                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 16 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOSE MARTIN NOGALES,                             No. 12-55996

              Petitioner - Appellant,            D.C. No. 3:11-cv-02146-IEG-
                                                 BLM
 v.

WARDEN MCDONALD and                              MEMORANDUM*
ATTORNEY GENERAL FOR THE
STATE OF CALIFORNIA,

              Respondents - Appellees.


                    Appeal from the United States District Court
                       for the Southern District of California
                    Irma E. Gonzalez, District Judge, Presiding

                           Submitted October 13, 2015**

Before: THOMAS, Chief Judge and D.W. NELSON and LEAVY, Circuit Judges.

      Jose Nogales appeals the denial of his federal habeas petition, challenging

his conviction for two counts of second degree murder and one count of shooting



        *
             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).
at an inhabited dwelling. We have jurisdiction pursuant to 28 U.S.C. § 2253, and

we affirm.

      The district court did not err in denying Nogales’s petition. Sufficient

evidence presented at trial allowed the jury to infer that Nogales was not only

present, but that he was the shooter. The evidence presented to the jury at trial

showed that (1) Nogales possessed the gun used in the June 22, 2007 and July 8,

2007 shootings; (2) Nogales had gun residue on his left hand the morning after the

July 8th shooting; (3) Nogales’s fingerprint and DNA were on the murder weapon;

(4) Nogales’s fingerprints and palm print were lifted from the truck used in the

shooting; (5) Nogales was an active member of the Paradise Hills gang; and (6) the

shooting was gang-related.

      Though the evidence amassed to convict Nogales was largely circumstantial,

such evidence “can be used to prove any fact, including facts from which another

fact is to be inferred, and is not to be distinguished from testimonial evidence

insofar as the jury’s fact-finding function is concerned.” Payne v. Borg, 982 F.2d

335 (9th Cir. 1993) (internal quotation marks and citation omitted). “A jury’s

credibility determinations are . . . entitled to near-total deference” in a case such as

this. Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004). Moreover, “[a] state

court’s determination that a claim lacks merit precludes federal habeas relief so


                                            2                               12-55996
long as ‘fairminded jurists could disagree’ on the correctness of that decision.”

Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado,

541 U.S. 652, 664 (2004)). The district court did not err in denying the petition.

      We construe Nogales’s briefing on the uncertified issue regarding the

improper admission of propensity evidence at trial as a motion to expand the

certificate of appealability (COA). Doe v. Woodford, 508 F.3d 563, 567 (9th Cir.

2007). Nogales cannot make a substantial showing of the denial of a constitutional

right because no clearly established Supreme Court precedent has held that the

admission of propensity evidence violates the Constitution. Cf. Mejia v. Garcia,

534 F.3d 1036, 1046 (9th Cir. 2008). Thus, we deny Nogales’s motion to expand

the COA.

      AFFIRMED.




                                          3                              12-55996
