                                                                            FILED
                            NOT FOR PUBLICATION                              AUG 09 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



TRUNG V. TRAN,                                    No. 09-15183

              Petitioner - Appellant,             D.C. No. 3:06-cv-04508-MHP

  v.
                                                  MEMORANDUM *
ROBERT HOREL,

              Respondent - Appellee.



                   Appeal from the United States District Court
                       for the Northern District of California
                  Marilyn H. Patel, Senior District Judge, Presiding

                              Argued February 10, 2010
                             Resubmitted August 5, 2011
                              San Francisco, California




Before: O’SCANNLAIN, TROTT, and PAEZ, Circuit Judges.

       Petitioner-Appellant Trung Tran, a state prisoner, appeals the district court’s

denial of his habeas petition. We have jurisdiction under 28 U.S.C. §§ 1291, 2253,

and we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      We review de novo the district court’s denial of a habeas petition. Brown v.

Ornoski, 503 F.3d 1006, 1010 (9th Cir. 2007). Tran’s habeas petition is governed

by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under

the AEDPA, we must determine whether the state court proceedings “resulted in a

decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States.”

28 U.S.C. § 2254(d)(1). Where, as here, the state court provides no reasoning to

support its decision, we still apply AEDPA deference. See Himes v. Thompson,

336 F.3d 848, 853 (9th Cir. 2003). Our task is to “perform an independent review

of the record to ascertain whether the state court decision is objectively

unreasonable.” Id. (internal quotations and citation omitted).

      Tran argues that the state court unreasonably applied the Supreme Court’s

decision in Jackson v. Virginia, 443 U.S. 307 (1979), in concluding that there was

sufficient evidence that Tran was subject to California Penal Code § 186.22(b),

which imposes harsher alternative penalties when a defendant commits a felony

“for the benefit of, at the direction of, or in association with any criminal street

gang, with the specific intent to promote, further, or assist in any criminal conduct

by gang members.” Cal. Penal Code § 186.22(b)(1), (4). In this appeal, Tran

challenges only the sufficiency of the evidence to support the second prong of


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§ 186.22(b), relating to his specific intent.

      The parties dispute whether the certificate of appealability (“COA”)

comprises Tran’s claim that there was insufficient evidence of his specific intent to

promote, further, or assist in criminal conduct by gang members. Because we

think Tran has made a showing that “reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong,” Slack v.

McDaniel, 529 U.S. 473, 484 (2000), we construe Tran’s brief as a request to

expand the COA and grant the request.

      We must affirm the district court’s denial of Tran’s habeas petition if there

was “evidence upon which a rational trier of fact could find that [Tran] acted with

the specific intent to promote, further, or assist in some type of criminal conduct by

gang members, which may include the crimes of conviction.” Emery v. Clark, ---

F.3d ----, 2011 WL 2090827 (9th Cir. May 27, 2011) (internal quotation marks

omitted). The California Supreme Court has explained that the application of §

186.22(b) is warranted if “substantial evidence establishes that [Tran] intended to

and did commit the charged felony with known members of a gang.” People v.

Albillar, 51 Cal. 4th 47, 68 (2010).

      We conclude that there is sufficient evidence upon which a rational trier of

fact could find that Tran committed the offense with the specific intent to promote,


                                            3
further, or assist in criminal conduct by gang members. The trial record includes

evidence that the four people with whom Tran committed the offense were all

members of a gang called the Asian Gangsters. There is also evidence that Tran

knew that at least some of the four were gang members. For example, one

participant in the offense testified that on a previous occasion, Tran took co-

defendant Huynh—a member of the Asian Gangsters—to the hospital after he was

stabbed by members of a rival gang. From this testimony, a rational fact finder

could find that Tran specifically intended to commit the crime with known gang

members.

       Because there is evidence upon which a rational trier of fact could find that

Tran acted with the specific intent to promote, further, or assist in some type of

criminal conduct by gang members, the state court’s decision was not contrary to

nor an unreasonable application of clearly established federal law. We affirm the

district court’s denial of habeas relief.

       AFFIRMED.




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