1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MIGUEL ANGEL VILLEGAS, Case No. 1:19-cv-00668-NONE-JDP (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO

DENY PETITION FOR A WRIT OF HABEAS

13 v. CORPUS AND TO DECLINE TO ISSUE A

CERTIFICATE OF APPEALABILITY

14 J. W. SULLIVAN,

OBJECTIONS DUE WITHIN 30 DAYS

15 Respondent. ECF No. 1 16 17 Petitioner Miguel Angel Villegas, a state prisoner without counsel, seeks a writ of habeas 18 corpus under 28 U.S.C. § 2254. ECF No. 1. Petitioner claims: (1) that there was insufficient 19 evidence to support his convictions; and that the trial court (2) gave erroneous jury instructions, 20 (3)wrongfully denied his motion to bifurcate, (4) wrongfully denied his motion for a new trial, 21 and (5) wrongfully denied his motion for juror discovery. Id. The California Court of Appeal 22 rejected all claims on the merits in a reasoned decision, and the California Supreme Court 23 summarily denied all claims on collateral review. For the reasons set forth below, we recommend 24 that the court deny the petition and decline to issue a certificate of appealability. 25 I. Background 26 In 2015, a jury sitting in Tulare County convicted petitioner of attempted robbery and 27 conspiracy to commit robbery, and applied firearm and criminal street gang enhancements. See 28 People v. Villegas, No. F072155, 2018 Cal. App. Unpub. LEXIS 165, at *2 (Jan. 10, 2018). 1 Petitioner received an aggregate prison sentence of 12 years. Id. We set forth below the pertinent 2 facts of the underlying offenses, as summarized by the California Court of Appeal. A 3 presumption of correctness applies to these facts. See 28 U.S.C. § 2254(e)(1); Crittenden v. 4 Chappell, 804 F.3d 998, 1010-11 (9th Cir. 2015).

5 Introduction

6 This matter involves three defendants, [petitioner] Miguel Angel Villegas, Gustavo Jesus Mendoza, and Joel Serrato (collectively the 7 Codefendants).

8 I. The Undercover Drug Purchase

9 In January 2014, law enforcement planned an undercover operation to purchase OxyContin illegally from a seller, Ronald Ditlevson, 10 Jr. Shawn Riley, an agent from the Drug Enforcement Administration (DEA), had purchased OxyContin illegally from 11 Ditlevson on three previous occasions starting in October 2013. Riley had paid Ditlevson in cash during the three prior 12 transactions. In setting up a fourth purchase, Riley hoped to learn the identity of Ditlevson’s supplier. Prior to this fourth purchase, 13 nothing indicated that Ditlevson had any connection with a criminal street gang. 14 A. The negotiations for the fourth drug purchase 15 Riley began negotiating with Ditlevson for a fourth purchase of 16 OxyContin. In a series of communications, Ditlevson said he was having trouble obtaining the drug. They eventually agreed on a sale 17 date of January 30, 2014. Riley agreed to pay $2,600 for the pills.

18 At around 3:15 p.m. on the day of the planned purchase, Ditlevson texted Riley, indicating he did not yet have the pills and he asked 19 for the money up front. When Riley refused, Ditlevson asked for half of the money, noting he needed to meet his source to obtain the 20 pills. After Riley again refused, Ditlevson agreed to go ahead with the sale that day. At about 3:19 p.m., Riley suggested that 21 Ditlevson’s supplier should meet them at the sale. Ditlevson agreed that would happen. 22 B. Ditlevson contacts appellant 23 Shortly after confirming the sale with Riley, Ditlevson called 24 [petitioner’s] cellular telephone. The call occurred at 3:28 p.m. and it lasted one minute and 56 seconds. At 3:38 p.m., [petitioner] 25 texted Ditlevson, “Can you pick me N [sic] my boy up and well [sic] do [everything]. We just need a ride.” Four additional 26 outgoing calls were placed from Ditlevson’s phone to [petitioner’s] phone at 3:41 p.m., again at 3:41 p.m., 3:56 p.m., and finally at 4:02 27 p.m.

28 1 C. Police officers spot [petitioner] and codefendant Mendoza at the location of the planned drug sale 2 Later that same day, at approximately 4:45 p.m., Riley and local 3 officers from the Visalia Police Department took up positions at the prearranged sale location, a hotel parking lot. It was close to 4 sundown. Two of the previous illegal drug purchases with Ditlevson had occurred in this same parking lot. Riley used the 5 same vehicle that he had used in his three previous drug purchases with Ditlevson. While Riley waited in his vehicle in the parking 6 lot, the police officers set up as surveillance and security teams. Riley notified Ditlevson that he was at the location. 7 While they waited for Ditlevson to show up, a police officer 8 observed two males walking together in the parking lot; these males were later identified as [petitioner] and codefendant 9 Mendoza. They passed near an unmarked police vehicle that was providing surveillance of the anticipated drug 10 purchase. [Petitioner] and Mendoza made eye contact with one of the undercover officers. They walked away and then they returned 11 about a minute or two later. The officer did not see either of them carrying a gun. Based on their body language, the officer believed 12 that appellant and Mendoza had realized that undercover officers were in the area. 13 D. Ditlevson moves the location of the planned drug sale 14 At approximately 5:03 p.m. that same day, Ditlevson texted Riley 15 that “his source of supply” had told him that police “train in that area[.]” Ditlevson wanted to move the sale location to a nearby 16 park. Riley tried to get Ditlevson to come to his location, indicating no police were present, but Ditlevson remained adamant that he 17 wanted to change locations. Riley, after consulting with his teams, agreed to switch the location for the drug purchase. Riley never 18 saw Ditlevson at the hotel parking lot and nobody approached Riley while he was there. 19 Riley and the police teams relocated to the nearby park. The other 20 police officers took positions to provide security and surveillance. Everyone was ready at about 5:30 p.m. Riley parked 21 his vehicle near the park’s exit.

22 E. [Petitioner] and Mendoza approach Riley at the new location 23 Less than a minute after Riley parked at the new location, 24 [petitioner] and Mendoza began walking together in tandem across a grassy area towards Riley. They were initially spotted about 30 25 yards from Riley’s position. As they came closer, they both made eye contact with Riley. [Petitioner] had a beanie or a bandanna on 26 his head. Mendoza had his face covered up to the bridge of his nose with some type of white cloth. Mendoza wore a long-sleeved 27 sweatshirt, or something similar, and he walked with his right hand tucked underneath his opposite armpit, making it appear that he 28 carried a weapon. 1 Riley had never seen [petitioner] and Mendoza before. Although 2 Riley did not see a gun, he became nervous and feared for his safety. [Petitioner] and Mendoza came within about 10 to 15 yards 3 of Riley. Riley believed they were armed and they were approaching to rob him. Riley drove away. 4 Neither [petitioner] nor Mendoza said anything to Riley, and 5 neither pointed a weapon at him. As Riley drove away, neither [petitioner] nor Mendoza yelled anything towards him, they did not 6 run towards his vehicle, and they did not try to stop him. Neither [petitioner] nor Mendoza chased after Riley, but they did stop and 7 watch him leave the park.

8 After Riley drove away, an officer providing surveillance saw that Mendoza had a shiny metal object in his hand underneath his left 9 arm near his “armpit area.” Upon closer inspection, the officer saw “no more than an inch” of a gun’s barrel there. The officer 10 determined that Mendoza had a firearm. [Petitioner] and Mendoza walked to Ditlevson’s parked vehicle, entered it and drove 11 away. At trial, Riley confirmed that he never spotted Ditlevson’s vehicle after the proposed sale was relocated to the park. 12 F. Law enforcement detain four suspects 13 Undercover officers followed Ditlevson’s vehicle as it drove away 14 from the park. It left the City of Visalia and entered the City of Exeter. Police took four occupants into custody: Ditlevson had 15 been driving; codefendant Serrato was the front passenger; [petitioner] and Mendoza were rear passengers. No illegal 16 narcotics were located. Police located and seized a loaded .45- caliber handgun inside the vehicle. The gun had been lying behind 17 the back seat on the floor under a towel or T-shirt. Officers recovered two rounds of .45-caliber ammunition in the vehicle’s 18 center console between the driver’s seat and the passenger’s seat.

19 At trial, one of the police officers testified that the barrel of the recovered handgun had a “consistent shape” with the barrel of the 20 handgun seen on Mendoza after Riley fled.

21 G. Mendoza and Serrato make statements to the police

22 Police interviewed Serrato, who stated he had been at Mendoza’s house. He also said he had been with Ditlevson in Visalia on 23 January 30, 2014. He claimed to have been meeting a female, but he did not know her name. He indicated that he had gone near the 24 hotel. Serrato admitted that he was an active gang member and he had observed a handgun in Ditlevson’s vehicle. 25 Police interviewed Mendoza, who said Ditlevson picked him up 26 sometime in the evening of January 30, 2014. Mendoza, however, denied that he went to the hotel. During his police interview, Riley 27 walked into the room and Mendoza’s shoulders dropped, and his head bowed. Mendoza denied that he had a gun. 28 1 II. The Relevant Gang Evidence

2 The parties stipulated that the Norteños are a criminal street gang within the meaning of section 186.22. Additionally, Serrato and 3 Mendoza both stipulated that they are active Norteño gang members, and they both stipulated that they are prohibited from 4 owning or possessing a firearm.

5 The prosecution’s gang expert provided background about the Norteño gang, its rivals, its structure, and how it pays taxes within 6 its hierarchy. The expert reviewed photographs taken from [petitioner’s] cellular telephone that showed [petitioner] in various 7 poses and attire that the expert attributed to the Norteño gang. [Petitioner] had a photograph of Mendoza, and he had 8 different photographs of himself with Mendoza and Serrato. The expert explained how law enforcement classifies someone as a gang 9 member. The expert opined that appellant was a Norteño gang member. 10 The gang expert confirmed that Ditlevson was not a “northern” 11 gang member. The expert noted that Norteños do not usually commit crimes with people not associated with the gang. In such a 12 situation, the gang members would leave a “watchdog” to ensure that the non-member did not leave while the crime was 13 underway. The expert also believed a second gang member would accompany the primary robber to provide protection and to vouch 14 for the crime. The gang members would all work together in different roles. 15 The gang expert opined that gang members who get money as a 16 result of committing a crime owe a portion of the proceeds to the gang. The expert opined that the Norteño gang tries to control the 17 sale of drugs in Visalia. The gang might allow a non-Norteño to sell drugs in Visalia if the gang was paid. The expert admitted, 18 however, that there was no evidence that Ditlevson was paying anyone. He also admitted that there was no evidence that the 19 Codefendants had orders from the gang to commit this crime.

20 Villegas, No. F072155, at *2-9. 21 II. Discussion 22 A. Standard of Review 23 A federal court may grant habeas relief when a petitioner shows that his custody violates 24 federal law. See 28 U.S.C. §§ 2241(a), (c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 374-75 25 (2000). Section 2254 of Title 28, as amended by the Antiterrorism and Effective Death Penalty 26 Act of 1996 (“AEDPA”), governs a state prisoner’s habeas petition. See Harrington v. Richter, 27 562 U.S. 86, 97 (2011). To decide a § 2254 petition, a federal court examines the decision of the 28 last state court that issued a reasoned opinion on petitioner’s habeas claims. See Wilson v. Sellers, 1 138 S. Ct. 1188, 1192 (2018). We must defer to that decision, and cannot grant habeas relief for 2 any claim that was adjudicated on the merits in the state proceeding unless it was contrary to 3 clearly established federal law or based on an unreasonable determination of the facts. See 28 4 U.S.C. § 2254(d). 5 If obtaining habeas relief under § 2254 is difficult, “that is because it was meant to 6 be.” Richter, 562 U.S. at 102. As the Supreme Court has put it, federal habeas review “disturbs 7 the State’s significant interest in repose for concluded litigation, denies society the right to punish 8 some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises 9 of federal judicial authority.” Id. at 103 (citation omitted). Our habeas review authority serves as 10 a “guard against extreme malfunctions in the state criminal justice systems, not a substitute for 11 ordinary error correction through appeal.” Id. at 102-03 (emphasis added). 12 This court applies the deferential standard of § 2254 to the last reasoned opinion in this 13 case—here, that of the Court of Appeal. 14 B. Sufficiency of Evidence 15 Petitioner claims that there was insufficient evidence to support his convictions. ECF No. 16 1 at 14. The Court of Appeal rejected petitioner’s claim, finding the evidence sufficient.1 ECF 17 No. 19-1 at 10-15. 18 To gain relief, petitioner must prove that “no rational trier of fact could have found proof 19 of guilt beyond a reasonable doubt” based on the evidence presented at trial. Jackson v. Virginia, 20 443 U.S. 307, 324 (1979). “[T]he relevant question is whether, after viewing the evidence in the 21 light most favorable to the prosecution, any rational trier of fact could have found the essential 22 elements of the crime beyond a reasonable doubt.” Id. at 319. If the record supports conflicting 23 inferences, we “must presume—even if it does not affirmatively appear in the record—that the 24 trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that 25 resolution.” Id. at 326; see Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (“[I]t is the responsibility of 26

27 1 The Court of Appeal found that petitioner waived his claim of insufficient evidence on the conspiracy charge, but nevertheless reviewed the claim on the merits. ECF No. 19-1 at 9. We 28 will do the same here. 1 the jury—not the court—to decide what conclusions should be drawn from evidence admitted at 2 trial.”) Moreover, an additional layer of deference under AEDPA applies to a review of an 3 insufficient evidence claim: habeas relief is not warranted unless “the state court’s application of 4 the Jackson standard [was] objectively unreasonable.” Juan H. v. Allen, 408 F.3d 1262, 1274, 5 1275 n.13 (9th Cir. 2005). 6 We look to state law to determine what evidence is necessary to sustain petitioner’s 7 convictions. See Jackson, 443 U.S. at 324 n.16. “A conviction of conspiracy requires proof that 8 the defendant and another person had the specific intent to agree or conspire to commit an 9 offense, as well as the specific intent to commit the elements of that offense, together with proof 10 of the commission of an overt act by one or more of the parties to such agreement in furtherance 11 of the conspiracy.” People v. Morante, 20 Cal. 4th 403, 416 (1999). Circumstantial evidence 12 may be used to establish the elements of conspiracy. People v. Bogan, 52 Cal. App. 4th 1070, 13 1074 (2007). The conduct, relationships, and activities of the alleged conspirators before and 14 during the alleged conspiracy may be considered. Id. Robbery is “the felonious taking of 15 personal property in the possession of another, from his person or immediate presence, and 16 against his will, accomplished by means of force or fear.” Cal. Pen. Code. § 211. Attempted 17 robbery occurs when there is “(1) the specific intent to commit robbery” and (2) a “direct but 18 ineffectual act done toward its commission.” People v. Watkins, 55 Cal. 4th 999, 1018 19 (2012). The act must represent “some appreciable fragment of the crime,” id. at 1021, but there is 20 no requirement that an element of robbery be committed, People v. Lindberg, 45 Cal. 4th 1, 28 21 (2008). 22 Here, a reasonable juror could conclude that petitioner planned to participate in a robbery 23 of Riley with his co-defendants and took at least one direct act towards its commission. The jury 24 was presented with evidence that an undercover officer had purchased drugs from Ditlevson on 25 three previous occasions. ECF No. 20-7 at 51. Ditlevson and the undercover officer texted 26 extensively about the price of the drugs. Id. at 58-61. Ditlevson asked the undercover officer to 27 give him half of the money for the drugs prior to the planned exchange. Id. at 141. On the day of 28 the incident, Ditlevson called petitioner once and petitioner called Ditlevson five times. Id. at 1 142-43. Hours before the incident, petitioner texted Ditlevson, stating “Can you pick me N my 2 boy up and well do everything. We just need a ride.” Id. at 143. Petitioner was with all his co- 3 defendants before the incident. Id. at 175-76. Petitioner was observed by multiple detectives at 4 both the Holiday Inn and Adventure Park, locations where Ditlevson planned to meet Riley. Id. 5 at 168-69. Petitioner and Mendoza were observed walking in tandem toward Riley and making 6 eye contact with Riley. Id. at 73-78. Mendoza covered his face and held a shiny metal object that 7 at least one detective identified as a gun; another detective testified that petitioner covered his 8 face with a bandana. Id. at 73-78; 221; ECF No. 20-8 at 20. Riley’s observations led him to be 9 concerned for his safety, believing petitioner and Mendoza were going to rob him. ECF No. 20-7 10 at 134. After Riley fled, petitioner and Mendoza got into Ditlevson’s car, where police officers 11 later found a loaded gun and additional ammunition. ECF No. 20-7 at 174-75. Three officers 12 searched for drugs in the car but found none. ECF No. 20-7 at 129; 173-75; 207. One officer 13 surmised that the lack of drugs signaled that petitioner and his co-defendants did not intend to sell 14 drugs to Riley, but rather intended to rob Riley, who petitioner and his co-defendants believed 15 possessed a large amount of cash. Id. at 229. 16 In sum, upon hearing that petitioner texted Divletson that he and Mendoza would “do 17 everything,” was at the scene of the planned drug purchase with his face covered, walked with 18 Mendoza towards Riley while Mendoza held a gun, and fled the scene in Divletson’s car, a 19 “rational trier of fact could have found the essential elements” of conspiracy and attempted 20 robbery “beyond a reasonable doubt.” Jackson, 443 U.S. at 319. Accordingly, the Court of 21 Appeal’s finding of sufficient evidence was not contrary to or an unreasonable application of the 22 Jackson standard. 23 C. Instructional Error 24 Relatedly, petitioner claims that because there was insufficient evidence to support a 25 finding of attempted robbery, the trial court erred when it instructed the jury on attempted 26 robbery. ECF No. 1 at 22. Referring to its finding that the evidence was sufficient to support an 27 attempted robbery conviction, the Court of Appeal found that the trial court did not err in giving 28 the instruction. ECF No. 19-1 at 15. 1 An “allegedly erroneous jury instruction will support a collateral attack on a judgment of 2 conviction only where the instruction ‘by itself so infected the entire trial that the resulting 3 conviction violates due process.’” Quigg v. Crist, 616 F.2d 1107, 1111 (9th Cir. 1980) (quoting 4 Cupp v. Naughten, 414 U.S. 141, 147 (1973)). The giving of a jury instruction “does not violate 5 due process . . . where there is evidence before the jury to support the instruction.” Id. Because 6 there was sufficient evidence to support petitioner’s conviction of attempted robbery, there was 7 likewise sufficient evidence to support the attempted robbery instruction. The Court of Appeal’s 8 denial of petitioner’s claim was not unreasonable. Accordingly, we recommend that petitioner’s 9 claim be denied. 10 D. Bifurcation 11 Petitioner claims that the trial court abused its discretion when it denied petitioner’s 12 motion to bifurcate the gang enhancement from the underlying charges. ECF No. 1 at 24. The 13 Court of Appeal found that petitioner suffered no prejudice from a failure to bifurcate the 14 “inextricably linked” charges and the gang enhancement, considering that the evidence of 15 petitioner’s gang membership was also probative of the charged crimes. ECF No. 19-1 at 15- 16 18. 17 Non-bifurcation is not a per se constitutional violation. “The Supreme Court has never 18 held that a trial court’s failure to provide separate trials on different charges implicates a 19 defendant’s right to due process.” Hollie v. Hedgpeth, 456 F. App’x 685, 685 (9th Cir. 2011); see 20 Spencer v. Texas, 385 U.S. 554, 567-68 (1967) (explaining that bifurcated jury trials “have never 21 been compelled by [the Supreme Court] as a matter of constitutional law”). Rather, to gain 22 federal habeas relief, the failure to bifurcate must have prejudiced the petitioner, Featherstone v. 23 Estelle, 948 F.2d 1497, 1503 (9th Cir. 1991), meaning that it had a substantial and injurious effect 24 or influence on the jury’s verdict, Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2003). “In 25 evaluating prejudice, the [federal habeas court] focuses particularly on cross-admissibility of 26 evidence and the danger of spillover from one charge to another, especially where one charge or 27 set of charges is weaker than another.” Id. In other words, we evaluate whether the failure to 28 1 bifurcate allowed “evidence of other crimes to be introduced in a trial where the evidence would 2 be otherwise inadmissible.” Sandoval v. Calderon, 241 F.3d 765, 772 (9th Cir. 2000). 3 Petitioner has not shown that non-bifurcation rendered his trial fundamentally unfair. 4 Here, the evidence supporting the underlying crimes also supported petitioner’s gang 5 enhancement. For example, in California juries may consider the relationships and activities of 6 members of an alleged conspiracy, see Bogan, 52 Cal. App. 4th at 1074, just as they may consider 7 the relationships and activities of a defendant when determining whether to apply a gang 8 enhancement, Cal. Pen. Code § 186.22(f). Bifurcation is unnecessary where, as here, “‘evidence 9 of a defendant’s gang affiliation—including evidence of the gang’s territory, membership, signs, 10 symbols, beliefs and practices, criminal enterprises, rivalries and the like—can help prove 11 identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues 12 pertinent to the charged crime.’” Solano v. Lewis, NO. CV 12-7570-VAP(E), 2014 U.S. Dist. 13 LEXIS 57544, at *27 (C.D. Cal. Apr. 19, 2014) (quoting People v. Hernandez, 33 Cal. 4th 1040, 14 1049 (2004)); see Torrey Levarr Adams v. Hatton, No. 2:16-cv-01029-JKS, 2018 U.S. Dist. 15 LEXIS 197161, at *21 (Nov. 19, 2018) (denying habeas relief where much of the evidence 16 supporting a gang enhancement was cross-admissible on the underlying charge in a non- 17 bifurcated trial). Therefore, the Court of Appeal’s denial of petitioner’s claim was not 18 unreasonable. 19 E. New Trial 20 Petitioner claims that the trial court abused its discretion when it denied his motion for a 21 new trial. ECF No. 1 at 32. The Court of Appeal denied each of petitioner’s three bases for a 22 new trial as meritless. ECF No. 19-1 at 19. 23 To the extent that petitioner alleges a violation of state law in the court’s denial of his 24 motion, his claim is not cognizable on federal habeas review. See Estelle, 502 U.S. at 67- 25 68. Rather, to be granted relief, petitioner must show that the trial court’s denial of his motion for 26 a new trial was an independent violation of his federal constitutional rights. See Melugin v. 27 Hames, 38 F.3d 1478, 1487 (9th Cir. 1994). We will consider potential federal bases of his claim. 28 1 1. Sufficiency of Evidence 2 Petitioner claims that he should have been afforded a new trial because the evidence was 3 insufficient to support his convictions. ECF No. 1 at 33. The Court of Appeal denied this claim, 4 referring to its previous finding of sufficient evidence. ECF No. 19-1 at 19-20. We do not find 5 the Court of Appeal’s determination unreasonable; this claim should be denied considering our 6 findings supra. 7 2. Juror Misconduct 8 Petitioner claims that he should have been afforded a new trial due to juror 9 misconduct. ECF No. 1 at 40. The Court of Appeal found that no bias resulted from the conduct 10 at issue. ECF No. 19-1 at 22. During the trial, one of the jurors conversed with DEA agent Riley 11 and a state investigator for less than 30 seconds in the courthouse parking lot. ECF No. 20-8 at 9- 12 10. The juror asked Riley and the investigator if they knew a person who used to work at the 13 DEA, and they answered that they did not. Id. The prosecution brought the interaction to the 14 court’s attention promptly, and the judge held a brief hearing, allowing defense attorneys an 15 opportunity to raise any concerns. The judge concluded that there was no evidence of juror 16 misconduct or bias arising from the conversation, considering that Riley and the investigator did 17 not know the person, that the jurors had been admonished to be unbiased,2 and that the juror in 18 question had disclosed on voir dire that he had friends or family members who were law 19 enforcement. Id. at 11-12. The defense attorneys did not object to the judge’s finding. Id. 20 Clearly established Supreme Court precedent “compels a criminal trial court to consider 21 the prejudicial effect of any external contact that has a ‘tendency’ to influence the verdict, 22 irrespective of whether it is about the matter pending before the jury.” Tarango v. McDaniel, 837 23 F.3d 936, 946 (9th Cir. 2016) (citing Mattox v. United States, 146 U.S. 140, 150-51 (1892)). In 24 the Ninth Circuit, a two-part framework is employed to analyze juror misconduct: the court first 25 inquires whether the contact was possibly prejudicial and if so, the burden is placed on the 26 government to prove that the contact was harmless. See Godoy v. Spearman, 861 F. 3d 956, 959 27 2 The court admonished the jury as follows: “do not let bias, sympathy, prejudice, or public 28 opinion influence your decision.” ECF No. 20-11 at 10. 1 (9th Cir. 2017). However, “if an unauthorized contact with a juror is de minimus, the defendant 2 must show that the communication could have influenced the verdict before the burden of proof 3 shifts to the prosecution.” Caliendo v. Warden of Calif. Men’s Colony, 365 F.3d 691, 696 (9th 4 Cir. 2004); see Bolden v. Davey, No. CV 16-5105-GW (PLA), 2017 U.S. Dist. LEXIS 196279, at 5 *27 (C.D. Cal. Mar. 29, 2017) (finding de minimus contact where juror briefly spoke to detective 6 in courtroom and detective promptly told juror he could not talk to her). 7 Here, the contact was de minimus and petitioner has failed to show how the brief 8 conversation influenced the verdict. Therefore, the burden did not shift to the prosecution to 9 prove that the contact was harmless. Nevertheless, the prosecution brought the contact to the 10 judge’s attention and the judge held a hearing on the matter. Petitioner has failed to produce 11 evidence that the juror held any kind of bias against petitioner, nor that he had any kind of special 12 relationship with Riley or any other law enforcement agents involved in the case. Petitioner’s 13 counsel had the opportunity to raise any concerns before the trial judge. We cannot find that the 14 contact between the juror and the state agents was prejudicial to petitioner. Therefore, the Court 15 of Appeal’s denial of petitioner’s claim was not unreasonable and we recommend that petitioner 16 be denied relief. 17 3. Ineffective Assistance of Counsel 18 Petitioner claims that he should have been afforded a new trial because his counsel was 19 ineffective when he failed to: (1) request an evidentiary hearing on juror misconduct; (2) request 20 an alternate juror be seated; (3) object to certain jury instructions; (4) request bifurcation of the 21 gang enhancement; (5) and request severance of his case from his co-defendants. ECF No. 1 at 22 36. The Court of Appeal found all of petitioner’s claims meritless.3 ECF No. 19-1 at 23. 23 In federal habeas proceedings, the two-step analysis outlined by the Supreme Court in 24 Strickland v. Washington, 466 U.S. 668 (1984), governs ineffective assistance of counsel 25 claims. Petitioner first must prove that his attorney’s representation fell below an objective 26 standard of reasonableness, meaning that the attorney’s performance was unreasonable under 27 3 The Court of Appeal deemed some of petitioner’s arguments waived on appeal yet addressed 28 and rejected them on the merits. ECF No. 19-1 at 23. We will do the same. 1 prevailing professional norms. Id. at 687-88. Review of counsel’s performance is highly 2 deferential, and the petitioner must overcome the strong presumption that counsel’s conduct fell 3 within the wide range of reasonable representation. Id. at 689. Second, a petitioner must show 4 prejudice by demonstrating a reasonable probability that, but for counsel’s error, the result of the 5 proceeding would have been different. Id. at 694. 6 Except for the severance claim, all of petitioner’s claims underlying his ineffective 7 assistance of counsel claim have been rejected supra. There is no evidence that the minimal 8 contact between the juror and the state employees negatively affected the jury’s 9 deliberations. And petitioner has failed to show that the jury instructions were erroneous or 10 unsupported by the evidence presented at trial. Even so, petitioner’s counsel objected to the 11 sufficiency of the evidence. ECF No. 20-9 at 6. Petitioner had no constitutional right to 12 bifurcation of the gang enhancement and bifurcation was not required under California law. Even 13 so, and contrary to petitioner’s assertion, his counsel did seek to bifurcate the gang 14 enhancements. ECF No. 20-7 at 12. Finally, petitioner’s severance claim fails. To be granted 15 relief, he must show that his non-severed trial was fundamentally unfair in violation of due 16 process; he has not done so. See Sandoval v. Calderon, 241 F.3d 765, 771-72 (9th Cir. 2000). 17 Accordingly, all of the actions petitioner claims his counsel should have taken at trial were 18 either taken by his counsel or would have been futile. The failure to take a futile action cannot 19 support a claim of ineffective assistance of counsel. See Wilson v. Henry, 185 F.3d 986, 990 (9th 20 Cir. 1999); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996). Therefore, petitioner’s ineffective 21 assistance of counsel claims are without merit and should be rejected. 22 F. Juror Discovery Request 23 Petitioner claims that the trial court abused its discretion when it denied petitioner’s 24 motion to disclose the identity of the allegedly biased juror. ECF No. 1 at 49. The Court of 25 Appeal found that petitioner failed to show the good cause required under California law to 26 disclose a juror’s identity. ECF No. 19-1 at 25. We do not find the Court of Appeal’s 27 determination unreasonable. There was no good cause for the court to reveal the identity of the 28 1 juror considering that there was no evidence that the juror contact influenced the jury’s ultimate 2 decision. 3 Relatedly, petitioner claims that the trial court contravened state procedural rules when it 4 failed to state its reasons for denial of his juror discovery request in the court’s minute 5 order. ECF No. 1 at 55. However, the trial court explained its reasons for its denial on the record 6 during the hearing on the motion, stating that “the court does not find a compelling reason to 7 release the information.” ECF No. 20-10 at 4. The Court of Appeal found that, although the 8 minute order was deficient under state rules, no reversible error occurred considering that the trial 9 court stated its reasons on the record in open court. ECF No. 19-1 at 25-26. A “state court’s 10 interpretation of state law . . . binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 11 546 U.S. 74, 76 (2005). Accordingly, we are bound by the Court of Appeal’s finding and we 12 recommend that petitioner’s claim be denied. 13 III. Certificate of Appealability 14 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 15 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 16 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing § 2254 Cases requires a 17 district court to issue or deny a certificate of appealability when entering a final order adverse to a 18 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 19 Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a substantial 20 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires 21 the petitioner to show that “jurists of reason could disagree with the district court’s resolution of 22 his constitutional claims or that jurists could conclude the issues presented are adequate to 23 deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord Slack v. 24 McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made a substantial showing of the 25 denial of a constitutional right. Thus, we recommend that the court not issue a certificate of 26 appealability. 27 28 Cow 4.490 IN VE MUO ee PI ee AY tw I A

1 | IV. Findings and Recommendations 2 The court should deny the petition for a writ of habeas corpus, ECF No. 1, and decline to 3 | issue a certificate of appealability. These findings and recommendations are submitted to the 4 | U.S. District Court judge presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of 5 | the Local Rules of Practice for the United States District Court, Eastern District of 6 | California. Within 30 days of the service of the findings and recommendations, petitioner may 7 | file written objections to the findings and recommendations with the court and serve a copy on all 8 || parties. That document must be captioned “Objections to Magistrate Judge’s Findings and 9 | Recommendations.” The district judge will then review the findings and recommendations under 10 | 28 U.S.C. § 636(b)(1)(C). 11

IT IS SO ORDERED.

□ \ prssanp Rae — Dated: _ June 9, 2020 14 UNIT#D STATES MAGISTRATE JUDGE 15 16 | No. 206. 17 18 19 20 21 22 23 24 25 26 27 28 15