Francisco Orosco Garcia v. M. Evans , 670 F. App'x 622 ( 2016 )

FILED
NOT FOR PUBLICATION
NOV 10 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO OROSCO GARCIA, No. 15-16836
Petitioner-Appellant, D.C. No.
1:08-cv-01819-AWI-SAB
v.
M. S. EVANS, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted October 18, 2016**
San Francisco, California
Before: THOMAS, Chief Judge, and BEA and IKUTA, Circuit Judges.
Francisco Orosco Garcia (“Garcia”) appeals the district court’s denial of his
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. We affirm.
*
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).
First, the trial court’s use of modified jury instruction CALJIC No. 3.16 did
not result in a directed jury verdict against Garcia. The jury was not instructed that
Garcia was either a “principal” or an “aider and abettor” as a matter of law.
Rather, the jury was instructed that if the crimes were committed, Garcia was an
“accomplice” as a matter of law. An “accomplice” was defined as a person who
was “subject to prosecution” for the offense if he had aided or abetted the crime or
was part of a conspiracy to commit the crime. Accordingly, CALJIC No. 3.16
instructed the jury that Garcia was subject to prosecution, and not that Garcia was
necessarily guilty of the offenses. Garcia also points to CALJIC No. 3.14, which
provides that a person who assents to, aids, or assists in a crime without knowledge
of its unlawful purpose cannot be prosecuted as an accomplice. However, CALJIC
No. 3.14 does not define an accomplice to be any person who assents to, aids, or
assists in a crime with knowledge of unlawful purpose. Fairminded jurists could
disagree about whether use of CALJIC No. 3.16 by itself or in conjunction with
CALJIC No. 3.14 resulted in a directed guilty verdict against Garcia. See
Harrington v. Richter, 562 U.S. 86, 101 (2011) (“A state court’s determination that
a claim lacks merit precludes federal habeas relief so long as fairminded jurists
could disagree on the correctness of the state court’s decision.” (internal quotation
marks omitted)).
2
Second, Garcia’s opening brief discusses one issue not certified on appeal:
whether the district court’s denial of his request to amend his petition to include a
claim of actual innocence was rendered in error. We construe briefing on an
uncertified issue as a motion to expand the certificate of appealability (“COA”).
See 9th Cir. R. 22-1(e).
Garcia does not dispute that the actual innocence claim was not raised before
the one-year statute of limitations imposed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d)(1), had run on April
30, 2009. Garcia argues that his claim should be considered on the merits under
the “actual innocence” exception established by Schlup v. Delo, 513 U.S. 298(1995).
Garcia has not demonstrated that in light of all the evidence, it is more likely
than not that no reasonable juror would have found him guilty beyond a reasonable
doubt. See id. at 327. Declarations are not a strong form of evidence because “the
affiants’ statements are obtained without the benefit of cross-examination and an
opportunity to make credibility determinations.” See Herrera v. Collins, 506 U.S.
390, 417 (1993). Moreover, Garcia’s convictions were supported by substantial
testimony and physical evidence presented at trial. Garcia has failed to make the
3
credible showing of actual innocence needed to excuse him from AEDPA’s statute
of limitations.
Accordingly, Garcia has not made a substantial showing of the denial of a
constitutional right, as required to expand the COA. See 28 U.S.C. § 2253(c)(2).
AFFIRMED.
4