Wayne Dinsmore Gray v. Kelly Santoro

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WAYNE DINSMORE GRAY, Case No. 2:20-cv-01844-SB-SP

Petitioner,

ORDER ACCEPTING FINDINGS,

v.

CONCLUSIONS, AND

KELLY SANTORO, RECOMMENDATIONS OF THE

U.S. MAGISTRATE JUDGE

Respondent.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the petition (Dkt. No.

1), the records on file, the Report and Recommendation (R&R) of the United

States Magistrate Judge (Dkt. No. 20), and the Objections thereto (Dkt. No. 23).

After conducting a de novo review of the challenged portions of the R&R, the

Court ACCEPTS AND ADOPTS the findings and conclusions of the Magistrate

Judge.

Objections

Petitioner’s objections to the R&R are without merit for the reasons

explained in the R&R, as briefly discussed below. First, Petitioner contends that

he is entitled to relief because the trial court erred in failing to instruct the jury on

the accomplice corroboration rule in connection with statements made by Javier

Pellecer. Even assuming the trial court violated this state rule, Petitioner is not

entitled to habeas relief. See Laboa v. Calderon, 224 F.3d 972, 979 (9th Cir. 2000)

(noting that “the [corroboration rule] is not required by the Constitution or federal

law”). Petitioner neglects to address this point.

Second, Petitioner contends that the trial court erred by failing to sever the

homicide offenses. But he has not shown that any such error would entitle him to

habeas relief for a violation of clearly established federal law. See Runningeagle v.

Ryan, 686 F.3d 758, 776 (9th Cir. 2012) (noting that misjoinder has not been found

to rise to the level of a constitutional violation). In any event, his conclusory

assertions do not demonstrate that the trial court erred or that the joinder of claims

rendered his trial fundamentally unfair.

Third, Petitioner contends that the admission of Pellecer’s statements

violated the Sixth Amendment’s Confrontation Clause by running afoul of the rule

established in Bruton v. United States, 391 U.S. 123 (1968). This contention fails

to consider Ninth Circuit law stating that “Bruton’s rule now applies only to

testimonial out-of-court codefendant statements.” Lucero v. Holland, 902 F.3d

979, 988 (9th Cir. 2018). In finding that Pellecer’s statements to a confidential

informant was not testimonial, the California Court of Appeal did not contravene

clearly established law nor rely on an unreasonable determination of the facts.

Indeed, this finding is consistent with the conclusion reached by a number of

federal courts. See, e.g., United States v. Saget, 377 F.3d 223, 229 (2d Cir. 2004)

(Sotomayor, J.) (concluding that statements made to a confidential information

were not testimonial).

Fourth, Petitioner contends that he was deprived of a fair trial as a result of

cumulative error. However, he has not demonstrated any error.

Finally, Petitioner contends that Senate Bill 620 must be applied

retroactively, and that this Court should remand the case to state court to give it an

opportunity to decide whether to strike his firearm enhancements. He fails to

consider, however, the threshold question whether his quintessential state claim is

subject to federal habeas review. It is not. Christian v. Rhode, 41 F.3d 461, 469

(9th Cir. 1994) (noting the general rule that “a state court’s misapplication of its

own sentencing laws does not justify federal habeas relief”).

Request for Leave to Amend

Petitioner requests leave to amend so that he can raise an ineffective

assistance of counsel claim. At the end of his objections, he asserts:

Petitioner would ask to be allowed to amend a new Ineffective

Assistance of trial counsel claim to appellants Habeas Corpus. Failure

tocall defense witness, Sylvia Westby, Stevie Lamont Jenkins (jail

house informant), Nipsey Hustle AKA Ermias Asgherdom, and

second (jail house informant), and Queron Batteys brother Dante, who

accussed Battey of the Westby murder and ultimately was held from

defense before trial which is exculpatory evidence that more likely

than not, the outcome would be favorable to appellants outcome at

trial.

Dkt. No. 23.

Leave to amend should be freely given “when justice so requires,” Fed. R.

Civ. P. 15(a), but leave may be denied for “futility of amendment,” among other

reasons. Foman v. Davis, 371 U.S. 178, 182 (1962); see also 28 U.S.C. § 2242

(directing courts to apply the civil rules for amendment to habeas petitions).

Because a state prisoner must exhaust the remedies available in state court before

seeking federal habeas relief, 28 U.S.C. § 2254(b)(1)(A), an amendment would be

futile if a petitioner seeks to add an unexhausted claim. See Caswell v. Calderon,

363 F.3d 832, 837 (9th Cir. 2004) (affirming denial of leave to amend when the

petitioner had not presented the claim to the California Supreme Court).

In seeking to pursue his claim for ineffective assistance of counsel,

Petitioner has not shown that he has exhausted his state remedies. He did not

mention this theory or claim in his briefs before the California Court of Appeal or

the California Supreme Court. See Dkt. No. 11. Petitioner’s request suffers from

an additional flaw: he provides only conclusory information about the claim he

belatedly seeks to advance. A petitioner who challenges his counsel’s trial

performance bears the burden of overcoming the presumption that the challenged

action or omission was the product of “sound trial strategy.” Strickland v.

Washington, 466 U.S. 668, 689 (1984). Petitioner contends that his trial counsel

was ineffective by failing to call certain witnesses, but his contention is wholly

conclusory. Indeed, he does not even disclose what the witnesses would have

stated if called, except cursorily for one witness—the brother of Queron Battey

(who allegedly accused Battey of one of the murders for which Petitioner was

convicted). Even then, he does not provide sufficient information to evaluate

whether his trial counsel spoke with these witnesses and made a strategic decision

not to call them. Nor does he explain how he could satisfy the Strickland standard

for prejudice in light of weighty evidence against him at trial. Dkt. No. 11-22 at

16–17 of 20 (noting the “overwhelming evidence that [Petitioner] committed the

murder”).

Accordingly, the Court finds that amendment would be futile and denies

Petitioner’s request for leave to amend.

Conclusion

IT IS THEREFORE ORDERED that:

1. The findings, conclusions, and recommendations in the Report and

Recommendation are accepted.

2. Judgment shall be entered denying and dismissing with prejudice the

Petition for a Writ of Habeas Corpus.

3. The Clerk shall serve copies of this Order, the Report and

Recommendation, and the Judgment on Petitioner and all counsel of record.

IT IS SO ORDERED.

Date: May 10, 2023 ___________________________

Stanley Blumenfeld, Jr.

United States District Judge

cc: SP Chambers

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7

8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10

11 WAYNE DINSMORE GRAY, ) Case No. 2:20-cv-01844-SB (SP)

)

12 Petitioner, ) REPORT AND

) RECOMMENDATION OF UNITED

13 v. ) STATES MAGISTRATE JUDGE

)

14 )

KELLY SANTORO, Warden, )

15 )

Respondent. )

16 )

)

17

18 This Report and Recommendation is submitted to the Honorable Stanley

19 Blumenfeld, Jr., United States District Judge, pursuant to the provisions of 28

20 U.S.C. § 636 and General Order 05-07 of the United States District Court for the

21 Central District of California.

22 I.

23 INTRODUCTION

24 On February 26, 2020, petitioner Wayne Dinsmore Gray filed a Petition for

25 Writ of Habeas Corpus by a Person in State Custody (“Petition”). Petitioner

26 challenges his 2017 convictions in Los Angeles County Superior Court for three

27 counts of murder with firearm and gang enhancements, and one count of

28

1 possession of a firearm by a felon, for which he was sentenced to two consecutive

2 terms of life without the possibility of parole plus 100 years to life.

3 Petitioner raises five grounds for relief: (1) error in not giving an accomplice

4 jury instruction; (2) error in refusing to sever the murder counts; (3) Confrontation

5 Clause violation when the trial court allowed the prosecution to introduce a

6 transcript of a co-defendant’s conversation into evidence; (4) cumulative error; and

7 (5) a state sentencing law applies retroactively to his case.

8 For the reasons discussed below, petitioner’s claims do not merit habeas

9 relief. It is therefore recommended that the Petition be denied with prejudice.

10 II.

11 STATEMENT OF FACTS1

12 Prosecution’s Evidence

13 The October 6, 2008 Murders of Columbus Campbell and Kavette

14 Watson

15 The Rollin’ 60’s are a criminal street gang with approximately 2,000

16 members. Their primary activities include robberies, burglaries, homicides, and

17 vandalism. Members of the gang are known to murder each other to gain respect

18 and prestige. The gang has a slogan related to these in-house murders: “[Y]ou are

19 not really a true Rollin’ 60 until you kill a Rollin’ 60 gang member.”

20 Petitioner was a member of the Rollin’ 60’s. Columbus Campbell was also a

21 Rollin’ 60’s Crips gang member. In September 2008, petitioner was involved in a

22 fight with Campbell in the presence of a famous rapper and Rollin’ 60’s gang

23 member. During the fight, Campbell struck petitioner “in a blind-sided shot and

24 cut his eye.” Petitioner suffered a black eye. Campbell won the fight.

25

26 1 The facts set forth are drawn substantially verbatim from the California

Court of Appeal’s decision on direct appeal. See Lodgment 7 at 3-7. Such

27

statement of facts is presumed correct. 28 U.S.C. § 2254(e)(1); Vasquez v.

28 Kirkland, 572 F.3d 1029, 1031 n.1 (9th Cir. 2009).

1 On October 6, 2008, petitioner asked Javier Pellecer, a fellow Rollin’ 60’s

2 gang member, to help him kill Campbell. Pellecer agreed. They found Campbell

3 sleeping in a parked car with Kavette Watson on 63rd Street and Crenshaw

4 Boulevard. Pellecer pulled his car next to Campbell’s car, a white Mercedes.

5 Petitioner got out of the car and shot Campbell and Watson. Pellecer then drove

6 away. The murders occurred within Rollin’ 60’s territory.

7 Los Angeles Police Department officer Thomas Callen arrived at the scene.

8 He saw the white Mercedes with the windows shot out. Campbell’s and Watson’s

9 bodies were inside; they both had been shot in the head. The police recovered 11

10 .40-caliber casings and an expended bullet.

11 A gang expert opined that a hypothetical crime based on the facts of

12 Campbell and Watson’s murders were committed for the benefit of, at the direction

13 of, and in association with the Rollin’ 60’s. Campbell got the best of petitioner in a

14 fight, and petitioner needed to retaliate. The killing raised petitioner’s status in the

15 gang and benefitted the gang by instilling fear and intimidation in the community.

16 June 2, 2013, Murder of Charles Westby

17 Dorset Village is an apartment complex within the Rollin’ 60’s territory. In

18 June 2013, five or six members of the gang lived in the apartment complex,

19 including petitioner, Jerry Wilson, and Leon Panting. Petitioner, Wilson, and

20 Panting were all members of the Dorset Village Clique, a subset of the Rollin’

21 60’s. The clique claimed Dorset Village as its territory. Charles Westby lived in

22 Dorset Village, but was not a member of a gang.

23 Wilson and petitioner were “real close,” like “father and son.” On June 2,

24 2013, Wilson noticed petitioner looked irritated and asked petitioner what was

25 wrong. Petitioner stated that he was with three other individuals in the apartment

26 manager’s garage shed when Westby approached them. Petitioner and Westby had

27 an argument. Petitioner told Westby to leave. Westby pulled a gun on petitioner.

28

1 Westby pointed the gun at petitioner; he pulled the trigger, but the gun did not fire.

2 Wilson tried to calm petitioner down, but was unsuccessful. Petitioner

3 stated that he was going to kill Westby. Panting arrived, and petitioner devised a

4 plan to murder Westby. Panting’s role was to call Westby downstairs in the

5 middle of the apartment complex. Wilson’s role was to call petitioner when

6 Westby was on his way back to the back of the apartment complex.

7 Wilson and Panting left petitioner’s apartment together. They walked

8 towards a tree in the middle of Dorset Village. At some point, the two men

9 separated, but Wilson heard Panting call Westby down. Wilson then borrowed

10 another Dorset Village’s resident’s cell phone to call petitioner. Petitioner asked

11 where Westby was, and Wilson told him. Five to seven seconds after petitioner

12 hung up the phone, Wilson heard six to seven “rapid-fire” gunshots.

13 Los Angeles Police Department Officer Jose Bonilla arrived at the scene;

14 Westby was visibly injured and taken to the hospital. He later died from his

15 injuries.

16 A gang expert opined that a hypothetical crime based on the facts of the

17 murder of Westby was committed for the benefit of, at the direction of, and in

18 association with the Rollin’ 60’s because petitioner felt disrespected when Westby

19 pulled a gun on him in Rollin’ 60’s territory. Everyone who participated in the

20 murder had their gang status elevated. The gang benefitted by instilling hear and

21 intimidation in the community.

22 Subsequent Events

23 Shortly after the murders, petitioner visited Queron Battey’s apartment in

24 Dorset Village. Petitioner asked Battey for a drink, and Battey invited him inside.

25 Battey gave petitioner a glass of water. Petitioner then went to Battey’s bedroom.

26 Five minutes later, Battey went to the bedroom. Petitioner was praying. Battey

27 and petitioner then had a conversation during which petitioner told Battey that he

28

1 had murdered Westby, and detailed how he had committed the murder.

2 Meanwhile, on October 16, 2013, Pellecer was detained by police and placed

3 in a jail cell with a confidential informant (“CI”). Pellecer explained to the CI how

4 he and petitioner had murdered Campbell and Watson. He also admitted to getting

5 rid of the gun used by petitioner to murder Westby.

6 On February 9, 2017, Wilson reached a plea agreement. He spoke to the

7 police and provided the details of the Westby murder. At trial, he also testified that

8 petitioner admitted to killing Campbell and Watson and detailed the events

9 surrounding Westby’s murder.

10 Defense Evidence

11 Petitioner rested without testifying or providing an affirmative defense.

12 III.

13 PROCEEDINGS

14 On March 16, 2017, following a jury trial, petitioner was convicted of the

15 first degree murders of Charles Westby, Columbus Campbell, and Kavette Watson

16 (Cal. Penal Code § 187(a)) (counts one, two, and three), and of possession of

17 firearm by a felon (Cal. Penal Code § 29800(a)(1)) (count five). Lodgment 1

18 (Clerk’s Transcript (“CT”)) at 1337-46. As to all the murder counts, the jury found

19 true that petitioner committed the offenses for the benefit of, at the direction of, or

20 in association with a criminal street gang (Cal. Penal Code § 186.22(b)(1)(C)) and

21 that petitioner personally and intentionally discharged a firearm (Cal. Penal Code

22 § 12022.53(d)). CT at 1337-45. In count one, the jury also found true the special

23 circumstance of lying in wait (Cal. Penal Code § 190.2(a)(15)). CT at 1337.

24 Petitioner was sentenced to two consecutive sentences of life without the

25 possibility of parole plus 100 years to life. CT at 1359-60, 1367.

26 Petitioner, represented by counsel, appealed his conviction, raising claims of

27 instructional error, severance denial error, violation of the Confrontation Clause,

28

1 cumulative error, and state sentencing law remand. Lodgment 4. On January 15,

2 2019, the California Court of Appeal, in a reasoned decision, affirmed the

3 judgment. Lodgment 7.

4 Petitioner filed a petition for review in the California Supreme Court,

5 presenting the same issues raised below except for the cumulative error claim.

6 Lodgment 8. The California Supreme Court summarily denied the petition for

7 review on April 24, 2019. Lodgment 9.

8 IV.

9 STANDARD OF REVIEW

10 This case is governed by the Antiterrorism and Effective Death Penalty Act

11 of 1996 (“AEDPA”). AEDPA provides that federal habeas relief “shall not be

12 granted with respect to any claim that was adjudicated on the merits in State court

13 proceedings unless the adjudication of the claim –

14 (1) resulted in a decision that was contrary to, or involved an unreasonable

15 application of, clearly established Federal law, as determined by the Supreme

16 Court of the United States; or

17 (2) resulted in a decision that was based on an unreasonable determination of

18 the facts in light of the evidence presented in the State court proceeding.” 28

19 U.S.C. § 2254(d)(1)-(2) (emphasis added).

20 In assessing whether a state court “unreasonably applied” Supreme Court

21 law or “unreasonably determined” the facts, the federal court generally looks to the

22 last reasoned state court decision as the basis for the state court’s justification.

23 Wilson v. Sellers, __ U.S. __, 138 S. Ct. 1188, 1192, 200 L. Ed. 2d 530 (2018)

24 (“the federal court should ‘look through’ the unexplained decision to the last

25 related state-court decision” and “presume that the unexplained decision adopted

26 the same reasoning”). Here, the California Court of Appeal’s opinion on January

27 15, 2019 stands as the last reasoned decision on all Grounds raised in the Petition.

28 Lodgment 7.

1 V.

2 DISCUSSION

3 A. Petitioner Is Not Entitled to Relief on His Instructional Error Claim

4 In Ground One, petitioner argues his rights to due process and a fair trial

5 were violated when the trial court failed to sua sponte instruct the jury on the

6 state’s accomplice corroboration rule with respect to the statements of Javier

7

Pellecer. Petition at 5, 17-18, 46-57.2 Specifically, petitioner contends the missing

8 instruction “effectively lightened the state’s burden of proof” because there “was

9 no identification” of petitioner as the shooter in the 2008 murders of Campbell and

10 Watson. Id. at 46, 50. Moreover, petitioner argues that the state appellate court’s

11 “error in the interpretation or application of state law was so egregious as to offend

12 federal due process standards under the Sixth and Fourteenth Amendment,” citing

13 Hicks v. Oklahoma, 447 U.S. 343, 346, 100 S. Ct. 2227, 65 L. Ed. 175 (1980). Id.

14 at 18.

15 Pellecer made numerous admissions regarding the murders to a confidential

16 informant (“CI”) when he shared a jail cell with the CI in 2013. CT at 1224-48.

17 In those statements, Pellecer discussed his and petitioner’s involvement in both the

18 2008 and 2013 murders. Regarding the 2008 murders, Pellecer stated that

19 petitioner got out of Pellecer’s car, which Pellecer drove, and shot into another car

20 killing a man who previously upset petitioner and a “sixteen-year old girl” who

21 was also in the car. CT at 1237-38. He noted that both victims were sleeping in

22 the car when they were shot. CT at 1237. Pellecer also gave the cross streets

23 where the murders occurred. CT at 1238. Additionally, Pellecer told the CI that he

24 helped petitioner get rid of the gun used in the 2013 murder. CT at 1239-40.

25 At petitioner’s trial, the prosecution tried to call Pellecer as a witness, but

26

27

2 Citations to pages in the Petition are to the electronic page numbers supplied

28 by the court’s CM/ECF system.

1 Pellecer refused to take the oath or testify and was held in contempt. Lodgment 3

2 (Reporter’s Transcript (“RT”)) at 1948-51. The court found Pellecer was

3 unavailable, and the prosecution introduced a recording and transcript of the

4 conversation between Pellecer and the CI into evidence. RT at 1981-82, 2514-15.

5 The court had previously determined Pellecer’s statements in the recording were

6 admissible as statements against interest. RT at S-37. In addition to Pellecer’s

7 prior statements, the prosecution presented testimony by Wilson – one of

8 petitioner’s co-defendant’s from the 2013 murder – that petitioner confessed to

9 Wilson that he killed Campbell because Campbell punched petitioner, and he also

10 killed the girl with Campbell because she started screaming. RT at 1877-78.

11 California Penal Code § 1111 commands that a “conviction cannot be had

12 upon the testimony of an accomplice unless it be corroborated by such other

13 evidence as shall tend to connect the defendant with the commission of the

14 offense.” But not all statements given out of court constitute testimony for

15 purposes of § 1111. In particular, “‘when the out-of-court statements are not given

16 under suspect circumstances, those statements do not qualify as ‘testimony’ and

17 hence need not be corroborated under . . . section 1111.’” People v. Williams, 16

18 Cal. 4th 153, 245, 66 Cal. Rptr. 2d 123, 940 P.2d 710 (1997) (citation omitted).

19 “‘The most obvious suspect circumstances occur when the accomplice has been

20 arrested or is questioned by the police.’” Id. (citation omitted).

21 Here, the California Court of Appeal rejected petitioner’s contentions. The

22 court found the “trial court properly admitted Pellecer’s statements into evidence

23 under the hearsay exception for statements against penal interest.” Lodgment 7 at

24 8 (citing Cal. Evid. Code § 1230). The court further found “Pellecer’s confession

25 was sufficiently trustworthy and reliable” to warrant admission given that he made

26 it “in a noncoercive setting” to someone he thought was a “fellow inmate” and he

27 took responsibility for his role in the killings, giving “specific details of the

28 crimes.” Id. at 9. The Court of Appeal concluded that “‘no corroboration was

1 necessary, and the [trial] court was not required to instruct the jury to view

2 [Pellecer’s] statement with caution and to require corroboration.’” Id. at 10

3 (quoting People v. Brown, 31 Cal. 4th 518, 556, 3 Cal. Rptr. 3d 145, 73 P.3d 1137

4 (2003)). The Court of Appeal also found that “any assumed error was ‘manifestly

5 harmless.’” Id. (citation omitted). The court reasoned that there was “ample

6 corroborating evidence in the record,” noting Wilson’s testimony and the other

7 eyewitness accounts of a shooter who matched petitioner’s description. Id.

8 Normally, challenges to jury instructions given in state court trials do not

9 provide a basis for federal habeas relief because they concern state law. Estelle v.

10 McGuire, 502 U.S. 62, 68, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991) (questions of

11 state law are not cognizable on federal habeas review); Van Pilon v. Reed, 799 F.2d

12 1332, 1342 (9th Cir. 1986) (“Claims that merely challenge the correctness of jury

13 instructions under state law cannot reasonably be construed to allege a deprivation

14 of federal rights.”). A challenge to a jury instruction based on a state law violation

15 may be entitled to federal habeas relief only when the instruction implicates

16 fundamental fairness. Estelle, 502 U.S. at 72. “‘[T]he ailing instruction by itself

17 [must have] so infected the entire trial that the resulting conviction violates due

18 process.’” Id. (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 38 L.

19 Ed. 2d 368 (1973)).

20 To determine whether an instruction “infected the entire trial,” the

21 “challenged instruction must be considered in light of the full set of jury

22 instructions and the trial record as a whole.” Gibson v. Ortiz, 387 F.3d 812, 821

23 (9th Cir. 2004) (overruled on other grounds); see Waddington v. Sarausad, 555

24 U.S. 179, 191, 129 S. Ct. 823, 172 L. Ed. 2d 532 (2009); Doe v. Busby, 661 F.3d

25 1001, 1018 (9th Cir. 2011) (isolated statements may seem prejudicial but are not

26 when considered in the context of the entire trial). Moreover, “[t]he omission of an

27 instruction is ‘less likely to be prejudicial than a misstatement of the law.’” See

28 Walker v. Endell, 850 F.2d 470, 475 (9th Cir. 1987) (quoting Henderson v. Kibbe,

1 431 U.S. 145, 154, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977)). Thus, a petitioner

2 “whose claim involves a failure to give a particular instruction bears an especially

3 heavy burden.” Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (internal

4 quotation marks omitted).

5 Here, petitioner’s claim of jury instruction error is merely a matter of state

6 law. Thus, the claim is not cognizable. Even assuming error, the error did not

7 implicate fundamental fairness.

8 Petitioner has made no showing, and nothing in the record would indicate,

9 that the trial court’s failure to instruct the jury that Pellecer was an accomplice and

10 therefore his statements had to be viewed with caution and required corroboration

11 infected the entire trial, particularly in light of Wilson’s testimony that petitioner

12 confessed to the 2008 murders. Moreover, while a state violates a criminal

13 defendant’s due process right when it arbitrarily deprives the defendant of a state

14 law entitlement (Hicks, 447 U.S. at 346; Laboa v. Calderon, 224 F.3d 972, 979

15 (9th Cir. 2000)), no such arbitrary denial occurred here. As set forth above, the

16 Court of Appeal reasonably determined the trial court committed no error in

17 omitting an accomplice instruction as to Pellecer’s statements because, under

18 California law, the statements do not constitute testimony for purposes of § 1111.

19 This court is bound by the state court’s finding that Pellecer’s statements were

20 admissible under state law without need for corroboration. See Bradshaw v.

21 Richey, 546 U.S. 74, 76, 126 S. Ct. 602, 163 L. Ed. 2d 407 (2005). In short, the

22 trial court’s failure to give a jury instruction on accomplice testimony with respect

23 to Pellecer’s statements did not implicate fundamental fairness.

24 Moreover, the Supreme Court has never decided a state court must instruct a

25 jury on accomplice testimony. The Ninth Circuit has said that this “state law

26 requirement that a conviction be based on more than uncorroborated accomplice

27 testimony” is “not required by the Constitution or federal law.” Laboa, 224 F.3d at

28 979. Therefore, the Court of Appeal’s rejection of the claim cannot be contrary to

1 clearly established federal law. Wright v. Van Patten, 552 U.S. 120, 126, 128 S.

2 Ct. 743, 169 L. Ed. 2d 583 (2008) (finding that when the Supreme Court has not

3 provided a clear answer to the legal question, “it cannot be said that the state court

4 unreasonabl[y] appli[ed] clearly established Federal law”) (internal quotations

5 omitted); Carey v. Musladin, 549 U.S. 70, 77, 127 S. Ct. 649, 166 L. Ed. 2d 482

6 (2006) (same); see also Gonzalez v. Johnson, 2021 WL 5701385, at *12 (C.D. Cal.

7 July 8, 2021) (collecting cases finding no cognizable claim where petitioner only

8 challenges that accomplice testimony was uncorroborated).

9 Accordingly, petitioner is not entitled to relief on Ground One, which does

10 not present a cognizable federal habeas claim.

11 B. Petitioner Is Not Entitled to Relief on His Confrontation Clause Claim

12 Petitioner argues in Ground Three that the introduction of Pellecer’s

13 statements to the CI into evidence violated his rights under the Confrontation

14 Clause. In particular, petitioner argues that the admission of the statements by

15 Pellecer, his co-defendant, violated Bruton v. United States, 391 U.S. 123, 88 S. Ct.

16 1620, 20 L. Ed. 2d 476 (1968). Petition at 6, 86-114.

17 The Sixth Amendment’s Confrontation Clause “guarantees the right of an

18 accused in a criminal prosecution to be confronted with the witnesses against him.”

19 Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 89 L. Ed. 2d 674

20 (1986) (internal quotation marks omitted). In Crawford v. Washington, the United

21 States Supreme Court held that the Confrontation Clause allows “[t]estimonial

22 statements of witnesses absent from trial [to be] admitted only where the declarant

23 is unavailable, and only where the defendant has had a prior opportunity to cross-

24 examine.” Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369, 158

25 L. Ed. 2d 177 (2004). The Supreme Court has since clearly held that the

26 Confrontation Clause does not bar nontestimonial hearsay. Davis v. Washington,

27 547 U.S. 813, 821, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) (“It is the testimonial

28 character of the statement that separates it from other hearsay that, while subject to

1 traditional limitations upon hearsay evidence, is not subject to the Confrontation

2 Clause.”); see also Crawford, 541 U.S. at 68.

3 While the Supreme Court has not articulated a comprehensive definition of

4 testimonial hearsay, it has recognized that “statements made unwittingly to a

5 Government informant” and “statements from one prisoner to another” are “clearly

6 nontestimonial.” Davis, 547 U.S. at 825. Lower federal courts have also relied on

7 this definition of “testimonial” to find that statements made unknowingly to

8 confidential informants do not implicate the Confrontation Clause. See U.S. v.

9 Saget, 377 F.3d 223, 229 (2d Cir. 2004) (“a declarant’s statements to a confidential

10 informant, whose true status is unknown to the declarant, do not constitute

11 testimony within the meaning of Crawford”) (Sotomayor, J.); U.S. v. Johnson, 581

12 F.3d 320, 325 (6th Cir. 2009) (same); U.S. v. Watson, 525 F.3d 583, 589 (7th Cir.

13 2008) (same); U.S. v. Udeozor, 515 F.3d 260, 270 (4th Cir. 2008) (same); U.S. v.

14 Underwood, 446 F.3d 1340, 1347 (11th Cir. 2006) (same); U.S. v. Hendricks, 395

15 F.3d 173, 182-84 (3d Cir. 2005) (same); Allen v. Montgomery, 2020 WL 8265500,

16 at *11 (C.D. Cal. Oct. 23, 2020) (collecting cases).

17 In Bruton, the Supreme Court held that a defendant’s Sixth Amendment

18 right of confrontation is violated when a facially incriminating confession of a

19 non-testifying co-defendant is admitted at a joint trial. 391 U.S. at 135-36. But

20 following Crawford, the Ninth Circuit joined other circuit courts to conclude that

21 “Bruton’s rule now applies only to testimonial out-of-court codefendant

22 statements.” Lucero v. Holland, 902 F.3d 979, 988 (9th Cir. 2018); see Smith v.

23 Chavez, 565 Fed. Appx. 653, 653 (9th Cir. 2014) (finding Bruton inapplicable to

24 out-of-court statement by co-defendant that was not testimonial).

25 Here, petitioner and Pellecer were charged as co-defendants in May 2014.

26 CT at 625-32. In April 2016, the trial court granted Pellecer’s motion to sever. CT

27 at 1075. As discussed above with respect to Ground One, Pellecer’s statements

28 contained admissions to a CI regarding his and petitioner’s involvement in the

1 2008 and 2013 murders. The California Court of Appeal determined that

2 “Pellecer’s statements to the CI were not testimony,” and therefore there was no

3 Bruton violation. Lodgment 7 at 14-16. In particular, the Court of Appeal found

4 Pellecer’s statements to the CI were not testimonial for purposes of the

5 Confrontation Clause because Pellecer made them unwittingly to a CI whom he

6 believed was a fellow prisoner. This characterization of the statements is well

7 supported by the transcript of Pellecer’s lengthy conversation with the CI. See CT

8 at 1226-48.

9 Given this, and given that Crawford and Bruton only apply to testimonial

10 statements, the California Court of Appeal’s denial of petitioner’s claim in Ground

11 Three was neither contrary to clearly established federal law nor an unreasonable

12 determination of facts.

13 C. Petitioner Is Not Entitled to Relief on His Motion to Sever Claim

14 In Ground Two, petitioner argues the trial court erroneously denied his

15 motion to sever the trial on count 1 (the 2013 murder of Westby) from the trial on

16 counts 2 and 3 (the 2008 murders of Campbell and Watson). Petition at 5, 58-86.

17 Petitioner contends that the joint trial “resulted in a weak case being tried with a

18 very strong case [that] resulted in a fundamentally unfair trial” in violation of his

19 rights to due process and a fair trial. Id. at 59.

20 The California Court of Appeal found “that the trial court did not abuse its

21 discretion by denying” petitioner’s severance motion. Lodgment 7 at 12. Rather,

22 it found that the “[j]oinder of the three murders was proper” under state law since

23 “the offenses are ‘of the same class of crimes.’” Id. Moreover, assuming error, the

24 court found that petitioner “has not shown prejudice.” Id.

25 To the extent petitioner argues the three counts were improperly

26 consolidated in one trial in violation of state law, the claim is not cognizable on

27 federal habeas review. See Park v. California, 202 F.3d 1146, 1149-50 (9th Cir.

28 2000). Federal habeas relief is only available for violations of “clearly established

1 Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.

2 § 2254(d)(1). Clearly established law under AEDPA “refers to the holdings, as

3 opposed to the dicta” by the Supreme Court. Williams v. Taylor, 529 U.S. 362,

4 412, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).

5 There is no such clearly established federal law regarding a right to

6 severance in state trials. On the contrary, the Ninth Circuit has “made clear that the

7 Supreme Court’s observation in United States v. Lane, 474 U.S. 438, 446 n.8, 106

8 S. Ct. 725, 88 L. Ed. 2d 814 (1986), that ‘misjoinder would rise to the level of a

9 constitutional violation only if it results in prejudice so great as to deny a defendant

10 his Fifth Amendment right to a fair trial’ is dicta and does not ‘establish a

11 constitutional standard binding on the states.’” Walden v. Shinn, 990 F.3d 1183,

12 1196 (9th Cir. 2021) (quoting Collins v. Runnels, 603 F.3d 1127, 1131 (9th Cir.

13 2010)); accord Runningeagle v. Ryan, 686 F.3d 758, 774 (9th Cir. 2012) (“there is

14 no clearly established federal law requiring severance of criminal trials in state

15 court”). Accordingly, the Ninth Circuit has held that severance claims do not

16 present a cognizable question on federal habeas review since no clearly established

17 law exists. Runningeagle, 686 F.3d at 776-77; Collins, 603 F.3d at 1131-32; see

18 also Comeaux v. McDowell, 2016 WL 3574337, at *13 (C.D. Cal. May 13, 2016)

19 (applying Ninth Circuit precedent on the issue to find that petitioner is not entitled

20 to relief because “California courts’ rejection of this claim cannot be contrary to, or

21 an unreasonable application of, clearly established federal law.”).

22 Where federal courts have considered habeas relief on a severance claims, it

23 has typically been where AEDPA did not apply or its applicability was in question.

24 See, e.g., Walden, 990 F.3d at 1196 (AEDPA’s applicability challenged); Sandoval

25 v. Calderon, 241 F.3d 765, 771 (9th Cir. 2001) (finding pre-AEDPA law governs

26 case); Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir. 1991) (pre-AEDPA).

27 In such cases, the Ninth Circuit has held that federal habeas corpus relief is

28 available for improper consolidation only if the “simultaneous trial of more than

1 one offense . . . actually render[ed] petitioner’s state trial fundamentally unfair and

2 hence, violative of due process.” Featherstone, 948 F.2d at 1503; see Walden, 990

3 F.3d at 1196; see also Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004) (“The

4 requisite level of prejudice is reached only if the impermissible joinder had a

5 substantial and injurious effect or influence in determining the jury’s verdict.”).

6 Important – although not dispositive – in the determination is whether evidence for

7 one count would be cross-admissible in the trial for the other count. Walden, 990

8 F.3d at 1196-97; Sandoval, 241 F.3d at 772 (risk of undue prejudice is

9 “particularly great whenever joinder of counts allows evidence of other crimes to

10 be introduced in a trial where the evidence would otherwise be inadmissible”). “A

11 finding of ‘cross-admissibility dispels the prejudicial impact of joining all counts in

12 the same trial [as t]he jury would have heard the evidence in any event.’” Walden,

13 990 F.3d at 1197 (quoting Sandoval, 241 F.3d at 772).

14 Here, AEDPA does apply and therefore Ground Two does not present a

15 cognizable claim for federal habeas relief. But even if cognizable, it fails on its

16 merits because the record does reflect that the joinder rendered the trial

17 fundamentally unfair. The California Court of Appeal did not unreasonably

18 determine that petitioner failed to demonstrate any prejudice from the joinder. It

19 explained that some “evidence would have been cross-admissible in separate

20 trials,” including gang expert testimony and Pellecer’s statements to the CI, which

21 pertained to all three murders. Lodgment 7 at 12. The Court of Appeal also found

22 there was strong evidence as to both the 2008 murders and 2013 murder, and they

23 were similar in nature and egregiousness and therefore neither was likely to unduly

24 inflame the jury against petitioner. Id. at 13-14. As such, petitioner has not shown

25 the denial of his severance motion rendered his trial fundamentally unfair.

26 For these reasons, petitioner is not entitled to relief on Ground Two.

27 D. Petitioner Is Not Entitled to Relief on His Cumulative Error Claim

28 In Ground Four, petitioner contends that the “cumulative effect of multiple

1 errors” in Grounds 1, 2, and 3 “rendered petitioner’s trial fundamentally unfair.”

2 Petition at 6, 121-22.

3 This claim does not appear to be exhausted. Petitioner raised this claim to

4 the California Court of Appeal. Lodgment 4 at 114-15. But the Petition for

5 Review does not include a cumulative error claim. Lodgment 8. Consequently,

6 the claim is unexhausted. Petrocelli v. Baker, 869 F.3d 710, 725 (9th Cir. 2017)

7 (to be properly exhausted the claim must be fairly presented “to the highest court

8 of the state”) (quoting Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011)).

9 Nonetheless, because “it is perfectly clear” that the unexhausted cumulative error

10 claim “does not raise even a colorable federal claim,” the court should deny this

11 claim on the merits. See Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005).

12 The “combined effect of multiple trial court errors violates due process

13 where it renders the resulting criminal trial fundamentally unfair.” Parle v.

14 Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (citing Chambers v. Mississippi, 410

15 U.S. 284, 302, 93 S. Ct. 1038, 1049, 35 L. Ed. 2d 297 (1973)). But when there is

16 not a single constitutional error, there is “nothing to accumulate to a level of a

17 constitutional violation.” Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002).

18 Here, petitioner did not demonstrate that any constitutional error occurred. As a

19 result, petitioner’s cumulative error claim fails.

20 E. Petitioner’s Sentencing Claim Is Not Cognizable

21 In Ground Five, petitioner contends Senate Bill 620 must be applied

22 retroactively to his case. Petition at 6, 122. SB 620 retroactively granted state trial

23 courts discretion to strike previously-mandated firearm enhancements. The

24 California Court of Appeal “decline[d] to remand the case for resentencing.” It

25 reasoned “the appellate record shows that there is no reasonable possibility that the

26 trial court would exercise its discretion to lessen the sentence.” Lodgment 7 at 17.

27 Petitioner does not present a cognizable claim with Ground Five. Claims

28 challenging a state court’s interpretation and application of state sentencing or

1 || enhancement laws are generally not subject to federal habeas review. Lewis v.

> || Jeffers, 497 U.S. 764, 780, 110 S. Ct. 3092, 3102, 111 L. Ed. 2d 606 (1990);

3 || Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) (“[A] state court’s

4 || misapplication of its own sentencing laws does not justify federal habeas relief.”).

5 || Various California District Courts have found that claims related to SB 620 do not

6 || raise federal constitutional issues. E.g., McVey v. Santoro, 2021 WL 6118771, at

7 || *6 (C.D. Cal. Aug. 11, 2021); Basped v. Asuncion, 2021 WL 1062562, at *1 (E.D.

g | Cal. Feb. 19, 2021); Godfrey v. Warden PVSP, 2020 WL 3544980, at *2 (N.D. Cal.

g || June 30, 2020). This claim simply does not present a cognizable federal issue that

10 || this court can review.

11 VI.

12 RECOMMENDATION

13 IT IS THEREFORE RECOMMENDED that the District Court issue an

14 || Order: (1) approving and accepting this Report and Recommendation; and (2)

15 || directing that Judgment be entered denying the Petition and dismissing this action

16 || with prejudice.

17

ey

19 || DATED: March 15, 2023 SHERIPYM

20 United States Magistrate Judge

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