                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             MAR 05 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOSEPH RAY RICE,                                 No.    15-55808

              Petitioner-Appellant,              D.C. No.
                                                 5:14-cv-02145-AB-RNB
 v.

W. L. MONTGOMERY, Acting Warden,                 MEMORANDUM*

              Respondent-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    Andre Birotte, Jr., District Judge, Presiding

                       Argued and Submitted October 6, 2017
                               Pasadena, California

Before: RAWLINSON and N.R. SMITH, Circuit Judges, and KORMAN,**
District Judge.

      Petitioner-Appellant Joseph Ray Rice (Rice) appeals the district court’s

denial of his petition for a writ of habeas corpus. Following a jury trial, Rice was

convicted of the first-degree murder of Delvon Williams (Williams). Rice

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
contends that his trial attorney provided constitutionally ineffective assistance of

counsel when he failed to object to or limit inflammatory criminal history and

gang-related evidence.

      The California Court of Appeal’s conclusion that trial counsel’s alleged

deficiencies did not prejudice the outcome of the proceedings was neither contrary

to nor an unreasonable application of Strickland.1 See 28 U.S.C. § 2254(d)(1); see

also Harrington v. Richter, 562 U.S. 86, 100-01 (2011). As the California Court of

Appeal observed, Rice’s identity as the man who shot Williams was not at issue

during trial; rather, the question before the jury concerned only whether Rice’s

actions were premeditated. As the Court of Appeal further noted, the challenged

evidence related to “the street terrorism charge and gang enhancements,” which

were reversed.

      At trial, the evidence established that while at a nightclub, Rice overheard

Williams arguing with a friend of Rice’s. Rice became upset after hearing

Williams state that Williams was a “Blood” and a “Piru,” and that “he would

handle his business.” Rice thought to himself, “F--- that,” pulled out a gun, walked



      1
        Strickland v. Washington, 466 U.S. 668, 694 (1984) (explaining that to
establish prejudice the defendant must show “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different”).
                                           2
over, and fatally shot Williams.

      Unquestionably, extraneous, gang-related evidence should never have been

presented to the jury. See People v. Pettie, 16 Cal. App. 5th 23, 44 (2017) (“Some

gang evidence relating to defendants may be so extraordinarily prejudicial, and of

so little relevance to guilt, that it threatens to sway the jury to convict regardless of

the defendant’s actual guilt.”) (citation and internal quotation marks omitted).

Nevertheless, given the evidence of Rice’s reflection before committing the

murder, see People v. Mejia, 211 Cal. App. 4th 586, 604 (2012), the California

Court of Appeal properly concluded that “it [was] not reasonably probable,

assuming the challenged evidence was inadmissible and, therefore, not introduced

at trial, that the jury would have reached a result more favorable to [Rice] on the

murder charge.” Because the California Court of Appeal reasonably applied

existing federal law when denying Rice’s claim for ineffective assistance of

counsel, habeas relief is unavailable. See Harrington, 562 U.S. at 101.

      AFFIRMED.




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