(HC) McAlister v. Foss

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

GABRIEL J. MCALISTER,

No. 2:18-cv-01930-JKS

Petitioner,

MEMORANDUM DECISION

vs.

RICK HILL, Warden, Folsom State Prison,1

Respondent.

Gabriel J. McAlister, a state prisoner proceeding pro se, filed a Petition for a Writ of

Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. McAlister is in the custody of the

California Department of Corrections and Rehabilitation and incarcerated at Folsom State

Prison. Respondent has answered, and McAlister has not replied.

I. BACKGROUND/PRIOR PROCEEDINGS

On September 30, 2014, McAlister, along with co-defendant Marcus A. Logan, was

charged with the murder of Timothy Schweiss (Count I) and attempted second-degree robbery

(Count II). The prosecution’s theory was that Logan, McAlister, and another man, Marlyn

Steward, lured Schweiss into an apartment complex to rob him and, during commission of that

robbery, McAlister pulled out a handgun and shot Schweiss in the abdomen. With respect to the

murder count, the amended information alleged as a special circumstance that the murder was

committed while the defendants were engaged in the commission of an attempted robbery. The

information further alleged as to both counts that McAlister intentionally and personally

discharged a firearm proximately causing a death. Both men entered pleas of not guilty, denied

1 Rick Hill, Warden, Folsom State Prison, is substituted for Tammy Foss, former

Acting Warden, Salinas Valley State Prison. FED. R. CIV. P. 25(c).

the allegations, and proceeded to a jury trial. On direct appeal of his conviction, the California

Court of Appeal recounted the following facts underlying the charges against McAlister and the

evidence presented at trial:

The Murder

Schweiss was murdered in the parking lot of the Somerset Apartments in the

Arden–Arcade area of Sacramento on August 21, 2012. That night, defendants Logan

and McAlister and codefendant Stewart were hanging out at the complex. McAlister had

spent the previous night in an upstairs apartment (apartment 26) toward the back of the

complex. The apartment was leased to one of his friends, Robert Jordan. Jordan was

living elsewhere with a girlfriend at the time, but stopped by his apartment the night of

the murder to pick up some clothes and was still in the complex when the murder

occurred. At some point, McAlister’s girlfriend, Ashley Johnson, also came over to

apartment 26. Several people lived in the apartment directly below Jordan’s apartment

(apartment 25), including Amanda Ford. Logan came over to that apartment sometime

during the evening and also hung out in front of both apartments with a group of people,

including McAlister and Stewart. Members of the group were drinking alcohol and

playing dominos.

At about 10:30 p.m., McAlister left the complex and walked across the street with

Logan to sell cocaine to someone who had contacted Johnson about making a purchase.

When the two returned a short time later, Reginald Dunn was waiting in his car to be let

through the gate to the parking lot. Dunn was not associated with anyone involved in this

case, but had seen McAlister and Logan around the complex. As the gate opened,

McAlister asked Dunn to drive him and Logan to the back of the complex. Dunn agreed.

McAlister got into the front passenger seat, removing a handgun from his waistband and

placing it in his lap as he sat down. Logan got into the back seat. Dunn then drove to the

back of the complex and parked. McAlister and Logan got out and walked back to the

group.

A few minutes later, at about 10:40 p.m., Angel Tewksbury came out of her

apartment that was across from apartment 26. As she walked towards the parking lot,

Stewart asked her to give someone directions to the complex and handed her a cell

phone. Tewksbury complied, acknowledging during her testimony at trial she believed

Stewart was setting up a marijuana sale.FN3 The person on the other end of the line was

Schweiss. He was known to sell marijuana in the area. Tewksbury continued her walk to

the parking lot while talking to him on the phone. Stewart, McAlister, Logan, and another

man joined. Schweiss said he was at the mini mart across the street in a blue van and told

Tewksbury to have Stewart come to him. Stewart, however, had walked over to the

complex’s laundry room. So Tewksbury told Schweiss: “Come in the apartments. He’s

not here. But he’s in the apartments.” Schweiss agreed, drove across the street, and

pulled into the parking lot. As he parked, Tewksbury walked over to Stewart and

returned the phone. McAlister asked where Schweiss was. Tewksbury answered, “right

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there in the car, the blue van.” She then walked back to her apartment, where she heard

two gunshots a couple minutes later.

FN3. Initially charged with murder along with McAlister, Logan, and Stewart,

Tewksbury pleaded guilty to aiding and abetting in the sale of marijuana

in exchange for her testimony.

Nikiya Burnett pulled into the parking lot during these intervening minutes. She

initially thought “a fight or something was going on.” As she described: “There was a

big white guy standing behind a car or between two cars and there was some black guys

facing him on the opposite sides of the car.” She continued: “The white guy was saying

leave me alone. He was saying, ‘Help. Somebody help. I don’t have anything. I gave

you everything. Leave me alone. Help. Help.’” Burnett parked her car while the

confrontation was still going on and went into her apartment, where she also heard two

gunshots. While Burnett could not identify any of the men involved in the confrontation,

she did notice one of the men had his hair in dreads, which is how Logan wore his hair.

Brianna Menna witnessed both the confrontation and the shooting. While she did not

testify at trial, her call to 911 was played for the jury. During the call, she reported:

“They shot him. I think he [was] hit once or twice? He was hit once in his lower

abdomen.” She also reported, “they were robbing him” and “ran off” after the shooting.

Both Menna and Burnett, who came out of her apartment after the shots were fired and

also called 911, comforted Schweiss as he lay bleeding in the parking lot.

As previously mentioned, Jordan was also in the complex when Schweiss was

shot. Hearing a “boom,” Jordan turned to run in the opposite direction, but slipped and

fell to the ground. He then got up and walked toward his brother’s apartment, near

apartment 26. As he did so, a number of people walked past him from the direction of

the parking lot. McAlister was one of these people. Jordan asked McAlister what

happened. McAlister responded: “We ain’t playing.” When Jordan asked what that

meant, McAlister said: “I downed him.” Jordan could see McAlister was armed with a

handgun. However, despite being familiar with firearms, Jordan had “never seen one like

that.” A few seconds later, Logan also walked past Jordan from the same direction.

A couple minutes after the shooting, McAlister and Logan entered apartment 25.

As mentioned, Ford lived in this apartment. She was playing dominos with the group

outside when she heard the gunshots and quickly retreated into the apartment. Several

people were already inside the apartment when McAlister and Logan arrived. Ford

testified Logan sat quietly by himself in the living room with his head down while

McAlister and another man, who went by the nickname “June,” talked in the kitchen.

McAlister was laughing about the shooting. He said he got “two zips of weed” and then,

as he put it, “I turned around and was like pop, pop,” using his hand to imitate firing a

gun. According to Ford, McAlister “thought the whole thing was funny” and “had no

remorse whatsoever for what happened.” McAlister returned to apartment 26 about 15

minutes later; Logan spent the night in apartment 25. At some point that night, Logan

also told Ford: “I’m gonna kill [McAlister] because he just killed that man for no

reason,” and “[McAlister] turned around and just shot him for no reason.”

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In the meantime, police and emergency medical personnel arrived at the

complex.FN4 Schweiss was transported to the hospital, where he was pronounced dead.

The cause of death was a single gunshot wound to the abdomen. The bullet traveled

through the stomach and pancreas, damaged the aorta and other smaller blood vessels,

and also caused a fracture to the spinal column, before lodging in the muscles of the

back.

FN4. While Stewart is not an appellant in this case, we note he was in front of a

different apartment complex across the street with Lasharita Mercado

when emergency personnel arrived. Mercado placed a small amount of

marijuana wrapped in cellophane between her breasts. Mercado knew

Stewart to sell marijuana, having bought some from him about 10 minutes

before the shooting. She had also seen Schweiss in the area selling

marijuana.

Police Investigation

Homicide detectives arrived at the crime scene early the next morning. A live

round of 7.62x39mm ammunition was found on the ground one parking space away from

where Schweiss’s van was parked. An expended cartridge of the same caliber and brand

was found a short distance away, across the parking lot from the van. The van’s

passenger side sliding door was struck by the round that did not hit Schweiss. That

bullet’s jacket was recovered from inside the door panel. A comparison of the expended

cartridge found in the parking lot with both the jacket recovered from the door panel and

that recovered from Schweiss’s back indicated both could have been fired from the same

gun and were likely the same caliber as the expended cartridge. Inside the van was a

duffel bag that had the strong odor of marijuana. Particles of the plant were found inside,

but not a sellable amount. Also in the van, at the bottom of a trash can, was Schweiss’s

wallet containing around $100. The van further contained an expended simunition

cartridge, non-lethal ammunition used by law enforcement agencies for training

purposes. Part of a simunition round was also found on the ground near the van.

Further investigation, including review of video recorded by various surveillance

cameras located around the apartment complex, indicated to detectives that persons of

interest may be in apartments 25 and 26. These apartments were cleared by a SWAT unit

after sunrise. McAlister and Johnson emerged from apartment 26. Logan, Ford, and

several others, including seven children, emerged from apartment 25. Before exiting the

latter apartment, Ford helped Logan cut off his dreads.

A subsequent search of apartment 26 uncovered a half-full box of ammunition of

the same caliber and brand as the live round and expended cartridge recovered from the

parking lot. The box was hidden inside the bottom of a chair.FN5 This particular type of

ammunition is relatively rare in the United States, originating from the Soviet Union, and

is fired by various Eastern Bloc submachine guns and service pistols, which would

explain why Jordan had never seen a gun like the one McAlister was carrying

immediately following the murder. Nothing of evidentiary value was found in apartment

25. However, Ford testified she found a bag containing the dreads she helped Logan

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remove and a bag of ammunition rounds in the apartment sometime after the police

conducted their search. She drove the items to another part of Sacramento and threw

them in a creek.

FN5. Also in a chair, beneath the cushion, was a loaded .45 caliber handgun.

However, this gun could not have fired the cartridge recovered from the

parking lot.

The gun used to murder Schweiss was not recovered. Nor were the “two zips of

weed” McAlister admitted taking from him. Logan also admitted during his police

interview that was played for the jury during the prosecution’s rebuttal case, he was

present during the robbery. He acknowledged, “people wanted free weed” and

“somebody” pulled a gun and demanded the product before Schweiss was killed.FN6

FN6. Logan and McAlister each presented a defense case. McAlister testified

during his defense case. The prosecution then presented a case in rebuttal

that included Logan’s statement to police. We describe Logan’s statement

and McAlister’s testimony in greater detail in the discussion portion of

this opinion. Where relevant, other evidence presented during these

portions of the trial will also be described in the discussion.

People v. Logan, No. C078017, 2017 WL 2224351, at *2-4 (Cal. Ct. App. May 22, 2017).

At the conclusion of trial, the jury found McAlister guilty of first degree murder (Count

I) but was unable to reach verdicts on Count II and all of the special circumstance and

enhancement allegations, so the court declared a mistrial as to those charges.2 The trial court

subsequently sentenced McAlister to an indeterminate term of 25 years to life imprisonment.3

Through counsel, McAlister appealed his conviction, arguing that: 1) there was

insufficient evidence to support the first-degree murder conviction; 2) his constitutional rights

were violated by the admission of a) Logan’s police interview statements implicating McAlister,

b) Ford’s testimony about statements Logan made after the incident, c) various firearms,

2 The jury found Logan not guilty of first-degree murder but found him guilty of

the lesser-included offense of second-degree murder in Count I.

3 Logan was sentenced to an indeterminate term of 15 years to life imprisonment.

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ammunition, and a camouflage vest recovered from the apartment where McAlister stayed on the

night of the murder, and d) a 911 call; 3) the trial court erred in excluding evidence Schweiss had

cocaine in his system when he died; and 4) the trial court erred by instructing the jury that it need

not unanimously agree as to which theory of murder applied in this case. The California Court

of Appeal unanimously affirmed the judgment against McAlister in a reasoned, unpublished

opinion issued on May 22, 2017. Logan, 2017 WL 2224351, at *28.4 The California Supreme

Court denied McAlister’s petition for review without comment on August 16, 2017.

McAlister then timely filed a pro se Petition for a Writ of Habeas Corpus in this Court on

July 9, 2018. Docket No. 1 (“Petition”); see 28 U.S.C. § 2244(d)(1),(2).

II. GROUNDS/CLAIMS

In his pro se Petition before this Court, McAlister argues, as he did before the California

Court of Appeal on direct appeal, that: 1) his first-degree murder conviction is unsupported by

substantial evidence of premeditation; 2) the trial court erred in admitting certain of Logan’s

statements implicating McAlister in the shooting; 3) the court erred in instructing jurors that

unanimity was not required for the theory of murder; and 4) the prosecutor committed

misconduct by “arguing false testimony in a misleading fashion.”

4 The appellate court also unanimously affirmed the conviction of judgment against

Logan. Logan, 2017 WL 2224351, at *28.

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III. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.

§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding,”

§ 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that

contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that

are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives

at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000). The term unreasonable is a

common term in the legal world. The Supreme Court has cautioned, however, that the range of

reasonable judgments may depend in part on the nature of the relevant rule argued to be clearly

established federal law. Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“[E]valuating

whether a rule application was unreasonable requires considering the rule’s specificity. The

more general the rule, the more leeway courts have in reaching outcomes in case-by-case

determinations.”).

The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1)

“refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the

relevant state-court decision.” Id. at 412. The holding must also be intended to be binding upon

the states; that is, the decision must be based upon constitutional grounds, not on the supervisory

power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where

holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it

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cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”

Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).

To the extent that the Petition raises issues of the proper application of state law, they are

beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.

Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was

correctly applied). It is a fundamental precept of dual federalism that the states possess primary

authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62,

67-68 (1991) (a federal habeas court cannot reexamine a state court’s interpretation and

application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state

court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536

U.S. 584 (2002).

In applying these standards on habeas review, this Court reviews the “last reasoned

decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)

(citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). A summary denial is an adjudication

on the merits and entitled to deference. Harrington v. Richter, 562 U.S. 86, 99 (2011). Under

the AEDPA, the state court’s findings of fact are presumed to be correct unless the petitioner

rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v.

Cockrell, 537 U.S. 322, 340 (2003).

McAlister has not replied to Respondent’s answer. The relevant statute provides that

“[t]he allegations of a return to the writ of habeas corpus or of an answer to an order to show

cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the

extent that the judge finds from the evidence that they are not true.” 28 U.S.C. § 2248; see also

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Carlson v. Landon, 342 U.S. 524, 530 (1952). Where, as here, there is no traverse filed and no

evidence offered to contradict the allegations of the return, the court must accept those

allegations as true. See Phillips v. Pitchess, 451 F.2d 913, 919 (9th Cir. 1971).

IV. DISCUSSION

Ground 1. Insufficiency of the Evidence

McAlister first argues that his first-degree murder conviction should be reversed because

there was insufficient evidence presented at trial to support that he acted with premeditation and

deliberation. As articulated by the Supreme Court in Jackson, the federal constitutional standard

for sufficiency of the evidence 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in the

original); see McDaniel v. Brown, 558 U.S. 120, 132-33 (2010) (reaffirming this standard). This

Court must therefore determine whether the California court unreasonably applied Jackson. In

making this determination, this Court may not usurp the role of the finder of fact by considering

how it would have resolved any conflicts in the evidence, made the inferences, or considered the

evidence at trial. Jackson, 443 U.S. at 318-19. Rather, when “faced with a record of historical

facts that supports conflicting inferences,” this Court “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 defer to that resolution.” Id. at 326.

It is a fundamental precept of dual federalism that the States possess primary authority

for defining and enforcing the criminal law. See Engle v. Isaac, 456 U.S. 107, 128 (1982).

Consequently, although the sufficiency of the evidence review by this Court is grounded in the

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Fourteenth Amendment, it must take its inquiry by reference to the elements of the crime as set

forth in state law. Jackson, 443 U.S. at 324 n.16. A fundamental principle of our federal system

is “that a state court’s interpretation of state law, including one announced on direct appeal of the

challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546

U.S. 74, 76 (2005); see West v. AT&T, 311 U.S. 223, 236 (1940) (“[T]he highest court of the

state is the final arbiter of what is state law. When it has spoken, its pronouncement is to be

accepted by federal courts as defining state law . . . .”). “Federal courts hold no supervisory

authority over state judicial proceedings and may intervene only to correct wrongs of

constitutional dimension.” Sanchez-Llamas v. Oregon, 548 U.S. 331, 345 (2006) (quoting Smith

v. Philips, 455 U.S. 209, 221 (1982)) (internal quotation marks omitted).

Under Jackson, this Court’s role is simply to determine whether there is any evidence, if

accepted as credible by the trier of fact, sufficient to sustain conviction. Schlup v. Delo, 513

U.S. 298, 330 (1995). The United States Supreme Court has recently even further limited a

federal court’s scope of review under Jackson, holding that “a reviewing court may set aside the

jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could have

agreed with the jury.” Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (per curiam). 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 3-4. Under Cavazos, “a federal court may not

overturn a state court decision rejecting a sufficiency of the evidence challenge simply because

the federal court disagrees with the state court. The federal court instead may do so only if the

state court decision was ‘objectively unreasonable.’” Id. at 4 (quoting Renico v. Lett, 559 U.S.

766, 773 (2010)).

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Under California law, “[m]urder is the unlawful killing of a human being, . . . with malice

aforethought.” CAL. PENAL CODE § 187(a). First degree murder includes murder perpetrated by

“any . . . kind of willful, deliberate, and premeditated killing[.]” CAL. PENAL CODE § 189.

“‘[D]eliberate’ means formed or arrived at or determined upon as a result of careful thought and

weighing of considerations for and against the proposed course of action.” People v. Wright,

703 P.2d 1106, 1114 (1985) (quoting with approval pattern jury instructions). “The word

‘premeditated’ means considered beforehand.” Id. “A cold, calculated judgment and decision

may be arrived at in a short period of time,” but “[t]o constitute a deliberate and premeditated

killing, the slayer must weigh and consider the question of killing and the reasons for and against

such a choice and, having in mind the consequences, he decides to and does kill.” Id.

The type of evidence which courts have found sufficient to sustain a finding of

premeditation and deliberation fall into three basic categories: (1) facts about how and what the

defendant did prior to the actual killing which show that the defendant was engaged in activity

directed toward, and explicable as intended to result in, the killing (i.e., planning activities);

(2) facts about the defendant’s prior relationship and/or conduct with the victim from which the

jury could reasonably infer a motive to kill the victim; and (3) facts about the manner of the

killing from which the jury could infer a preconceived design to take the victim’s life. People v.

Anderson, 447 P.2d 942, 949 (Cal. 1968). These three categories of evidence are not an

exhaustive list, but “provide guidelines” for analysis. People v. Perez, 831 P.2d 1159, 1163

(Cal. 1992); see also Davis v. Woodford, 384 F.3d 628, 640 & n.3 (9th Cir. 2004) (applying

Anderson guidelines on federal habeas review but noting admonition of California Supreme

Court that Anderson did not define elements of first degree murder or definitively state

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prerequisites for proving premeditation and deliberation in every case, but rather was intended

only as a framework to aid in appellate review) (citation and quotations omitted).

In support of his claim, McAlister argues that the manner of killing was ambiguous

because the evidence supported a finding that his “response was on the spur of the moment” and

“not thought over in advance,” and the evidence “did not show careful weight of considerations

in forming a course of action.”5 Docket No. 1 at 7. But this argument simply avers that the jury

should have viewed the evidence differently; all of the evidence he identifies in support of his

claim was before the jury for its assessment. This Court is precluded from re-weighing the

evidence. Schlup, 513 U.S at 330. Moreover, as the California courts have frequently held,

premeditation does not require an extended period of time. People v. Thompson, 231 P.3d 289

(Cal. 2010); People v. Koontz, 46 P.3d 335 (Cal. 2002). “The test is not time, but reflection.

Thoughts may follow each other with great rapidity and cold, calculated judgment may be

arrived at quickly.” Thompson, 231 P.3d at 321 (citation omitted). As the Court of Appeal

reasonably concluded:

Beginning with planning, while it was Stewart who called Schweiss, and

Tewksbury who told him to drive into the parking lot, the record supports a reasonable

inference it was McAlister who wanted him there. Tewksbury was simply arranging

what she believed to be a marijuana sale. And between Stewart and McAlister, it was the

latter who asked where Schweiss was parked, while Stewart sat by himself next to the

laundry room. Luring Schweiss into that parking lot, rather than meeting him across the

street where McAlister had already conducted a drug sale earlier in the night, evidenced a

plan to rob him of his marijuana, at the very least. Bringing a loaded firearm evidenced a

preconceived design to kill should it be necessary to effectuate the robbery. Turning to

5 It is also worth noting, as did the Court of Appeal, that the prosecution primarily

relied on a felony-murder theory of first-degree murder, and McAlister did not challenge the

sufficiency of the evidence to support his conviction under that theory. Logan, 2017 WL

2224351, at *5. Accordingly, even if there were insufficient evidence of premeditation and

deliberation, “a valid ground for the verdict remains.” Id.

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motive, . . . McAlister possessed a motive “to effectuate [the] robbery . . . by killing the

victim-witness.”

Finally, the manner of killing also indicated premeditation and deliberation. As

McAlister himself admitted in Ford’s apartment, he “turned around and was like pop,

pop,” using his hand to imitate firing a gun. The presence of a live round at the murder

scene, in addition to the expended cartridge, also provided evidence both that the gun was

loaded when McAlister pulled it on Schweiss and he manually racked the slide in order

to ensure there was a round in the chamber. This is because, as the firearms expert

testified, racking the slide with a live round already in the chamber ejects that live round

and pulls a new round into the chamber from the magazine. After that round is fired, the

gun automatically ejects the expended cartridge and pulls another round into the

chamber. McAlister’s act of manually ensuring the gun was loaded, followed by an

admittedly nonchalant firing of two shots at the victim, one of which struck him in the

abdomen, provided evidence McAlister made a cold and calculated decision to kill.

We conclude the evidence is sufficient to support McAlister's first degree murder

conviction.

Logan, 2017 WL 2224351, at *6-7 (citations omitted).

Although it might have been possible to draw a different inference from the totality of the

evidence, this Court is required to resolve that conflict in favor of the prosecution. See Jackson,

443 U.S. at 326. Thus, considering the deference owed under Jackson, Cavazos, and the

AEDPA, this Court concludes that there was sufficient evidence of premeditation and

deliberation introduced at trial from which a rational trier of fact could have found beyond a

reasonable doubt that McAlister was guilty of the first-degree murder of Schweiss. McAlister is

therefore not entitled to relief on his insufficiency of the evidence claim.

Ground 2. Evidentiary Errors

McAlister next argues, as he did on direct appeal, that the trial court erred in admitting:

1) statements Logan made during a police interview in violation of McAlister’s right to confront

witnesses; and 2) statements Logan made to Ford immediately after the event. The Supreme

Court has made clear that federal habeas power does not allow a court to grant relief on the basis

of a belief that the state trial court incorrectly interpreted the state evidence code in ruling on the

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admissibility of evidence. Estelle v. McGuire, 502 U.S. 62, 72 (1991) (citing Cupp v. Naughten,

414 U.S. 141, 147 (1973); Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974)). In this context, the Supreme Court has defined the

category of infractions that violate fundamental fairness very narrowly, limiting them to specific

guarantees enumerated in the bill of rights. Estelle, 502 U.S. at 73 (citing Dowling v. United

States, 493 U.S. 342, 352 (1990)). Indeed, the Supreme Court has acknowledged its “traditional

reluctance to impose constitutional restraints on ordinary evidentiary rulings by state trial

courts.” Crane v. Kentucky, 476 U.S. 683, 689 (1986). In criminal actions, “[t]he States are free

to provide such procedures as they choose, including rules of evidence, provided that none of

them infringes a guarantee in the Federal Constitution.” Burgett v. Texas, 389 U.S. 109, 113-14

(1967).

“The admission [or omission] of evidence does not provide a basis for habeas relief

unless it rendered the trial fundamentally unfair in violation of due process.” Johnson v. Sublett,

63 F.3d 926, 930 (9th Cir. 1995) (citing Estelle, 502 U.S. at 67). Where a due process violation

is alleged stemming from an evidentiary challenge, federal courts review such alleged due

process violations for whether admission or omission of certain evidence “so infected the entire

trial that the resulting conviction violates due process.” Estelle, 502 U.S. at 72. A habeas

petitioner “bears a heavy burden in showing a due process violation based on an evidentiary

decision.” Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir.), as amended on reh’g, 421 F.3d 1154

(9th Cir. 2005).

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1. Logan’s statements to law enforcement

McAlister claims that the trial court erred in admitting into evidence certain of Logan’s

statements to law enforcement implicating McAlister in the murder, which McAlister contends

violated his rights under Aranda/Bruton;6 In considering this claim on direct appeal, the Court

of Appeal laid out the following factual background to this claim:

During Logan’s police interview, after initially claiming he was inside Ford’s

apartment when the shooting occurred, Logan admitted he was in the parking lot and saw

Schweiss “get shot.” When the detective conducting the interview asked what happened,

Logan said: “Other people wanted free weed, I guess, ‘cause they didn’t wanna pay for

it.” Logan also nodded in agreement when the detective said: “So somebody that was

with you there, wanted - didn’t wanna pay for it, so they were tryin’ to rob the guy of the

weed? Obviously somebody had a gun. Is that what happened? They tried to rob him for

the weed? They pulled a gun out and said give me your weed?” Logan then said two

men went into Schweiss’s van to take the marijuana and denied being one of them. He

never specifically implicated McAlister as a participant in the robbery.

This interview was admitted into evidence during the prosecution’s case in

rebuttal, after both Logan and McAlister put on their defense cases. McAlister testified

during his defense case, providing an account of the murder that implicated a man he

referred to as “Little Bro.” According to McAlister, after he and Logan went across the

street to make a cocaine sale and returned to the back of the complex in Dunn’s car, Little

Bro approached him and asked whether he had any more “powder” because a friend had

sent someone over to the complex to make a purchase. McAlister said he did and walked

over to the parking lot with Little Bro, a girl who was giving somebody directions over

the phone, and “some other guy.” Schweiss then pulled into the parking lot, got out of

his van, and asked McAlister, “do you got it[?]” McAlister said he did and walked over

to the van with Schweiss and Little Bro. On the way, Little Bro said Schweiss owed him

money. When they got to the van, Schweiss and McAlister got inside to negotiate the

sale while Little Bro, still outside the van, started “bickering” with Schweiss about being

owed money. Schweiss and McAlister then got out of the van. As McAlister described:

“Little Bro he kept arguing talking about you trying to buy some powder and you ain’t

6 See People v. Aranda, 407 P.2d 265 (Cal. 1965) (finding that admission of

confession implicating co-defendant in joint trial resulted in miscarriage of justice

notwithstanding instruction that confession was admissible only against confessing defendant);

see also Bruton v. United States, 391 U.S. 123 (1968) (finding that admission of confession

implicating co-defendant in joint trial constituted prejudicial error even under circumstances in

which trial court gave clear jury instruction that confession could only be used against

confessing defendant and must be disregarded with respect to co-defendant).

15

pay me my money and Little Bro punched him.” As Schweiss tried to get away, Little

Bro pulled out a gun. McAlister said, “whoa, hold on,” and told Schweiss to leave.

Schweiss got in the van, but then “jumped right back out,” at which point McAlister was

“trying to like keep Little Bro away from him.” Schweiss again got in the van and again

got back out. This was when McAlister heard gunshots and ran back to apartment 26.

McAlister neither confirmed nor denied Logan’s presence in the parking lot during these

events and said he lost track of Logan’s movements after they returned to the complex in

Dunn’s car.

McAlister objected to the admission of Logan’s police statement to rebut his trial

testimony, arguing its admission would violate his right of confrontation under the Sixth

Amendment to the United States Constitution. The trial court overruled the objection,

agreeing with the prosecutor’s argument Logan never implicated McAlister during the

interview.

Logan, 2017 WL 2224351, at *10.

The Confrontation Clause of the Sixth Amendment mandates that a criminal defendant

has the right to confront and cross-examine the witnesses against him. See Pennsylvania v.

Ritchie, 480 U.S. 39, 51 (1987). This generally means that out-of-court testimonial statements

by a witness are not admissible against a defendant unless the witness is available for

cross-examination at trial or the defendant had an opportunity to cross-examine the witness

about the statements before trial. Crawford v. Washington, 541 U.S. 36, 53-54 (2004). This rule

applies with equal force to statements by a non-testifying accomplice or co-participant. See

Bruton, 391 U.S. at 135-36 (holding that the admission of a statement of an accomplice or co-

participant that implicates a defendant violates the defendant’s Sixth Amendment rights when

the defendant has no opportunity to cross-examine the co-participant).

Where, however, the accomplice’s statement does not directly implicate the

defendant—i.e., the statement is “not incriminating on its face, and [becomes] so only when

linked with other evidence introduced later at trial”—the Constitution does not prohibit the

introduction of the statement. Richardson v. Marsh, 481 U.S. 200, 208 (1987); see also Mason

16

v. Yarborough, 447 F.3d 693, 695 (9th Cir. 2006) (noting that Bruton “specifically exempts a

statement, not incriminating on its face, that implicates defendant only in connection to other

admitted evidence”).

Here, the Court of Appeal found that Logan’s police interview statements were not

incriminating on their face because the statements implicated unnamed people and it was

“McAlister’s own testimony, and other evidence presented during the trial, [that] provided the

inferential link connecting Logan’s nonidentifying statements to the conclusion McAlister was

actually the ‘somebody’ to whom Logan was referring.” Logan, 2017 WL 2224351, at *12. The

appellate court nonetheless concluded that Richardson was distinguishable because no limiting

instruction had been given to the jury not to consider the police interview statements as evidence

of McAlister’s guilt.

Respondent argues that, because the Ninth Circuit has not required a limiting instruction

be given for the Richardson rule to apply, see Mason, 447 F.3d at 695, McAlister’s Bruton claim

would not succeed on direct review, and thus the grant of habeas relief is precluded, see

Berghuis v. Thompkins, 560 U.S. 370, 390 (2010). But in any event, a Bruton claim, like other

Confrontation Clause claims, is subject to harmless error analysis. Lilly v. Virginia, 527 U.S.

116, 139-40 (1999); Harrington v. California, 395 U.S. 250, 254 (1969). The Court of Appeal

rejected McAlister’s Bruton claim on this ground, concluding that even if a Bruton error had

occurred, such error was harmless. It reasoned:

Here, direct evidence overwhelmingly placed McAlister at the scene of the

murder, including his own testimony admitting he was there. There was also strong

evidence, aside from Logan’s police statements, that the murder occurred during the

commission of a robbery. As we have already described, Burnett testified that during the

confrontation she witnessed while pulling into the parking lot, Schweiss was saying:

“Help. Somebody help. I don’t have anything. I gave you everything. Leave me alone.

17

Help. Help.” These pleas make little sense unless the confrontation she witnessed was a

robbery in progress. And while Logan’s police statements do not specifically identify

McAlister as the man who demanded marijuana from Schweiss and then shot him,

McAlister’s own statements establish his identity as that person. While joking about the

shooting in Ford’s apartment, McAlister said he got “two zips of weed” and then “turned

around and was like pop, pop,” using his hand to imitate firing a gun. McAlister also told

Jordan, “I downed him,” as McAlister retreated from the direction of the parking lot to

Ford’s apartment immediately following the shooting. Thus, McAlister’s own statements

were far more powerfully incriminating than Logan’s inferentially incriminating

statements. Moreover, as we describe below, Logan’s statements to Ford, i.e., McAlister

“just killed that man for no reason” and “just shot him for no reason,” were properly

admitted. These statements corroborated McAlister’s statements in Ford’s apartment and

to Jordan on his way into that apartment. Finally, as more fully detailed during our

discussion of the sufficiency of the evidence, circumstantial evidence also strongly

established McAlister’s identity as the shooter, including evidence he was armed with a

handgun immediately before and after the shooting, Schweiss was shot with an

uncommon caliber of ammunition, a box of such ammunition was found hidden in

apartment 26, where McAlister stayed the night of the murder, this type of ammunition

was fired by a limited number of Eastern Bloc handguns, and despite Jordan’s familiarity

with firearms, he had never seen a gun like the one he saw in McAlister’s possession

after the shooting.

In light of all of this evidence, we conclude the admission of Logan’s police

statements was harmless beyond a reasonable doubt.

Logan, 2017 WL 2224351, at *13.

Applying the Brecht standard here, this Court must agree. As the Court of Appeal noted,

there was not only substantial, but in fact overwhelming evidence that established McAlister’s

guilt of the offenses charged. Based on the evidence adduced at trial, it is inconceivable that the

jury would or could have reached a different verdict as to McAlister in the absence of Logan’s

statements. It therefore cannot be said that the admission of the statements had a substantial or

injurious effect or influence on the jury’s verdict, and McAlister is not entitled to relief on this

ground.

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2. Logan’s statements to Ford

McAlister similarly challenges the admission of Ford’s statement to law enforcement in

which she said that Logan told her: “I’m gonna kill [McAlister] because he just killed that man

for no reason,” and “[McAlister] turned around and just shot him for no reason.” Because the

Confrontation Clause applies only to testimonial statements, McAlister acknowledges that

Logan’s statements are not testimonial and thus do not implicate McAlister’s right to

confrontation. See Delgadillo v. Woodford, 527 F.3d 919, 927 (9th Cir. 2008) (finding that “the

state court’s implicit conclusion that [the victim’s] remarks to her coworkers did not implicate

[the petitioner’s] Sixth Amendment rights of confrontation” was not contrary to, nor an

unreasonable application of, Crawford).

Nonetheless, McAlister argues that the statements were improperly admitted under the

hearsay exception for declarations against penal interest, California Evidence Code § 1250. But

such claim is not cognizable on federal habeas review. See Bradshaw v. Richey, 546 U.S. 74, 76

(2005) (“We have repeatedly held that a state court’s interpretation of state law, including one

announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas

corpus.”); see also Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997) (“We accept a state

court’s interpretation of state law, . . . and alleged errors in the application of state law are not

cognizable in federal habeas corpus.”). Whether a statement constitutes hearsay is a question of

state law that this court may not revisit. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990); cf. Lilly

v. Virginia, 527 U.S. 116, 125 (1999) (plurality opinion) (whether statements qualified as

statements against penal interest for purposes of state hearsay rule is a “matter of state law”).

Accordingly, McAlister is not entitled to relief on this claim either.

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Ground 3. Instructional Error – Unanimity Instruction

McAlister additionally contends that the trial court erred by instructing the jurors that

they need not agree on the theory of murder even though they needed to agree on the degree of

murder. Because jury instructions in state trials are typically matters of state law, federal courts

are bound by a state appellate court’s determination that a jury instruction was not warranted

under state law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (noting that the Supreme Court

has repeatedly held that “a state court’s interpretation of state law, including one announced on

direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”); see

also Williams v. Calderon, 52 F.3d 1465, 1480-81 (9th Cir. 1995). An instructional error,

therefore, “does not alone raise a ground cognizable in a federal habeas proceeding.”

Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1986) (citation omitted).

A challenged instruction violates the federal constitution if there is a “reasonable

likelihood that the jury has applied the challenged instruction in a way that prevents the

consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380

(1990). The question is whether the instruction, when read in the context of the jury charges as a

whole, is sufficiently erroneous to violate the Fourteenth Amendment. Francis v. Franklin, 471

U.S. 307, 309 (1985). This Court must also assume in the absence of evidence to the contrary

that the jury followed those instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000);

Richardson v. Marsh, 481 U.S. 200, 206 (1987) (noting the “almost invariable assumption of the

law that jurors follow their instructions”); see Francis, 471 U.S. at 323-24 & n.9 (discussing the

subject in depth).

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It is well-established that not only must the challenged instruction be erroneous but it

must violate some constitutional right, and it may not be judged in artificial isolation but must be

considered in the context of the instructions as a whole and the trial record. Estelle, 502 U.S. at

72. This Court must also bear in mind that the Supreme Court has admonished that the inquiry is

whether there is a reasonable likelihood that the jury applied the challenged instruction in a way

that violates the constitution and that the category of infractions that violate “fundamental

fairness” is very narrowly drawn. Id. at 72-73. “Beyond the specific guarantees enumerated in

the Bill of Rights, the Due Process clause has limited operation.” Id. Where the defect is the

failure to give an instruction, the burden is even heavier because an omitted or incomplete

instruction is less likely to be prejudicial than an instruction that misstates the law. See

Henderson, 431 U.S. at 155. In those cases, the inquiry is whether the trial court’s refusal to

give the requested instruction “so infected the entire trial that the resulting conviction violates

due process.” See id. at 156-57; Estelle, 502 U.S. at 72. Moreover, even if the trial court’s

failure to give the instruction violated due process, habeas relief would still not be available

unless the error had a “substantial and injurious effect or influence in determining the jury’s

verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); California v. Roy, 519 U.S. 2, 5

(1996).

The California Court of Appeal rejected McAlister’s instructional error claim on direct

appeal, rejecting any contention that the jurors could have disregarded the unanimity

requirement when determining the degree of the murder. Logan, 2017 WL 2224351, at *25.

McAlister fares no better on federal habeas review. Even assuming that McAlister had a federal

constitutional right to the unanimity instructions at issue here, Ramos v. Louisiana, 140 S. Ct.

21

1390, 1397 (2020) (overruling nearly 50 years of Supreme Court authority to hold that the Sixth

Amendment right to jury trial requires a unanimous verdict to convict a defendant of a serious

offense in state court as well as federal court), McAlister has not proven that the unanimity

instruction given here violated due process or that it resulted in prejudicial error. The Court of

Appeal considered and rejected this claim on direct appeal as follows:

The jury was instructed, pursuant to CALCRIM No. 521, defendants were each

charged with first degree murder under two theories, i.e., (1) premeditated murder and

(2) felony murder. The instruction continued: “You may not find any defendant guilty of

first degree murder unless all of you agree that the People have proved that the defendant

committed murder. But all of you do not need to agree on the same theory.” (Italics

added.) This was an accurate statement of the law, and defendants do not claim

otherwise. As our Supreme Court has repeatedly explained: “Premeditated murder and

felony murder are not distinct crimes; rather, they are alternative theories of liability, and

jurors need not unanimously agree on a particular theory of liability in order to reach a

unanimous verdict.” (People v. Sattiewhite (2014) 59 Cal.4th 446, 479; People v.

Benavides (2005) 35 Cal.4th 69, 101.)

After this instruction was given, the jury was further instructed with former

CALCRIM No. 548 (Aug. 2014 Supp.) that informed the jury: “The defendants have

been prosecuted for murder under two theories: (1) malice aforethought, and (2) felony

murder. [¶] Each theory of murder has different elements, and I have instructed you on

both. [¶] You may not find a defendant guilty of murder unless you all agree that the

People have proved that the defendant committed murder under at least one of these

theories. You do not all need to agree on the same theory.” (Italics added.) The jury

was not instructed with a bracketed portion of CALCRIM No. 548 (added in the February

2016 edition of the instruction) that would have added, “but you must unanimously agree

whether the murder is in the first or second degree.” (CALCRIM No. 548, Feb. 2016 ed.)

We first note this bracketed portion was not included in the instruction at the time of

trial. However, as defendants correctly observe, the jury was required to unanimously

agree as to the degree of murder and should have been so instructed.

Nevertheless, we conclude the jury would have understood this to be a

requirement from the instruction that followed immediately thereafter, CALCRIM No.

640, regarding their deliberations and completion of the verdict forms when first degree

murder is charged and verdict forms for second degree murder are also provided.

Pursuant to this instruction, the jury was instructed: “You may consider these different

kinds of homicide in whatever order you wish, but I can accept a verdict of guilty or not

guilty of second degree murder only if all of you have found a defendant not guilty of

first degree murder. [¶] As with all of the charges in this case, to return a verdict of

guilty or not guilty on a count, you must all agree on that decision.” The instruction then

more specifically informed the jury regarding how to fill out the verdict forms. We

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conclude the jury would have understood from this instruction that it was required to

unanimously agree as to the degree of murder. “‘A defendant challenging an instruction

as being subject to erroneous interpretation by the jury must demonstrate a reasonable

likelihood that the jury understood the instruction in the way asserted by the defendant.

[Citations.]’ [Citation.] ‘We credit jurors with intelligence and common sense [citation]

and do not assume that these virtues will abandon them when presented with a court’s

instructions. [Citations.]’ [Citation.] ‘“[T]he correctness of jury instructions is to be

determined from the entire charge of the court, not from a consideration of parts of an

instruction or from a particular instruction.” [Citations.]’ [Citation.]” (People v. Sanchez

(2013) 221 Cal.App.4th 1012, 1024.)

Here, based on all the instructions, the jury would have known to determine with

respect to each defendant whether that defendant committed murder (either malice

murder or felony murder), and if they unanimously agreed defendant committed murder

(without a unanimity requirement as to the theory), they would then determine whether

the murder was first degree murder (either premeditated murder or felony murder), and if

they unanimously agreed the murder was of the first degree (again without a unanimity

requirement as to the theory), they would not reach second degree murder, and only if

they unanimously agreed the defendant was not guilty of first degree murder would they

reach second degree murder and be required to unanimously agree as to whether the

defendant was guilty of that lesser crime. This is all the unanimity that was required.

Nevertheless, defendants argue this case involves more than multiple theories

supporting liability for murder, relying on cases holding unanimity is required where

there are multiple criminal acts that could have constituted the charged offense. (See

People v. Dellinger (1984) 163 Cal. App. 3d 284, 300–302 [dispute over which act or

acts caused the victim’s death]; People v. Madden (1981) 116 Cal. App. 3d 212, 215–219

[several sexual acts could have constituted the charged sexual offense].) These cases are

inapposite. Here, there is no dispute over how Schweiss was murdered. He was shot in

the abdomen. Nor were there several discrete criminal acts that could have constituted

the charged murder. There was only one. The dispute in this case was over who pulled

the trigger, whether the murder occurred during the commission of a robbery, and

whether the defendant who did not pull the trigger nevertheless aided and abetted in the

commission of that robbery or in the murder that resulted therefrom.

As our Supreme Court explained in People v. Jenkins (2000) 22 Cal.4th 900: “‘It

is settled that as long as each juror is convinced beyond a reasonable doubt that defendant

is guilty of murder as that offense is defined by [the] statute, it need not decide

unanimously by which theory he [or she] is guilty. [Citations.] More specifically, the

jury need not decide unanimously whether defendant was guilty as the aider and abettor

or as the direct perpetrator. . . . [¶] . . . [¶] Not only is there no unanimity requirement as

to the theory of guilt, the individual jurors themselves need not choose among the

theories, so long as each is convinced of guilt. Sometimes, . . . the jury simply cannot

decide beyond a reasonable doubt exactly who did what. There may be a reasonable

doubt that the defendant was the direct perpetrator, and a similar doubt that he [or she]

was the aider and abettor, but no such doubt that he [or she] was one or the other.’

[Citations.] Defendant contends that different facts would support aiding and abetting

23

liability and liability as a direct perpetrator, but, as we have explained, the jury need not

unanimously agree ‘on the precise factual details of how a killing under one or the other

theory occurred in order to convict defendant of first degree murder.’ [Citation.]

Naturally, in order to return a guilty verdict, the jury must agree unanimously that each

element of the charged crime has been proved, but the factors that establish aiding and

abetting liability are not included as elements of the crime of murder. [Citation.]” (Id. at

pp. 1024–1025.) The same reasoning applies here.

Nor are we persuaded by defendants’ reliance on People v. Sanchez, supra, 221

Cal.App.4th 1012, a case in which the different theories of liability for murder supported

“different degrees of murder” and the trial court provided the jury with a response to a

jury question that “undermined the notion of unanimity as to degree.” (Id. at p. 1025.)

As the court explained: “There is no way to determine, on the record presented, whether

the jury followed the instruction during deliberations stating unanimity was not required,

or the earlier instruction pursuant to CALCRIM No. 640, which set forth a different

approach to the verdict forms on both degrees of murder.” (Ibid.) Here, both theories of

liability relied on by the prosecution at trial supported first degree murder. Nor did the

trial court undermine CALCRIM No. 640 during the jury’s deliberations, but instead

highlighted the need for unanimity as to degree by referring the jury to this instruction in

response to jury questions regarding whether they could find either defendant guilty of

second degree murder even if they could not agree as to first degree murder.

We conclude the challenged instruction was properly given.

Logan, 2017 WL 2224351, at *24-26.

The Court of Appeal’s determination is both reasonable and fully supported by the

record. Accordingly, McAlister cannot establish a due process violation on his claim that the

unanimity instruction was insufficient, and he is not entitled to relief on this ground.

Ground 4. Prosecutorial Misconduct

Finally, McAlister claims that the prosecutor committed misconduct during summation

by quoting witness Robert Jordan’s testimony that McAlister told him after the murder that

McAlister had “downed” the victim. According to McAlister, Jordan’s testimony was false

because, in an earlier interview with police, Jordan had claimed that McAlister made the

statement to his brother.

24

“[T]he [Supreme] Court has consistently held that a conviction obtained by the knowing

use of perjured testimony is fundamentally unfair, and must be set aside if there is any

reasonable likelihood that the false testimony could have affected the judgment of the jury.”

United States v. Agurs, 427 U.S. 97, 103 (1976) (footnotes omitted). The essential elements of

such successful claim are that (1) the testimony is false or perjured, (2) the prosecutor knew that

the testimony was false or perjured, and (3) the false testimony was material. Hayes v. Brown,

399 F.3d 972, 984 (9th Cir. 2005) (en banc); see Napue v. Illinois, 360 U.S. 264, 269 (1959);

Murtishaw v. Woodford, 255 F.3d 926, 959 (9th Cir. 2001). Thus, if McAlister successfully

shows that the prosecutor knowingly elicited perjured testimony material to his case, habeas

relief may be warranted.

Although a prosecutor has a duty to refrain from knowingly presenting perjured

testimony, United States v. Geston, 299 F.3d 1130, 1135 (9th Cir. 2002), the record does not

support McAlister’s unsupported contention that the prosecution knowingly introduced the

Jordan’s perjured testimony. While McAlister points to inconsistencies in Jordan’s testimony

and pre-trial statements, mere inconsistencies in witness testimony are insufficient to establish

that the prosecution knowingly introduced false testimony, as it is “within the province of the

jury to resolve the disputed testimony.” United States v. Geston, 299 F.3d 1130, 1135 (9th Cir.

2002); see also United States v. Zuno–Arce, 44 F.3d 1420, 1423 (9th Cir. 1995). As the Court of

Appeal explained in rejecting McAlister’s claim on direct appeal:

The prosecutor simply repeated to the jury what Jordan said under oath on the

witness stand. While McAlister could have impeached this testimony with a prior

inconsistent statement made to the investigator, the jury was entitled to credit Jordan’s

testimony, and the prosecutor was entitled to remind the jury what that testimony was

during her closing argument. Unlike the cases cited by McAlister in his briefing on

appeal (e.g., United States v. Blueford (9th Cir. 2002) 312 F.3d 962, 968 [“improper for

25

the government to propound inferences that it knows to be false, or has very strong

reason to doubt”]; In re Sakarias (2005) 35 Cal.4th 140, 155–156 [“fundamental fairness

did not permit the People, without a good faith justification, to attribute to two

defendants, in separate trials, a criminal act only one defendant could have committed”]

), the fact Jordan may have made a prior statement that was inconsistent with his trial

testimony did not mean the prosecutor either knew or had strong reason to believe his

trial testimony was false.

Logan, 2017 WL 2224351, at *27.

Upon independent review of the challenged comments, the Court must conclude that the

Court of Appeal’s rejection of McAlister’s claim was neither contrary to, or an unreasonable

application of, clearly-established federal law. Accordingly, McAlister is not entitled to relief on

his prosecutorial misconduct claim.

V. CONCLUSION AND ORDER

McAlister is not entitled to relief on any ground raised in his Petition.

IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ

of Habeas Corpus is DENIED.

IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of

Appealability. See 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain

a certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree

with the district court’s resolution of his constitutional claims or that jurists could conclude the

issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El,

26

537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the

Ninth Circuit Court of Appeals. See FED. R. APP. P. 22(b); 9TH CIR. R. 22-1.

The Clerk of the Court is to enter judgment accordingly.

Dated: April 21, 2021.

/s/James K. Singleton, Jr.

JAMES K. SINGLETON, JR.

Senior United States District Judge

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