                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        NOV 7 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

EKANEM KUFREOBON ESSIEN,                        No.    17-16084

                Petitioner-Appellant,           D.C. No. 3:15-cv-02032-JD

 v.                                             MEMORANDUM*

SUZANNE M. PEERY,

                Respondent-Appellee.

                   Appeal from the United States District Court
                     for the Northern District of California
                    James Donato, District Judge, Presiding

                           Submitted October 24, 2019**
                             San Francisco, California

Before: WALLACE and BRESS, Circuit Judges, and LASNIK,*** District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

      ***
            The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
      We write primarily for the parties who are familiar with the facts. Appellant

Ekanem Kufreobon Essien (“Essien”) was convicted in California state court of

forcible rape while acting in concert and second-degree robbery. The jury made

findings to support imposition of the “gang enhancement” under California Penal

Code § 186.22(b)(1) on both counts, which allowed the state court to enhance

Essien’s sentence by 13 years and four months.

      Essien filed a habeas petition in federal district court, seeking relief on

various grounds. The district court denied Essien’s petition and declined to issue a

certificate of appealability. Our court granted a certificate of appealability only as

to whether sufficient evidence supported the state court’s imposition of gang

enhancements on Essien’s rape and robbery convictions. Essien also briefed the

uncertified issue of whether the state court deprived him of his constitutional right

to self-representation when it denied his Faretta motion.

      1. Sufficiency of the Evidence Claims

      We review the district court’s denial of Essien’s habeas petition de novo.

Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004). The Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”) governs review of Essien’s

petition. Id. at 983. In reviewing sufficiency of the evidence claims on habeas

review, “the relevant question is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the


                                           2                                    17-16084
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 319 (1979). Jackson sufficiency of the evidence claims “face a high

bar in federal habeas proceedings,” and a federal court may overturn the state court

decision only if it was “objectively unreasonable.” Coleman v. Johnson, 566 U.S.

650, 651 (2012).

      After an independent but deferential review of the record, we conclude there

was sufficient evidence for a rational juror to find all elements, beyond a

reasonable doubt, to support imposition of the California Penal Code

§ 186.22(b)(1) gang enhancement on both Essien’s rape and robbery convictions.

“Because a rational trier of fact could have been persuaded beyond a reasonable

doubt that” the requisite elements of California’s gang enhancement were met,

“habeas relief is unwarranted.” Bruce v. Terhune, 376 F.3d 950, 958 (9th Cir.

2004). Accordingly, the California Court of Appeal’s decision cannot be

characterized as objectively unreasonable, and the district court properly denied

relief on Essien’s sufficiency of the evidence claims.

      2. Uncertified Faretta Claim

      Essien also briefed the uncertified issue of whether the state court deprived

him of his constitutional right when it denied his motion for self-representation,

raised under Faretta v. California, 422 U.S. 806 (1975). We treat briefing on an

uncertified issue as a motion to expand the certificate of appealability. See Ninth


                                          3                                   17-16084
Circuit Rule 22-1(e); see also Delgadillo v. Woodford, 527 F.3d 919, 930 (9th Cir.

2008). Having reviewed the record in this case, including the district court’s

assessment of the Faretta claim, Essien has failed to establish 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). Accordingly,

Essien has not made a “substantial showing of the denial of a constitutional right.”

See Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999) (quoting 28 U.S.C.

§ 2253(c)(2)). We therefore decline to expand the certificate of appealability to

include Essien’s Faretta claim.

      AFFIRMED.




                                          4                                       17-16084
