Garcia v. Carey

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTHONY GARCIA,  No. 02-56895

Petitioner-Appellee,

v.  D.C. No.

CV-01-03455-R

TOM L. CAREY, Warden,

OPINION

Respondent-Appellant.



Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Argued and Submitted

February 4, 2004—Pasadena, California

Filed January 20, 2005

Before: J. Clifford Wallace, William C. Canby, Jr., and

Sidney R. Thomas, Circuit Judges.

Opinion by Judge Canby;

Dissent by Judge Wallace

875

GARCIA v. CAREY 877

COUNSEL

Lawrence M. Daniels, Deputy Attorney General, Los Ange-

les, California, for the respondent-appellant.

Isaac E. Guillen, Robert P. Ramirez, Covina, California, for

the petitioner-appellee.

OPINION

CANBY, Circuit Judge:

Petitioner Anthony Garcia was convicted of robbery in Cal-

ifornia state court. The jury found that the robbery was gang

related, and that a gun had been used. Garcia’s sentence was

increased because of those two findings. After exhausting

state remedies, Garcia filed a petition for habeas corpus in

federal court, pursuant to 28 U.S.C. § 2254, challenging his

878 GARCIA v. CAREY

sentence. The district court granted the petition on the ground

that there was constitutionally insufficient evidence to support

the imposition of the gang and gun sentencing enhancements.

The State, in the person of prison warden Tom Carey,

appeals. We affirm the district court’s grant of habeas relief.1

I. Background

The jury found to be true the allegation that Garcia had

committed the robbery “for the benefit of, at the direction of,

or in association with [a] criminal street gang, with the spe-

cific intent to promote, further, or assist in any criminal con-

duct by gang members.” CAL. PENAL CODE § 186.22(b)(1)

(emphasis added).2 The disputed issue on this appeal is

whether the evidence was sufficient, under applicable federal

habeas corpus standards, to support the jury’s finding of the

required specific intent: that is, the intent to “promote, further,

or assist in” other criminal activity of the gang apart from the

robbery of conviction.

1

We have jurisdiction under 28 U.S.C. §§ 1291 and 2253.

2

CAL. PENAL CODE § 186.22(b)(1) provides:

Except as provided in paragraphs (4) and (5), any person who is

convicted of a felony committed for the benefit of, at the direc-

tion of, or in association with any criminal street gang, with the

specific intent to promote, further, or assist in any criminal con-

duct by gang members, shall, upon conviction of that felony, in

addition and consecutive to the punishment prescribed for the fel-

ony or attempted felony of which he or she has been convicted,

be punished as follows:

(A) Except as provided in subparagraphs (B) and (C), the per-

son shall be punished by an additional term of two, three, or four

years at the court’s discretion.

(B) if the felony is a serious felony, as defined in subdivision

(c) of Section 1192.7, the person shall be punished by an addi-

tional term of five years.

(C) if the felony is a violent felony, as defined in subdivision

(c) of Section 667.5, the person shall be punished by an addi-

tional term of 10 years.

GARCIA v. CAREY 879

The jury also found to be true that a principal in the offense

had used a gun in connection with the robbery. See CAL.

PENAL CODE §§ 12022.53(b) and (e)(1).3 Because it was Gar-

cia’s accomplice, and not Garcia himself, who allegedly used

a gun during the robbery, Garcia can be subject to the gun

enhancement only if the crime was gang-related within the

meaning of § 186.22(b)(1). See CAL. PENAL CODE

§ 12022.53(e)(1)(A). This entire appeal therefore turns on the

validity of the gang enhancement. With that point in mind, we

turn to the facts.

The evidence relating to the robbery was not complicated.

Garcia was a member of a gang known as El Monte Flores,

or E.M.F. Its “turf” or territory extended to much of the City

of El Monte, California. In the early morning hours of January

18, 1998, the victim, Ricardo Bojorquez, entered a liquor

store in El Monte. Two or three other persons, including Gar-

cia, were in the store. As he walked to the counter, Bojorquez

nodded toward Garcia and said “How do you do?” Garcia

responded, “You know me?” Bojorquez answered, “No, I’m

3

CAL. PENAL CODE § 12022.53 provides, in relevant part:

...

(b) Notwithstanding any other provision of law, any person

who, in the commission of a felony specified in subdivision (a),

personally uses a firearm, shall be punished by an additional and

consecutive term of imprisonment in the state prison for 10 years.

The firearm need not be operable or loaded for this enhancement

to apply.

...

(e)(1) The enhancements provided in this section shall apply to

any person who is a principal in the commission of an offense if

both of the following are pled and proved:

(A) That the person violated subdivision (b) of Section 186.22.

(B) Any principal in the offense committed any act specified in

subdivision (b), (c), or (d).

...

880 GARCIA v. CAREY

just saying how are you.” Garcia then said, “If you don’t

know me, don’t be talking to me.” Bojorquez continued walk-

ing toward the counter and said “Whatever.” Garcia then

asked Bojorquez if he had any change, and Bojorquez

answered that he did not. Garcia then said, “Let’s see when

you come out the door.” One of Garcia’s companions asked

Bojorquez where he was from, but Bojorquez did not answer.

When Bojorquez tried to leave the store, Garcia stood in

front of him and said, “I’m Little Risky from E.M.F.” He also

said, “you want to get jacked [robbed]?” Garcia told his com-

panions to watch for the police. He then took $14.85 from

Bojorquez’s shirt pocket. One of Garcia’s companions lifted

his own shirt and grabbed the handle of what Bojorquez

thought was a pistol. Garcia told one of his companions to

take Bojorquez’s bicycle. Bojorquez objected that the bicycle

was not his. The companion handed the bicycle to Garcia and

he and his companions left with it.

The crime was reported to the police and Bojorquez gave

police a statement relating the above facts. He also identified

Garcia. At trial, however, he testified that he did not remem-

ber what was stated by the gang members at the time of the

robbery, and he further testified that Garcia was not one of the

persons who accosted him. The liquor store owner, who knew

Garcia prior to the incident, testified that Garcia was the one

who took the money from Bojorquez.

Santos Hernandez, an El Monte Police Detective, testified

as an expert on gangs. Detective Hernandez testified that El

Monte Flores, known as “E.M.F.” was the largest street gang

in El Monte and that E.M.F.’s “turf” included the area known

as Little Five Points, where the liquor store in question was

located. Detective Hernandez testified that the gang was “turf

oriented.” Detective Hernandez also testified about three other

robberies that had been committed by E.M.F. members, and

he stated that robberies, often involving small amounts of

money, were one of the primary activities of E.M.F. Detective

GARCIA v. CAREY 881

Hernandez knew that Garcia was an E.M.F. member. Finally,

he testified that it was common for victims of gang-related

crimes to backtrack on statements they initially made about

the crimes because of the “fear intimidation process.”4

The jury returned a guilty verdict on the robbery charge and

a finding of “true” on both the gang and gun enhancements.

Garcia was sentenced consecutively to six years for the rob-

bery, ten years for the gun enhancement, and five years for a

previous conviction under CPC § 677(a)(1), for a total of 21

years in state prison. The judge also sentenced Garcia to two

years for the gang enhancement, but stayed judgment on that

enhancement until Garcia completed his prison term and

parole.

The California Court of Appeal affirmed Garcia’s convic-

tion and sentence, and the Supreme Court of California denied

Garcia’s petition for review. Garcia filed a petition for writ of

habeas corpus in the United States District Court for the Cen-

tral District of California. The magistrate judge’s report and

recommendation concluded that there was insufficient evi-

dence to support the gang and gun sentencing enhancements.

The district court adopted the findings of the magistrate judge

and granted Garcia’s habeas petition. The district court deter-

mined that habeas relief was proper because “the prosecution

failed to present any direct or circumstantial evidence that

[Garcia] robbed Bojorquez with the specific intent to pro-

mote, further, or assist in other criminal conduct by the

E.M.F. street gang.”

4

In explanation, Detective Hernandez stated: “Sometimes the victim

will be contacted and told not to come and testify, something will happen

to them or to their family or if they work in the city, when they come to

work, something will happen to them.” There is no evidence in the record,

however, that such threats were made in this case.

882 GARCIA v. CAREY

II. Discussion

We review de novo the district court’s order granting Gar-

cia’s petition for a writ of habeas corpus. Clark v. Murphy,

331 F.3d 1062, 1067 (9th Cir. 2003). A defendant alleging

that the evidence was insufficient to support his conviction

can obtain relief only if, “upon the record evidence adduced

at the trial[,] no rational trier of fact could have found proof

of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 324 (1979) (emphasis added). It appears to be an

open question in this circuit whether the Antiterrorism and

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

§ 2254(d), adds a second level of deference to this standard,

so that a federal habeas petitioner may obtain relief only by

demonstrating that the state court’s adjudication on the merits

of the claim involved an unreasonable application of Jack-

son’s “no rational trier of fact” standard. See Chein v. Shum-

sky, 373 F.3d 978, 983 (9th Cir. 2004) (en banc). Like our en

banc court in Chein, we do not decide the affect of AEDPA

on Jackson because we reach the same result whether we

review directly under Jackson or whether we review more

deferentially the state court’s application of Jackson under

AEDPA’s standard. See id.

[1] The gang sentencing enhancement required the prosecu-

tion to prove that Garcia committed the robbery for the bene-

fit of, at the direction of, or in association with a gang, and

that he committed the crime with the specific intent to pro-

mote, further, or assist in criminal conduct by gang members.5

CAL. PENAL CODE § 186.22(b)(1). There is nothing in this

5

It is important to keep these two requirements of the gang enhancement

separate. For example, People v. Olguin, 31 Cal. App.4th 1355 (1994),

cited by the California Court of Appeal in affirming Garcia’s sentence,

dealt with a challenge to the sufficiency of the evidence to meet the first

requirement — that the crime of conviction be “for the benefit of, at the

direction of, or in association with” a criminal street gang — not the sec-

ond requirement of specific intent to further other criminal activity of the

gang. See id. at 1382.

GARCIA v. CAREY 883

record, however, that would support an inference that Garcia

robbed Bojorquez with the specific intent to facilitate other

criminal conduct by the E.M.F. The evidence indicates that

Garcia was a gang member and that he robbed Bojorquez in

an area known to be in the heart of the gang’s “turf.” Detec-

tive Hernandez, the gang expert, testified that the gang was

“turf oriented,” and he described three other robberies com-

mitted by E.M.F. members in El Monte during the few

months prior to Garcia’s offense.6 But there is no evidence

indicating that this robbery was committed with the specific

purpose of furthering other gang criminal activity, and there

is nothing inherent in the robbery that would indicate that it

furthers some other crime. There is nothing on the record that

connects the “turf-oriented” nature of the gang with the com-

mission of robberies generally, or, more importantly, with the

commission of this robbery in particular. There is no testi-

mony that protection of turf enables any other kind of crimi-

nal activity of the gang. The expert’s testimony is singularly

silent on what criminal activity of the gang was furthered or

intended to be furthered by the robbery of Bojorquez.

[2] The California Court of Appeal,7 with one justice dis-

senting, held that the jury could properly conclude that the

robbery of Bojorquez

was one in a series of street robberies committed by

E.M.F. gang members in the southern part of El

Monte, including the Five Points Area, not only to

obtain the property of the victims, but also as a

means of instilling fear of the gang in the residents

6

These robberies helped to qualify El Monte Flores as a “criminal street

gang,” see CAL. PENAL CODE § 186.22(f), that was engaged in a “pattern

of criminal activity,” see id. § 186.22(e).

7

The decision of the California Court of Appeal was the last “ex-

plained” decision of Garcia’s appeal, because the California Supreme

Court denied review without comment. We therefore look to the opinion

of the Court of Appeal as embodying California’s decisional rationale. See

Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).

884 GARCIA v. CAREY

of the neighborhood, and thereby facilitating the

gang’s criminal operations in the area.

For reasons we have just set forth, however, we agree with the

federal magistrate judge that “there is absolutely nothing in

this record which would support an inference that [Garcia]

robbed Bojorquez in order to facilitate other gang related

criminal operations within El Monte.” The magistrate judge

also noted that this theory of specific intent had never been

argued to the jury by the prosecution and the jury had not

been asked to make such an inference. Any assumption by the

jury that the gang was involved in types of criminal activity

not mentioned in any of the testimony would be the purest of

speculation. There was testimony that the gang committed

robberies, but nothing to indicate why those robberies were

aided or intended to be aided by this robbery. Because there

was no testimony or other evidence to support a rational infer-

ence that the robbery of Bojorquez was committed with the

intent to further other criminal activity of E.M.F., the ruling

of the California Court of Appeal meets the deferential

AEDPA standard for federal habeas corpus relief: the ruling

is “an unreasonable application of [ ] clearly established Fed-

eral law, as determined by the Supreme Court of the United

States.” 28 U.S.C. § 2254(d)(1). The clearly established law,

as we have already stated, is Jackson v. Virginia, 443 U.S. at

324.8 To uphold the jury’s finding in the circumstances of this

case and in the absence of any evidence at all of specific

intent is not only an inaccurate, but an unreasonable, applica-

tion of Jackson.

A decision of the California Supreme Court upholding a

gang enhancement provides an example of the kind of evi-

8

Although the California Court of Appeal did not expressly refer to

Jackson, that fact does not affect the application of the AEDPA standard.

Cf. Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (holding that State

may comply with AEDPA standard without even being aware of govern-

ing Supreme Court decisions, so long as ruling does not contradict them).

GARCIA v. CAREY 885

dence that can support a finding of the requisite specific

intent. In People v. Gardeley, 927 P.2d 713 (Cal. 1996), an

expert testified that an assault of the type involved there “was

a ‘classic’ example of gang-related activity”; the expert

explained “that criminal street gangs rely on such violent

assaults to frighten the residents of an area where the gang

members sell drugs, thereby securing the gang’s drug-dealing

stronghold.” Id. at 722. The California Supreme Court held

that such testimony permitted the jury reasonably to conclude

that the attack was committed with the necessary specific

intent to further other criminal activity of the gang. Id. No

comparable testimony was presented in Garcia’s case.

[3] Other California cases also present examples of the kind

of evidence permitting an inference of specific intent to fur-

ther other criminal gang activity. See, e.g., People v. Aug-

borne, 104 Cal. App.4th 362, 372-73 (2002) (expert testified

to belief that crimes were committed for promotion and assis-

tance of criminal conduct by gang members); In re Ramon T.,

57 Cal. App.4th 201, 207-08 (1997) (finding gang enhance-

ment supported by expert evidence and unequivocal act where

the attack against a police officer who had another gang mem-

ber in custody was committed in order to assist the gang

member’s escape); California v. Ortiz, 57 Cal. App.4th 480,

484-85 (1997) (finding sufficient evidence to support a gang

enhancement where expert evidence was that a robbery and

murder were committed with the specific intent of framing a

rival gang for the crimes). Here, Detective Hernandez testified

that Garcia was a member of the E.M.F. gang, that the rob-

bery was committed on gang territory, and that the E.M.F.

gang was “turf-oriented.” Detective Hernandez did not offer

any testimony, however, on what was meant by being “turf-

oriented,” what implications arose from a gang being “turf-

oriented,” or how the gang’s “turf-oriented” nature could sup-

port the conclusion that this robbery was committed with the

specific intent to promote, further, or assist other gang related

criminal activity. Without this evidentiary link, it is unreason-

able to conclude that a rational jury could find that Garcia

886 GARCIA v. CAREY

committed this robbery with the specific intent to facilitate

other gang crimes. There was simply a total failure of proof

of the requisite specific intent. The district court correctly

granted habeas relief on the gang enhancement, and on the

firearm enhancement that depended on it.

AFFIRMED.

WALLACE, Senior Circuit Judge, dissenting:

The majority concludes that habeas relief is warranted

because there is “no evidence” that Garcia committed the rob-

bery with the “specific intent to promote, further, or assist in

any criminal conduct by gang members.” CAL. PENAL CODE

§ 186.22(b)(1). I believe that the majority misinterprets the

requirements of section 186.22(b)(1), fails to credit the ratio-

nal inferences that could be made from the record, and misap-

plies the provisions of the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA). Thus, I respectfully dissent.

My first disagreement with the majority’s analysis concerns

its interpretation of section 186.22(b)(1). See Chein v. Shum-

sky, 373 F.3d 978, 983 (9th Cir. 2004) (en banc) (“The Jack-

son standard must be applied with explicit reference to the

substantive elements of the criminal offense as defined by

state law” (internal quotations omitted)). The majority con-

tends that there was no evidence indicating what particular

criminal gang activity Garcia intended to further in commit-

ting the robbery. See Ante at 883 (“The expert’s testimony is

singularly silent on what criminal activity of the gang was fur-

thered or intended to be furthered by the robbery of Bojor-

quez”). But section 186.22(b)(1) does not require proof that

the crime of conviction was committed with the intent to fur-

ther some other specifically identified crime or category of

crimes, and California courts have rejected sufficiency of the

evidence claims even where such evidence was entirely lack-

GARCIA v. CAREY 887

ing. See People v. Ortiz, 57 Cal. App. 4th 480, 484-85 (1997)

(sufficient evidence for gang enhancement where murder was

committed in such a manner as to incriminate a rival gang in

retaliation for an earlier incident); People v. Gamez, 235 Cal.

App. 3d 957, 978 (1991) (sufficient evidence where shooting

was a “retaliatory strike” for shooting of member of defen-

dant’s gang), overruled on other grounds, People v. Gardeley,

927 P.2d 713, 725 n.10 (Cal. 1996).

Indeed, the California Court of Appeal rejected Garcia’s

challenge to the enhancement not because it thought the evi-

dence in the record linked the robbery to some other specifi-

cally identified criminal gang activity, but because the

evidence supported a rational inference that the robbery was

committed with the intent to “facilitat[e]” the “nefarious con-

trol of the Little Five Points area and its residents.” This “fa-

cilitation” theory is entirely consistent with the California

Supreme Court’s interpretation of section 186.22(b)(1). See

Gardeley, 927 P.2d at 722 (sufficient evidence where assault

was committed in public, and expert testified that gangs often

commit violent assaults in public “to frighten the residents of

an area where the gang members sell drugs, thereby securing

the gang’s drug-dealing stronghold”).

This brings me to my second objection to the majority’s

analysis, which involves its assessment of the record evidence

in this case. Federal habeas relief is not warranted unless, at

the very least, a court can conclude that “after viewing the

evidence in the light most favorable to the prosecution, [no]

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). Thus, even assuming that AEDPA

does not require us to review state-court applications of Jack-

son deferentially (a point to which I shall soon return), we

may grant habeas relief in this case only if the record cannot

support beyond a reasonable doubt a rational inference that

the robbery was committed with the intent to facilitate

E.M.F.’s “nefarious control” of the gang’s “turf.” See United

888 GARCIA v. CAREY

States v. Sherwood, 98 F.3d 402, 408 (9th Cir. 1996) (“[W]e

must respect the exclusive province of the jury to determine

the credibility of witnesses, resolve evidentiary conflicts, and

draw reasonable inferences from proven facts, by assuming

that the jury resolved all such matters in a manner which sup-

ports the verdict” (internal quotations and alteration omitted)).

The majority attempts to distinguish Gardeley on the

ground that the state’s expert in this case, Detective Her-

nandez, did not present testimony “comparable” to that

offered by the expert in Gardeley. Ante at 885. But, Gardeley

merely held that such expert testimony was sufficient to sup-

port a section 186.22(b)(1) enhancement, not that it was nec-

essary. The California Court of Appeal thought the evidence

in this case sufficient notwithstanding the absence of such

expert testimony, and its discussion of this issue is worth

quoting at length:

The People contend the evidence permitted a

rational jury to conclude the robbery had been com-

mitted with the specific intent to control and main-

tain gang turf. (People v. Olguin (1994) 31 Cal. App.

4th 1355, 1382-83; People v. Ortiz (1997) 57 Cal.

App. 4th 480, 484-85.) Specifically, the People point

out the robbery took place at Little Five Points in the

“ ‘heart’ of E.M.F. turf,” Bojorquez was unknown to

Garcia, Garcia identified himself by a gang moniker,

indicated he was a member of E.M.F., and asked

where Bojorquez was from, robbery was one of the

gang’s principal activities, and the gang was “turf

oriented.”

We agree the evidence was sufficient to support

the enhancement. Based on the testimony of Detec-

tive Hernandez regarding the nature of gangs in gen-

eral, and E.M.F. in particular, the jury could

conclude the robbery of Bojorquez was not a random

street robbery. Rather, it was one in a series of street

GARCIA v. CAREY 889

robberies committed by E.M.F. gang members in the

southern part of El Monte, including the Five Points

Area, not only to obtain the property of the victims,

but also as a means of instilling fear of the gang in

the residents of the neighborhood, and thereby facili-

tating the gang’s criminal operations in the area.

Residents intimidated in this fashion are less likely

to report crime, among other things. Indeed, it rea-

sonably can be inferred from the evidence that Gar-

cia took umbrage when Bojorquez spoke to him and

robbed Bojorquez not only to obtain his property,

but also to intimidate Bojorquez, who apparently

was not a local resident, and to put Bojorquez on

notice that E.M.F. controlled the turf in the area. The

nefarious control of the Little Five Points area and

its residents qualifies, in our view, as criminal con-

duct by gang members within the meaning of the

statute.

One judge dissented from the California Court of Appeal’s

rejection of Garcia’s claim, arguing that “if the evidence in

this case is sufficient to support the ‘gang’ enhancement, . . .

every crime committed by a gang member, without more,

would qualify for the enhancement.” But, as the Court of

Appeal’s majority opinion makes clear, the evidence support-

ing the gang enhancement was not limited to Garcia’s mere

gang member status. Importantly, the evidence showed that

Garcia asked Bojorquez, who Garcia did not know, where

Bojorquez was from and identified himself as “Little Risky

from E.M.F.” A rational juror could infer from this evidence

that Garcia intended to intimidate Bojorquez and the store

owner by letting them know that they were dealing with an

E.M.F. member on E.M.F. turf, so that Bojorquez, a perceived

challenger to the gang’s authority, would know not to intrude

on E.M.F. turf in the future and so that the store owner would

submit to the gang’s dominance. The California Court of

Appeal could properly conclude that there was sufficient evi-

dence that this form of intimidation would “facilitate” the

890 GARCIA v. CAREY

gang’s “nefarious control” of the area and make it easier to

commit crimes there in the future, such as robbery, which was

one of E.M.F.’s “principal activities.” See Gardeley, 927 P.2d

at 722. I therefore cannot agree that “there was no testimony

or other evidence to support a rational inference that the rob-

bery of Bojorquez was committed with the intent to further

other criminal activity of E.M.F.” Ante at 884.

Lastly, I disagree with the majority’s analysis of AEDPA.

On at least two occasions, we have avoided deciding whether

AEDPA requires a federal court reviewing a sufficiency of

the evidence claim to accord a state court decision rejecting

that claim an additional layer of deference beyond that built

into the Jackson standard. See Chein, 373 F.3d at 982-83;

Bruce v. Terhune, 376 F.3d 950, 956-57 (9th Cir. 2004) (per

curiam). The majority considers it unnecessary to decide how

AEDPA interacts with Jackson in this case as well, because

habeas relief supposedly is warranted even if AEDPA

requires us to review state court applications of Jackson def-

erentially.

But if I assume that the California Court of Appeal incor-

rectly applied Jackson, as argued by the majority, I cannot

agree that AEDPA makes no difference in this case. Rather,

if AEDPA requires an additional level of deference, that def-

erence would preclude relief here. I would therefore reach the

question avoided in Chein and Bruce. As to that question,

another member of this court has persuasively explained why

AEDPA “clearly mandates not a direct application of Jack-

son, but a deferential review of a state court’s application of

Jackson.” Bruce, 376 F.3d at 960 (O’Scannlain, J., concur-

ring). Judge O’Scannlain pointed out that five circuits have

concluded “that a sufficiency of the evidence claim presents

a legal determination that must be evaluated through the

AEDPA standard of review embodied in § 2254(d)(1).” Id. at

958-59 (collecting cases). Although the case could be made

that state court decisions rejecting sufficiency of the evidence

claims are properly reviewed pursuant to section 2254(d)(2)

GARCIA v. CAREY 891

(which asks whether a state court decision “was based on an

unreasonable determination of the facts in light of the evi-

dence presented in the State court proceeding”) rather than

section 2254(d)(1), the important point is that AEDPA does

require some degree of additional deference. Indeed, “[n]o

circuit has explicitly held that a state court’s Jackson inquiry

is exempt from AEDPA’s standard of review.” Id. at 959.

Thus, regardless of which subsection of section 2254(d) gov-

erns the inquiry, the deference required by that statute would

preclude relief in this case.

Had I been a member of the jury in Garcia’s state court

trial, I might well have rejected the gang enhancement.

Indeed, had I been a judge on the California Court of Appeal,

I might have found the evidence supporting that enhancement

insufficient. But that is not the inquiry commanded by

AEDPA. Pursuant to section 2254(d), we may grant habeas

relief only if the California Court of Appeal’s decision

involved an “unreasonable application” of Jackson or an “un-

reasonable determination” of the facts. I conclude that the

majority fails to accord the state court decision the deference

it is due.

For these three reasons, I respectfully dissent.