(HC) Covarrubias v. Becerra

• Court: District Court, S.D. California
• Decided: September 9, 2019
• Docket: 3:19-cv-00546
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SANTIAGO COVARRUBIAS, Case No.: 19-CV-546-JLS(WVG)

12 Petitioner, REPORT AND RECOMMENDATION 13 v. ON PETITION FOR WRIT OF HABEAS CORPUS 14 M.E. SPEARMAN, Warden, 15 Respondent. 16 17 18 On March 15, 2019, Petitioner Santiago Covarrubias filed a Petition for Writ of 19 Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his criminal conviction of first- 20 degree murder under California Penal Code § 187(a), along with a finding of personal use 21 of a firearm under California Penal Code § 12022.53(d), and the subsequent sentence 22 imposed for fifty years-to-life in state prison. 23 Petitioner claims (1) there is insufficient evidence corroborating his accomplice’s 24 testimony; (2) the trial court erred by admitting evidence of his ex-girlfriend’s “equivocal” 25 identification of him when she was shown security footage by police; (3) the trial court 26 erred by allowing a detective to opine on similarities between the suspect’s description, 27 photographs of the suspect, and the composite sketch; and (4) there are sentencing errors 28 consisting of correcting the abstract of judgment for a clerical error and remand for 1 resentencing in light of new legislative authority that allows for broader trial court discretion 2 with respect to striking firearm enhancements. 3 Respondent contends that there is no basis for habeas relief because (1) corroboration 4 of accomplice testimony is not a federal claim; (2) and (3) admission of evidence is not a 5 federal claim for which relief may be granted because the Supreme Court has not yet 6 addressed the admission of evidence, even prejudicial evidence; and (4) Petitioner was 7 already granted relief as to the sentencing errors by the state courts. 8 For the reasons set forth below, the Court RECOMMENDS the Petition be DENIED. 9 I. BACKGROUND 10 A jury found Santiago Covarrubias guilty of first-degree murder with an attendant 11 personal gun enhancement. See Cal. Penal Code §§ 187(a), 12022.53(d). The trial court 12 sentenced Covarrubias to a term of 50 years-to-life in prison. Covarrubias appealed, raising 13 the same claims in the state court that he raises now. The California Court of Appeal 14 rejected Claims 1-3 and granted appropriate relief for Claim 4. The California Supreme 15 Court summarily denied Covarrubias’s petition for review without comment.1 16 This Court gives deference to state court findings of fact and presumes them to be 17 correct unless Petitioner rebuts the presumption of correctness by clear and convincing 18 evidence. See 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, 506 U.S. 20, 35 (1992) 19 (holding that findings of fact are entitled to statutory presumption of correctness). The 20 following facts are taken from the California Court of Appeal’s opinion on Petitioner’s 21 direct appeal, affirming the judgment of the trial court: 22 23

24 1 In its Answer, Respondent stipulated that the First Amended Petition “appears to be timely 25 and exhausted.” (ECF No. 15 at 2.) Furthermore, California law prohibits the use of a state habeas claim as a “second appeal” of claims raised on direct appeal. See In re Waltreus, 62 26 Cal. 2d 218, 225 (1965); In re Winchester, 53 Cal. 2d 528, 532 (1960), superseded by statute 27 on other grounds. Because Petitioner raises the same claims as his direct appeal in state court, and the Respondent stipulated to exhaustion in its filings, the Court considers the 28 1 MDaumrdoenr Ganrede Inn iatniadl DIn.Bve.s wtigeraet icoonw orkers and friends. After 2 an evening at a nightclub, the two men stopped to eat at a 3 taco shop in a small shopping center in the Mid City area around 1:30 or 2:00 a.m. on March 20, 2007. D.B. 4 observed a group of four Hispanic males enter the taco 5 shop. Two of them left immediately, while the other two ordered food and sat at the table next to D.B. and Green. 6 Green struck up a conversation with one of them, whom 7 D.B. later described as “the shooter.” D.B. and the shooter’s friend mostly sat quietly during the conversation. 8

9 The conversation started off friendly, but became more intense. Green and the shooter discussed the fact they were 10 both fathers, and Green expressed his view that people 11 should learn Spanish because “Spanish is the future, and stuff like that.” D.B. saw that the shooter “was getting 12 agitated and irritated,” and “felt intimidated and 13 disrespected” by Green’s size—6’3” and 272 pounds. D.B. apologized to the shooter on Green’s behalf and told Green 14 to leave him alone. 15 The shooter asked Green where he was from, and Green 16 responded he was from Wyoming or Montana. Green was 17 just “messing with” him. Green asked the shooter where he was from, and “the shooter said he was from right here, 18 ‘you know, man, I’m from East Diego.’” At the time, this 19 did not “trigger” D.B.to think about gangs, but he later testified at trial that he understood the shooter to be 20 indicating he was a member of the East San Diego criminal 21 street gang. This concerned D.B., who told Green, “It’s time to go.” 22

23 But Green kept talking to the shooter, asking whether he dealt drugs. The shooter responded, “yeah, you know, I do 24 what I got to do.” Green asked if the shooter had any drugs 25 with him, which made the shooter “real agitated and upset” that Green was “being nosey.” Green then asked the 26 shooter for some drugs, which prompted the shooter to 27 standup and reply, “Okay, I’ll go get some.”

28 1 Dth.oBu.g dhitd h ne owt aths ignoki nthge tosh goeott ear gwuans. gDo.iBng. ttool dg eGt rdeerung, s“;I th’es 2 time to get out of here, “but Green wanted to get a slushy 3 drink at the donut shop next door. D.B. warned other people in the taco shop to get out. D.B. got in his car and honked 4 at Green, telling him, “Come on, let’s go.” 5 After a few minutes, D.B. saw the shooter and his friend 6 walk around from behind the donut shop. As Green exited 7 the donut shop, the shooter confronted him with a gun and said, “I got the shit right now . . . , what’s up.” Green ran 8 back inside the donut shop and slammed the door, but the 9 shooter shot through the glass door and ran in after Green. The shooter fired four or five shots as Green ran to hide 10 behind the counter. After the shooting, the shooter left 11 through the broken glass window and ran with his friend in the direction they had come. Security cameras in the donut 12 shop recorded parts of the incident. 13 D.B. ran inside the donut shop and called 911. Green was 14 bleeding, unconscious, and “[h]is eyes looked like he was 15 dead.” Green died from gunshot wounds to his buttock and thigh, which severed his femoral artery and femoral veins. 16

17 At the crime scene, D.B. described the shooter to police as a Hispanic male in his early 20’s, measuring about 5’8” tall, 18 and weighing about 220 pounds. He had a shaved head and 19 a small goatee, and was wearing Converse shoes, blue pants, a long-sleeve white shirt with vertical stripes, a 20 baseball hat, and a “flashy” diamond earring in at least one 21 ear.

22 D.B. described the non-shooter to police as a Hispanic male 23 in his early 20’s who was “approximately the same height” as the shooter, but about 20 pounds lighter. The friend also 24 had a shaved head, and he wore white Converse shoes, blue 25 jeans, and a short-sleeved t-shirt. D.B. also said the non- shooter had “crooked” teeth that were “wedged together.” 26

27 D.B. told police he would be able to identify the shooter, so a detective showed him a photo lineup of potential 28 1 stoulsdp tehcets d. eDte.cBt.i vceir hcele wd aasn “d1 i0n0i%tia sleudre o tnhea to tfh atht elo pohkost loiks,e a tnhde 2 guy/same face—none of the others match.” However, the 3 person whose photo he circled was incarcerated at the time of the murder. D.B. clarified at trial that he “[wasn’t] 4 identifying him as the shooter, but [as] someone that looked 5 like him.” (Italics added.) D.B. worked with a detective to develop a composite sketch of the shooter, which was 6 admitted in evidence at trial. 7 Police interviewed the donut shop employee who was 8 working when the shooting occurred. The employee said 9 he could not identify the shooter because he (the employee)dropped to the floor when the shooting started 10 outside the donut shop. After the shooting, he saw two “20- 11 something” Hispanic males run north. One of the men had a “medium build,” a beard that “came down the side of his 12 face and then around to the front, “combed-back hair, and 13 he was wearing a baseball cap. The other man was also wearing a baseball cap. 14

15 Police also interviewed the taco shop employee who was working the night of the shooting. He told police he took 16 the Hispanic men’s food order that night, that they ordered 17 in English and Spanish, “but their Spanish wasn’t very good.” The employee said he is 5’7”tall, and the Hispanic 18 men “were just slightly taller than” him, maybe 5’8”or 19 5’9,”and “appeared young.” At trial, the employee testified on direct examination that he did not take the Hispanic 20 men’s order (he only cooked their food), and he was never 21 “in a position where [he] could see how tall they were.” The employee testified the suspects never returned to the 22 taco shop, and Covarrubias was not one of them. 23 The taco shop employee directed police to the trash left by 24 the two Hispanic men. Forensic technicians processed the 25 trash remains for DNA and obtained a sample, but it generated no immediate hits in the CODIS database. 26 Technicians also processed the taco shop’s glass front door 27 for fingerprints, but none of the prints belonged to a Hispanic male. 28 1 With no further leads, the investigation went cold. 2

3 Cold Case Investigation In 2012, a DNA sample entered into the CODIS database 4 generated a hit on the 2007 taco shop sample. The DNA 5 matched a Hispanic male named Martin Villalpando. Detectives interviewed him, but he claimed to have no 6 memory of the 2007 shooting. 7 Detectives learned through DMV and other records that 8 Villalpando drove and later owned a 1995 Cadillac 9 registered to a woman who lived with Covarrubias, and that Covarrubias had also been documented driving the car. 10 Lori Adams, a San Diego Police “cold case” detective 11 working in the homicide division, found it significant that Covarrubias lived about three blocks northwest of the taco 12 shop because the shooting suspects ran from the crime 13 scene in that direction.

14 Detective Adams obtained photographs of Covarrubias 15 from 2004 and 2009, and testified she saw similarities between them and the composite sketch developed from 16 D.B.’s description of the shooter. She said she also saw 17 similarities between the sketch and photos of Villalpando. Another detective showed D.B. photo lineups that included 18 photos of Covarrubias and Villalpando, but D.B. did not 19 identify either of them. The detective also showed the taco shop employee a photo lineup that included Covarrubias’s 20 photo, but the employee did not identify Covarrubias. A 21 DNA sample obtained from Covarrubias did not match any samples collected from the taco shop. 22

23 Detective Adams continued investigating the cold case for another two years, during which time she considered and 24 ruled out many other suspects who matched witness 25 descriptions or had contacts near the crime scene. In 2014, she interviewed Villalpando, who again claimed to have no 26 memory of witnessing anything similar to the 2007 27 shooting.

28 1 Ithne J udniset r2ic0t1 a5t,t oDrneteeyc’tsi voef fAicdea,m Tso annyd Jaonh nisnovne,s tiingtaetrovri efwroemd 2 M.R., who dated Covarrubias at the time of the murder. 3 M.R. said Covarrubias sold drugs and was once a gang member. M.R. said she knew nothing about the 2007 4 shooting. But when the investigators showed her multiple 5 still photos from the donut shop’s security footage, M.R. “pointed to a picture and said, ‘I don’t know who that is, 6 but I know who that is.’” When Detective Adams asked 7 her to clarify, M.R. said the person in the hat “looks like Santiago [Covarrubias].” The district attorney investigator 8 asked, “Well, if I told you that the person in the striped shirt 9 was, in fact, Martin Villalpando, who do you think the other person would be?” After “a couple minutes, “M.R. said, 10 “‘‘Santiago,’” because “that’s who Martin would be with.” 11 About five weeks after M.R.’s interview, police arrested 12 Villalpando. Detective Adams and Investigator Johnson 13 interviewed Villalpando that day, but he offered no details on the shooting. However, about two months later, 14 Villalpando met with investigators and the prosecutor, and 15 identified Covarrubias as the shooter. As part of a plea deal, Villalpando agreed to testify truthfully at 16 Covarrubias’s trial in exchange for being allowed to plead 17 guilty to voluntary manslaughter instead of first degree murder. 18

19 Gang Evidence In light of D.B.’s statement that the shooter referenced 20 “East Diego,” the prosecution introduced evidence 21 intended to show this was a reference to the East San Diego criminal street gang (sometimes referred to as the East Side 22 gang) and that Covarrubias was affiliated with this gang 23 (either directly, or through the affiliated Euclid Street gang). 24

25 Detective Ron Newquist, a homicide detective who oversaw the crime scene processing in this case, also 26 testified about his extensive prior experience working 27 patrol, crime suppression, and gangs in the Mid City area where the shooting occurred. Newquist said the East San 28 1 DEaiesgt oS agna nDgi ewgaos, ““woniteh oafb othuet 3p0re0d ommeminbanert ss tirne e2t0 g0a7n. g Ts hine 2 shopping center where the shooting occurred was 3 “definitely” in East San Diego gang territory.

4 Newquist also discussed the Euclid Street gang, which was 5 documented as a criminal street gang in 1997, and had “morphed into East Side” by the early 2000’s. 6

7 Addressing gang culture, Detective Newquist testified “respect” is “[e]verything.” Gangs command respect 8 through fear and intimidation, and retaliate against those 9 who cooperate with police or testify against gang members. Newquist opined that if somebody at the taco shop said, 10 “I’m from right here, East San Diego, “someone would 11 infer the person is “claiming” to be a member of the East San Diego or East Side gang. He added that East San Diego 12 gang members would “typically claim as “East Side or 13 Diego, but not “East Diego” (as D.B. reported hearing the shooter say). 14

15 The parties stipulated to the following gang-related facts about Covarrubias: “On March 15, 2001, [Covarrubias]told 16 . . . an employee at a nightclub, ‘I’m from Eastside Euclid.’ 17 [¶] . . . [L]ater on March 15, 2001, when asked by [police] who he used to ‘gang bang’ with, [Covarrubias]said, ‘The 18 GDP. Or the Get Down Posse, a high school clique, and 19 Euclid Street out by East San Diego.’” The trial court granted Covarrubias’s motion in limine to exclude 20 evidence regarding the March 15, 2001 incident that 21 prompted the stipulation.

22 Defense Case 23 Covarrubias’s defense focused on eyewitness misidentification and Villalpando’s untrustworthiness and 24 violent nature. Regarding misidentification, the defense 25 presented forensic technicians who confirmed no fingerprints or DNA samples from the crime scene matched 26 Covarrubias. Witnesses also testified they went with 27 Covarrubias to the taco shop in years following the 28 1 sthheoroet.i ng and he did not appear apprehensive about being 2

3 Regarding Villalpando’s character, Covarrubias’s brother testified about an incident in 2006 or 2007 when 4 Villalpando threatened to kill an apartment security guard 5 with a knife. The brother also acknowledged he and Covarrubias were once members of the Euclid Street gang, 6 which was affiliated with the East San Diego gang. Both 7 gangs use similar hand signs for the letter “E,” and the brother identified Covarrubias in a photo” throwing up a 8 Euclid gang sign.” The brother also acknowledged that 9 asking someone where they are from can be considered a gang challenge. 10

11 A friend of Villalpando’s family testified Villalpando beat him with a baseball bat over a dispute about an allegedly 12 defective car sound system the friend installed in 13 Villalpando’s car.

14 Several law enforcement witnesses testified about prior 15 contacts with Villalpando, which records indicated may have been for gang-related activities. However, the 16 officers had no independent recollection of the contacts, 17 and Villalpando’s gang connection, if any, was to the Del Sol or Ysidro gangs, not Euclid Street or East San Diego. 18

19 (Lod. 8, ECF No. 16-20 at 3-12.); see also People v. Covarrubias, No. D072041, 2018 Cal. 20 App. Unpub. LEXIS 6245, at *3-14 (Cal. Ct. App. 2018). 21 II. STANDARD OF REVIEW 22 This Petition is governed by the Antiterrorism and Effective Death Penalty Act of 23 1996 (“AEDPA”) because it was filed after April 24, 1996 and Petitioner is in custody 24 pursuant to the judgment of a state court. See Lindh v. Murphy, 521 U.S. 320, 326 (1997); 25 Mann v. Ryan, 828 F.3d 1143, 1151 (9th Cir. 2016). Under AEDPA, a court may not grant 26 a habeas petition “with respect to any claim that was adjudicated on the merits in State court 27 proceedings,” 28 U.S.C. § 2254(d), unless the state court’s judgment “resulted in a decision 28 that was contrary to, or involved an unreasonable application of, clearly established Federal 1 law, as determined by the Supreme Court of the United States,” § 2254(d)(1), or “was based 2 on an unreasonable determination of the facts in light of the evidence presented in the State 3 court proceeding,” § 2254(d)(2). The Ninth Circuit has further elaborated: 4 An adjudication is contrary to clearly established Supreme Court 5 precedent if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case 6 differently than the Supreme Court has on a set of materially indistinguishable 7 facts. It is an unreasonable application of clearly established Supreme Court precedent if the state court identifies the correct governing legal principle from 8 the Supreme Court’s decisions but unreasonably applies that principle to the 9 facts of the prisoner’s case. An unreasonable application of federal law is different from an incorrect application of federal law. The federal habeas court 10 may not issue the writ simply because that court concludes in its independent 11 judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. A state court’s adjudication is 12 unreasonable only if the federal habeas court concludes that no fairminded 13 jurist could conclude that the adjudication was consistent with established Supreme Court precedent. 14

15 Cain v. Chappell, 870 F.3d 1003, 1012 (9th Cir. 2017) (quoting Mann, 828 F.3d at 1511- 16 52) (internal citations and quotations omitted). 17 Where there is no reasoned decision from the highest state court to which the claim 18 was presented, the court “looks through” to the last reasoned state court decision and 19 presumes it provides the basis for the higher court’s summary denial of review. See Wilson 20 v. Sellers, __ U.S. __, 138 S. Ct. 1188, 1192 (2018); Ylst v. Nunnemaker, 501 U.S. 797, 21 805-06 (1991). 22 III. DISCUSSION 23 Petitioner contends that (1) there is insufficient evidence corroborating his 24 accomplice’s testimony; (2) the trial court erred by admitting evidence of his ex-girlfriend’s 25 identification of him when she was shown security footage by police and that her 26 identification was “too equivocal”; (3) the trial court erred by allowing a detective to opine 27 on similarities between the suspect’s description, photographs of the suspect, and the 28 composite sketch; and (4) there are sentencing errors consisting of correcting the abstract 1 of judgment for a clerical error and remand for resentencing in light of new legislative 2 authority that allows for broader trial court discretion with respect to striking firearm 3 enhancements. 4 Respondent contends that there is no basis for habeas relief because (1) corroboration 5 of accomplice testimony is not a federal claim; (2) and (3) admission of evidence is not a 6 federal claim for which relief may be granted because the Supreme Court has not yet 7 addressed the admission of evidence, even prejudicial evidence; and (4) Petitioner was 8 already granted relief as to the sentencing errors by the state courts. This Court agrees that 9 Petitioner presents no claims that warrant issuance of the writ and takes each claim in turn 10 below. 11 A. Uncorroborated Accomplice Testimony is Not a Federal Claim for Which Relief 12 Can Be Granted. 13 Petitioner’s claim that there is insufficient corroboration of his accomplice’s 14 testimony fails to satisfy the requirement of § 2254(d)(1) as “contrary to” any federal law 15 or constitutional mandate subject to Federal habeas review. The Ninth Circuit has long 16 upheld the admissibility of, and convictions based on, uncorroborated accomplice 17 testimony. See United States v. Necoechea, 986 F.2d 1273, 1282 (9th Cir. 1993); United 18 States v. Lopez, 803 F.2d 969, 973 (9th Cir. 1986) (holding that the “uncorroborated 19 testimony of an accomplice is enough to sustain a conviction unless the testimony is 20 incredible or unsubstantial on its face”) (citing United States v. Whitten, 706 F.2d 1000, 21 1007 (9th Cir. 1983)). Furthermore, the Supreme Court has stated: “When we look to the 22 procedural requirements of due process, the use of accomplice testimony is not catalogued 23 with constitutional restrictions.” United States v. Augenblick, 393 U.S. 348, 352 (1969). 24 Moreover, whether corroboration of an accomplice’s testimony is a necessary 25 component for admission in a state criminal proceeding is a matter of California state law. 26 Laboa v. Calderon, 224 F.3d 972, 979 (9th Cir. 2000) (Section 11117 “is a state law 27 requirement that a conviction be based on more than uncorroborated accomplice 28 testimony . . . . As a state statutory rule, and to the extent that the uncorroborated testimony 1 is not ‘incredible or insubstantial on its face,’ the rule is not required by the Constitution or 2 federal law.”) (internal citations omitted. Accordingly, insofar as Petitioner contends that 3 his conviction violates California Penal Code § 1111, this claim cannot serve as the basis 4 for relief in a section 2254 proceeding. See Jammal v. Van de Kamp, 926 F.2d 918, 919 5 (9th Cir. 1991). 6 Here, the California Court of Appeal adjudicated the claim over the question of 7 admissibility, and therefore adjudicated the question presented. (Lodgment 16-20). 8 Because this claim fails to raise an impetus for review under federal law, the Court 9 recommends denial of the writ on Petitioner’s first claim. Accord Perez v. Muniz, No. 10 18CV190-LJO-SKO (HC), 2019 U.S. Dist. LEXIS 7312, at *79 (E.D. Cal. Jan. 15, 2019) 11 (“In the absence of Supreme Court precedent, Petitioner is not entitled to habeas relief, 12 because the state court’s decision cannot be contrary to, or an unreasonable application of, 13 clearly established federal law.”); Mackey v. Asuncion, No. 15CV3165-HSG, 2018 U.S. 14 Dist. LEXIS 168319, at *194 (N.D. Cal. Sep. 28, 2018) (“There is no clearly established 15 federal law requiring juries to be instructed on the corroboration of accomplice testimony.”); 16 Atchley v. Fox, 2015 U.S. Dist. LEXIS 177705, at *64 (C.D. Cal. Oct. 6, 2015) (“The 17 corroboration requirement of section 1111 is a matter of state law and does not implicate 18 federal constitutional rights.”), Report and Recommendation adopted by 2016 U.S. Dist. 19 LEXIS 55573 (C.D. Cal. Apr. 26, 2016). The Court recommends denial of the Petition as 20 to the first claim. 21 B. Admission of Improper Evidence at State Trials is Not a Federal Claim for 22 Which Relief Can Be Granted 23 In his second claim over the trial court’s error as to the admissibility of evidence, 24 Petitioner contends, as he did on direct appeal, that M.R.’s identification of him was “too 25 equivocal” to act as corroborating evidence. In his third claim, Petitioner asserts that the 26 trial court also erred in admitting Detective Adams’ testimony regarding her opinion as to 27 the similarities between descriptions of the suspect, the suspect, and a composite sketch of 28 the suspect. Both claims pertain to rules and rulings on evidence, which, excluding any 1 question of federal law or constitutional due process, are determinations of state law 2 immune from review by this Court. 3 Admissibility of evidence is largely governed by state law and trial court discretion. 4 See Cal. Evid. Code § 352, Fed. R. Evid. § 403. “[F]ederal habeas corpus relief does not 5 lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (citing Lewis v. 6 Jeffers, 497 U.S. 764, 780 (1990)). “[I]t is not the province of a federal habeas court to 7 reexamine state-court determinations on state-law questions. In conducting habeas review, 8 a federal court is limited to deciding whether a conviction violated the Constitution, laws, 9 or treaties of the United States.” Id. at 68 (citing Rose v. Hodges, 423 U.S. 19, 21 (1975) 10 (per curiam)); see also Johnson v. Sandor, 396 F. App’x 375, 376 (9th Cir. 2010), Lopes v. 11 Campbell, 408 F. App’x 13, 15-16 (9th Cir. 2010). 12 Ninth Circuit precedent is also clear on this point: “Simple errors of state law do not 13 warrant federal habeas relief.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) 14 (citing Estelle, 502 U.S. at 67). The issue is “whether the state proceedings satisfied due 15 process; the presence or absence of a state law violation is largely beside the point.” Holley, 16 568 F.3d at 1101 (citing Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991)). 17 “The admission of evidence does not provide a basis for habeas relief unless it rendered the 18 trial fundamentally unfair in violation of due process.” Holley, 568 F.3d at 1101 (citing 19 Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995) (internal citation omitted). 20 Therefore, regarding Petitioner’s second and third claims, the question here turns on 21 whether the admission of evidence was a violation of constitutional due process. The 22 Supreme Court has yet to establish a standard for which evidentiary admissions violate due 23 process. Holley, 568 F.3d at 1101. Moreover, absent a mandate from the Supreme Court 24 delineating specific evidentiary rulings that are so overtly prejudicial to constitute a 25 violation of due process, 28 U.S.C. § 2254(d) precludes federal habeas relief for what is 26 otherwise a state law question. Id. “[The Supreme Court] has not yet made a clear ruling 27 that admission of irrelevant or overtly prejudicial evidence constitutes a due process 28 violation sufficient to warrant issuance of the writ. Absent such ‘clearly established Federal 1 law,’ we cannot conclude that the state court’s ruling was an ‘unreasonable application.’” 2 Id.; see also Carey v. Musladin, 549 U.S. 70, 76-77 (2006), Greel v. Martel, 472 F. App’x 3 503, 504 (9th Cir. 2012) (“The Supreme Court has made no such ruling with regard to 4 prejudicial evidence, [] and thus we may not issue the writ.”) 5 Even if this Court reviewed the case at bar with respect to any “overtly prejudicial 6 evidence,” it lacks the guidance from a statutory or higher authority to appropriately rule on 7 the sufficiency of that evidence to constitute a due process violation. This Court 8 recommends denial of the Petition as to the second and third claims. 9 C. The Sentencing Restructuring Required by Intervening Authority was Already 10 Addressed by State Courts. 11 Petitioner’s fourth claim is moot. The California Court of Appeal already provided 12 relief over the sentencing issues by ordering the trial court upon remand to issue a new 13 abstract of judgment via its newly vested discretion under Cal. Penal Code § 12022.53 as 14 amended by the California Legislature, whereby it “may” strike the sentencing 15 enhancement. (Lodgment 16-20 at 38.) This Court accordingly recommends denial of the 16 Petition at to the fourth claim. 17 IV. CONCLUSION 18 For the aforementioned reasons, the Court RECOMMENDS Petitioner’s Petition for 19 Writ of Habeas Corpus be DENIED. 20 This Report and Recommendation is submitted to the assigned District Judge 21 pursuant to the provision of 28 U.S.C. section 636(b)(1). 22 IT IS ORDERED that no later than October 16, 2019 any party to this action may 23 file written objections with the Court and serve a copy on all parties. The document should 24 be captioned “Objections to Report and Recommendation.” 25 IT IS FURTHER ORDERED that any reply to objections shall be filed with the 26 Court and served on all parties no later than November 1, 2019. The parties are advised 27 28 1 || that failure to file objections within the specified time may waive the right to raise thos: 2 || objections on appeal. Martinez v. Yist, 951 F2d 1153 (9th Cir. 1991). 3 IT IS SO ORDERED. 4 || Dated: September 9, 2019 LA Ss 6 Hon. William V. Gallo 7 United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28