NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
RAMIRO ALEX HUERTA, Petitioner - Appellant,

v. DERRAL G. ADAMS, Warden, Respondent - Appellee. No. 12-55815 D.C. No. 8:11-cv-01045-RGK-JPR
MEMORANDUM *

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding Submitted November 5, 2013 ** Pasadena, California Before: McKEOWN, GOULD, and BYBEE, Circuit Judges. Ramiro Huerta was sentenced to seventeenyears to life in prison by a California state court based on his role in a jailhouse a ttack on a fellow inmate. He presents two 

# FILED
NOV 20 2013 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).issues on appeal from the district court’s de nial of his habeas corpus petition. First, he argues that the California Court of App eal unreasonably applied clearly established federal law because there was constitutiona lly insufficient evidence to support his gang-related sentencing enhancement and street terrorism conviction. Second, he raises an uncertified ineffective assistance of counsel claim. We affirm the district court’s judgment with respect to the gang e nhancement, reverse with respect to the street terrorism conviction, and dismiss the uncertified issue for lack of jurisdiction. Under Jackson v. Virginia , 443 U.S. 307, 319, 324 (1979), Huerta’s insufficiency of the eviden ce claims can only succeed if, viewing all the evidence in the light most favorable to the prosecution, no rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. “Insufficient evidence claims are reviewed by looking at the elements of the offense under state law.” Emery v. Clark , 643 F.3d 1210, 1214 (9th Cir. 2011) (per curiam); accord Jackson , 443 U.S. at 324 n.16. The California Court of Appeal did not unreasonably apply clearly established federal law in concluding that Huerta’s gang enhancement under California Penal Code § 186.22(b)(1) was supported by sufficient evidence. See 28 U.S.C. § 2254(d)(1). The pros ecution presented evidence that Huerta and his codefendant were gang members who carri ed out a vicious jailhouse assault on another gang member for the benefit of, or in association with, their
2respective street gangs. Huerta princi pally disputes the prosecution’s use of gang-expert testimony to prove the elements of this enhancement, but the jury was entitled to consider such testimony, which focused on gang culture and also included specific hypotheticals tailored to the facts of this case. See, e.g. , Emery , 643 F.3d at 1214; People v. Albillar , 244 P.3d 1062, 1073–74 (Cal. 2010). Accordingly, sufficient evidence supports Huerta’s gang enhancement, and the California Court of Appeal’s decision is not contrary to clearly established federal law. See Jackson , 443 U.S. at 319. By contrast, the California Court of Appeal unreasonably applied clearly established federal law in concluding that Huerta’s street terrorism conviction under California Penal Code § 186.22(a) wa s supported by sufficient evidence. See 28 U.S.C. § 2254(d)(1). This offense requires that the defendant “willfully promote[d] . . . any felonious criminal conduct by members of that gang .” Cal. Penal Code § 186.22(a) (emphasis added). In People v. Rodriguez , 290 P.3d 1143, 1147 (Cal. 2012), the California Supreme Court unambiguous ly stated that the “that gang” phrase in the street terrorism statute “clearly re fers back to the gang in which the defendant is an active participant.” Huerta and hi s codefendant, Carlos Luna, were members of separate gangs when they attacked the victim. The prosecution did not present evidence that any member of Huerta’s gang was present at the assault other than 3Huerta. Thus, there was no evidence showi ng that Huerta participated in felonious conduct with other members of his own gang. See id. at 1146–48. Consequently, the California Court of Appeal’s decision is c ontrary to clearly established federal law. See Jackson , 443 U.S. at 319; see also Luna v. Herrington , No. 12-55443 (9th Cir. May 21, 2013) (memorandum disposition) (holding that the California Court of Appeal unreasonably applied clearly established federal law in concluding that sufficient evidence supported the defendant’s street terrorism conviction when he was the only member of his gang who participated in the assault). Finally, we construe Huerta’s inclusion of an uncertified ineffective assistance of counsel claim as a motion to e xpand the Certificate of Appealability. See 9th Cir. R. 22-1(e). To prevail on such a motion, Huerta must make a substantial showing of the denial of a constitutional right by demons trating that this issue is debatable among jurists of reason, that a court could resolve the issue in a different manner, or that the question is adequate to deserve en couragement to proceed further. See Doe v. Woodford , 508 F.3d 563, 567 (9th Cir. 2007). Huerta has failed to make such a show ing here. The record establishes that Huerta’s counsel asked for and received permission to interview the victim about whether “he is going to testif y or not,” and the court ordered a recess. After the recess, Huerta’s counsel indicated that hehad spoken with the victim and decided not
4to call the victim as a defense witness after evaluating Huerta’s position. As an informed strategic choice, Huerta’s counsel ’s decision is “virtually unchallengeable.” See Strickland v. Washington , 466 U.S. 668, 690 (1984). Accordingly, we decline to expand the Certificate of Appealability and dismiss Huerta’s uncertified issue for lack of jurisdiction. See Doe , 508 F.3d at 569. This matter is remanded to the district c ourt with instructions to grant the writ consistent with this disposition. AFFIRMED in part; REVERSED in part and REMANDED. Each party shall pay its own costs on appeal.

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