James Fuentes v. Fernando Gonzalez

FILED
NOT FOR PUBLICATION NOV 04 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAMES DANIEL FUENTES, No. 09-56903
Petitioner - Appellee, D.C. No. 5:09-cv-01041-CJC-RZ
v.
MEMORANDUM *
FERNANDO GONZALEZ, Warden,
Respondent - Appellant.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted October 14, 2011
Pasadena, California
Before: D.W. NELSON and CALLAHAN, Circuit Judges, and ERICKSON, Chief
District Judge.**
Fernando Gonzalez, Warden, appeals the district court’s decision to grant
James Fuentes’s petition for habeas corpus. Fuentes was convicted in the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Ralph R. Erickson, Chief District Judge for the U.S.
District Court for North Dakota, Fargo, sitting by designation.
California Superior Court of aiding and abetting Melecio Reyes in the first-degree
murder of Francisco Ferreira in 2003. We have jurisdiction over this appeal
pursuant to 28 U.S.C. §§ 1291 and 2253. We conclude that the California Court of
Appeal was objectively reasonable in upholding Fuentes’s conviction and
accordingly reverse the district court’s grant of Fuentes’s habeas petition.
Fuentes’s petition is subject to the provisions of the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”), 28 U.S.C. §§ 2241-2255. Under Section
2254(d) of AEDPA, where a state court decides the merits of a petitioner’s
constitutional claim, a federal court may grant habeas relief with respect to that
claim only if the state decision:
(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).
“A state-court decision that correctly identifies the governing legal rule but
applies it unreasonably to the facts of a particular prisoner’s case certainly would
qualify as a decision ‘involv[ing] an unreasonable application of . . . clearly
established Federal law.’” Williams v. Taylor, 529 U.S. 362, 407-08 (2000). A
state court’s application of “clearly established Federal law . . . must be objectively
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unreasonable,” Lockyer v. Andrade, 538 U.S. 63, 75-76 (2002); see also Williams,
529 U.S. at 411, not just “incorrect or erroneous,” Lockyer, 538 U.S. at 75. The
“clearly established Federal law” upon which Fuentes and the district court relied
was Jackson v. Virginia, 443 U.S. 307 (1979), under which “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 essential elements of the
crime beyond a reasonable doubt.” Id. at 319 (emphasis in original).
Since the district court granted Fuentes’s petition in October 2009, the
Supreme Court decided Harrington v. Richter, -- U.S. --, 131 S. Ct. 770 (2011),
Cullen v. Pinholster, -- U.S. --, 131 S. Ct. 1388 (2011), and Cavazos v. Smith, -- S.
Ct. --, 565 U.S. --, 2011 WL 5118826 (No. 10-1115, Oct. 31, 2011) (per curiam).
In Richter, the Court explained that an “unreasonable application” of federal law is
an objective test that turns on “whether it is possible that fairminded jurists could
disagree” that the state court decision meets the standards set forth in that law. If
fairminded jurists could so disagree, habeas relief is precluded. Richter, 131 S. Ct.
at 786. In Pinholster, the Court reiterated that AEDPA requires additional
deference to state court determinations on habeas, and that “[w]e have said time
and again that ‘an unreasonable application of federal law is different from an
incorrect application of federal law.’” Pinholster, 131 S. Ct. at 1410-11 (quoting
Richter, 131 S. Ct. at 785) (emphasis in Richter). In its most recent post-AEDPA
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habeas decision, Cavazos, the Supreme Court reversed this Court’s decision to
grant a writ on Jackson grounds, reiterating that juries, not judges, must weigh
competing evidence and decide whether the prosecution’s theory of a case is
correct. Cavazos, 2011 WL 5118826 at *1, 3-5.
Under California law, a person aids and abets a crime where he (1) knows
the “unlawful purpose of the perpetrator,” (2) intends to commit, encourage, or
facilitate the crime, and (3) “by act or advice aids, promotes, encourages or
instigates” the crime. People v. Marshall, 15 Cal. 4th 1, 40 (1997) (quotation
marks and citation omitted). The trial evidence showed that in June 2003, Fuentes
accompanied Melecio Reyes, a fellow member of the West Side Verdugo (“WSV”)
gang, in a car to the house of Francisco and Ector Ferreira. (A year earlier Reyes
had shot Ector and a friend in a gang-related altercation near the Ferreiras’ house.)
Reyes and Fuentes drove past Francisco, who was working on his car in front of
his house, stopped, reversed, and pulled up next to Francisco. Reyes reached in his
lap, pulled up a gun, and began shooting at Francisco. Fuentes, who was in the
front passenger seat, leaned back at the time Reyes began to shoot. Reyes and
Fuentes then sped away and were stopped by the police a short time later; Fuentes
was still in the passenger seat but the gun used in the shooting was missing.
The State’s gang expert testified regarding the structure, culture and
hierarchy of the WSV gang, including that Reyes would not have shot Francisco
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without first informing Fuentes, and that Fuentes would not have continued to
correspond with, and show respect for, Reyes after the shooting if Reyes had
“disrespected” Fuentes by keeping him in the dark. The gang expert also testified
that Fuentes, an active “up and comer” in the WSV gang, would gain status in the
gang as a result of the shooting, and that the shootings benefitted the WSV gang,
which was trying to establish turf in the area of the shooting. It was objectively
reasonable for the Court of Appeal to conclude that the trial evidence supported the
jury’s findings that Fuentes knew of Reyes’s plan to murder Francisco, and that he
intended to, and did, aid in that murder.
The district court determined that certain alternative inferences were
reasonable, but neither Jackson nor AEDPA allows a habeas court to pick and
choose among reasonable inferences and substitute its own judgment for the jury’s.
See Jackson, 443 U.S. at 326 (“A federal habeas court faced with a record of
historical facts that supports conflicting inferences must presume—even if it does
not affirmatively appear in the record—that the trier of fact resolved any such
conflicts in favor of the prosecution, and must defer to that resolution.”); Cavazos,
2011 WL 5118826 at *1 (Jackson “makes clear that it is the responsibility of the
jury—not the court—to decide what conclusions should be drawn from evidence
admitted at trial.”); id. at *4-5 & n.1; Richter, 131 S. Ct. at 786 (explaining that
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AEDPA prohibits a court from “treat[ing] the unreasonableness question as a test
of its confidence in the result it would reach under de novo review”).
This Court’s decisions in Mitchell v. Prunty, 107 F.3d 1337, 1342 (9th Cir.
1997), overruled on other grounds, Santamaria v. Horsley, 138 F.3d 1280 (9th Cir.
1998) (en banc), Garcia v. Carey, 395 F.3d 1099, 1103 (9th Cir. 2005), and
Briceno v. Scribner, 555 F.3d 1069, 1078-79 (9th Cir. 2009), do not support
granting Fuentes habeas relief. Not only do those cases pre-date Cavazos, Richter,
and Pinholster, they concerned evidence of gang membership or generic gang
expert testimony where there was no other evidence to prove intent. In this case,
the State presented evidence about Fuentes’s role in and actions during the
shooting, as well as specific and thorough gang expert testimony. Juan H. v. Allen,
408 F.3d 1262, 1276 (9th Cir. 2005), also is inapposite because there the defendant
“did not do or say anything before, during or after the shootings from which a
reasonable factfinder could infer an intent or purpose” to aid and abet in murder.
We appreciate that the State’s case here relied heavily on circumstantial
evidence, and that this evidence may have supported inferences other than those
the jury drew. However, under the deference required by AEDPA, the only
relevant question is whether the Court of Appeal’s conclusion that sufficient
evidence supported Fuentes’s conviction was “so lacking in justification that there
was an error well understood and comprehended in existing law beyond any
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possibility for fairminded disagreement.” Richter, 131 S. Ct. at 786-87. Because
Fuentes has not met this high threshold, the district court erred in granting
Fuentes’s habeas petition.
REVERSED.
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