NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHANE AUSTIN PETERS, 

Petitioner-Appellant, 

 v. 

ERIC ARNOLD, Warden, 

Respondent-Appellee.

No. 17-17485

D.C. No. 2:15-cv-00586-JKS

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

James K. Singleton, Jr., Senior District Judge, Presiding

Submitted February 6, 2019**

San Francisco, California

Before: THOMAS, Chief Judge, PAEZ, Circuit Judge, and FEINERMAN,***

District Judge.

Shane Austin Peters appeals the district court’s denial of his 28 U.S.C. 

§ 2254 habeas corpus petition. We have jurisdiction under 28 U.S.C. §§ 1291 

 

* 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).

*** The Honorable Gary Feinerman, United States District Judge for the 

Northern District of Illinois, sitting by designation.

FILED

APR 23 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

and 2253, and we affirm.

The district court correctly held that the California Court of Appeal did not 

unreasonably apply Jackson v. Virginia, 443 U.S. 307 (1979), in holding that the 

evidence was sufficient to support the jury’s true finding on the gang enhancement 

under section 186.22(b)(1) of the California Penal Code. See 28 U.S.C. 

§ 2254(d)(1). The state court reasonably held that the evidence was sufficient to 

support a finding that the North Vallejo Savages (“NVS”) were a “criminal street 

gang.” Cal. Penal Code § 186.22(f). The jury was entitled to believe expert and 

lay witness testimony that NVS was a subgroup of the Norteños. See Long v. 

Johnson, 736 F.3d 891, 896 (9th Cir. 2013). That testimony raised a reasonable 

inference that the groups shared “some sort of collaborative activities or collective 

organizational structure” such that they could be considered together for purposes 

of section 186.22(f). People v. Williams, 86 Cal. Rptr. 3d 130, 135 (Ct. App. 

2008). 

Expert testimony that NVS had seven to ten members was sufficient to 

support the jury’s finding that it had at least three members. And given the link 

between NVS and the Norteños, the expert’s testimony about the Norteños’

primary activities, his testimony that he personally knew of two convictions for 

predicate offenses, and exhibits documenting the convictions, a reasonable jury 

could conclude that the “primary activities” and “pattern of criminal gang activity” 
3 

elements of section 186.22(f) were satisfied—or so the state court could hold 

without applying Jackson in an objectively unreasonable manner. See Johnson v. 

Montgomery, 899 F.3d 1052, 1058-59 (9th Cir. 2018); Long, 736 F.3d at 896.

Peters’s submission that the California Court of Appeal erred in interpreting

state law and in holding that the expert testimony rested on an adequate foundation 

is irrelevant to this court’s evaluation on federal habeas review of whether the state 

court reasonably applied Jackson. See McDaniel v. Brown, 558 U.S. 120, 131 

(2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Johnson, 899 F.3d at 1059 

& n.1. And contrary to Peters’s argument, the state court did not shift the burden 

of proof when, after laying out the evidence of a connection between NVS and the 

Norteños, it merely observed that no evidence cut the other way.

Nor did the California Court of Appeal unreasonably apply clearly 

established federal law in concluding that the trial court did not violate the 

Confrontation Clause by admitting expert testimony that was based in part on 

information from confidential informants. The state court’s conclusion that the 

confidential informants’ statements were offered as a basis for the expert’s opinion 

rather than for their truth—and that the Confrontation Clause therefore did not 

apply, see United States v. Johnson, 875 F.3d 1265, 1278 (9th Cir. 2017)—was not 

foreclosed by clearly established federal law. The California Supreme Court’s 

opinion in People v. Sanchez, 374 P.3d 320 (Cal. 2016), does not count as clearly 
4 

established federal law for purposes of federal habeas review because it post-dates 

the state court’s adjudication and is not a United States Supreme Court decision. 

See Shoop v. Hill, 139 S. Ct. 504, 506 (2019). And the fractured decision in 

Williams v. Illinois, 567 U.S. 50 (2012), did not clearly establish any Confrontation 

Clause principle relevant here. See Williams, 567 U.S. at 141 (Kagan, J., 

dissenting) (maintaining that “[w]hat comes out of” the Court’s fractured decision 

“is—to be frank—who knows what”); United States v. James, 712 F.3d 79, 95 (2d 

Cir. 2013).

Finally, Peters’s habeas claim regarding the trial court’s preventing him 

from eliciting information identifying the confidential informants on crossexamination of the prosecution’s expert is forfeited because he has failed to 

develop his argument or cite any authority for the proposition that the restriction 

was improper. See United States v. Cazares, 788 F.3d 956, 983 (9th Cir. 2015) 

(“The failure to cite to valid legal authority waives a claim for appellate review.”). 

In any event, the California Court of Appeal’s decision rejecting Peters’s challenge 

to the trial court’s ruling is not an unreasonable application of Roviaro v. United 

States, 353 U.S. 53 (1957).

AFFIRMED.