                                                                           FILED
                           NOT FOR PUBLICATION                             OCT 23 2015

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



                            FOR THE NINTH CIRCUIT


ADRIAN FERNANDO GURROLA,                         No. 12-57242

              Petitioner-Appellant,              D.C. No. 2:11-cv-06221-SJO-JPR

 v.

MIKE MCDONALD,                                   MEMORANDUM*

              Respondent-Appellee.


                  On Appeal from the United States District Court
                       for the Central District of California
                     S. James Otero, District Judge, Presiding


                           Submitted October 19, 2015**
                               Pasadena, California

Before: IKUTA and OWENS, Circuit Judges, and SESSIONS,*** District Judge.




        *
             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 William K. Sessions III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.
      California state prisoner Adrian Fernando Gurrola appeals from the district

court’s denial of his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under

28 U.S.C. § 2253, and we affirm.

      In 2005, 14-year-old Gurrola was being held on a weapons charge in a youth

detention center. Gurrola was a known member of the Varrio Pasadena Rifa

(“VPR”) street gang, and he was a suspect in a recent homicide. In an effort to

gather information about the murder, a police informant who was an original

member of the VPR gang, visited Gurrola at the detention center. The informant

falsely told Gurrola that he needed to hear Gurrola’s account of the shooting in

order to prevent the Mexican Mafia street gang from issuing a “green light”1 on

Gurrola and the rest of the VPR gang. Gurrola eventually confirmed several

details of the crime, and he was subsequently charged and convicted of one count

of first-degree murder, three counts of attempted murder, one count of cruelty to an

animal, and one count of assault with a deadly weapon.

      On direct appeal, Gurrola argued that the trial court violated his due process

rights by admitting a recording of his conversation with the informant because the


1
  In gang slang, to “green light” a person is to authorize members of other gangs to
kill that person with impunity. An entire gang or neighborhood may be “green-
lighted” in response to a perceived violation of gang rules. A gang that has been
“green-lighted” may buy its safety by paying a sum of money to the gang that
issued the green light.


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recording included allegedly involuntary statements procured by coercion. The

California Court of Appeal rejected his argument in a reasoned decision, and the

California Supreme Court summarily denied his petition for review. Gurrola later

filed a federal habeas petition on the same grounds, which the district court denied.

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

Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005). Under the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court

may grant habeas relief only if the state court proceeding that adjudicated the claim

on the merits “(1) 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; or (2) resulted in a decision that was based on

an unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d). Here, we review the decision of the

California Court of Appeal, as it is “the ‘last reasoned state court decision’

addressing [Gurrola’s] claims.” Smith v. Swarthout, 742 F.3d 885, 892 (9th Cir.

2014) (citation omitted).

      Gurrola contends that the California Court of Appeal’s decision contradicted

clearly established federal law. Federal law has long provided that “any criminal

trial use against a defendant of his involuntary statement is a denial of due process


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of law.” Mincey v. Arizona, 437 U.S. 385, 398 (1978) (emphasis omitted). In

determining whether a statement is voluntary, the critical factor courts must

consider is whether the statement is “the product of an essentially free and

unconstrained choice by its maker.” Culombe v. Connecticut, 367 U.S. 568, 602

(1961). If it is not, then the defendant’s “will has been overborne and his capacity

for self-determination critically impaired, [and] the use of his confession offends

due process.” Id. Gurrola’s argument centers on a single assertion, namely, that

his case is factually indistinguishable from Arizona v. Fulminante, 499 U.S. 279

(1991).

      Gurrola’s argument is unpersuasive. In Fulminante, a case in which the

petitioner confessed to an informant who promised to protect him from other

inmates, the Supreme Court’s decision that the confession was involuntary rested

largely on its determination that “it was the fear of physical violence, absent

protection from his friend … which motivated Fulminante to confess.” 499 U.S. at

288 (emphasis added). By contrast, in the present matter, the California Court of

Appeal concluded that Gurrola’s confession was not motivated by fear, indicating

instead that Gurrola “did not express any fear or concern about a possible ‘green

light.’” Moreover, whereas the Court in Fulminante found that there was a

“credible threat of physical violence,” 499 U.S. at 288, here, the California Court


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of Appeal noted that Gurrola “challenged [the informant’s] story about a green

light, claiming he already knew there was no green light.” Thus, Gurrola, unlike

Fulminante, did not ultimately confess out of fright. Consequently, the facts of

Fulminante are distinguishable from the facts in the case at bar, and the California

Court of Appeal’s ruling did not contradict clearly established federal law.

      Because Gurrola also raises an argument under 28 U.S.C. § 2254(d)(2), we

must next address whether the California Court of Appeal unreasonably

determined the facts in light of the evidence presented. Gurrola argues that the

state court’s determination was indeed unreasonable, asserting that the evidence

requires a finding that Gurrola’s confession was motivated by fear. In support of

his claim, Gurrola states that he was a physically small, 14-year-old boy who had

been informed of a death threat by a much larger, 35-year-old gang member.

Gurrola also notes that as a young, aspiring gang member, he was reluctant to show

fear, which would have caused him to lose respect within the gang.

      In reviewing a habeas petition, the question for this Court is not whether

Gurrola’s confession may have been motivated by fear, but rather whether the

California Court of Appeal unreasonably determined the facts in concluding that it

was not. See 28 U.S.C. § 2254(d)(2). The record indicates that the state court’s

determination was not unreasonable. In determining that “Gurrola ‘did not express


                                          5                                    12-57242
any fear or concern about a possible green light,’” the state court noted that

throughout the conversation, “Gurrola ‘appeared alert, calm, and responsive.’”

The state court further recognized that Gurrola “did not hesitate to confront [the

informant], accusing him to his face of being ‘no good’” and challenging the

informant’s story about the green light. Moreover, as the California Court of

Appeal pointed out, once Gurrola assured himself of the informant’s credibility,

Gurrola spoke spontaneously and freely. Unprompted, Gurrola told the informant

that he was selling drugs supplied by his aunt in the detention center; that he had

stabbed a rival Latin Kings gang member; and that he planned to attack other rival

gang members upon his release from detention. Based on these findings, all of

which are supported by the recording of the conversation, the California Court of

Appeal’s determination that Gurrola did not confess out of fear was not

unreasonable.

      The same factual predicates that support the California Court of Appeal’s

determination that Gurrola’s confession was not motivated by fear also support its

ultimate conclusion that Gurrola’s statements to the informant were voluntary. As

the Supreme Court recently stated, “even a strong case for relief does not mean the

state court’s contrary conclusion was unreasonable.” Harrington v. Richter, 562

U.S. 86, 102 (2011). Rather, in order to obtain federal habeas relief, a state


                                           6                                     12-57242
prisoner must show that the state court’s ruling “was so lacking in justification that

there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Id. at 103. Given the findings stated

above, the California Court of Appeal’s ruling that Gurrola’s statements were

voluntary is, at the very least, subject to disagreement by fairminded jurists.

Accordingly, we find that the California Court of Appeal did not unreasonably

apply clearly established Federal law nor unreasonably determine the facts when it

denied Gurrola’s request for relief.

      AFFIRMED.




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