                                                                             FILED
                              NOT FOR PUBLICATION                            DEC 10 2014

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



                              FOR THE NINTH CIRCUIT


JOSE DAVID VALDEZ,                                 No. 10-55737

                Petitioner - Appellant,            D.C. No. 8:09-cv-00596-AG-DTB

    v.
                                                   MEMORANDUM*
KEN CLARK,

                Respondent - Appellee.


                      Appeal from the United States District Court
                         for the Central District of California
                      Andrew J. Guilford, District Judge, Presiding

                             Submitted December 8, 2014**
                                 Pasadena, California

Before: SILVERMAN and BEA, Circuit Judges, and BELL, District Judge.***

         Jose Valdez appeals the district court’s denial of his 28 U.S.C. § 2254

habeas petition challenging his California convictions for witness intimidation,

          *
             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).
          ***
             The Honorable Robert Holmes Bell, District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.
brandishing a firearm, and street terrorism. We affirm in part, reverse in part, and

remand.

      The state court reasonably applied Strickland v. Washington, 466 U.S. 668

(1984), when it denied the claim that appellate counsel was ineffective for failing

to raise a juror bias claim on direct appeal. Because there was no specific evidence

that any juror was actually biased, the state court reasonably held that Valdez failed

to prove both prongs of the Strickland test.

      The state court reasonably applied Jackson v. Virginia, 443 U.S. 307 (1979),

to hold that there was sufficient evidence to support the convictions for dissuading

a witness with a threat of force in violation of California Penal Code § 136.1(a)(1)

and brandishing a firearm in violation of California Penal Code § 417(a)(2).

Evidence at trial established that two individuals, Moreno and Gonzalez, had been

stabbed and beaten by members of Valdez’s criminal street gang, and the victims

were scheduled to testify in juvenile court against members of Valdez’s gang. On

May 16, 2004, the day before the victims were scheduled to testify, Valdez

repeatedly advised the victims’ friend, Galvan, to tell Moreno and Gonzalez, in

effect, to get their stories straight and keep their mouths shut to avoid trouble with

Valdez’s rival street gang. While issuing this warning to Galvan, Valdez sat in the

front passenger seat of a car, leaned back, and ominously allowed Galvan to


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observe the assault weapon he was holding on his lap. Valdez admitted that he was

a member of the Laurel Hood Thugs criminal street gang, he had the conversation

with Galvan, and he carried his assault weapon during the conversation with

Galvan. The state court reasonably held that a rational juror could have found that

Valdez brandished a firearm and intentionally used threats to dissuade Moreno and

Gonzalez from testifying against Valdez’s fellow gang members in the juvenile

court prosecution. Cal. Penal Code §§ 136.1(c)(1) & 417(a)(2); People v.

Mendoza, 69 Cal. Rptr. 2d 728, 733-34 (Cal. Ct. App. 1997). In addition, a

rational juror could have found that Valdez dissuaded the witnesses with the

specific intent to benefit or promote the criminal activity of his gang. Cal. Penal

Code § 186.22(b)(1); People v. Jasso, 150 Cal. Rptr. 3d 464, 483 (Cal. Ct. App.

2012).

      Valdez argues that there is insufficient evidence to support two convictions

for violating California Penal Code § 186.22(a), street terrorism or active

participation in a criminal street gang. After the district court denied federal

habeas relief in this case, the California Supreme Court decided People v.

Rodriguez, 290 P.3d 1143 (Cal. 2012). Rodriguez held that the prosecution must

prove that a defendant’s underlying felonious criminal conduct in a § 186.22(a)

case was committed by at least two gang members. Id. at 1134. The warden now


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concedes that, in light of Rodriguez, there is insufficient evidence to support the

street terrorism conviction alleged to have been committed on May 20, 2004

because Valdez was by himself – not with others – on that occasion. As for the

May 16, 2004 incident, the district court has not yet had an opportunity to assess

whether that conviction passes muster under Rodriguez. We reverse the district

court’s denial of the sufficiency of the evidence challenges to the two street

terrorism convictions and remand for the district court to reconsider the claims in

light of Rodriguez. We do not reverse the May 20, 2004 conviction at this time

because of issues of exhaustion and procedural default that remain for the district

court to determine in the first instance.

      Each party shall bear its own costs.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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