Ramon Ortiz Perez v. Giselle Matteson

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAMON ORTIZ PEREZ,
Petitioner-Appellant,
v.
GISELLE MATTESON,
Respondent-Appellee.
No. 19-16471
D.C. No. 3:17-cv-06398-RS
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, Chief District Judge, Presiding
Argued and Submitted January 14, 2022**
San Francisco, California
Before: GOULD, NGUYEN, and BENNETT, Circuit Judges.
Ramon Ortiz Perez appeals from the district court’s judgment denying his
petition for writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction
under 28 U.S.C. §§ 1291 and 2253. Reviewing the denial of habeas relief de novo,
see Walden v. Shinn, 990 F.3d 1183, 1188 (9th Cir. 2021), 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).
FILED
JAN 20 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1. Ortiz Perez fails to show actual prejudice from any Confrontation Clause
error when the state trial court admitted testimony about his gang membership
from the prosecution’s gang expert. See Davis v. Ayala, 576 U.S. 257, 268 (2015)
(“[T]he federal court [must have] ‘grave doubt about whether [the] error . . . had
“substantial and injurious effect or influence in determining the jury’s verdict.”’”
(quoting O’Neal v. McAninch, 513 U.S. 432, 436 (1995))).1 The gang expert’s
challenged testimony either did not negatively impact Ortiz Perez’s heat-of-passion
defense or else other witnesses’ nonhearsay showed the same facts.
The gang expert’s testimony that certain unrelated offenses were committed
by other members of Sur Santos Pride (“SSP”) to show the statutory gang
enhancement, see Cal. Penal Code § 186.22(e)–(f), had scant relevance to Ortiz
Perez’s state of mind when he killed Adam Esparza. Insofar as this testimony
suggested SSP is a violent gang that physically attacks its perceived enemies,
Eduardo Yanez provided direct evidence of this when he testified that SSP
members stabbed him while he was in jail.
1 The California Court of Appeal’s harmless error determination was neither
“contrary to, [n]or involved an unreasonable application of, clearly established
Federal law,” 28 U.S.C. § 2254(d)(1), merely because the court did not explicitly
consider all the factors discussed in Olden v. Kentucky, 488 U.S. 227 (1988). The
prejudice analysis is case-specific, and the relevant considerations vary. See
Olden, 488 U.S. at 233 (“Whether [a Confrontation Clause] error is harmless in a
particular case depends upon a host of factors . . . .”).

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The gang expert’s testimony regarding Ortiz Perez’s active gang
membership did not impair the defense. Multiple witnesses with firsthand
knowledge—including Ortiz Perez himself—testified that prior to killing Esparza,
Ortiz Perez was an SSP member who had gang tattoos, wore clothes with gang
colors, and used gang terms. Ortiz Perez admitted that he remained an active gang
member after his arrest.
The gang expert’s testimony about Norteño gang members stabbing Ortiz
Perez when he was 14 years old did not impair the defense. Ortiz Perez himself
testified at length about this incident and its effect on him, and his expert relied on
it in opining that “he reacted emotionally” when he attacked Esparza. To the
extent the prosecution used the gang expert’s testimony to argue that Ortiz Perez
lied about when he joined SSP, Ortiz Perez admitted that he had a gang tattoo more
than a year before he was stabbed. The gang expert’s testimony that Ortiz Perez
refused to cooperate with the police investigation because he did not want to be
labelled a snitch had little if any relevance to Ortiz Perez’s motive for stabbing
Esparza two years later.
2. Ortiz Perez also fails to show actual prejudice from any Confrontation
Clause error when the state trial court prohibited defense counsel from questioning
the gang expert about the basis for his opinion that Ortiz Perez “committed the
crime . . . to raise [SSP’s] reputation.” Defense counsel wanted to ask the gang

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expert about Ortiz Perez’s statements to the police that “he didn’t know what had
happened,” “he wasn’t thinking clearly,” and “he was pretty pissed off,” so as “to
illustrate that [the gang expert] based his opinion on . . . limited information” or
“cherry-pick[ed] facts.” However, the California Court of Appeal reasonably
concluded that “defense counsel was able to elicit from [the defense expert] the
very essence of the testimony that [counsel] wanted to elicit from [the gang
expert].”
3. Ortiz Perez challenges the district court’s denial of his request to appoint
counsel, which we review for abuse of discretion.2 See Terrovona v. Kincheloe,
852 F.2d 424, 429 (9th Cir. 1988). The district court applied the correct legal
standard, see 18 U.S.C. § 3006A(a)(2)(B), and did not clearly err in finding that the
interests of justice did not require the appointment of counsel.
4. We decline to issue a certificate of appealability on Ortiz Perez’s
remaining claims—that cumulative Sixth Amendment error prejudiced him and
that the jury instruction allowing consideration of gang evidence regarding heat of
passion denied him due process by authorizing an irrational inference. Ortiz Perez
has not made “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2).
2 This claim does not require a certificate of appealability. See Harbison v.
Bell, 556 U.S. 180, 183 (2009).

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AFFIRMED.

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