Ekanem Essien v. Suzanne Peery ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 7 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EKANEM KUFREOBON ESSIEN, No. 17-16084
Petitioner-Appellant, D.C. No. 3:15-cv-02032-JD
v. MEMORANDUM*
SUZANNE M. PEERY,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
James Donato, District Judge, Presiding
Submitted October 24, 2019**
San Francisco, California
Before: WALLACE and BRESS, Circuit Judges, and LASNIK,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
We write primarily for the parties who are familiar with the facts. Appellant
Ekanem Kufreobon Essien (“Essien”) was convicted in California state court of
forcible rape while acting in concert and second-degree robbery. The jury made
findings to support imposition of the “gang enhancement” under California Penal
Code § 186.22(b)(1) on both counts, which allowed the state court to enhance
Essien’s sentence by 13 years and four months.
Essien filed a habeas petition in federal district court, seeking relief on
various grounds. The district court denied Essien’s petition and declined to issue a
certificate of appealability. Our court granted a certificate of appealability only as
to whether sufficient evidence supported the state court’s imposition of gang
enhancements on Essien’s rape and robbery convictions. Essien also briefed the
uncertified issue of whether the state court deprived him of his constitutional right
to self-representation when it denied his Faretta motion.
1. Sufficiency of the Evidence Claims
We review the district court’s denial of Essien’s habeas petition de novo.
Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004). The Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) governs review of Essien’s
petition. Id. at 983. In reviewing sufficiency of the evidence claims on habeas
review, “the relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
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essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979). Jackson sufficiency of the evidence claims “face a high
bar in federal habeas proceedings,” and a federal court may overturn the state court
decision only if it was “objectively unreasonable.” Coleman v. Johnson, 566 U.S.
650, 651 (2012).
After an independent but deferential review of the record, we conclude there
was sufficient evidence for a rational juror to find all elements, beyond a
reasonable doubt, to support imposition of the California Penal Code
§ 186.22(b)(1) gang enhancement on both Essien’s rape and robbery convictions.
“Because a rational trier of fact could have been persuaded beyond a reasonable
doubt that” the requisite elements of California’s gang enhancement were met,
“habeas relief is unwarranted.” Bruce v. Terhune, 376 F.3d 950, 958 (9th Cir.
2004). Accordingly, the California Court of Appeal’s decision cannot be
characterized as objectively unreasonable, and the district court properly denied
relief on Essien’s sufficiency of the evidence claims.
2. Uncertified Faretta Claim
Essien also briefed the uncertified issue of whether the state court deprived
him of his constitutional right when it denied his motion for self-representation,
raised under Faretta v. California, 422 U.S. 806 (1975). We treat briefing on an
uncertified issue as a motion to expand the certificate of appealability. See Ninth
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Circuit Rule 22-1(e); see also Delgadillo v. Woodford, 527 F.3d 919, 930 (9th Cir.
2008). Having reviewed the record in this case, including the district court’s
assessment of the Faretta claim, Essien has failed to establish that “reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly,
Essien has not made a “substantial showing of the denial of a constitutional right.”
See Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999) (quoting 28 U.S.C.
§ 2253(c)(2)). We therefore decline to expand the certificate of appealability to
include Essien’s Faretta claim.
AFFIRMED.
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