Baker v. Lewis

Full title: CHRISTOPHER LEON BAKER, Petitioner, v. GAIL LEWIS, Warden, et al.…

Court: United States District Court, S.D. California

Date published: Nov 15, 2005

Civil No. 04cv 1533-H (BLM) (S.D. Cal. Nov. 15, 2005)

Opinion

Civil No. 04cv 1533-H (BLM).

November 15, 2005

REPORT AND RECOMMENDATION FOR ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

BARBARA MAJOR, Magistrate Judge

The Court submits this Report and Recommendation to United States District Judge Marilyn L. Huff pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule HC.2 of the United States District Court for the Southern District of California.

I FEDERAL PROCEEDINGS

On July 30, 2004, Petitioner Christopher Leon Baker, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition"). Doc. No. 1. On February 8, 2005, Respondent filed an Answer and a Memorandum of Points and Authorities in support ("Ans. Mem."), and lodged portions of the state court record with the Court. Doc. Nos. 10 and 11. On February 17, 2005, Petitioner filed a Traverse and Memorandum of Points and Authorities in support ("Traverse"). Doc. Nos. 19 and 20.

On July 1, 2005, Petitioner filed a Supplement to Traverse to Answer to Petition for Writ of Habeas Corpus ("Supp.Traverse"). Doc. No. 25. Attached to this document was a May 6, 2005 Forensic Biology Unit Laboratory Report from the San Diego Police Department excluding the female victim and Petitioner as possible sources of various DNA samples obtained from evidence in Petitioner's criminal case. Id. at Exh. B. Petitioner asked the Court to consider this new evidence and argued that it supported his ineffective assistance of counsel claim. Id. at 2. In response, the Court ordered supplemental briefing. On July 26, 2005, Respondent filed a Supplemental Answer to Petition for Writ of Habeas Corpus ("Supp. Ans.") and Supplemental Notice of Lodgment for Lodgment 24, a copy of the same laboratory report attached as Exhibit B to Petitioner's Supplemental Traverse. Doc. No. 27.

II STATE PROCEEDINGS

On January 20, 2000, the government filed a twelve-count information in San Diego County Superior Court (Superior Court Case No. SCD 146719), charging Petitioner and co-defendant Deandre Maurice Lambert with conspiracy (California Penal Code (hereinafter "PC") § 182(a)(1)) (count one), forcible rape (PC § 261(a)(2)) (count two), forcible rape while acting in concert (PC §§ 261(a)(2) and 264.1) (count three), sodomy by use of force (PC § 286(c)(2)) (count four), sodomy while acting in concert (PC § 286(d)) (count five), attempted rape by foreign object (PC §§ 289(a)(1) and 664) (count six), robbery (PC § 211) (counts seven and eight),¹ burglary (PC § 459) (count nine), receiving stolen property (PC § 459) (count ten), possession of a firearm by a felon (PC § 12021(a)(1)) (count eleven), and resisting an officer (PC § 148(a)(1)) (count twelve).² Lodgment 1, Clerk's Transcript — Volume 1, hereinafter "CT1" at 12-24. The Information also alleged that Petitioner had served two prior terms of imprisonment and had suffered two felony convictions. CT1 at 21. On February 1, 2000, a jury convicted Petitioner of conspiracy to commit first degree robbery, as well as rape, burglary, forcible rape, forcible rape while acting in concert, sodomy by use of force, sodomy while acting in concert, attempted rape by foreign object, attempted robbery on Elizabeth J.,³ first degree robbery on Nickolas S., residential burglary, receiving stolen property, possession of firearm by felon, and resisting an officer. Lodgment 2, Clerk's Transcript — Volume 2, hereinafter "CT2" at 205-06; Lodgment 3, Clerk's Transcript — Volume 3, hereinafter "CT3" at 8-28. On September 28, 2000, Petitioner was sentenced to a state prison term of thirty-five years-to-life plus twenty-six years. CT2 at 397-99.

1 The information lists two counts of robbery within count seven: one committed against Elizabeth J. and the other against Nikolas S.

2 Only Petitioner was charged in counts ten, eleven, and twelve.

3 Petitioner was found "not guilty" of the crime of robbery against Elizabeth J. Lodgment 3 at 22.

Petitioner appealed his conviction to the California Court of Appeal on May 31, 2001. Lodgment 11. On the same date, Petitioner also filed a Petition for Writ of Habeas Corpus in the California Court of Appeal along with a request that the Petition be consolidated with Petitioner's appeal. Lodgment 12. On April 24, 2002, the appellate court ordered that the habeas petition be consolidated with the appeal. Lodgment 14. On the same date, the court affirmed the conviction and denied the petition in an unpublished opinion. Lodgment 15, People v. Baker, D036645. On May 10, 2002, Petitioner filed a petition for review in the California Supreme Court. Lodgment 16. That court denied review on July 10, 2002, by an order stating: "Petition for review DENIED." Lodgment 17, People v. Baker, S107022.

Petitioner filed a second habeas petition in the state superior court.⁴ Lodgment 18. That petition was denied in an unpublished written order filed July 11, 2003. Lodgment 19, In re Baker, HC 17426, SCD 146719. On August 11, 2003, Petitioner filed a habeas petition in the state appellate court. Lodgment 20. That petition was denied in a written order adopting the reasoning of the superior court, which was filed on September 10, 2003. Lodgment 21, In re Baker, D042686. On October 14, 2003, Petitioner filed a habeas petition in the California Supreme Court. Lodgment 22. That court denied the petition on June 30, 2004, by an order stating in full: "Petition for writ of habeas corpus is DENIED. (See In re Clark (1993) 5 Cal.4th 750; In re Miller (1941) 17 Cal.2d 734.)." Lodgment 23, In re Baker, S119680.

4 The lodged copy of this habeas petition does not contain a legible file stamp so it is unclear when the petition was filed. Lodgment 18.

III UNDERLYING FACTS

The following statement of facts is taken from the California Court of Appeal's opinion in People v. Baker, D036645. See Lodgment 15. This Court relies on these facts pursuant to 28 U.S.C. § 2254(e)(1). See also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness); Sumner v. Mata, 449 U.S. 539, 547 (1981) (deference is owed to findings of state trial and appellate courts); Tinsley v. Borg, 895 F.2d 520, 524-25 (9th Cir. 1990) (factual findings of state trial and appellate courts are entitled to presumption of correctness on federal habeas corpus review). Where a more detailed examination of the state court record is necessary to address Petitioner's claims, direct citations to the record will be provided.

At approximately 12:30 a.m. on July 26, 1999, Elizabeth J., a 20-year-old college student, arrived at the apartment of her boyfriend Nikolas S. in the Mission Beach area of San Diego. Elizabeth parked her car in the driveway. Nikolas was in the process of making dinner and was using a butcher knife to prepare the meal.

After about 20 to 30 minutes, Elizabeth returned to her car for a video movie in her overnight bag. While at the car, she noticed a black Lexus drive by. The Lexus had dark tinted windows and shiny wheel rims. The car was going about 15 to 20 miles per hour in a northward direction. Deandre Lambert was the driver. Defendant and appellant Christopher Leon Baker was the passenger. Both men looked at Elizabeth in a way she felt was odd. She returned to the apartment and entered through the kitchen door.

Fifteen to twenty minutes later, appellant and Lambert entered the apartment through the kitchen door. Appellant kept his hand under his shirt. He said he had a gun under the shirt and stated: "I have a gun. Don't make me shoot you." Elizabeth believed him. Nikolas believed it was a gun. Appellant followed Elizabeth, Nikolas and Lambert into the livingroom. He was holding the large kitchen knife Nikolas had used to prepare dinner. He waved the knife in the air and threatened Elizabeth and Nikolas with it.

Appellant told Elizabeth and Nikolas to "get down." One of the men yelled: "Who else is here? Who else is home?" Appellant then picked Elizabeth up by the pants and asked: "Where's the money? Where's the money?"

Lambert approached Nikolas and threatened to shoot him. He hit him on the side of the head with his fist. Lambert and appellant made the couple lie on the living room floor for about two minutes during which time they threatened to shoot and cut them. They then took the couple into Nikolas's bedroom where Elizabeth was made to bend over the bed and Nikolas was forced to kneel down.

As they continued to ransack the bedroom, appellant and Lambert demanded money, guns and drugs. Lambert struck Nikolas on the side of the head three or four times. Nikolas told appellant and Lambert about a box in the closet which contained about $100 in bills and Italian lire from a trip to Italy. He saw appellant take this money and then go through his wallet. He later discovered $20 had been taken from his wallet.

Elizabeth told appellant and Lambert she had no money but did have marijuana in her overnight bag in the kitchen. Appellant shoved and wrestled her into the kitchen but when she produced a small amount of the drug, he became upset and said: "Oh, you want to play games? Well, you know, let's play games." He demanded she remove all of her clothing, which she did.

Appellant took Elizabeth into Nikolas's roommate's room and made her lie down on the bed as he and Lambert then searched the room. Lambert had previously made Nikolas put his head under his bed so he could not see what was happening.

When Lambert left the room, appellant demanded Elizabeth spread her legs. He attempted to insert a plastic bottle of foot spray into her vagina. He stopped because the bottle was too large. He left the room and returned a minute later, again demanding she spread her legs. He put his penis in her vagina, hurting her `very bad.' This lasted a minute or two. She told him she needed to go to the bathroom. He stated: "Well, go to pee. Go pee or else I'll cut you."

Lambert came into the room and told appellant there was no money and they should leave. Lambert's voice was getting louder. Appellant tried to put his penis in Elizabeth's anus and partially succeeded. She screamed and appellant and Lambert left.

Elizabeth curled up in a ball on the bed until she and Nikolas were sure appellant and Lambert were gone. She then went into the bathroom and noticed there was blood on her legs. She bled throughout the night.

Nikolas called 911 and gave a description of the intruders and their car.

About sundown the evening before, appellant had arrived at a party about a mile from Nikolas's apartment. He arrived as a passenger in a black Lexus sedan with shiny wheel rims and tinted windows. Lambert had not been invited to the party but had been dating Terri Hazzard, the person giving the party.

Between 1:30 and 2:00 a.m., Jason Riley, who was waiting for a girl he had arranged to see at the Hazzard party, noticed a black Lexus sedan in the parking lot. He was not sure the car had been there when he left earlier for the liquor store. About 10 minutes later, appellant, who had been standing with a shorter man, approached Riley and asked for a ride. Riley knew him slightly. They left in Riley's girlfriend's black Mazda sedan. Riley drove down Mission Bay Drive to Interstate 8.

As Riley and appellant reached the on ramp to Interstate 8, they were spotted by San Diego Police Officer David Achenbach, who had heard the descriptions of the suspects and their vehicle from Nikolas's home invasion. He called for backup support and pulled along side the Mazda. He could clearly see appellant. As the Mazda pulled onto Interstate 805 south, one of the police officers activated his car's overhead lights to stop Riley. Riley took the first exit and stopped the car. He surrendered but appellant ran down the sidewalk between two buildings. A neighborhood search began and lasted about an hour. A red baseball cap and fanny pack appellant was wearing were found on a walkway between the two buildings. The fanny pack contained $21 in assorted change, a loaded pistol stolen earlier that year and a watch belonging to Nikolas's roommate.

At about 2:30 a.m., James Pfeiffer was working on his trucks at his North Park home when he saw police all over the area. He allowed police to come up to his roof and look around. He then went into his house. As he prepared to get ready for bed, his wife heard something and his dog "just went nuts." Pfeiffer went outside to check on the noise and encountered appellant standing on a stairway. Appellant told him to "Shut up. Give me your phone and I'll give you 50 bucks." Pfeiffer responded "I'll be right back." He returned with a shotgun. Appellant was arrested. The time of the arrest was 2:50 a.m.

Appellant told the police his name was Randy Smith. When searched, he had in his possession two $20 bills, three $5 bills, two $1 bills, three silver dollars, four 50 cent pieces, five Susan B. Anthony dollars and an Italian 50 lire piece. Five $20 bills were found in his sock. Nikolas's roommate later identified several of the 50 cent pieces, some silver dollars and Susan B. Anthony coins as those taken from his room.

Police located Hazzard's Lexus. Appellant's prints were on the driver's side of the trunk lid. Lambert's were on the driver's side door handle and passenger side of the trunk lid.

On the afternoon of July 27, appellant telephoned Terri Hazzard. When she asked why he had taken her car, he did not answer. He did, however, want to know what happened when police came to her residence.

Lodgment 15 at 1-5.

IV DISCUSSION

Petitioner asserts three grounds for habeas relief.⁵ First, he argues that the trial court violated his Sixth and Fourteenth Amendment rights when it denied his request for appointment of new counsel pursuant to People v. Marsden, 2 Cal. 3d 118, 123-24 (1970) (defendant is entitled to new counsel if the defendant's right to counsel would be substantially impaired by continuing with the original attorney). Second, Petitioner argues that the trial court violated his Sixth and Fourteenth Amendment rights when it denied his request to represent himself pursuant to Faretta v. California, 422 U.S. 806 (1975) (a defendant has a Sixth Amendment right to conduct his own defense, provided he knowingly and intelligently forgoes his right to counsel and is able and willing to abide by the rules of procedure and courtroom protocol). Third, Petitioner claims that he received ineffective assistance of counsel because trial counsel (a) failed to adequately investigate and present his case, including requesting DNA testing, (b) opposed Petitioner's requests for a new attorney and to represent himself, and (c) failed to call the female victim's attending physician to rebut the testimony of the Sexual Assault Response Team ("SART") nurse. Petition at 6-9a. In his Supplemental Traverse, Petitioner argues that the DNA results excluding him as a source supports his ineffective assistance of counsel claim. Supp.Traverse at 2.

Respondent argues that the state court's adjudication of each claim was neither contrary to, nor involved an unreasonable application of, clearly established federal law. Memorandum of Points and Authorities in Support of Answer to Petition for Writ of Habeas Corpus ("Ans. Mem.") at 14-30. As to the new DNA evidence, Respondent argues that this claim is not exhausted, that the Habeas Corpus rules prohibit the court from considering the evidence and that, in any event, the new evidence does not create a viable ineffective assistance of counsel claim because it does not establish either element of the Strickland v. Washington, 466 U.S. 668 (1984), test. Supp.Ans. at 1-7.

A. Standard of Review

Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State Court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C. § 2254(a) (West Supp. 2003) (emphasis added).

This action was filed after the enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214. Under 28 U.S.C. § 2254(d), as amended by AEDPA:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.

28 U.S.C. § 2254(d).

A state court's decision may be found to be "contrary to" clearly established Supreme Court precedent: (1) "if the state court applies a rule that contradicts the governing law set forth in [the Court's] cases" or (2) "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision may involve an "unreasonable application" of clearly established federal law, "if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. Id. at 407.

"[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (internal quotation marks and citations omitted). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the United States Supreme] Court's decisions. Williams, 529 U.S. at 412.

B. Petitioner's Request for New Counsel

Petitioner contends that his Sixth and Fourteenth Amendment rights were violated when the trial court denied his request for new counsel. Petition at 8. Petitioner argues that his attorney was unprepared⁶ and that the court erred when it relied on its own recollection of counsel's performance in other cases to determine that appointed counsel was prepared and able to represent Petitioner. Id. Petitioner also asserts that because his attorney was not adequately prepared, he did not have Petitioner's best interests at heart and did not properly represent him. Traverse at 20-23.

6 To the extent that Petitioner is arguing that counsel was ineffective because he was unprepared, that argument will be addressed in the Ineffective Assistance of Counsel section.

The state supreme court summarily denied Petitioner's petition for review (Lodgment 17), so the court must "look through" to the last reasoned state court decision to form the basis for its analysis. See Ylst, 501 U.S. at 801-06. In denying Petitioner's appeal, the appellate court stated:

A defendant seeking to substitute court-appointed counsel must be allowed to articulate the reasons for the request. Where he is allowed to do so, the burden is upon the defendant to demonstrate his Sixth Amendment right to counsel would be substantially impaired if he must proceed to trial with the appointed counsel. ( Marsden, supra, 2 Cal.3d at p. 123.) Absent a clear showing of inadequate representation, there is no right to a new attorney. ( People v. Silva (1988) 45 Cal.3d 604, 605.) In the absence of a clear abuse of discretion, the decision of the trial court will not be reversed. ( People v. Berryman (1993) 6 Cal. 4th 1048, 1070.)

A defendant is entitled to relief if the record clearly demonstrates appointed counsel is not providing adequate representation or that counsel and client have developed an irreconcilable conflict. ( People v. Barnett (1998) 17 Cal. 4th 1044, 1085.)

A review of the hearing transcript reveals appellant's claims at the Marsden hearing were in substance the same ones he had made in his ineffective assistance of counsel argument on appeal. As we have pointed out, appellant met with his attorney, obtained the preliminary hearing transcript and was provided the materials necessary for discovery. Counsel followed leads supplied by appellant, without success. An eyewitness expert called by codefendant Lambert was used by appellant's counsel. Moreover, with respect to appellant's argument there had been no DNA testing, his counsel explained the DNA sample was not sufficient to link appellant to the crime and he felt it would jeopardize appellant if he insisted on further testing. He gave a detailed explanation of what he had done and why his efforts had or had not been fruitful.

Appellant urges that if we conclude the record does not support ineffective counsel it is because counsel inaccurately stated he was ready for trial when he was not. As we have pointed out in the preceding argument, the record of the trial does not support such an assertion.

Nor does the record support the conclusion appellant and counsel had an irreconcilable conflict. In essence, appellant argued below that he did not trust his counsel, who he felt was not safeguarding his rights. He wanted him `checked out.' These are not sufficient bases to support substitution of counsel. ( People v. Berryman, supra, 6 Cal.4th at P. 1070; People v. Crandell (1988) 46 Cal.3d 833, 860.)

Lodgment 15 at 9-11.

The Sixth Amendment requires that an accused have "`counsel acting in the role of an advocate.'" United States v. Cronic, 466 U.S. 648, 656-67 (1984), citing Anders v. California, 386 U.S. 738, 743 (1967). The appropriate inquiry in evaluating Sixth Amendment claims "`focuses on the adversarial process, not on the accused's relationship with his lawyer as such.'" Wheat v. United States, 486 U.S. 153, 157-60 (1988) (quoting Cronic, 466 U.S. at 657 n. 21). Moreover, although "the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Id. The Sixth Amendment requires competent representation; it does not guarantee a "`meaningful relationship' between an accused and his counsel." Morris v. Slappy, 461 U.S. 1, 13-14 (1983).

The Ninth Circuit has instructed that the denial of a motion to substitute counsel implicates a defendant's Sixth Amendment right to counsel, and therefore is properly addressed in federal habeas. See Schell v. Witek, 218 F.3d 1017, 1021 (9th Cir. 2000). In reviewing a denial of a request for substitute counsel, the court must consider "(1) the timeliness of the motion; (2) the adequacy of the trial court's inquiry; and (3) the extent of the conflict created." United States v. Nguyen, 262 F.3d 998, 1004 (9th Cir. 2001); Schell, 218 F.3d at 1025. The trial court must conduct an "appropriate inquiry into the grounds for such a motion, and the matter [must] be resolved on the merits before the case goes forward." Schell, 218 F.3d at 1025. In evaluating the conflict, the court must consider both whether the counsel was an advocate for the defendant and whether he provided actual assistance to the accused's defense. Plumlee v. Sue Del Papa, 426 F.3d 1095, 1105-06 (9th Cir. 2005). However, the "`ultimate constitutional question' on federal habeas review is whether the state trial court's denial of the Marsden motion `actually violated [petitioner's] constitutional rights in that the conflict between [the defendant] and his attorney had become so great that it resulted in a total lack of communication or other significant impediment that resulted in turn in an attorney-client relationship that fell short of that required by the Sixth Amendment." Schell, 218 F.3d at 1026; see also LaGrand v. Stewart, 133 F.3d 1253, 1276-77 (9th Cir. 1998) (underlining the Supreme Court's instruction that a defendant has no right to a meaningful relationship with counsel — just a right to an ability to communicate with counsel). Not every disagreement between attorney and client results in deprivation of Sixth Amendment rights. See, e.g., Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir. 1990) (holding that there is no automatic right to new counsel simply because a defendant is dissatisfied); Plumlee, 426 F.3d at 1106 (defendant not entitled to new counsel when conflict is of defendant's own making or defendant's allegations are objectively unreasonable).

Here, the court applied the correct legal standard. Lodgment 15 at 9-11. Moreover, the record supports the appellate court's finding that Petitioner's Marsden hearing and the court's denial of Petitioner's request fully complied with the Sixth Amendment. First, Petitioner did not request new counsel until the day trial was scheduled to begin. Lodgment 4, Reporter's Appeal Transcript, at 4-5. As such, the request was exceedingly late and would have been disruptive to the trial schedule, including, as noted by the court, to Petitioner's co-defendant. Lodgment 5, Reporter's Appeal Transcript, at 30. Second, the trial court immediately conducted an appropriate inquiry into Petitioner's request and supporting allegations. Lodgement 5. In summary, Petitioner advised the court that he wanted a new attorney because his attorney had missed scheduled meetings with him, had failed to provide all of the relevant discovery, had failed to follow up on all of the possible investigative leads provided by Petitioner, had failed to request DNA testing on the evidence found at the crime scene, was withholding relevant evidence from Petitioner and otherwise was not prepared to handle Petitioner's case and not sufficiently focused on representing Petitioner.⁷ Id. at 1-19. Petitioner's attorney responded that he had met with Petitioner and that he had provided all of the discovery that was permitted under the law. Id. at 9-15. The court determined that counsel had met with Petitioner for at least 90 minutes and then resolved the discovery dispute by ordering that the contested discovery be redacted and provided to Petitioner. Id. at 7, 14-16. Petitioner's attorney also explained that he had hired an investigator and had investigated the case but that there was not much investigation to do given Petitioner's factual statements and the other evidence in the case. Id. at 9-13. He also explained that none of the leads suggested by Petitioner had proved helpful to Petitioner's defense. Id. Finally, counsel's recitation of the facts and evidence during this hearing, as well as throughout the trial, as correctly determined by the trial and appellate courts, established that counsel was prepared and adequately represented Petitioner.⁸

7 As correctly determined by the appellate court, many of Petitioner's claims here are the same as those raised in his ineffective assistance of counsel claims. Lodgement 15 at 9-11. This Court will address those claims in the ineffective assistance of counsel section. Here, the Court focuses on the adequacy of the Marsden hearing and the alleged conflict between Petitioner and his counsel. Schell, 218 F.3d at 1026; Nguyen, 262 F.3d at 1004.

8 Petitioner argues that the court erred by relying on its own observations and knowledge of trial counsel. Petition at 7. First, there is no legal support for Petitioner's argument. Second, the court's Marsden analysis was based on the facts in Petitioner's criminal trial. Lodgment 5 at 1-19. The court's personal observations were shared with Petitioner in an attempt to "convey some sense of confidence in [your attorney]." Id. at 19.

Third, and most importantly, the record does not reveal an actual conflict or total lack of communication between Petitioner and his attorney and it reveals that counsel advocated for Petitioner and assisted in his defense. Schell, 218 F.3d at 1026; Plumlee, 426 F.3d at 1105-07. The record establishes that Petitioner met with his attorney on several occasions, totaling at least 90 minutes, and that the two were communicating. Lodgment 5 at 9-15. Petitioner never voiced an unwillingness or inability to communicate with his attorney, nor did he state a basis for a conflict between the two that could not be overcome. Lodgment 5. Rather, Petitioner merely complained that he did not think his attorney was prepared, that he felt there was more investigation his attorney should have done, and that he was concerned his attorney might be withholding evidence. Id. at 1-19. The court addressed each concern, minimized the discovery and withholding concerns by ordering the production of redacted discovery, and ultimately determined that most of Petitioner's complaints were a general dissatisfaction with his attorney and the evidence supporting his defense. Lodgment 5. This is insufficient to require the appointment of new counsel. Schell, 218 F.3d at 1026; Nguyen, 262 F.3d at 1004; Plumlee, 426 F.3d at 1105-07.

For the foregoing reasons, the Court concludes that the state court's denial of Petitioner's claim that his Sixth Amendment right to counsel was violated by the denial of his request for a new attorney was neither contrary to nor an unreasonable application of clearly established Supreme Court law. As such, Petitioner is not entitled to relief with respect to this claim. Williams, 529 U.S. at 412-13.

C. Self-Representation

Petitioner's next argument is that the trial court erred when it denied his request pursuant to Faretta v. California, 422 U.S. 806 (1975) to represent himself. Petition at 7. Petitioner argues that he had a constitutional right to represent himself, that he knowingly and intelligently gave up his right to an attorney, and that the trial judge erroneously relied on his own personal observations about trial counsel in refusing his request to represent himself. Petitioner admits that he made his request right before trial but he argues that he was prevented from making the motion earlier due to his attorney's "deceit and lack of communication." Traverse at 26.

Respondent argues that the appellate court acted reasonably in rejecting Petitioner's claim. Ans. Mem. at 24. Respondent emphasizes that Petitioner made his request during the first day of the scheduled trial and that the court denied his request based on untimeliness. Id. at 24-28.

Once again, this Court must "look through" to the California Appellate Court's decision as the last reasoned state court decision to analyze Petitioner's second claim for relief. See Ylst, 501 U.S. at 801-06. In denying Petitioner's claim, the appellate court stated:

A defendant has the right to represent himself at trial if his request is timely and the court concludes he is competent to waive counsel. ( Faretta v. California (1975) 422 U.S. 806, 807.) The decision as to whether a timely request has been made is left to the discretion of the trial judge. ( People v. Windham (1977) 19 Cal.3d 121, 128.)

Here the motion was brought on the first day of trial. To be deemed timely, it should have been brought within a reasonable time prior to trial. ( People v. Burton (1989) 48 Cal.3d 843, 852.) It was incumbent upon appellant to explain the reason for the late request, demonstrate his need for the request was of recent origin and show there was a basis for dissatisfaction with trial counsel. ( People v. Windham. supra, 19 Cal.3d at p. 128; People v. Hernandez (1985) 163 Cal.App.3d 645, 654.)

Here the principle basis for appellant's request was that he had not reviewed all the evidence. The trial court confirmed appellant was aware of the evidence and witnesses presented at the preliminary hearing and assured appellant he would have the police reports to examine the next morning. Given the concerns articulated by appellant and the late request to represent himself, we cannot conclude the trial court abused its discretion in denying his Farretta [sic] motion as untimely.

Lodgment 15 at 11-12.

The Sixth Amendment provides that a defendant in a state court criminal proceeding has an absolute right to be represented by counsel. Faretta v. California, 422 U.S. 806, 807 (1975). This right also implicitly guarantees the corresponding right to self-representation. Id. at 821, 832; United States v. Erskine, 355 F.3d 1161, 1167 (9th Cir. 2004). To invoke the right to self-representation, however, the defendant's waiver of counsel must be "timely, not for the purposes of delay, unequivocal, and knowing and intelligent. Erskine, 355 F.3d at 1167. In this case, the trial court denied Petitioner's request because it was made the morning trial was scheduled to begin and, therefore, was untimely. Lodgment 5 at 19, 21, and 29-30.

Although no Supreme Court case has directly addressed the timing of a request for self-representation, the Ninth Circuit recently examined the issue in the context of a habeas appeal in Marshall v. Taylor, 395 F.3d 1058 (9th Cir. 2005). In Marshall, the defendant requested to represent himself the morning his trial was to begin. Id. at 1059. The trial court "expressed concern that Marshall was trying to delay trial by moving for new counsel," but ultimately denied his request because he "lacked the skills and understanding necessary to represent himself." Id. On direct appeal, the California Court of Appeal affirmed the court's ruling, finding that the request was untimely. Id. On habeas appeal, the Ninth Circuit stated

Because the Supreme Court has not clearly established when a Faretta request is untimely, other courts are free to do so as long as their standards comport with the Supreme Court's holding that a request "weeks before trial" is timely. In Windham, the California Supreme Court held that a Faretta request must be made a reasonable amount of time before trial. The California Court of Appeal applied the Windham rule in this case to find Marshall's request, made on the morning of his trial, untimely. Because the timing of Marshall's request fell well inside the "weeks before trial" standard for timeliness established by Faretta, the court of appeal's finding of untimeliness clearly comports with Supreme Court precedent.

Id. at 1061 (footnote omitted).

The facts in the instant case are very similar to those in Marshall. On January 19, 2000 — the day the trial was set to begin — Petitioner first expressed his desire to represent himself. Lodgment 5 at 19. The trial judge responded to Petitioner's request by allowing Petitioner to consider his choice overnight:

[Y]ou have the right to represent yourself; however, this is very late in the game so I have to make some decisions as to whether you can do that or not, if that's what you wish. But I would urge you to think about that one overnight and to talk to some other people. I have yet to see a successful pro per, someone representing him or herself. That is not the way to go, in this Court's view. But you do have a constitutional right to do that.

As I said, I may not grant it because it's come so late in the date because you are changing horses in the middle of the stream, but I will look at it if that's what you wish to do. Why don't you make your motion in the morning if that's what you want to do.

Id. at 21. On January 20, 2000, Petitioner reiterated that he wanted to represent himself. The trial judge, following a series of questions to both Petitioner and his trial counsel, denied the motion, stating:

You are doing this so late in the game, that it's not a timely request. There would have to be something here that would be — would smack me in the face as a necessity for the Court to put this case over, affecting also your co-defendant, in order to have this case tried while you represent yourself.

Id. at 29-30. The denial of Petitioner's Faretta motion on the basis that it was untimely is a consistent application of clearly established federal law.

Petitioner argues that he was unable to bring his motion at an earlier date due to his "counsel's deceit and lack of communication." Traverse at 26. Petitioner stated that "counsel led Petitioner to believe that they would be given more time to locate witnesses and to investigate." Id. However, Petitioner provided no facts to support his allegations and the record does not reveal such support. As such, this court cannot find that the appellate court's factual determination that Petitioner's concerns and allegations did not justify the untimely request was unreasonable.

For the forgoing reasons, the Court concludes that the state court's denial of Petitioner's Sixth Amendment claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Consequently, Petitioner is not entitled to relief on this claim. Williams, 529 U.S. at 412-13.

D. Ineffective Assistance of Counsel

In his final claim for habeas relief, Petitioner asserts that his counsel provided ineffective assistance of counsel in a variety of ways. First, Petitioner claims that his trial counsel failed to adequately investigate and present his case. Petition at 6. Specifically, Petitioner claims that his attorney failed to retain experts, failed to have the evidence tested for DNA matches and exclusions, and failed to follow up on Petitioner's leads, which could have produced favorable evidence for him. Id.; Traverse at 12. In a supplemental pleading filed on July 1, 2005, Petitioner submitted "newly discovered evidence," DNA results from a blue bed sheet which excluded Petitioner as the source of DNA evidence. Supp.Traverse at 2, Exh. B. Petitioner asserts that this evidence supports his argument that his attorney was ineffective. Id. Second, Petitioner argues that he received ineffective assistance when his attorney opposed his Marsden and Faretta motions because his attorney lied to the court about his trial preparation. Petition at 6; Traverse at 19-27. Third, Petitioner asserts that trial counsel's failure to call a particular witness to impeach the testimony of another witness also amounted to ineffective assistance of counsel. Petition at 9-9a; Traverse at 27-28.

Respondent contends that the appellate court properly determined that counsel did not provide constitutionally deficient representation and that, in any event, Petitioner did not suffer any prejudice as a result of such representation, especially given the overwhelming evidence against Petitioner. Ans.Mem. at 16-17. In his supplemental pleading, Respondent addressed Petitioner's newly discovered DNA evidence argument. Supp. Ans. at 1-8. Respondent asserts that Petitioner's ineffective assistance of counsel claim still must be denied because the new claim is not exhausted, Rule 7 of the Habeas Rules prohibits the consideration of this new evidence, and even considering the new evidence, Petitioner's claim for ineffective assistance of counsel fails. Id.

Petitioner raised the first two aspects of his ineffective assistance claim in his first state habeas petitioner and the last argument in his second set of habeas petitions. Lodgments 12, 18, 20 and 22. The California Supreme Court summarily denied both petitions so the Court must "look through" to the California Court of Appeal's decision as the basis for its analysis. See Y1st, 501 U.S. at 801-06. In denying Petitioner's first ineffective assistance of counsel claim, the appellate court stated:

In order to reverse his convictions based upon ineffective counsel, appellant must demonstrate both that his counsel committed errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment and that actual prejudice resulted from the ineffectiveness of counsel, i.e., that there is a reasonable probability that absent counsel's errors the result of the proceedings would have been different. ( Strickland v. Washington (1984) 466 U.S. 690, 668, 694; People v. Holt (1997) 15 Cal. 4th 619, 703.) On appeal we must consider the totality of evidence before the jury and presume counsel's conduct falls within a wide range of reasonable professional assistance. ( Strickland v. Washington, supra, 466 U.S. at pp. 690-691.)

We have reviewed the entirety of appellant's argument. His assertions of trial counsel error are as the People note, largely based upon contentions he could have done more to communicate with him and present a defense.

With respect to communication with counsel, the record reflects counsel and appellant met three times for 30 minutes each. He was able to tell counsel what he wanted to tell him and by the time of the trial he had received the preliminary hearing transcript and had met with the investigator. Notably, trial counsel indicated he and the investigator met with appellant twice and attempted to do the things appellant wanted done. Unfortunately, nothing he wanted done was fruitful for the defense.

Appellant urges trial counsel could have conducted more investigation, called additional witnesses and been a more effective speaker and advocate. However, counsel did have all discovery available, hired a private investigator, presented exculpatory witnesses and used the eyewitness identification expert called by his codefendant Lambert. While appellate counsel presents additional steps that could have been taken, such as testing DNA and hiring a DNA expert, such additions might well have produced results appellant was not willing to confront. Trial counsel concluded the case required no motions or experts beyond that produced by Lambert. Indeed, he noted the People had not completely tested DNA and he did not wish to elaborate on DNA matches. He noted the facts of the case were simple. Based on the record, we conclude trial counsel's case preparation and presentation were reasonable.

In any event, we conclude no prejudice resulted to appellant due to trial counsel's representation. We simply cannot say the result of this case would have been any different if the alleged ineffectiveness was present. The evidence against appellant was overwhelming. Elizabeth and Nikolas had ample opportunities to see their attackers and they both positively identified appellant as the home invader and assailant of Elizabeth. Appellant had access to a black Lexus and that Lexus was described by Elizabeth as the one she saw appellant in. His fingerprints were on the driver's side of the trunk lid and Lambert's were on the driver's door handle and passenger side of the trunk lid. Unique personal property such as the Italian lire matching that taken in the robbery was found on appellant at the time of his arrest. Denominations of money matched that taken. Appellant ran from police when stopped, offered a member of the public $50 not to turn him in and gave a false name to police when arrested. A red hat found near the scene of appellant's arrest was identified by Elizabeth as that worn by appellant during the crimes. Given the overwhelming nature of the evidence and its solid evidentiary value, we are hard-pressed to believe anything suggested by appellant now could have changed the outcome of the case.

Lodgment 15 at 7-9.

The appellate court that addressed Petitioner's second set of habeas petitions explicitly adopted the reasoning of the superior court. Lodgment 21 ("The superior court denied Baker's petition in its four-page order on July 11, 2003. Baker raises the same claims in this petition. We adopt the superior court's order denying relief."). Accordingly, this Court must "look through" to the superior court's reasoning for the denial of Petitioner's claim that he was denied effective assistance of counsel because counsel failed to call the emergency room physician to testify at trial. The superior court stated:

Petitioner has not demonstrated that his trial counsel's decision to not place the emergency room physician on the stand prejudiced the outcome of his case. Further supporting this determination are statements made by the appellate court within its opinion addressing Petitioner's previous claim of ineffective assistance of counsel. The court listed the evidence against Petitioner as follows,

[Victims] . . . had ample opportunities to see their attackers and they both positively identified appellant as the home invader and assailant. . . . Appellant had access to a black Lexus and that Lexus was described by [the female victim] as the one she saw appellant in. His fingerprints were on the driver's side of the trunk lid and Lambert's were on the driver's door handle and passenger side of the trunk lid. Unique personal property such as the Italian lire matching that taken in the robbery was found on appellant at the time of his arrest. . . . Given the overwhelming nature of the evidence and its solid evidentiary value, we are hard-pressed to believe anything suggested by appellant now could have changed the outcome of the case. ( See Appellate Opinion, D036645, p. 9.)

This court concluded,

This was not a close case. The evidence of appellant's guilt . . . was overwhelming. Both eyewitness and tangible evidence pointed to him as the perpetrator of the charged crimes. Moreover, none of the arguments presented on appeal individually requires reversal nor do they so collectively. ( See Appellate Opinion, D036645, p. 13.)

Even if the testimony of the emergency room physician had been introduced, Petitioner has failed to prove it would reasonably have impacted the outcome of the trial. Thus, Petitioner has failed to make a prima facie showing that he should be entitled to the relief requested.

Lodgement 19 at 3-4.

The clearly established United States Supreme Court law governing ineffective assistance of counsel claims is set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Baylor v. Estelle, 94 F.3d 1321, 1323 (9th Cir. 1996) (noting that Strickland "has long been clearly established federal law determined by the Supreme Court of the United States"). For ineffective assistance of counsel to provide a basis for habeas relief, Petitioner must successfully meet a two-prong test. First, he must show that counsel's performance was deficient. Strickland, 466 U.S. at 687. "This requires a showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. The "[r]eview of counsel's conduct is highly deferential and there is a strong presumption that counsel's conduct fell within the wise range of reasonable representation." Hensley v. Crist, 67 F.3d 181, 184 (9th Cir. 1995); Strickland, 466 U.S. at 689. Second, he must establish counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. This requires a showing that counsel's errors were so serious they deprived Petitioner "of a fair trial, a trial whose result is reliable." Id. To satisfy the test's second prong, Petitioner must show a reasonable probability that the result of the proceeding would have been different but for the error. Williams, 529 U.S. at 406; Strickland, 466 U.S. at 694. The prejudice analysis is to be considered in light of the strength of prosecution's case. See Luna v. Cambra, 306 F.3d 954, 966 (9th Cir.), amended, 311 F.3d 928 (9th Cir. 2002).

1. Failure to Investigate and Present Testimony

Petitioner's first claim is that his attorney failed to adequately investigate his case. Petition at 6; Traverse at 9-19. Specifically, Petitioner argues that his attorney failed to interview all of the people at the Hazzard party to locate the real perpetrator, failed to locate Petitioner's girlfriend, who would have testified that she may have given Petitioner an Italian lira, and failed to explain to the jury that Petitioner ran from the police because he was on parole and there was an active warrant for his arrest. Traverse at 12-14. Petitioner also argues that his attorney was ineffective because he failed to have DNA testing performed on the evidence found at the crime scene. Id. at 15-17. In his supplemental pleading, Petitioner argues that the DNA results excluding him as a source of the DNA found on crime evidence prove that his attorney was ineffective for failing to request the testing. Supp. Traverse at 2, Exh. B. Petitioner argues that he was prejudiced because numerous innocent people are cleared of crimes by negative DNA results and because an anonymous juror wrote two letters to the judge voicing concern over the verdict. Traverse at 15-18.

In the context of a claim that an attorney failed to sufficiently investigate a case, the Supreme Court has held that "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Wiggins v. Smith, 539 U.S. 510, 520 (2003). Choosing to forgo certain investigations must be a "product of a reasoned choice." Id. "Although a lawyer's failure to investigate a witness who has been identified as crucial may indicate an inadequate investigation, the failure to investigate everyone whose name happens to be mentioned by the defendant does not suggest ineffective assistance." Huffington v. Nuth, 140 F.3d 572, 580 (4th Cir. 1998) (citations and quotations omitted); Riley v. Payne, 352 F.3d 1313, 1318 (9th Cir. 2003) ("counsel need not interview every possible witness to have performed proficiently"). "Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[.]" Strickland, 466 U.S. at 690.

At the Marsden hearing, the trial judge questioned Petitioner's trial counsel about the extent of his pre-trial investigations. Lodgment 5. Trial counsel stated that he had hired an investigator, that he and/or the investigator met with Petitioner on several occasions to obtain all of the possible leads and exculpatory information, and that the investigator attempted to find witnesses or evidence to support Petitioner's allegations. Id. at 9-13. Petitioner confirmed some of these facts. Id. at 8. However, counsel stated that none of the leads revealed information or witnesses helpful to Petitioner's defense. Id. at 9, 17-19. Petitioner argued in his state habeas petition and this Petition that his attorney should have found and/or called to testify Petitioner's girlfriend to explain the Italian lira, should have interviewed more people from the Hazzard party, should have explained that Petitioner ran because he was on parole, not because he was guilty, and should have more thoroughly cross-examined the witnesses, especially the victim. Traverse at 9-17; Lodgments 11 and 12. However, none of the suggested additional investigation involved critical witnesses or crucial investigation. For example, the girlfriend's testimony that she may have given an Italian lira coin to Petitioner is very weak in light of the overwhelming other evidence of guilt. Traverse at 12-14. Similarly, Petitioner's alternative explanation regarding why he ran is merely that; an alternative without support. Id. at 14. Finally, Petitioner offers no evidence that any of the party attendees would have supported his defense. Id. at 12. Moreover, in his declaration, trial counsel stated that Petitioner did not tell him to contact the ex-girlfriend, that Petitioner did not provide facts or witnesses establishing an alibi, that Petitioner decided not to testify, and that while he tried to locate additional witnesses, he was unsuccessful because they were uncooperative, unhelpful or damaging to the case. CT2 at 301-303.

While Petitioner has presented additional investigation that could have been conducted or additional testimony that could have been presented, Petitioner has not established that his attorney was constitutionally deficient in this regard. Riley v. Payne, 352 F.3d 1313, 1318 (9th Cir. 2003) ("counsel need not interview every possible witness to have performed proficiently"); LaGrand v. Stewart; 133 F.3d 1253, 1274 (9th Cir. 1998) (same). Here, the appellate court determined that "trial counsel's case preparation and presentation were reasonable." Lodgment 15 at 8. In addition, some of the challenged additional investigation and trial decisions were reasonable tactical choices. Wilson v. Henry, 185 F.3d 986, 991 (9th Cir. 1999) (tactical decision to allow jury to learn defendant was in custody was reasonable and did not constitute ineffective assistance of counsel); Hensley, 67 F.3d at 185 ("[t]actical decisions that are not objectively unreasonable do not constitute ineffective assistance of counsel). Given the presumption that trial counsel's performance fell within the wide-range of constitutionally acceptable representation, this Court cannot find that the appellate court's determination was an unreasonable application of the clearly established law relating to ineffective assistance of counsel. Strickland, 466 U.S. at 687.

2. DNA Evidence

As part of his initial state habeas petition, Petitioner argued that his attorney provided ineffective assistance of counsel because he failed to request that the crime evidence be tested for DNA matches. Pet. at 6; Traverse at 9-17. On June 27, 2005, Petitioner filed an application to supplement his traverse alleging that he had obtained new evidence that supported his habeas petition. Doc. Nos. 20 and 22. In his supplemental Traverse, Petitioner asserts that he received a DNA report from Forensic Biology Unit Laboratory Report, dated April 20, 2005, which excluded him as the source of sperm and nucleated epithelial cells found on a bed sheet taken from the victim's apartment. Supp. Trav. at 1-2. Petitioner argues that this evidence supports his contention that his attorney was ineffective for failing to obtain the exculpatory DNA evidence. Id. at 2.

In his supplemental response, Respondent contends that the newly discovered evidence renders Petitioner's ineffective assistance claim unexhausted, that Petitioner should not be permitted to expand the record because he has not satisfied the requirements of 28 U.S.C. § 2254(e)(2) and that, in any event, the new evidence does not establish either constitutionally deficient representation on the part of the attorney or the requisite resulting prejudice. Supp. Ans. at 3-5.

a. Exhaustion

An individual in state custody who wishes to challenge his conviction by a petition for writ of habeas corpus must first exhaust all state judicial remedies. See 28 U.S.C. § 2254(b)(1). "The exhaustion requirement is based on principles of comity." Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999); see also Picard v. Connor, 404 U.S. 270, 275 (1971) (explaining that "it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.") (quoting Darr v. Burford, 339 U.S. 200, 204 (1950)). "A petitioner can satisfy the exhaustion requirement by providing the highest state court with a fair opportunity to consider each issue before presenting it to the federal court." Weaver, 197 F.3d at 364. "The state courts have been given a sufficient opportunity to hear an issue when the petitioner has presented the state court with the issue's factual and legal basis." Id.; see also Chacon v. Wood, 36 F.3d 1459, 1467 (9th Cir. 1994) (instructing that "[t]o satisfy the exhaustion requirement, the petitioner must have fairly presented the substance of his federal claim to the state courts.").

In contrast, a claim may be considered unexhausted if it includes new factual allegations which were not presented to the state courts. See Hudson v. Rushen, 686 F.2d 826, 830 (9th Cir. 1982), cert. denied, 461 U.S. 916 (1983). Nevertheless, "new factual allegations do not render a claim unexhausted unless they `fundamentally alter the legal claim already considered by the state courts.'" Chacon, 36 F.3d at 1468 (quoting Vasquez v. Hillery, 474 U.S. 254 (1986)). As such, where the new evidence substantially alters a claim asserted by a given petitioner, the Ninth Circuit explains that comity concerns militate against the district court's consideration of such expanded claims. See Brown v. Easter, 68 F.3d 1209, 1211-12 (9th Cir. 1995); Aiken v. Spalding, 841 F.2d 881, 883-84 (9th Cir. 1988).

Here, Petitioner exhausted his ineffective assistance of counsel claim premised on the argument that his attorney should have requested DNA testing be conducted on the evidence obtained from the crime scene. Lodgment 17. However, Petitioner has not presented his new argument-that counsel was ineffective for not requesting the DNA testing because the results eliminated Petitioner as a source of the DNA-to any court other than this one. Because this new claim includes factual allegations which were not presented to the state courts and fundamentally alters the claim asserted by Petitioner, this claim is not exhausted.

This Court, however, is not prohibited from considering an unexhausted claim. Congress has specifically empowered this Court to reach the merits of a federal claim notwithstanding the failure to present the claim to the state supreme court, provided the entire Petition is denied. 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."). Although this Court may reach the merits of the claim, it must conduct a de novo review if it does so. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002), cert. denied, 539 U.S. 916 (2003). The court is nevertheless required to presume the state court's factual findings are correct, and Petitioner may overcome that presumption only by clear and convincing evidence. Id., at 1168; 28 U.S.C. § 2254(e)(1). This Court, therefore, will conduct a de novo review of Petitioner's claim of ineffective assistance of counsel due to the DNA results excluding Petitioner as a source of the DNA.

b. Habeas Rule 7

Rule 7 of the Rules Governing § 2254 cases allows the district court to expand the record without holding an evidentiary hearing. Specifically, Rule 7 provides that "[i]f the petition is not dismissed, the judge may direct the parties to expand the record by submitting additional materials relating to the petition. The judge may require that these materials be authenticated." Rule 7, Rules Governing § 2254 Cases. Expansion of the record enables the court to dispose of some habeas petitions not dismissed on the pleadings. Advisory Comm. Note, Rule 7, Rules Governing § 2254 Cases. Moreover, expansion of the record may eliminate the need to hold evidentiary hearings in cases where it is unclear whether a given petitioner is entitled to relief based on the facts in the pleadings, files, and record. See Hillery v. Pulley, 533 F. Supp. 1189, 1196-98 (E.D. Cal. 1982), subsequent proceeding, 563 F. Supp. 1228 (E.D. Cal. 1983), aff'd, remanded, 733 F.2d 644 (9th Cir. 1984), aff'd sub nom., Vasquez v. Hillery, 474 U.S. 254 (1986).

The Supreme Court recently clarified that the conditions of section 2254(e)(2) generally apply to petitioners seeking relief based on new evidence, even when such petitioners do not seek an evidentiary hearing. See generally Holland v. Jackson, 542 U.S. 649 (2004). An exception to this general rule exists if a petitioner exercised diligence in his efforts to develop the factual basis of his claims in state court proceedings. See Williams v. Taylor, 529 U.S. 420, 437 (2000). In evaluating whether or not a petitioner acted with the requisite diligence, the court must look at whether that petitioner "made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court[.]" See Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005) (quoting Williams, 529 U.S. at 435). The failure to investigate or to develop a claim given knowledge of the information upon which the claim is based does not constitute diligence. See id. (citing Williams, 529 U.S. at 439-40). Where a petitioner has failed to make such a showing, that petitioner must meet the burden section 2254(e)(2) imposes in order for the district court to expand the record to include new evidence under Rule 7. See Cooper-Smith, 397 F.3d at 1241-42.

In the instant case, Petitioner did not exercise the required diligence. The record clearly establishes that Petitioner knew there was evidence from the crime scene that could be tested for DNA matches or exclusions. Lodgment 5; CT2 at 394 (on July 28, 2000, the trial court granted Petitioner's request to have evidence released to Forensic Science Associates for testing). In fact, the lack of DNA testing is one of the grounds upon which Petitioner premised his request for new counsel and to represent himself. Lodgment 5 at 13, 26. Despite his knowledge that DNA testing could be conducted and that it had not in fact been done yet, Petitioner did not take any actions to develop the claim he now presents to this court: that the DNA testing excludes him as a source of the DNA found on some of the evidence. Petitioner does not provide any facts explaining why he did not obtain this evidence until 2005 and why it was not presented to any state court. Accordingly, the Court finds that Petitioner has not exercised reasonable diligence in developing the factual basis of this new claim in state court. Cooper-Smith, 397 F.3d at 1241. Petitioner, therefore, must comply with the section 2254(e)(2) requirements in order to expand the record.

Section 2254(e)(2) prohibits the court from conducting an evidentiary hearing or expanding the record to consider new evidence unless Petitioner establishes that:

(A) the claim relies on —

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the [petitioner] guilty of the underlying offense.

28 U.S.C. § 2254(e)(2). Petitioner has not satisfied his burden. First, it is undisputed that there is no applicable new rule of constitutional law. 28 U.S.C. § 2254(e)(2)(A)(i). Second, as discussed above, Petitioner has not established a factual predicate that the new DNA results could not have been discovered eariler through the exercise of due diligence. Petitioner knew before his trial that evidence from the crime scene could be tested for DNA matches and that the DNA testing had not been conducted. Despite this knowledge, Petitioner did not obtain the newly submitted DNA test results until 2005. 28 U.S.C. § 2254(e)(2)(A)(ii). Accordingly, Petitioner has not established that he was unaware of the factual predicate. Finally, as discussed in the next section, Petitioner has not established that the DNA results establish by clear and convincing evidence that no reasonable fact-finder would have found Petitioner guilty of the underlying crimes. 28 U.S.C. § 2254(e)(2)(B). Accordingly, the Court finds that Petitioner has not satisfied the requirements of section 2254(e)(2) and that he, therefore, may not expand the record to include the new DNA test results.

c. Merits

Even though the Court has found that Petitioner has not satisfied the requirements of section 2254(e)(2) and may not therefore expand the record to include the DNA results, the Court, in an abundance of caution, will evaluate Petitioner's ineffective assistance of counsel claim both without and with the new DNA evidence. In the first situation (without the DNA evidence), the Court will review the appellate court's decision that counsel's decision not to request additional DNA testing did not constitute ineffective assistance of counsel. In the second situation (considering the new DNA evidence), the Court will review the evidence de novo since this claim was not presented to the state courts. Pirtle, 313 F.3d at 1167.

With regard to counsel's decision not to request additional DNA testing, the appellate court stated

While appellate counsel presents additional steps that could have been taken, such as testing DNA and hiring a DNA expert, such additions might well have produced results appellant was not willing to confront. Trial counsel concluded the case required no motions or experts beyond that produced by Lambert. Indeed, he noted the People had not completely tested DNA and he did not wish to elaborate on DNA matches. He noted the facts of the case were simple. Based on the record, we conclude trial counsel's case preparation and presentation were reasonable.

Lodgment 15 at 8. The decision of whether to request DNA testing is a tactical decision. See, e.g., Hensley, 67 F.3d at 185 (decision whether to submit case on stipulated facts is a tactical decision); Karis v. Calderon; 283 F.3d 1117, 1131 (9th Cir. 2002) (not ineffective assistance for counsel to choose not to move to exclude genetic marker testing evidence on basis that the scientific method was unreliable where counsel challenged the evidence in other ways); Cooper-Smith, 397 F.3d at 1244 (strategic choice not to pursue motion to suppress is not ineffective assistance of counsel). Here, counsel made a reasoned, tactical decision not to request DNA testing. Lodgment 5 at 13, 17-19, 28-29. Counsel explained to the trial judge that he did not know what the result of the testing would be, that the government did not have DNA evidence supporting its allegations, which he would have to refute, that he would rather argue to the jury that the government had no physical evidence and that they had done a poor job investigating the case, and that he did not want to turn the government's focus back to the missing DNA evidence. Id. As such, the record establishes that counsel carefully considered his options and made a reasonable strategic decision not to request additional DNA testing. This does not constitute deficient conduct or ineffective assistance of counsel. Wiggins, 539 U.S. at 520 ("counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary"); Strickland, 466 U.S. at 690 ("strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable"). Accordingly, the Court finds that the appellate court did not err in determining that counsel did not provide ineffective assistance in this regard.

The new DNA results do not affect the constitutionality of counsel's conduct. First, as discussed above, counsel had to make the decision about whether or not to request additional DNA testing without knowing the results of the potential tests. The fact that the DNA testing ultimately excluded Petitioner as the source of the DNA found in several spots on the bed sheet does not negate the validity of counsel's decision at the time he had to make the decision. LaGrand, 133 F.3d at 1271 (in evaluating sufficiency of counsel's representation, the court "will neither second-guess counsel's decisions, nor apply the fabled twenty-twenty hindsight"); Strickland, 466 U.S. at 689 ("[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time"). Second, the DNA evidence was not critical in this case. The government did not have DNA results showing that Petitioner's DNA was on any of the crime evidence and, as such, Petitioner did not have to refute such evidence. Moreover, Petitioner's counsel established through testimony that the government had not found any DNA or blood evidence tying Petitioner to the crime. Testimony of Nurse Daria Zandi, Lodgement 6 at 247-251. And, Petitioner's counsel repeatedly argued this lack of DNA and blood evidence to the jury. Opening Statements, Lodgment 10 at 18-19; Closing Arguments, Lodgment 8 at 699-701. The new DNA evidence, excluding Petitioner as the source of some of the DNA samples does not significantly affect this argument. Counsel still would have argued that there was no DNA evidence tying Petitioner to the crime; it only would have slightly increased the strength of the argument. Notably, as discussed below, it does not affect the rest of the overwhelming evidence implicating Petitioner in the crime.

Accordingly, Petitioner has not established that counsel's decision not to request DNA testing, even in light of the fact that subsequent testing excluded Petitioner as a source of the DNA, fell "outside of the wide range of professionally competent assistance." Strickland, 466 U.S. at 688.

3. Counsel's Objection to Petitioner's Marsden and Faretta Motions

Petitioner also claims that he received ineffective assistance of counsel when his attorney opposed his request for new counsel and to represent himself. Petition at 6. Petitioner argues that counsel made Petitioner's request for new counsel and/or to represent himself untimely because he lied to Petitioner and the court about the status of his investigation and trial preparation. Id.; Traverse at 26. Petitioner asserts "there can be no excuse whatsoever for counsel's opposition to petitioner's Marsden-Faretta motion on the basis of an inaccurate, incomplete knowledge of the fundamental facts of the case as of the day of trial, or counsel's representation that he was ready for trial when he was not. Petition at 6.

First, Petitioner has not provided any facts supporting his allegations that counsel lied to him, that counsel did not know the fundamental trial facts, or that counsel was not prepared for trial. Moreover, the Court's review of the trial and hearing transcripts does not reveal any facts supporting Petitioner's allegations. Rather, the trial and hearing transcripts establish that counsel knew the relevant facts and adequately handled the trial, presenting supporting witnesses, cross-examining contradictory witnesses and arguing Petitioner's defense. As found by the appellate court, Petitioner has not established that his attorney provided ineffective assistance of counsel in this regard. Lodgment 15 at 7-11 ("[a]ppellant urges that if we conclude the record does not support ineffective counsel it is because counsel inaccurately stated he was ready for trial when he was not. As we have pointed out in the preceding [ineffective assistance of counsel] argument, the record of the trial does not support such an assertion.").

Second, to the extent that Petitioner is attempting to argue that counsel is required to advocate whatever position Petitioner demands, there is no legal support for such an argument. Counsel is required to provide competent assistance; he is not required to support Petitioner's request for a new attorney.

Petitioner has not established that his counsel was ineffective in this regard and the state court did not err is so determining.

4. Prejudice

Even if Petitioner could establish that his attorney's conduct was constitutionally deficient, he has not established "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. As discussed in both of the reasoned decisions, there was overwhelming evidence proving Petitioner's guilty. Lodgment 15 at 8-9; Lodgment 19 at 3-4. A thorough review of the trial transcript confirms this conclusion. First and most importantly, both victims positively identified Petitioner as the assailant and testified that he did not wear a mask or otherwise attempt to obstruct his face. Lodgment 4 at 107-11, 180-84. The female victim also identified Petitioner as the person who had driven by her in a black Lexus just minutes prior to the attack. Id. at 187-94, 175-78.⁹ Second, substantial evidence placed Petitioner in the immediate area of the attack. CT2 at 252-66. Third, officers identified Petitioner as the person who fled when the vehicle in which he was a passenger was stopped and also identified the clothes and fanny pack that he was wearing. Id. at 287-89, 303-04. As the assailant fled, the pursuing officer testified that the assailant ducked into an apartment complex. Id. at 296-98. A resident of that apartment complex identified Petitioner as the person who appeared at his apartment that evening and frantically offered him fifty dollars for his cellular telephone and to not turn him into the police. Id. at 311-14. Fourth, unique personal property and money, including Italian lira and one of the victims' engraved watch, was found on Petitioner's person or in items he had discarded while running from police. Id. at 321-30. The overwhelming evidence of guilt is a factor that the court must consider in evaluating the prejudice Petitioner claims to have suffered as a result of the alleged ineffective assistance of counsel. Luna, 306 F.3d at 966.

9 Trial evidence established that Petitioner had access to a black Lexus, and that his prints were found on the driver's side trunk lid of the vehicle. CT2 at 261-62, 354 and Lodgment 5 at 10.

Petitioner argues that the negative DNA results establish the requisite prejudice because numerous people have been exonerated by negative DNA results. Traverse at 15-17; Supp. Traverse at 1-2. However, this is not a case where the government used incorrect DNA results to convict the defendant or where the new DNA results exonerate the defendant. In this case, the government proved Petitioner's guilt by eyewitness, including victim, identification and by compelling and overwhelming circumstantial evidence. In addition, the exclusion of Petitioner as a source of the DNA on the bed sheet does not establish Petitioner's innocence as there are alternative explanations. For example, Petitioner assaulted the female victim on the roommate's bed and the new DNA results exclude both Petitioner and the female victim as the source of the DNA stain on the sheet. Lodgment 4 at 188; Supp. Traverse, Exh. B. It is possible, and in fact likely, that the DNA stain came from prior sexual activity between the male roommate (who was not home at the time of the assault) and one or more of his sexual partners. In addition, the female victim testified that Petitioner did not ejaculate during the rape and that the various sex acts involving Petitioner's penis did not last very long. Lodgment 4 at 193-95. Given the overwhelming evidence against Petitioner, including the two eyewitness/victim identifications, the minimal use of DNA evidence against Petitioner, and the reasonable alternative explanations for the negative DNA result, the court finds that Petitioner has not established a reasonable probability that the result of the trial would have been different if counsel had requested the DNA testing and it had excluded Petitioner as the source of the DNA on the bed sheet. The overwhelming evidence of guilt also dictates that the other alleged deficiencies in counsel's investigation and trial presentation do not establish the requisite level of prejudice.

Petitioner also argues that he has established prejudice because "a juror wrote two anonymous letters to the trial judge indicating his or her concern for the verdict rendered in this matter." Traverse at 18. The trial judge rejected Petitioner's argument stating concern about the "anonymous nature of the letter." CT2 at 325. The court continued to find that even if the letter were from a juror, the letter does not indicate misconduct but merely a juror who concedes he/she voted for the guilty verdict but has "had a change of heart or mind, after learning that defendant faced the possibility of life in prison." Id. (emphasis in original). This Court agrees with the trial court and finds that the alleged juror letters do not establish the requisite level of prejudice.

As discussed above, the Court finds that the state courts did not err in determining both that Petitioner has not established that counsel provided constitutionally deficient representation and that he has not established the requisite level of prejudice. The Court also finds that even if the new DNA were properly before this Court, it does not establish that counsel's strategic decision not to request DNA testing constituted ineffective assistance and that the negative test results do not establish a reasonable probability that the trial result would have been different. See Strickland, 466 U.S. at 686-87, 689.

5. Failure to Call Attending Physician Edward Thaler to the Stand

Petitioner also asserts that his trial counsel was ineffective because he failed to call the victim's attending physician, Edward Thaler, M.D., to contradict the testimony of the SART nurse and the victim. Petition at 9; Traverse at 27-28. Petitioner argues that Dr. Thaler's examination of the victim revealed "no lacerations or abrasions" and that, therefore, his testimony would have contradicted the SART nurse's trial testimony that she observed lacerations and abrasions. Id.

Petitioner asserted this claim in a second set of habeas petitions. Lodgment 18, 20 and 22. The California Supreme Court affirmed the appellate court's decision without analysis. Lodgment 23. The appellate court explicitly adopted the superior court's reasoning. Lodgment 21. Accordingly, this Court must "look through" to the reasoning of the superior court. In rejecting this argument, the California Superior Court found that "Petitioner has not demonstrated that his trial counsel's decision to not place the emergency room physician on the stand prejudiced the outcome of his case." Lodgment 19 at 3. In support of its decision, the court quoted the appellate court's finding that "[t]his was not a close case. The evidence of appellant's guilt . . . was overwhelming." Id. at 4. The court also quoted the summary of the overwhelming evidence against Petitioner:

[Victims] . . . had ample opportunities to see their attackers and they both positively identified appellant as the home invader and assailant. . . . Appellant had access to a black Lexus and that Lexus was described by [the female victim] as the one she way appellant in. His fingerprints were on the driver's side of the trunk lid. Unique personal property such as Italian lire matching that taken from the robbery was found on the appellant at the time of his arrest. . . . Given the overwhelming nature of the evidence and its solid evidentiary value, we are hard-pressed to believe anything suggested by appellant now could have changed the outcome of this case. (See Appellate Opinion, D036645, p. 9).

Id.

This Court's review of the evidence confirms the state court's finding that there was overwhelming evidence against Petitioner and that there is no evidence supporting Petitioner's claim that the alleged contradictory testimony of Dr. Thaler¹⁰ would have affected the outcome of the trial. Accordingly, Petitioner has not shown that his counsel acted in an ineffective manner with respect to his failure to call Dr. Thaler. The Court therefore finds that the state court's adjudication of Petitioner's claim of ineffective assistance of counsel are objectively reasonable within the meaning of 28 U.S.C. § 2254(d).

10 Although Petitioner asserts that Dr. Thaler's testimony would have contradicted that of the SART nurse, a review of their medical reports reveals little discrepancy between the two other than what could be expected since the SART nurse evaluated the victim at approximately 3:20 a.m. and Dr. Thaler examined her at approximately 6:00 a.m. Petition at Exhs. A and B.

V CONCLUSION AND RECOMMENDATION

For all the foregoing reasons, IT IS HEREBY RECOMMENDED that the District Court issue an Order: (1) approving and adopting this Report and Recommendation, and (2) directing that judgment be entered denying the Petition.

IT IS HEREBY ORDERED that any written objections to this Report must be filed with the Court and served on all parties no later than December 13, 2005. The document should be captioned "Objections to Report and Recommendation."

IT IS FURTHER ORDERED that any reply to the objections be filed with the Court and served on all parties no later than January 10, 2006. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Ylst, 951 F.2d at 1156.