Lucero v. Holland, No. 15-16111 (9th Cir. 2018)
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Sixth Amendment Confrontation Clause rights protected in Bruton v. United States, 391 U.S. 123 (1968), do not extend to statements that are nontestimonial. Petitioner appealed the denial of his 28 U.S.C. 2254 petition for habeas relief, challenging his California conviction for premeditated attempted murder, possession of a shank in jail, and participation in a criminal street gang.
The panel affirmed the district court's judgment as to petitioner's Bruton claim. The panel held that, because the codefendant statement at issue was nontestimonial and thus not within the Confrontation Clause's protection under Crawford v. Washington, 541 U.S. 36, 68 (2004), the Bruton protections concerning the introduction of statements by non-testifying codefendants did not apply. The panel reversed, however, the district court's denial of the habeas petition as to the sufficiency of the evidence under Jackson v. Virginia, 443 U.S. 307 (1979), on one of the three offenses for which petitioner was convicted, possession of a dirk or dagger or sharp instrument in jail.
Court Description: Habeas Corpus. The panel affirmed in part and reversed in part the district court’s denial of Albert Lucero’s 28 U.S.C. § 2254 habeas corpus petition challenging his California conviction for premeditated attempted murder, possession of a shank in jail, and participation in a criminal street gang. The panel held that in light of the framework set forth in Crawford v. Washington, 541 U.S. 36 (2004), the Sixth Amendment Confrontation Clause protections established in Bruton v. United States, 391 U.S. 123 (1968), concerning the introduction of statements by non-testifying codefendants, do not apply to statements that are nontestimonial. The panel held that a huila—a tiny handwritten gang memo detailing the underlying attack—was not testimonial, and thus could not violate Lucero’s constitutional right to confront the witnesses against him. The panel therefore affirmed the district court’s denial of Lucero’s habeas petition as to his Bruton claim. The panel reversed the district court’s denial of Lucero’s habeas petition as to his claim under Jackson v. Virginia, 443 U.S. 307 (1979), that there was insufficient evidence to support his conviction for possession of a “dirk or dagger or sharp instrument in jail” in violation of Cal. Penal Code § 4502(a). Applying the Jackson standards with an additional layer of AEDPA deference, and viewing the evidence in the light most favorable to the prosecution, the LUCERO V. HOLLAND 3 panel concluded that there was no evidence that any reasonable juror could view as directly or circumstantially proving, beyond a reasonable doubt, Lucero’s conviction for possession of, custody of, or control of a shank in jail; and that any conclusion to the contrary was so clearly without support in the record as to be unreasonable. The panel remanded so that the district court may grant the habeas petition as to that conviction.
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