# (HC) McAlister v. Foss

> District Court, E.D. California · April 21, 2021

URL: https://www.frixlaw.com/law-library/cases/10027091

## Case

- **Court:** District Court, E.D. California
- **Decided:** April 21, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10027091

## How later opinions describe it (automated extraction)

- 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.”
- 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
- noting that Bruton “specifically exempts a statement, not incriminating on its face, that implicates defendant only in connection to other admitted evidence”

## Opinion text

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
2
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.”
3
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
4
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.
5
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.
6
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
7
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
8
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
9
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)).
10
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
11
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.
12
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
13
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).

14
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.
18
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.
19
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).

20
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
22
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

27

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10027091. Public record. Not legal advice.