Michael Montes v. Jeffrey Beard, 695 F. App'x 305

Petitioner Michael Montes challenged his sentence under California Penal Code § 186.22(b)(4)(C), arguing the gang-enhancement was based on facts not found by a jury beyond a reasonable doubt.
The jury was not asked whether Montes attempted to dissuade witnesses Michael Pedroza and Dylan Valencia from reporting a robbery or whether that attempt involved an express or implied threat of force.
The California Superior Court imposed the § 186.22(b)(4)(C) enhancement at sentencing; the panel treated that as an Apprendi error because those facts were not submitted to the jury.
On habeas review the Ninth Circuit evaluated whether the Apprendi error was harmless beyond a reasonable doubt (direct-appeal standard) and whether it had a substantial and injurious effect on the verdict (collateral-review standard).
Trial testimony: Pedroza testified Montes threatened to kill him if he told police; Valencia’s conduct and surrounding circumstances supported an implied threat of force (fear of being “jumped,” an associate’s gesture suggesting a gun).
The district court denied habeas relief; the Ninth Circuit affirmed and declined to expand the certificate of appealability to add an ineffective-assistance-of-counsel claim against appellate counsel for not raising the Apprendi issue on direct appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether imposition of §186.22(b)(4)(C) enhancement without jury finding violated Apprendi	Montes: enhancement rested on facts not found by jury (attempted witness-dissuasion and threat), so sentence unconstitutional under Apprendi	State: although enhancement may rest on facts not found by jury, any error was harmless	Court: Apprendi error occurred but was harmless beyond a reasonable doubt / harmless on collateral review (no grave doubt)
Standard of review for Apprendi error on collateral review	Montes: error requires relief	State: harmless-error standard applies; no substantial effect on verdict	Court: applies harmless-error standards (direct-appeal and collateral) and finds no substantial or injurious influence
Whether appellate counsel was ineffective for not raising Apprendi on direct appeal	Montes: appellate counsel provided deficient performance by not raising the Apprendi claim	State: no prejudice because the Apprendi error was harmless on direct appeal standards	Court: denied COA expansion; no prejudice under Strickland because error was harmless
Whether state-court divergence on harmless review affects federal harmlessness analysis	Montes: cited state cases remanding for resentencing without harmless review	State: federal courts presume state courts would follow controlling federal law	Court: state-court deviations do not change federal harmless-error rule; presumes state courts would follow governing law

Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing penalty beyond statutory maximum must be found by a jury beyond reasonable doubt)
United States v. Zepeda-Martinez, 470 F.3d 909 (9th Cir. 2006) (harmless-error standard on direct appeal for constitutional errors)
United States v. Guerrero-Jasso, 752 F.3d 1186 (9th Cir. 2014) (proper preservation and review of Apprendi claims)
Neder v. United States, 572 U.S. 1 (2014) (Apprendi errors reviewed under harmless-error standard)
Davis v. Ayala, 135 S. Ct. 2187 (2015) (collateral-review harmless-error standard—no relief unless federal court has grave doubt about effect on verdict)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong standard for ineffective assistance of counsel)
Reyes v. Lewis, 833 F.3d 1001 (9th Cir. 2016) (presumption that state courts will know and follow federal law)