ORDER
Petitioner is a state prisoner, proceeding through counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both parties consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). Petitioner challenges his 2011 conviction of attempted murder and other charges. He is serving a sentence of 40 years to life. This action is proceeding on the original petition filed November 12, 2013. (ECF No. 15.) Petitioner raises two claims: (1) the state court unreasonably applied clearly established federal law set forth in Miranda v. Arizona, 384 U.S. 436, 444 (1966) (hereafter "Miranda"); and (2) the state court unreasonably applied clearly established federal law set forth in In re Winship, 397 U.S. 358 (1970), and Jackson v. Virginia, 443 U.S. 307 (1979). For the reasons set forth below, the petition is denied.
////
On March 4, 2011, a jury convicted petitioner of attempted murder, allowing another individual to shoot from a vehicle, active participation in a street gang, and assault with a firearm. (Respondent's Lodged Document ("LD") 4.) The jury also found true the following allegations: the crimes (counts one, two and four) were committed for the benefit of a street gang;1 a principal used a firearm (count one); and petitioner personally used a firearm (count four).
On August 30, 2011, petitioner was sentenced to forty-four years to life in state prison.
Petitioner filed a timely appeal, raising two claims. (LD 1.) On March 22, 2013, the California Court of Appeal for the Third Appellate District reversed petitioner's sentence for assault with a firearm, but otherwise affirmed the judgment. (LD 4.)
Petitioner filed a petition for review in the California Supreme Court, but raised only the second claim challenging the insufficiency of the evidence. (LD 5.) The petition was denied on June 12, 2013. (LD 6.)
Petitioner filed no collateral challenges in state court.
On August 12, 2013, petitioner was re-sentenced to forty years to life. (LD 7.)
Petitioner filed the instant petition on November 12, 2013. (ECF No. 15.)
In its unpublished opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:
On the afternoon of March 18, 2009, Angelo Villanueva and his brother, both members of the Norteño criminal street gang, visited Villanueva's girlfriend at the Farmington Apartments, known Sureño turf, in Stockton. While Villanueva and his girlfriend were standing outside her apartment, [petitioner] and Samuel Paniagua, a member of the Sureño criminal street gang, approached them. [Petitioner] pulled out a gun, pointed it at Villanueva's chest, and asked, "[W]hy are you so scared?" Paniagua stood behind [petitioner]; he did not say anything. Villanueva had a run-in with Paniagua a few weeks earlier.
Villanueva's girlfriend told Villanueva and his brother to "get in" her apartment, but instead, they got on their bicycles and left. [Petitioner] and Paniagua immediately got into a white van and followed them. [Petitioner] drove the van, and Paniagua was his passenger. Paniagua fired four or five shots at Villanueva and his brother out of the passenger side window of the van. Villanueva and his brother fell to the ground, and [petitioner] and Paniagua drove off. The van maintained its speed as the shots were being fired. Neither Villanueva nor his brother was shot.
A detective in the Stockton Police Department's Gang Suppression Unit and an expert in Hispanic criminal street gangs in Stockton described the "violent" rivalry between the Norteño and Sureño criminal street gangs and Hispanic gang culture. Gang members thrive off the respect of other gang members and must retaliate when "disrespected" by a member of a rival gang to maintain their status within the gang. It is disrespectful for a rival gang member to wear his gang's color into a neighborhood dominated by a rival gang.
Gang members display their gang affiliation through their clothing, tattoos, and verbiage. Sureños are associated with the color blue, while Norteños are associated with the color red. Sureños tend to dress conservatively in earth tones and have shaved heads or very short hair. Norteños typically dress more flamboyantly and have longer hair. There are separate sub-sets within the Sureño criminal street gang, including the Vicky's Town (VST) and Playboy Sureños (PBS).
Villanueva often wore his red rosary necklace on the outside of his clothes when he visited his girlfriend even though he was aware that Sureños lived in her apartment complex, and he was wearing it on the day in question. The gang expert opined that Villanueva purposefully disrespected the Sureños living in the Farmington Apartments by wearing his red rosary, and that [petitioner] and Paniagua were compelled to respond. The expert described theconfrontation as a "hit up." According to the expert, a "hit up" occurs when a gang member confronts a rival gang member and typically involves brandishing a weapon and an exchange of words. Fellow gang members serve as witnesses and backup for one another. Villanueva's girlfriend also believed the confrontation was due to Villanueva's membership in the Norteño criminal street gang.
On June 29, 2010, [petitioner] was interviewed at the San Joaquin County Jail by Stockton Police Officer Jeffrey Tacazon, with the aid of a Spanish-speaking interpreter. Prior to interviewing [petitioner] about the crime, Tacazon read [petitioner] his Mirandarights, and [petitioner] indicated that he understood each of the rights and stated he was willing to speak to Tacazon.
On June 30, 2010, Deputy Kristy Mays, a correctional officer at the San Joaquin County Jail, conducted a booking interview of [petitioner] during which [petitioner] stated that he was a Sureño, and that he had enemies who were Norteños. On February 10, 2011, a correctional officer at the San Joaquin County Jail found a roster inside an inmate's cell that listed Sureño gang members who were housed in a certain section of the jail. The roster contained the names of gang members along with their cell numbers, booking numbers, nicknames, "hood" or gang sub-sets, and the charges pending against them. [Petitioner] was listed on the roster as having the moniker "Griyo" and belonging to "LVT." The gang expert was not familiar with "LVT" but acknowledged there could be active sub-sets of which he was not presently aware.
The gang expert opined that [petitioner] was an active member of the Sureño criminal street gang based on the following: he associated with Paniagua, a documented Sureño gang member; he was involved in a gang-related incident; and he admitted being an active member of the Sureño criminal street gang during his booking interview. The expert stated that [petitioner's] inclusion in the roster confirmed his opinion that [petitioner] was a Sureño gang member.
People v. Aniceto, No. C069293, 2013 WL 1174562, at *1-3 (Cal. Ct. App. Mar. 22, 2013) (LD 4 at 3-5.)
IV. Standards for a Writ of Habeas Corpus An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
//// Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Taylor, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'") (internal citations omitted). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). If there is no reasoned...
