                                                                               FILED
                            NOT FOR PUBLICATION                                 JUN 27 2014

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



                            FOR THE NINTH CIRCUIT


DANIEL ESPARZA,                                  No. 10-55592

              Petitioner-Appellant,              D.C. No. CR 09-6251-PSG (MLG)

  v.
                                                 MEMORANDUM*
LELAND McEWEN, Warden,

              Respondent-Appellee.


                   Appeal from the United States District Court
                        for the Central District of California
                   Philip S. Guitierrez, District Judge, Presiding

                        Argued and Submitted June 2, 2014
                              Pasadena, California

Before: GOULD and N.R. SMITH, Circuit Judges, and KORMAN, Senior District
Judge.**

       Daniel Esparza was convicted of second degree murder. In this appeal from the

denial of a petition for a writ of habeas corpus, Esparza argues that trial counsel

rendered ineffective assistance by: (1) failing to highlight the inconsistencies in the

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
state's ballistic evidence; and (2) failing to adequately investigate reports that another

person had been identified as the shooter.

      1.     There were two different types of casings at the crime scene, including

two .40 caliber spent casings directly across the street from where the victim was shot

and two 9-millimeter spent casings approximately 400 feet away. The ballistics

evidence established that the Glock handgun found in Esparza’s possession (three

weeks later) had fired the .40 caliber spent casings at the crime scene directly across

from the victim. There was, however, evidence to support an argument that the bullet

which struck the victim may have been fired from a 9-millimeter weapon. This

evidence was developed by petitioner’s trial counsel during cross-examination of the

ballistics expert and, in his summation, he called attention to both the location of the

shooting and the fact that the 9-millimeter casings were found there. [3 ER at 473.]

Moreover, he argued from evidence that was elicited from the expert that, even if the

Glock handgun was the murder weapon, the jury could find that Esparza received the

Glock handgun after the shooting from a fellow gang member who used it to shoot the

victim.    Nevertheless, petitioner’s trial counsel placed greater emphasis on

discrediting the eyewitness identification.

      In a written opinion, the trial judge rejected petitioner’s argument that his trial

counsel should have placed greater emphasis on the evidence suggesting that the


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murder weapon was not the Glock handgun that was found in petitioner’s possession

three weeks later. While petitioner’s argument is not without some merit, it is not

sufficient to justify habeas corpus relief. “Surmounting Strickland’s high bar is never

an easy task,” Padilla v. Kentucky, 559 U.S. 356, 371 (2010), and “[e]stablishing that

a state court's application of Strickland was unreasonable under [AEDPA] § 2254(d)

is all the more difficult.” Harrington v. Richter, 131 S.Ct. 770, 788 (2011). “The

standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when

the two apply in tandem, review is ‘doubly’ so.” Id. (internal citations omitted). After

reviewing the record, we conclude that petitioner has not met this double deferential

standard.

      2.     Relying entirely on a defense investigator’s report, which stated that

Jesus Romero had been identified as the shooter but that the police had ruled him out

because he was in Mexico at the time of the shooting, petitioner argues that his trial

counsel should have done more to investigate the possibility that Romero was the

shooter. In rejecting this claim, the trial judge observed that, “the investigative report

. . . does not explain how Romero was identified as the shooter. In this regard, [it] is

unclear whether the ‘identification’ was in fact made by an eye witness or by some

other means. Moreover, assuming identification was made by an eye witness,

Petitioner does not present evidence that the person who identified Romero as the


                                            3
shooter was available to testify.” [1 ER at 50-51.] Under these circumstances, we

cannot say that the trial judge unreasonably rejected this prong of petitioner’s

ineffective assistance of counsel claim.

      3.     Esparza also seeks to raise the uncertified issue of whether the evidence

of anonymous calls to the police identifying the shooter as a member of the Langdon

gang violated his right to confrontation. As the district court properly instructed the

jury, however, the anonymous calls were not offered to prove that the shooter was

from Langdon, but to explain the officer’s next steps in the course of the investigation.

See United States v. Wahchumwah, 710 F.3d 862, 871 (9th Cir. 2013). Indeed, except

in unusual circumstances not present here, see Bruton v. United States, 391 U.S. 123,

135-36 (1968), “juries are presumed to follow their instructions,” Richardson v.

Marsh, 481 U.S. 200, 211 (1987). Moreover, the calls were not introduced into

evidence to explain the basis of an expert’s opinion. See Williams v. Illinois, 132 S.

Ct. 2221 (2012). Thus, Esparza has failed to raise a claim that is “debatable amongst

jurists of reason,” Miller–El v. Cockrell, 537 U.S. 322, 336 (2003), and we decline to

issue a certificate of appealability, see 28 U.S.C. § 2253(c); Hiivala v. Wood, 195

F.3d 1098, 1102–04 (9th Cir. 1999) (per curiam).

      AFFIRMED.




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