United States District Court, D. Arizona
A. Teilborg Senior United States District Judge
before the Court is Petitioner’s Petition for Writ of
Habeas Corpus. The Magistrate Judge to whom this case was
assigned issued a Report and Recommendation (R&R)
recommending that the Petition be denied. (Doc. 15;
hereinafter “R&R”). Petitioner filed
objections to the R&R. (Doc. 16).
Court will review the portions of the R&R to which
Petitioner objected de novo. See United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc). Additionally, with respect to any
claims that Petitioner exhausted before the state courts,
under 28 U.S.C. §§ 2254(d)(1) and (2) this Court
must deny the Petition on those claims unless “a state
court decision is contrary to, or involved an unreasonable
application of, clearly established Federal
law” or was based on an unreasonable
determination of the facts. See Lockyer v. Andrade,
538 U.S. 63, 71 (2003).
was convicted in Maricopa County Superior Court of two counts
of second degree murder and one count of assisting a criminal
street gang. R&R at 2. In his habeas Petition, Petitioner
alleges two grounds for relief: 1) a denial of due process
based on prosecutorial misconduct (R&R at 4); and 2) a
denial of due process and a fair trial based on prejudicial
evidence being admitted at trial (R&R at 9). Both of
Petitioner’s claims rest on essentially the same
factual predicate. Specifically, the prosecutor called an
expert who testified about various activities committed in
furtherance of a street gang and Petitioner argues that this
testimony was untrue. (Objections at 3).
argument rests on a misunderstanding of the law. Petitioner
is of the belief that for an expert to have the opinion that
a particular crime or activity was done to promote or further
the objectives of a street gang, the perpetrator of that
crime or activity must have been convicted of
“assisting a criminal street gang.” However,
neither Arizona law nor due process has such a requirement.
R&R notes, A.R.S. § 13-105(8), which defines a
criminal street gang, does not require felony convictions;
instead it requires proof that gang members, “engage in
the commission, attempted commission, facilitation or
solicitation of any felony act.” R&R at 7-8. Thus,
nothing in the statute requires a specific conviction for
“assisting a criminal street gang” for a
particular activity to be to promote or further the
objectives of the gang. Thus, the expert could testify that
in his opinion certain felonies that were completed or
attempted were done in furtherance of the objectives of the
gang, even if there was no “assisting a criminal street
gang” allegation or conviction associated with that
felony. Accordingly, even taking as true Petitioner’s
factual assertions that the cases relied on by the expert to
form his opinions about the activities of the gang did not
conclude in an “assisting a criminal street gang”
conviction, Petitioner would not be entitled to relief.
result, if this Court were reviewing these claims in the
first instance, this Court would deny relief. However, as
indicated above, because these claims were exhausted before
the Arizona Courts, this Court can grant relief only if the
state court’s decision “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, ” or was based on an unreasonable
determination of the facts. Lockyer, 538 U.S. at 63.
Based on the foregoing, the Arizona Court of Appeals
conclusion that Petitioner was not entitled to relief because
Petitioner, “failed to cite to the record of a single
instance of testimony from [the expert] that was in fact
false, ” was not contrary to or an unreasonable
application of federal law, nor was it an unreasonable
determination of the facts. See R&R at 7
(quoting the decision of the Arizona Court of Appeals).
Additionally, the decision of the Arizona Court of Appeals
rejecting Petitioner’s argument that the evidence of
gang activity was too prejudicial to permit him a fair trial
was not contrary to or an unreasonable application of federal
law nor an unreasonable determination of the facts.
See R&R at 9-12 (discussing the holding of the
Arizona Court of Appeals). Thus, this Court will not grant
relief on either claim in the habeas petition.
IT IS ORDERED that the R&R (Doc. 15) is accepted and
adopted; the Objections (Doc. 16) are overruled; the Petition
is denied and dismissed with prejudice and the Clerk of the
Court shall enter judgment accordingly.
FURTHER ORDERED that pursuant to Rule 11 of the Rules
Governing Section 2254 Cases, in the event Petitioner files
an appeal, the Court denies issuance of a certificate of
appealability because Petitioner has not made a substantial
showing of the denial of a constitutional right. See
28 U.S.C. § 2253(c)(2).
 Further, in applying “Federal
law” the state courts need to act only in accordance
with Supreme Court case law. See Carey v. Musladin,549 ...