                                                                               FILED
                            NOT FOR PUBLICATION                                NOV 20 2013

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



                            FOR THE NINTH CIRCUIT


RAMIRO ALEX HUERTA,                               No. 12-55815

              Petitioner - Appellant,             D.C. No. 8:11-cv-01045-RGK-JPR

  v.
                                                  MEMORANDUM*
DERRAL G. ADAMS, Warden,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    R. Gary Klausner, District Judge, Presiding

                           Submitted November 5, 2013**
                               Pasadena, California

Before: McKEOWN, GOULD, and BYBEE, Circuit Judges.

       Ramiro Huerta was sentenced to seventeen years to life in prison by a California

state court based on his role in a jailhouse attack on a fellow inmate. He presents two



        *
             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).
issues on appeal from the district court’s denial of his habeas corpus petition. First,

he argues that the California Court of Appeal unreasonably applied clearly established

federal law because there was constitutionally insufficient evidence to support his

gang-related sentencing enhancement and street terrorism conviction. Second, he

raises an uncertified ineffective assistance of counsel claim. We affirm the district

court’s judgment with respect to the gang enhancement, reverse with respect to the

street terrorism conviction, and dismiss the uncertified issue for lack of jurisdiction.

      Under Jackson v. Virginia, 443 U.S. 307, 319, 324 (1979), Huerta’s

insufficiency of the evidence claims can only succeed if, viewing all the evidence in

the light most favorable to the prosecution, no rational trier of fact could have found

that the essential elements of the crime were proven beyond a reasonable doubt.

“Insufficient evidence claims are reviewed by looking at the elements of the offense

under state law.” Emery v. Clark, 643 F.3d 1210, 1214 (9th Cir. 2011) (per curiam);

accord Jackson, 443 U.S. at 324 n.16. The California Court of Appeal did not

unreasonably apply clearly established federal law in concluding that Huerta’s gang

enhancement under California Penal Code § 186.22(b)(1) was supported by sufficient

evidence. See 28 U.S.C. § 2254(d)(1). The prosecution presented evidence that

Huerta and his codefendant were gang members who carried out a vicious jailhouse

assault on another gang member for the benefit of, or in association with, their


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respective street gangs.    Huerta principally disputes the prosecution’s use of

gang-expert testimony to prove the elements of this enhancement, but the jury was

entitled to consider such testimony, which focused on gang culture and also included

specific hypotheticals tailored to the facts of this case. See, e.g., Emery, 643 F.3d at

1214; People v. Albillar, 244 P.3d 1062, 1073–74 (Cal. 2010). Accordingly,

sufficient evidence supports Huerta’s gang enhancement, and the California Court of

Appeal’s decision is not contrary to clearly established federal law. See Jackson, 443

U.S. at 319.

      By contrast, the California Court of Appeal unreasonably applied clearly

established federal law in concluding that Huerta’s street terrorism conviction under

California Penal Code § 186.22(a) was supported by sufficient evidence. See 28

U.S.C. § 2254(d)(1). This offense requires that the defendant “willfully promote[d]

. . . any felonious criminal conduct by members of that gang.” Cal. Penal Code

§ 186.22(a) (emphasis added). In People v. Rodriguez, 290 P.3d 1143, 1147 (Cal.

2012), the California Supreme Court unambiguously stated that the “that gang” phrase

in the street terrorism statute “clearly refers back to the gang in which the defendant

is an active participant.” Huerta and his codefendant, Carlos Luna, were members of

separate gangs when they attacked the victim. The prosecution did not present

evidence that any member of Huerta’s gang was present at the assault other than


                                           3
Huerta. Thus, there was no evidence showing that Huerta participated in felonious

conduct with other members of his own gang. See id. at 1146–48. Consequently, the

California Court of Appeal’s decision is contrary to clearly established federal law.

See Jackson, 443 U.S. at 319; see also Luna v. Herrington, No. 12-55443 (9th Cir.

May 21, 2013) (memorandum disposition) (holding that the California Court of

Appeal unreasonably applied clearly established federal law in concluding that

sufficient evidence supported the defendant’s street terrorism conviction when he was

the only member of his gang who participated in the assault).

      Finally, we construe Huerta’s inclusion of an uncertified ineffective assistance

of counsel claim as a motion to expand the Certificate of Appealability. See 9th Cir.

R. 22-1(e). To prevail on such a motion, Huerta must make a substantial showing of

the denial of a constitutional right by demonstrating that this issue is debatable among

jurists of reason, that a court could resolve the issue in a different manner, or that the

question is adequate to deserve encouragement to proceed further. See Doe v.

Woodford, 508 F.3d 563, 567 (9th Cir. 2007).

      Huerta has failed to make such a showing here. The record establishes that

Huerta’s counsel asked for and received permission to interview the victim about

whether “he is going to testify or not,” and the court ordered a recess. After the

recess, Huerta’s counsel indicated that he had spoken with the victim and decided not


                                            4
to call the victim as a defense witness after evaluating Huerta’s position. As an

informed strategic choice, Huerta’s counsel’s decision is “virtually unchallengeable.”

See Strickland v. Washington, 466 U.S. 668, 690 (1984). Accordingly, we decline

to expand the Certificate of Appealability and dismiss Huerta’s uncertified issue for

lack of jurisdiction. See Doe, 508 F.3d at 569.

      This matter is remanded to the district court with instructions to grant the writ

consistent with this disposition.

      AFFIRMED in part; REVERSED in part and REMANDED.

      Each party shall pay its own costs on appeal.




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