Daniel Esparza v. Leland McEwen

FILED
NOT FOR PUBLICATION JUN 27 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL ESPARZA, No. 10-55592
Petitioner-Appellant, D.C. No. CR 09-6251-PSG (MLG)
v.
MEMORANDUM*
LELAND McEWEN, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Philip S. Guitierrez, District Judge, Presiding
Argued and Submitted June 2, 2014
Pasadena, California
Before: GOULD and N.R. SMITH, Circuit Judges, and KORMAN, Senior District
Judge.**
Daniel Esparza was convicted of second degree murder. In this appeal from the
denial of a petition for a writ of habeas corpus, Esparza argues that trial counsel
rendered ineffective assistance by: (1) failing to highlight the inconsistencies in the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
state's ballistic evidence; and (2) failing to adequately investigate reports that another
person had been identified as the shooter.
1. There were two different types of casings at the crime scene, including
two .40 caliber spent casings directly across the street from where the victim was shot
and two 9-millimeter spent casings approximately 400 feet away. The ballistics
evidence established that the Glock handgun found in Esparza’s possession (three
weeks later) had fired the .40 caliber spent casings at the crime scene directly across
from the victim. There was, however, evidence to support an argument that the bullet
which struck the victim may have been fired from a 9-millimeter weapon. This
evidence was developed by petitioner’s trial counsel during cross-examination of the
ballistics expert and, in his summation, he called attention to both the location of the
shooting and the fact that the 9-millimeter casings were found there. [3 ER at 473.]
Moreover, he argued from evidence that was elicited from the expert that, even if the
Glock handgun was the murder weapon, the jury could find that Esparza received the
Glock handgun after the shooting from a fellow gang member who used it to shoot the
victim. Nevertheless, petitioner’s trial counsel placed greater emphasis on
discrediting the eyewitness identification.
In a written opinion, the trial judge rejected petitioner’s argument that his trial
counsel should have placed greater emphasis on the evidence suggesting that the
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murder weapon was not the Glock handgun that was found in petitioner’s possession
three weeks later. While petitioner’s argument is not without some merit, it is not
sufficient to justify habeas corpus relief. “Surmounting Strickland’s high bar is never
an easy task,” Padilla v. Kentucky, 559 U.S. 356, 371 (2010), and “[e]stablishing that
a state court's application of Strickland was unreasonable under [AEDPA] § 2254(d)
is all the more difficult.” Harrington v. Richter, 131 S. Ct. 770, 788 (2011). “The
standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when
the two apply in tandem, review is ‘doubly’ so.” Id. (internal citations omitted). After
reviewing the record, we conclude that petitioner has not met this double deferential
standard.
2. Relying entirely on a defense investigator’s report, which stated that
Jesus Romero had been identified as the shooter but that the police had ruled him out
because he was in Mexico at the time of the shooting, petitioner argues that his trial
counsel should have done more to investigate the possibility that Romero was the
shooter. In rejecting this claim, the trial judge observed that, “the investigative report
. . . does not explain how Romero was identified as the shooter. In this regard, [it] is
unclear whether the ‘identification’ was in fact made by an eye witness or by some
other means. Moreover, assuming identification was made by an eye witness,
Petitioner does not present evidence that the person who identified Romero as the
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shooter was available to testify.” [1 ER at 50-51.] Under these circumstances, we
cannot say that the trial judge unreasonably rejected this prong of petitioner’s
ineffective assistance of counsel claim.
3. Esparza also seeks to raise the uncertified issue of whether the evidence
of anonymous calls to the police identifying the shooter as a member of the Langdon
gang violated his right to confrontation. As the district court properly instructed the
jury, however, the anonymous calls were not offered to prove that the shooter was
from Langdon, but to explain the officer’s next steps in the course of the investigation.
See United States v. Wahchumwah, 710 F.3d 862, 871 (9th Cir. 2013). Indeed, except
in unusual circumstances not present here, see Bruton v. United States, 391 U.S. 123,
135-36 (1968), “juries are presumed to follow their instructions,” Richardson v.
Marsh, 481 U.S. 200, 211 (1987). Moreover, the calls were not introduced into
evidence to explain the basis of an expert’s opinion. See Williams v. Illinois, 132 S.
Ct. 2221 (2012). Thus, Esparza has failed to raise a claim that is “debatable amongst
jurists of reason,” Miller–El v. Cockrell, 537 U.S. 322, 336 (2003), and we decline to
issue a certificate of appealability, see 28 U.S.C. § 2253(c); Hiivala v. Wood, 195
F.3d 1098, 1102–04 (9th Cir. 1999) (per curiam).
AFFIRMED.
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