Manuel Madril v. K. Harrington

FILED NOT FOR PUBLICATION JUN 30 2014

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MANUEL LOUIS MADRIL, No. 13-15708

Petitioner - Appellant, D.C. No. 4:10-cv-01771-PJH

v. MEMORANDUM* K. HARRINGTON and ATTORNEY GENERAL OF THE STATE OF CALIFORNIA,

Respondents - Appellees.

Appeal from the United States District Court for the Northern District of California Phyllis J. Hamilton, District Judge, Presiding

Submitted June 25, 2014 **

Before: HAWKINS, TALLMAN, and NGUYEN, Circuit Judges.

California state prisoner Manuel Louis Madril appeals pro se from the

district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have

jurisdiction under 28 U.S.C. § 2253. We review a district court’s denial of a

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). habeas corpus petition de novo, see Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir.

2011), and we affirm.

Madril contends that the state trial court erred by instructing the jury

pursuant to CALJIC No. 2.11.5 that it should not speculate whether another person

involved in the crime is being prosecuted. To the extent Madril argues that the

instruction was faulty under state law, his claim is not cognizable on federal habeas

review. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). Further, the record

shows that the instruction did not violate Madril’s federal constitutional rights.

When, as here, the trial court also instructs the jury regarding witness credibility

and accomplices, “there is no reasonable likelihood that the jury understood

CALJIC No. 2.11.5 to bar consideration of [the witness’s] motives for testifying.”

Allen v. Woodford, 395 F.3d 979, 996 (9th Cir. 2005). Accordingly, the California

Court of Appeal’s rejection of this claim was not contrary to, or an unreasonable

application of, federal law. See 28 U.S.C. § 2254(d)(1).

Madril next contends that there was insufficient evidence to support the gang

sentencing enhancement under California Penal Code § 186.22. The California

Court of Appeal’s determination that there was sufficient evidence of the “primary

activities” element required for the criminal street gang enhancement was neither

contrary to nor an unreasonable application of clearly established federal law, nor

2 13-15708 based on an unreasonable determination of the facts in light of the evidence

presented. See 28 U.S.C. § 2254(d); Jackson v. Virginia, 443 U.S. 307, 324

(1979).

Because Madril’s claims are governed by section 2254(d), he is not entitled

to an evidentiary hearing. See Gulbrandson v. Ryan, 738 F.3d 976, 993-94 & n.6

(9th Cir. 2013), cert. denied, __ S. Ct. __, 2014 WL 1392574 (U.S. June 16, 2014).

We construe Madril’s additional arguments as a motion to expand the

certificate of appealability. So construed, the motion is denied. See 9th Cir. R. 22-

1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).

AFFIRMED.

3 13-15708