal quotation marks omitted). In Crawford v. Washington, the United 21 States Supreme Court held that the Confrontation Clause allows “[t]estimonial 22 statements of witnesses absent from trial [to be] admitted only where the declarant 23 is unavailable, and only where the defendant has had a prior opportunity to cross- 24 examine.” Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369, 158 25 L. Ed. 2d 177 (2004). The Supreme Court has since clearly held that the 26 Confrontation Clause does not bar nontestimonial hearsay. Davis v. Washington, 27 547 U.S. 813, 821, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) (“It is the testimonial 28 character of the statement that separates it from other hearsay that, while subject to 1 traditional limitations upon hearsay evidence, is not subject to the Confrontation 2 Clause.”); see also Crawford, 541 U.S. at 68. 3 While the Supreme Court has not articulated a comprehensive definition of 4 testimonial hearsay, it has recognized that “statements made unwittingly to a 5 Government informant” and “statements from one prisoner to another” are “clearly 6 nontestimonial.” Davis, 547 U.S. at 825. Lower federal courts have also relied on 7 this definition of “testimonial” to find that statements made unknowingly to 8 confidential informants do not implicate the Confrontation Clause. See U.S. v. 9 Saget, 377 F.3d 223, 229 (2d Cir. 2004) (“a declarant’s statements to a confidential 10 informant, whose true status is unknown to the declarant, do not constitute 11 testimony within the meaning of Crawford”) (Sotomayor, J.); U.S. v. Johnson, 581 12 F.3d 320, 325 (6th Cir. 2009) (same); U.S. v. Watson, 525 F.3d 583, 589 (7th Cir. 13 2008) (same); U.S. v. Udeozor, 515 F.3d 260, 270 (4th Cir. 2008) (same); U.S. v. 14 Underwood, 446 F.3d 1340, 1347 (11th Cir. 2006) (same); U.S. v. Hendricks, 395 15 F.3d 173, 182-84 (3d Cir. 2005) (same); Allen v. Montgomery, 2020 WL 8265500, 16 at *11 (C.D. Cal. Oct. 23, 2020) (collecting cases). 17 In Bruton, the Supreme Court held that a defendant’s Sixth Amendment 18 right of confrontation is violated when a facially incriminating confession of a 19 non-testifying co-defendant is admitted at a joint trial. 391 U.S. at 135-36. But 20 following Crawford, the Ninth Circuit joined other circuit courts to conclude that 21 “Bruton’s rule now applies only to testimonial out-of-court codefendant 22 statements.” Lucero v. Holland, 902 F.3d 979, 988 (9th Cir. 2018); see Smith v. 23 Chavez, 565 Fed. Appx. 653, 653 (9th Cir. 2014) (finding Bruton inapplicable to 24 out-of-court statement by co-defendant that was not testimonial). 25 Here, petitioner and Pellecer were charged as co-defendants in May 2014. 26 CT at 625-32. In April 2016, the trial court granted Pellecer’s motion to sever. CT 27 at 1075. As discussed above with respect to Ground One, Pellecer’s statements 28 contained admissions to a CI regarding his and petitioner’s involvement in the 1 2008 and 2013 murders. The California Court of Appeal determined that 2 “Pellecer’s statements to the CI were not testimony,” and therefore there was no 3 Bruton violation. Lodgment 7 at 14-16. In particular, the Court of Appeal found 4 Pellecer’s statements to the CI were not testimonial for purposes of the 5 Confrontation Clause because Pellecer made them unwittingly to a CI whom he 6 believed was a fellow prisoner. This characterization of the statements is well 7 supported by the transcript of Pellecer’s lengthy conversation with the CI. See CT 8 at 1226-48. 9 Given this, and given that Crawford and Bruton only apply to testimonial 10 statements, the California Court of Appeal’s denial of petitioner’s claim in Ground 11 Three was neither contrary to clearly established federal law nor an unreasonable 12 determination of facts. 13 C. Petitioner Is Not Entitled to Relief on His Motion to Sever Claim 14 In Ground Two, petitioner argues the trial court erroneously denied his 15 motion to sever the trial on count 1 (the 2013 murder of Westby) from the trial on 16 counts 2 and 3 (the 2008 murders of Campbell and Watson). Petition at 5, 58-86. 17 Petitioner contends that the joint trial “resulted in a weak case being tried with a 18 very strong case [that] resulted in a fundamentally unfair trial” in violation of his 19 rights to due process and a fair trial. Id. at 59. 20 The California Court of Appeal found “that the trial court did not abuse its 21 discretion by denying” petitioner’s severance motion. Lodgment 7 at 12. Rather, 22 it found that the “[j]oinder of the three murders was proper” under state law since 23 “the offenses are ‘of the same class of crimes.’” Id. Moreover, assuming error, the 24 court found that petitioner “has not shown prejudice.” Id. 25 To the extent petitioner argues the three counts were improperly 26 consolidated in one trial in violation of state law, the claim is not cognizable on 27 federal habeas review. See Park v. California, 202 F.3d 1146, 1149-50 (9th Cir. 28 2000). Federal habeas relief is only available for violations of “clearly established 1 Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. 2 § 2254(d)(1). Clearly established law under AEDPA “refers to the holdings, as 3 opposed to the dicta” by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 4 412, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). 5 There is no such clearly established federal law regarding a right to 6 severance in state trials. On the contrary, the Ninth Circuit has “made clear that the 7 Supreme Court’s observation in United States v. Lane, 474 U.S. 438, 446 n.8, 106 8 S. Ct. 725, 88 L. Ed. 2d 814 (1986), that ‘misjoinder would rise to the level of a 9 constitutional violation only if it results in prejudice so great as to deny a defendant 10 his Fifth Amendment right to a fair trial’ is dicta and does not ‘establish a 11 constitutional standard binding on the states.’” Walden v. Shinn, 990 F.3d 1183, 12 1196 (9th Cir. 2021) (quoting Collins v. Runnels, 603 F.3d 1127, 1131 (9th Cir. 13 2010)); accord Runningeagle v. Ryan, 686 F.3d 758, 774 (9th Cir. 2012) (“there is 14 no clearly established federal law requiring severance of criminal trials in state 15 court”). Accordingly, the Ninth Circuit has held that severance claims do not 16 present a cognizable question on federal habeas review since no clearly established 17 law exists. Runningeagle, 686 F.3d at 776-77; Collins, 603 F.3d at 1131-32; see 18 also Comeaux v. McDowell, 2016 WL 3574337, at *13 (C.D. Cal. May 13, 2016) 19 (applying Ninth Circuit precedent on the issue to find that petitioner is not entitled 20 to relief because “California courts’ rejection of this claim cannot be contrary to, or 21 an unreasonable application of, clearly established federal law.”). 22 Where federal courts have considered habeas relief on a severance claims, it 23 has typically been where AEDPA did not apply or its applicability was in question. 24 See, e.g., Walden, 990 F.3d at 1196 (AEDPA’s applicability challenged); Sandoval 25 v. Calderon, 241 F.3d 765, 771 (9th Cir. 2001) (finding pre-AEDPA law governs 26 case); Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir. 1991) (pre-AEDPA). 27 In such cases, the Ninth Circuit has held that federal habeas corpus relief is 28 available for improper consolidation only if the “simultaneous trial of more than 1 one offense . . . actually render[ed] petitioner’s state trial fundamentally unfair and 2 hence, violative of due process.” Featherstone, 948 F.2d at 1503; see Walden, 990 3 F.3d at 1196; see also Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004) (“The 4 requisite level of prejudice is reached only if the impermissible joinder had a 5 substantial and injurious effect or influence in determining the jury’s verdict.”). 6 Important – although not dispositive – in the determination is whether evidence for 7 one count would be cross-admissible in the trial for the other count. Walden, 990 8 F.3d at 1196-97; Sandoval, 241 F.3d at 772 (risk of undue prejudice is 9 “particularly great whenever joinder of counts allows evidence of other crimes to 10 be introduced in a trial where the evidence would otherwise be inadmissible”). “A 11 finding of ‘cross-admissibility dispels the prejudicial impact of joining all counts in 12 the same trial [as t]he jury would have heard the evidence in any event.’” Walden, 13 990 F.3d at 1197 (quoting Sandoval, 241 F.3d at 772). 14 Here, AEDPA does apply and therefore Ground Two does not present a 15 cognizable claim for federal habeas relief. But even if cognizable, it fails on its 16 merits because the record does reflect that the joinder rendered the trial 17 fundamentally unfair. The California Court of Appeal did not unreasonably 18 determine that petitioner failed to demonstrate any prejudice from the joinder. It 19 explained that some “evidence would have been cross-admissible in separate 20 trials,” including gang expert testimony and Pellecer’s statements to the CI, which 21 pertained to all three murders. Lodgment 7 at 12. The Court of Appeal also found 22 there was strong evidence as to both the 2008 murders and 2013 murder, and they 23 were similar in nature and egregiousness and therefore neither was likely to unduly 24 inflame the jury against petitioner. Id. at 13-14. As such, petitioner has not shown 25 the denial of his severance motion rendered his trial fundamentally unfair. 26 For these reasons, petitioner is not entitled to relief on Ground Two. 27 D. Petitioner Is Not Entitled to Relief on His Cumulative Error Claim 28 In Ground Four, petitioner contends that the “cumulative effect of multiple 1 errors” in Grounds 1, 2, and 3 “rendered petitioner’s trial fundamentally unfair.” 2 Petition at 6, 121-22. 3 This claim does not appear to be exhausted. Petitioner raised this claim to 4 the California Court of Appeal. Lodgment 4 at 114-15. But the Petition for 5 Review does not include a cumulative error claim. Lodgment 8. Consequently, 6 the claim is unexhausted. Petrocelli v. Baker, 869 F.3d 710, 725 (9th Cir. 2017) 7 (to be properly exhausted the claim must be fairly presented “to the highest court 8 of the state”) (quoting Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011)). 9 Nonetheless, because “it is perfectly clear” that the unexhausted cumulative error 10 claim “does not raise even a colorable federal claim,” the court should deny this 11 claim on the merits. See Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). 12 The “combined effect of multiple trial court errors violates due process 13 where it renders the resulting criminal trial fundamentally unfair.” Parle v. 14 Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (citing Chambers v. Mississippi, 410 15 U.S. 284, 302, 93 S. Ct. 1038, 1049, 35 L. Ed. 2d 297 (1973)). But when there is 16 not a single constitutional error, there is “nothing to accumulate to a level of a 17 constitutional violation.” Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002). 18 Here, petitioner did not demonstrate that any constitutional error occurred. As a 19 result, petitioner’s cumulative error claim fails. 20 E. Petitioner’s Sentencing Claim Is Not Cognizable 21 In Ground Five, petitioner contends Senate Bill 620 must be applied 22 retroactively to his case. Petition at 6, 122. SB 620 retroactively granted state trial 23 courts discretion to strike previously-mandated firearm enhancements. The 24 California Court of Appeal “decline[d] to remand the case for resentencing.” It 25 reasoned “the appellate record shows that there is no reasonable possibility that the 26 trial court would exercise its discretion to lessen the sentence.” Lodgment 7 at 17. 27 Petitioner does not present a cognizable claim with Ground Five. Claims 28 challenging a state court’s interpretation and application of state sentencing or 1 || enhancement laws are generally not subject to federal habeas review. Lewis v. > || Jeffers, 497 U.S. 764, 780, 110 S. Ct. 3092, 3102, 111 L. Ed. 2d 606 (1990); 3 || Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) (“[A] state court’s 4 || misapplication of its own sentencing laws does not justify federal habeas relief.”). 5 || Various California District Courts have found that claims related to SB 620 do not 6 || raise federal constitutional issues. E.g., McVey v. Santoro, 2021 WL 6118771, at 7 || *6 (C.D. Cal. Aug. 11, 2021); Basped v. Asuncion, 2021 WL 1062562, at *1 (E.D. g | Cal. Feb. 19, 2021); Godfrey v. Warden PVSP, 2020 WL 3544980, at *2 (N.D. Cal. g || June 30, 2020). This claim simply does not present a cognizable federal issue that 10 || this court can review. 11 VI. 12 RECOMMENDATION 13 IT IS THEREFORE RECOMMENDED that the District Court issue an 14 || Order: (1) approving and accepting this Report and Recommendation; and (2) 15 || directing that Judgment be entered denying the Petition and dismissing this action 16 || with prejudice. 17 ey 19 || DATED: March 15, 2023 SHERIPYM 20 United States Magistrate Judge 21 22 23 24 25 26 27 28 17