Cottrell v. Trimble

Full title: DALE LLOYD COTTRELL, Petitioner, v. ROBERT H. TRIMBLE, et al., Respondents.

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Jul 25, 2012

1:04-cv-05943-SMS-HC (E.D. Cal. Jul. 25, 2012)

Opinion

1:04-cv-05943-SMS-HC

07-25-2012

DALE LLOYD COTTRELL, Petitioner, v. ROBERT H. TRIMBLE, et al., Respondents.

Sandra M. Snyder

ORDER DIRECTING THAT P. D.

BRAZELTON, ACTING WARDEN OF

PLEASANT VALLEY STATE PRISON, BE

SUBSTITUTED AS RESPONDENT

PURSUANT TO FED. R. CIV. P. 25(d)

ORDER DISMISSING PETITIONER'S

STATE LAW CLAIM CONCERNING

APPOINTMENT OF COUNSEL

ORDER DENYING THE FIRST AMENDED

PETITION FOR WRIT OF HABEAS

CORPUS (Doc. 58)

AND DIRECTING ENTRY OF JUDGMENT FOR RESPONDENT

ORDER DENYING PETITIONER'S

REQUESTS FOR EVIDENTIARY HEARING

AND DNA TESTING

ORDER DECLINING TO ISSUE A

CERTIFICATE OF APPEALABILITY

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to the parties' consent and the subsequent order of the Court filed on February 25, 2005, the matter has been referred to the Magistrate Judge for all proceedings, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73(b), and Local Rule 301. Pending before the Court is the first amended petition (FAP) for writ of habeas corpus, filed on September 26, 2007 (doc. 58).

I. Jurisdiction and Substitution of Respondent

Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. -, -, 131 S.Ct. 13, 16 (2010) (per curiam).

Plaintiff claims that in the course of the proceedings resulting in his conviction, he suffered violations of his Fifth, Sixth, and Fourteenth Amendment rights. Thus, violations of the Constitution are alleged.

Further, the conviction challenged arises out of the Madera County Superior Court (MCSC), which is located within the jurisdiction of this Court. 28 U.S.C. §§ 2254(a), 2241(a), (d).

On February 4, 2005, Respondent's counsel filed a notice of appearance for Respondent James A. Yates, Warden of PVSP. Petitioner had thus named as a respondent a person who had custody of the Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules). See, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).

Reference to the Adult Facilities Locator on the official website of the California Department of Corrections and Rehabilitation (CDCR) reflects that currently, P. D. Brazelton is the Acting Warden of PVSP. Fed. R. Civ. P. 25(d) provides that a court may at any time order substitution of a public officer who is a party in an official capacity whose predecessor dies, resigns, or otherwise ceases to hold office. The Court therefore concludes that P. D. Brazelton, Acting Warden of the Pleasant Valley State Prison, is an appropriate respondent in this action, and that pursuant to Fed. R. Civ. P. 25(d), he should be substituted in place of James A. Yates.

In summary, the Court concludes that it has jurisdiction over this action and over Respondent Brazelton.

II. Procedural Summary

Petitioner is incarcerated at Pleasant Valley State Prison (PVSP), located in Coalinga, California, pursuant to a judgment of the Superior Court of California, County of Madera, of conviction following a jury trial of second degree murder (Cal. Pen. Code § 187(a)) with personal use of a firearm (Cal. Pen. Code §§ 1203.06(a)(1), 12022.5(a)). (Clerk's Transcript (CT), LD¹ 17, 30.)

1 LD" refers to documents lodged by Respondent.

An initial preliminary hearing was held on February 18, 1998, at which Petitioner was represented by David Smothers. (Unpaginated Supplement to habeas corpus petition [HC2, Cal. Supreme Ct. no. S115848] received Jan. 27, 2004, mot. to set aside information pursuant to Cal. Pen. Code § 995 at 2.) A motion to set aside the information made by Mr. Smothers was granted. (Id., decl. of David Smothers, Esq., dated April 30, 1999.) A second preliminary hearing was held on September 11, 1998, and Petitioner was held to answer. (LD 19.)

The trial commenced on January 19, 1999, and concluded on January 22, 1999. (RT (LD 20-21) 6, CT 30.) On June 18, 1999, the trial court denied a motion for a new trial in which Petitioner challenged the adequacy of his trial counsel's investigation and performance at trial. The ineffective assistance claim was based on counsel's alleged failure to 1) investigate and present forensic evidence, and 2) contact, investigate, and present as a witness Michael Avila, who could have testified to potentially impeaching statements made by a jailhouse informant, Rudy Sanchez, who had testified to Petitioner's extra-judicial admissions at Petitioner's trial.

On June 18, 1999, the court sentenced Petitioner to fifteen (15) years to life for second degree murder plus four (4) years for the personal use of a gun. (CT 206-208.) The four-year enhancement was stricken on June 25, 1999. (CT 210.)

Petitioner appealed to the California Court of Appeal, Fifth Appellate District (DCA) (no. F033539) on the grounds argued in the motion for a new trial, namely, that he had been denied his right under the Sixth and Fourteenth Amendments to the effective assistance of counsel. (Appellant's Opening Brief (AOB), LD 1, 12-18.) During the pendency of the direct appeal in February 2001, Petitioner filed in the DCA a petition for writ of habeas corpus (no. F037604, HC1-DCA pet., LD 4 as supplemented on October 7, 2010) in which he raised the issues presented in the appeal concerning the ineffective assistance of trial counsel. Further, in the collateral proceeding, Petitioner presented statements from third parties that the informant, Rudy Sanchez, had recanted his testimony and had stated that he had been cooperating with the authorities in exchange for not being prosecuted for having used drugs during his incarceration in jail. (LD 5.) The DCA affirmed the conviction and denied the habeas petition in an opinion (DCA OP) on October 19, 2001. (Pet., Exs. Vol. II (doc. 3) Exh. ["Page"] I.)

Review by the California Supreme Court was summarily denied on January 3, 2002. (No. S102217, Pet., Ex. II (doc. 3).)

Petitioner commenced a second round of habeas review by filing on January 16, 2003, in the Madera County Superior Court (MCSC) a second habeas corpus petition (case no. CV 19645, HC2-MCSC, LD 8) in which he raised the issues he had raised in the first habeas petition filed in the DCA as well as ineffective assistance of trial and appellate counsel for failure to investigate and argue a violation of Petitioner's Fifth, Sixth, and Fourteenth Amendment rights with respect to pretrial statements of Petitioner (admitted without objection at trial) alleged to have been involuntary and obtained without the appropriate Miranda protocol. (LD 8.) In support of the Madera petition, Petitioner submitted jail and hospital records. (Id.) The MCSC found insufficient justification for renewal of the issue of ineffective assistance of trial counsel on habeas corpus, citing to In re Harris, 5 Cal. 4th 813, 825, 829 (1993). The MCSC further stated that with respect to appellate counsel, Petitioner had failed to show entitlement to relief by a preponderance of the evidence. (Pet., Exs. Vol. II (doc. 3), Ex. III; Att. to FAP (doc. 59), 121-22.)

Petitioner continued his second round of state habeas by filing a habeas petition in the DCA (no. F042700) on March 23, 2003, raising the ineffective assistance of appellate counsel for not having raised claims of trial counsel's ineffectiveness, including the claims relating to Petitioner's pretrial statements, as well as a due process violation by the prosecution by failing to provide evidence regarding the informant pursuant to Brady v. Maryland, 373 U.S. 83 (1963). (HC2-DCA, LD 10.) The petition was denied on April 3, 2003, without a statement of reasoning or authority. (Doc. 59, 124.)

Petitioner completed his second round of state habeas by filing a petition for writ of habeas corpus in the California Supreme Court on May 14, 2003, in which he raised the ineffective assistance of appellate counsel, the Brady issue, and admission of statements that were involuntary in violation of due process and obtained without Miranda protections. (Case no. S115848, HC2-CASC, LD 11.)

The record filed in this Court, including the California Supreme Court's docket as well as Respondent's supplementation and correction of the record filed in 2010, reflects that Petitioner filed numerous documents in the action, including an application to supplement the petition "Received" on August 7, 2003 (LD 12, 1; LD 14); a supplement to the petition to verify a previous supplement "Received" on January 12, 2004 (lodged as LD 31 by Respondent on October 7, 2010; LD 14); a memorandum to "CLARIFY MINOR CLERICAL 'NUMERICAL' MISLAYS IN SUPPLEMENT HABEAS CORPUS," "Received" on January 27, 2004 (lodged as LD 33 by Respondent on October 7, 2010; LD 14); supplemental exhibits to the petition "Received" on January 27, 2004 (lodged by Respondent as LD 32 on October 7, 2010; LD 14); a supplement to amend the petition and memorandum in support "Received" on February 2, 2004 (LD 13, LD 14); and Petitioner's application to supplement and to amend the petition "Received" on February 2, 2004 (lodged by Respondent as LD 34 on October 7, 2010; LD 14).

In his supplemental filings, Petitioner raised the following issues: 1) allegedly ineffective assistance of trial counsel by failing to investigate and present exculpatory forensic evidence in the form of an opinion of Stephen O'Clair, Senior Criminalist of the California department of Justice (DOJ), that the presence of the casing left in the chamber of the gun indicated a self-inflicted gunshot wound (LD 12, 13); 2) allegedly ineffective assistance of trial counsel in failing to present results of gunshot residue tests run on the victim as interpreted by Steven Dowell, a research criminalist, who found that the victim might have discharged a firearm or had her hands otherwise in an environment of gunshot residue, which Petitioner argued tended to show a self-inflicted wound (LD 12, 13); 3) allegedly ineffective assistance of trial counsel based on the failure to hire an expert to examine all the evidence, as Joseph Orantes, an expert hired for the motion for a new trial, had done and had concluded that the victim died of a self-inflicted contact wound (LD 12, 13); 4) allegedly ineffective assistance of trial counsel based on the failure to investigate and call Michael Avila as a witness to impeach Sanchez, the jailhouse informant (LD 12, 13); 5) a violation of Petitioner's Fifth and Fourteenth Amendment rights by the prosecution's failure to disclosed material favorable evidence, including a report concerning Sanchez's possession of cocaine in jail that provided a basis for a finding of bias, motive, and interest of Sanchez in testifying against Petitioner (LD 12, 13); 6) violation of Petitioner's rights to a fair trial and due process based on use of involuntary statements and statements made without Miranda warnings (LD 12, 13); 7) cumulative error based on violations of Petitioner's rights to due process, equal protection, fair trial, and effective assistance of trial counsel in violation of the Fifth, Sixth, and Fourteenth Amendments (LD 12, 13, 33); 8) allegedly ineffective assistance of trial counsel in failing to move to exclude Petitioner's pretrial statements (LD 12, 33); 9) allegedly ineffective assistance of appellate counsel in failing to raise issues concerning trial counsel's ineffective assistance, Brady error, and admission of Petitioner's post-trial statements (LD 12, 33); 10) cumulative error (LD 12, 33); and 11) insufficiency of the evidence to support the conviction (LD 13, 40).

Petitioner submitted in the supplemental filings the declaration of Stephen J. O'Clair and his summary report; Steven Dowell's report; the declaration and analysis of forensic analyst Joseph M. Orantes; the declaration of David Smothers; the declarations of Cheri Bodle and Steven Rosenlind; documents allegedly written by, or written upon by, the informant, Rudy Sanchez; reports from the Madera County Jail; and medical records from the hospital. (LD 12, 32.) Other exhibits were found in the original habeas petition filed in the action before the California Supreme Court. (LD 12.)

The Supreme Court denied the petition on June 16, 2004, without a statement of reasoning or authority. (Doc. 59 [S115848], 126; LD 14 (our docket doc. 17), 2.)

Petitioner filed the original petition in this Court on July 7, 2004, and Respondent filed a motion to dismiss on February 4, 2005, arguing that Petitioner had failed to exhaust his claims that his Fifth, Sixth, and Fourteenth Amendment rights had been violated by use of his involuntary statements. On March 29, 2005, the Court ruled that the record before the Court did not show that the California Supreme Court had failed to consider supplemental materials submitted to it in which the issue was raised; thus, the claims had been exhausted.

Respondent filed an answer on June 14, 2005. The matter was stayed from December 2, 2005, through October 16, 2007, to permit Petitioner to undertake further state court proceedings.

Petitioner commenced a third round of state habeas proceedings by filing a petition for writ of habeas corpus in the MCSC on November 3, 2005. (HC3-MCSC, doc. 36, 6 through doc. 36-1, 59.) On November 8, 2005, the MCSC ordered the Attorney General of the State of California to file a return to the petition, in which the court stated that Petitioner claimed 1) the prosecution withheld exculpatory evidence; 2) his attorney was ineffective for failing to request discovery and for failing to investigate the jailhouse informant; and 3) the cumulative effect of several errors deprived Petitioner of due process and resulted in a miscarriage of justice. (LD 23.) Respondent filed an answer (LD 24), and Petitioner filed a traverse and two amended traverses (LD 25-27).

By order dated October 27, 2006, and docketed on November 20, 2006, the MCSC denied the petition and made specific findings. (LD 28.) It found that Petitioner had not alleged sufficient facts to justify piecemeal presentation of successive and/or delayed claims, and thus the petition was denied. (LD 28, 2.) As to Brady error predicated on the prosecution's failure to disclose that 1) the informant worked for the prosecution, was wearing a wire, and was recording his conversations, and 2) a state crime lab report indicating there were no spermatozoa on a prepared slide from the murder victim's vaginal swab, the court found that Petitioner had not presented a verified, specific evidentiary basis for relief regarding the informant, and the evidence was insufficient to establish that the prosecution failed to disclose the lab report; even if not disclosed, the report would not have had any effect on the credibility of Petitioner's statements or other physical evidence that showed that Petitioner had sex with the victim shortly before she was killed; additional equivocal evidence that Petitioner might not have had sex with the victim was not material. (LD 28, 2.) Trial counsel's failure to discover recordings of Sanchez's conversations had not been shown to be prejudicial, and Petitioner's claim concerning counsel's failure to obtain information that the informant was in possession of drugs in jail in 1997 was untimely and had previously been rejected. (Id.) The claim of cumulative error was rejected because the court had found no legal error and concluded that Petitioner's factual allegations lacked credibility. (Id. at 3.)

On November 16, 2006, Petitioner continued with his third round of state habeas by filing a petition for writ of habeas corpus in the DCA (HC3-DCA) in which he raised the claims he had raised in the MCSC. (LD 29.) The DCA denied the petition and stated, "Petitioner is filing piecemeal petitions and the issue of Brady v. Marilyn (sic) (1963) 373 U.S. 83, is without merit. (In re Clark (1993) 5 Cal.4th 750, 767-68.)" (LD 29.)

Petitioner filed a petition for review in the California Supreme Court on April 23, 2007. (LD 30.) On June 13, 2007, the Supreme Court denied the petition without a statement of reasoning or citation of authority. (LD 30.)

In September 2007, Petitioner filed in this proceeding the first amended petition (FAP) (doc. 58) with attachments (doc. 59) that is presently pending before the Court. In October 2007, the stay of this action was vacated, and a response to the petition was ordered to be filed. Respondent filed an answer to the FAP on June 5, 2008, in which it was admitted that most of Petitioner's grounds or claims were exhausted, none of the grounds was entirely procedurally barred or barred by non-retroactivity, and the petition was not barred by the statute of limitations. (Doc. 75, 4.) Petitioner filed a traverse on August 18, 2009. (Doc. 98.)

In response to directions from the Court, Respondent filed on October 7, 2010, corrections to the answer and a supplemental notice of lodging with respect to the petition filed in the California Supreme Court during the second round of state habeas proceedings.

III. Standard of Decision and Scope of Review

Title 28 U.S.C. § 2254 provides in pertinent part:

(d) 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 proceeding.

Clearly established federal law refers to the holdings, as distinguished from the dicta, of the decisions of the Supreme Court as of the time of the relevant state court decision. Cullen v. Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362, 412 (2000). It is thus the governing legal principle or principles set forth by the Supreme Court at the pertinent time. Lockyer v. Andrade, 538 U.S. 71-72.

A state court's decision contravenes clearly established Supreme Court precedent if it reaches a legal conclusion opposite to, or substantially different from, the Supreme Court's or concludes differently on a materially indistinguishable set of facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The state court need not have cited Supreme Court precedent or have been aware of it, "so long as neither the reasoning nor the result of the state-court decision contradicts [it]." Early v. Packer, 537 U.S. 3, 8 (2002). A state court unreasonably applies clearly established federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable. Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002); see, Williams, 529 U.S. at 407. An application of clearly established federal law is unreasonable only if it is objectively unreasonable; an incorrect or inaccurate application is not necessarily unreasonable. Williams, 529 U.S. at 410.

A state court's determination that a claim lacks merit precludes federal habeas relief as long as it is possible that fairminded jurists could disagree on the correctness of the state court's decision. Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 786 (2011). Even a strong case for relief does not render a state court's conclusions unreasonable. Id. In order to obtain federal habeas relief, a state prisoner must show that the state court's ruling on a claim was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87. The standards set by § 2254(d) are "highly deferential standard[s] for evaluating state-court rulings" which require that state court decisions be given the benefit of the doubt, and the Petitioner bear the burden of proof. Cullen v. Pinholster, 131 S. Ct. at 1398.

In assessing under section 2254(d)(1) whether the state court's legal conclusion was contrary to or an unreasonable application of federal law, "review... is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S. Ct. at 1398. Evidence introduced in federal court has no bearing on review pursuant to § 2254(d)(1). Id. at 1400. Further, 28 U.S.C. § 2254(e)(1) provides that in a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct; the petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness.

IV. Admission at Trial of Petitioner's Pretrial Statements in Violation of Petitioner's Fifth, Sixth, and Fourteenth Amendment Rights

A. Introduction

Petitioner was convicted of having murdered Cathy Bonham, who died on the night of November 24, 1997, in Petitioner's presence and in his car of a gunshot wound inflicted at close range with a gun registered to Petitioner. (RT (LD 20-21) 8-9, 20-22.) There were no other eye-witnesses. Petitioner did not testify at trial, but law enforcement officers testified concerning extra-judicial statements made by Petitioner to them after Bonham's death.

Petitioner argues that introduction of these statements at trial violated his rights under the Fifth, Sixth, and Fourteenth Amendments of the Constitution. He argues that some of the statements were involuntary or coerced because of his mental and medical condition, ingestion of medications and intoxicants, and law enforcement officers' alleged use of coercive tactics. He contends that some of the statements were taken in violation of the requirements of Miranda v. Arizona, 384 U.S. 436 (1966).

B. Decision on the Merits to Be Reviewed

In deciding the appropriate deference to be given to a state court decision, it must be determined whether the claim was adjudicated on the merits within the meaning of 28 U.S.C. § 2254(d), which limits habeas relief with respect to "any claim that was adjudicated on the merits in State court

proceedings...." A state has adjudicated a claim on the merits within the meaning of § 2254(d) when it decides the petitioner's right to relief on the basis of the substance of the constitutional claim raised, rather than denying the claim because of a procedural or other rule precluding state court review of the merits. Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004).

A state court's denial of habeas relief without a statement of reasons is presumed to have been adjudicated on the merits in the absence of any indication or state law procedural principles to the contrary. Harrington v. Richter, 131 S.Ct. at 784-85. The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely. Id. at 785. Where a petitioner has failed to show that the California Supreme Court's decision did not involve a determination of the merits of his claim, a summary denial of relief will thus be considered to be an adjudication on the merits. Id.

Here, Petitioner's substantive claims concerning the admission of his pretrial statements were raised before the California Supreme Court. In denying the motion to dismiss these claims that was previously filed by Respondent in this action, this Court determined that Petitioner had presented the claims to the California Supreme Court in his second round of habeas corpus proceedings (HC2-CASC) in supplements to the petition that were stamped "Received." (Doc. 22, 5-7.) In the ruling on Respondent's motion to dismiss, this Court stated that whether the California Supreme Court actually ruled on Petitioner's claims was unclear. (Doc. 22, 6.)

The California Supreme Court denied the petition for writ of habeas corpus on June 16, 2004, without a statement of reasoning or authority. The decision of the California Supreme Court was not limited to procedural points and purported to be a decision on the petition as a whole. The Court concludes that it has not been shown that the California Supreme Court's decision did not involve a determination of the merits of Petitioner's claims. Pursuant to Harrington v. Richter, 131 S.Ct. at 784-85, it is concluded that the summary denial of Petitioner's petition (HC2-CASC) constituted an adjudication on the merits within the meaning of 28 U.S.C. § 2254(d)(1).

The California Supreme Court's denial of the petition for writ of habeas corpus on June 16, 2004, without a statement of reasoning or authority, was the last decision concerning Petitioner's pretrial statements. Where a state court has reached a decision on the merits but provides no reasoning for the decision, the Court will review the record to determine whether the state court decision was objectively unreasonable. Cullen v. Pinholster, 131 S.Ct. 1388, 1402. The petitioner still has the burden to show that there was no reasonable basis for the state court to deny relief. Harrington v. Richter, 131 S.Ct. at 784. The correct analysis has been described by the Supreme Court as follows:

[A} habeas court must determine what arguments or theories... could have supporte[d] the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.

Cullen v. Pinholster, 131 S.Ct. at 1402 (citing Harrington v. Richter, 131 S.Ct. at 786).

Accordingly, this Court will review the record to ascertain whether or not the California Supreme Court's decision denying habeas relief on the claims was objectively unreasonable.

C. Facts

Petitioner relies on facts contained in the reporter's transcript, the transcript of the preliminary hearing, the supplemental clerk's transcript, and hospital records. (FAP 20-22, 40-42, 65-69.) Petitioner likewise relied on these sources in the pertinent proceeding (no. S115848) before the California Supreme Court.²

2 Respondent states that Petitioner did not provide a copy of the transcript of the first preliminary hearing to the California Supreme Court. (Doc. 75 p. 33, n. 17.) The Court notes that Petitioner did cite to several pages of the transcript in a recounting of the pertinent facts set forth in the petition (HC2 [LD 11], pp. 16-19 (citing to pp. 2023) as well as in an unpaginated, supplemental document received by the California Supreme Court on January 27, 2004 (correction to the answer lodged in this Court on October 7, 2010).

The trial transcript reflects the testimony of Madera County Sheriff's Office Community Service Officer Diana Rankin, who on November 25, 1997, at approximately 3:18 a.m., received a 9-1-1 telephone call from Petitioner, who asked that officers be dispatched to his home. (RT 18-19.)

1. Petitioner's Statement to Deputy Campbell at Petitioner's Home (First Statement)

Madera County Deputy Sheriff Tolbert Campbell, Jr., testified at trial that upon being dispatched on November 25, 1997, for a possible suicide victim in a car, he arrived at Petitioner's residence at approximately 4:09 a.m. He found a dead female dressed in a long sweater that extended below the waist with nothing underneath; she was in the passenger seat of Petitioner's car, which was located at the back of Petitioner's residence. (RT 20-22.) A black plastic pistol was observed beside the decedent's left hip. (RT 35.)

Deputy Campbell smelled alcohol on Petitioner and observed slowness or sluggishness in his actions and talking, but the officer did not consider Petitioner to be under the influence at that point. Petitioner was lucid and was able clearly to articulate and to explain himself; he could talk coherently, pronounce words correctly, and follow a train of thought, although at times he seemed anxious, and the volume of his voice went up and down. He did seem to meditate or think about the answers to questions before answering. (RT 23-24, 32.)

Later in the conversation, Petitioner admitted that he was using prescription medication, and he had consumed a six-pack of beer in his car. (RT 24, 26, 32.) Petitioner said that the medication was Elavil, which he had taken for nine years; Petitioner remarked that he was very tolerant of its effects. (RT 39-40.) The deputy did not see Petitioner directly put medication in his mouth, but he did see Petitioner take an unknown number of pills out of a bottle of medication handed to him by the deputy. Petitioner had taken a nap before he took the medication, but Campbell denied that Petitioner passed out. When Petitioner awoke, Campbell noted in a report prepared within twenty-four hours of the incident that Petitioner was anxious and shaking uncontrollably. He also noted that the odor of alcohol was strong, Petitioner seemed sluggish, and he was confused about the timing of events. (RT 32, 38.)

When the deputy asked Petitioner to explain the circumstances of Bonham's death and to start early in the evening with respect to the incident, Petitioner said that on the twenty-fourth between 8:30 and 9:00 p.m., he had consumed a pitcher of beer at the Raymond General Store. His daughter informed him by telephone at about 10:30 pm. that she had spoken by telephone with Cathy Bonham, who wanted Petitioner to call her. (RT 24-25.) Petitioner called Bonham, declined her offer to come visit Petitioner, and told her that he wanted to be alone.

On his drive home, Petitioner stopped at a gate two miles south of his home, parked, and sat for about twenty minutes while drinking beer and writing a suicide letter to Connie, his estranged wife. (RT 24-26.) Bonham pulled up in her car, came up to his window, and began talking, but Petitioner told her to leave him alone, and he started up his car and drove about a quarter of a mile into a gated area. Bonham followed him, parked behind his car, exited her car, opened the passenger door of Petitioner's car, and sat down in the passenger side of Petitioner's car. Petitioner ignored her, continued writing and drinking, and eventually picked up a gun that was lying in his lap. (RT 25-26.)

Petitioner told Campbell that he pushed the magazine release button, let the magazine drop out about a quarter of an inch, pulled the slide to the rear, released the slide back forward, pushed the magazine back up into the back of the pistol, put the gun to his head, and stated, "I want to die. I really want to die." (RT 36.) He then pulled the trigger; nothing happened because the weapon was empty at that point, and since nothing had been put in the chamber, it just clicked. (RT 27.) He repeated the process and again put the gun to his head, when Bonham reached over, took the weapon from him, pulled the slide back on the weapon and chambered a round, let it go forward, placed the gun to the left side of her head with her left hand, stated, "I want to die, too," and pulled the trigger; the gun discharged, and Bonham slumped into the seat. (RT 27-28, 36.)

When Campbell asked Petitioner to explain the story again, Petitioner said that Bonham put the gun directly to her head; Petitioner omitted from his statement the fact that she had pulled the slide to the rear and chambered the round. (RT 37.) He also said that he got the gun from the center console of his car instead of from his lap. (RT 37.)

Petitioner told Campbell that fear caused him to drive out of the property to the gate and then to return to the decedent's car to try to drive it out of the property, but he could not drive both vehicles, so he drove his car home. He paced for a while, called his estranged wife, tried to cover the body with a sheet from his bed but decided that it did not look right, and threw out the sheet. (RT 29.)

Campbell was somewhat confused by Petitioner's account because most people are not left-handed, and most women do not commit suicide by shooting a weapon. (RT 33-34.)

The deputy initially took Petitioner to the Madera County Sheriff's Department, where Campbell observed that Petitioner was unsteady on his feet, and his speech was slurred; it was necessary to assist Petitioner out of the vehicle. At that point, Campbell believed that Petitioner needed medical attention, so he took Petitioner to the Madera Community Hospital. (RT 39.)

Petitioner alleged in the petition before the California Supreme Court that when officers began to arrive on November 25, he was still in shock and unaware of the passage of time. He was immediately detained in custody and guarded by officers, deprived of his freedom of action in every significant way, and not allowed to use his phone to call family or anyone for medical or legal help. (LD 11, 4.) He had begged on the 9-1-1 call not to talk about the incident any more. (LD 11, 4.) Further, Deputy Campbell had Petitioner repeat his statements many times and had him back up to different parts of his statements, which confused Petitioner. Petitioner alleged that his "nap" at his home was actually an instance of his having passed out from an overdose of Elavil. (LD 11, typed p. 18; LD 12, 10.) He alleged that it was obvious that he needed medical attention and had been suicidal earlier in the night, but they allowed him to take more medication. (LD 11, typed p. 19.) Petitioner alleged he was detained on the floor in his house in one spot while being guarded by officers. (Id. at typed pp. 19, 21.) Officers used leading questions, fed him suggestions, backed up the narrative, and badgered him. (Id. at typed p. 21.)

2. Statement to Detective Michael Molsbergen at Petitioner's House (Second Statement)

Detective Michael Molsbergen of the Madera County Sheriff's Office testified at trial that he arrived at Petitioner's house on November 25, 1997, at about 6:15 a.m. Deputy Campbell was still at the scene, which had been secured by additional officers. In the daylight Molsbergen observed Petitioner's car and the decedent; he confirmed Deputy Campbell's observations and further discovered a set of the decedent's car keys looped around the decedent's right thumb and a pair of shoes on the right floorboard near her feet. (RT 41-44, 63.)

Molsbergen went to the house to talk to Petitioner, who was asleep. Molsbergen woke him up, but it was not easy because Petitioner was kind of groggy. Right after Petitioner awoke, he was not well oriented, his mannerisms were sluggish, and his sense of time was not very good. He took two to four minutes to get his bearings; then between 6:30 and 7:00 a.m., the detective initiated an interview and spoke with Petitioner in his living room. (RT 48-49, 101-02.) The detective could not recall if he smelled alcohol on Petitioner. (RT 101.)

Early in the conversation, Petitioner told Molsbergen and Detective Bump, who was also present, that the decedent had tutored Petitioner's daughter, Jasmine. Petitioner said that while he was at the Raymond General Store drinking beer, he had discussed with Bonham the possibility of her coming up to Petitioner's place. (RT 50.)

When asked what happened, Petitioner said he had parked at the gate of property owned by Don English while feeling very depressed. He was writing a suicide note when Bonham arrived and got in the car. (RT 49-51.) Petitioner said he picked up his pistol, which he kept in the car, released the magazine of the gun, lowered it slightly from the locked position, pulled the slide back, released it, put the firearm to his own head, and pulled the trigger; the gun did not fire. Petitioner again pulled the slide, cocked the weapon, and put the gun to his head. Subsequently Bonham took the weapon from his hand and told him that he was not the one who should kill himself; rather, it was she. Petitioner told Bonham not to, but Bonham put the gun to her head, pulled the trigger, and the gun went off. (RT 51-52.)

In a panic, Petitioner drove to his house, arrived somewhere between 12:00 and 1:00 a.m., and called 9-1-1. (RT 52.) Molsbergen testified that the original 9-1-1 call came in about 3:20 a.m. Petitioner also said that he called his wife. (RT 52-53.)

Molsbergen saw that the bed in Petitioner's bedroom was devoid of sheets, blankets, or coverings of any kind, and there were no sheets in the dryer. When asked what happened to the bedding, Petitioner said he had burned it in a rock-lined barbecue pit by his house because although he had intended that the bedding cover the victim in case Jasmine came outside, it did not work very well, so he burned it. Molsbergen found some pieces of satin in the fire pit. (RT 53-54.)

3. Statement to Detective Molsbergen at the Hospital (Third Statement)

Molsbergen testified at trial that on November 26, 1997, at 1:15 a.m. at the hospital, he had a second conversation with Petitioner after Molsbergen informed Petitioner of his Miranda rights, and Petitioner stated that he understood his rights and agreed to speak with the detective. A tape and transcript of the interview were admitted at trial. (RT 63, 79; Clerk's Supp. Transcript (CST) [Tr. Exh. 36, LD 18], 1-15.) The detective testified that he received a call at about 12:45 a.m. from the deputy at the hospital, who reported that Petitioner said he wanted to make a statement. (RT 103.)

Petitioner gave a somewhat narrative statement that he had not expected Bonham to come up that night but did expect her to come up the next day. He stated that he put the gun to his head, pulled the trigger, and it did not go off; then Bonham took the gun, did the same, pulled the slide, let it go, and then put the gun to her head; however, Petitioner told the detective that this time he and she could see that a round had gone into the chamber, so Bonham fired the gun out of the window. Then Bonham lowered the magazine of the gun again, cycled the slide, put it to her head, stated, "See there's no round in the chamber now," and the gun fired. Petitioner said that when the gun discharged, he was reaching for the gun and said to let him check it or that she did not check it first for a round. Petitioner did not say that the decedent had made any other comments in the conversation. (RT 64-68; Clerk's Supp. Transcript (CST) [Tr. Exh. 36, LD 18], 2,7.)

Records from the Madera Community Hospital were before the California Supreme Court. (Pet., case no. S115848, LD 11.) They reflect that at 17:03 on November 25, 1997, Petitioner was admitted for an Elavil overdose; he was discharged on November 27, 1997, at 10:45. However, nurses' notes reflect a lavage procedure earlier at 11:04 on November 25, followed by removal of the tube at 11:10; Petitioner was lethargic and mumbled when answering questions. Thus, it may be inferred that Petitioner was actually being treated at the hospital long before 17:03. By 12:52, Petitioner responded to his name but did not make conversation. Results of one ECG performed on November 25 are not legible but suggest some abnormality (notation of "Otherwise normal ECG" is visible), but another ECG with a date of service of November 25 reflects a check mark next to "Normal ECG." (LD 8.)

On November 26, 1997, by 07:00, it was noted that Petitioner was awake, alert, and talkative; he expressed his innocence and his hope that the investigation would show his innocence. He continued to complain of seeing green spots. He was alert and awake at 10:30, and he was resting with only intermittent visions of green spots by 13:25. It was noted that the detective was there to speak with him at 13:40. At 16:05 and 17:45, Petitioner complained of green spots, sharp pain to the chest, and palpitations; he cried intermittently and spoke about his family. At 21:15, Petitioner was received from the emergency room with complaints of chest pain and seeing green spots since the morning; at 22:00, Petitioner was awakened for medication, and he complained of seeing green spots and of concern about the consequences of an overdose; he wanted to talk to a doctor. At 23:50, Petitioner slept with no apparent discomfort. The final diagnosis was drug overdose and chest pain.

The medical records reflect that Petitioner was prescribed Xanax, also called Alprazolam, from November 25 through 27 for anxiety. Notations concerning the drug appear next to the dates of November 25 and November 26, but the precise dates and times at which the drug was administered to him are not clearly and legibly set forth.³

3 Dates are not clearly legible, and the times medications were given are not consistently noted.

Petitioner also submitted what appear to be printed materials from unspecified sources concerning the general effects of Elavil (Amitriptyline) and Xanax (Alprazolam).

Petitioner alleged in his petition before the California Supreme Court that statements were recorded at the hospital after his emergency treatment and before he had fully recovered; he had been administered unknowingly and involuntarily a tranquilizer, and he did not have the mental capacity to waive his Miranda rights due to alcohol and an overdose of drugs that resulted in mental incapacity; Petitioner was not allowed to detoxify before undergoing interrogation by multiple officers. (LD ll, typed pp. 3, 15.)

Moldbergen admitted that he had said to Petitioner that his statement was pretty much the same story he had told before. (RT 119.)

4. Statement to Detectives Molsbergen and Bump at the Sheriff's Office (Fourth Statement)

Detective Molsbergen testified concerning a fourth statement, which was recorded, and a transcript of the recording was introduced in evidence at trial. When Petitioner was released from the hospital around noon on November 27, 1997, Molsbergen picked up Petitioner, brought him to the sheriff's office, and interviewed him for a third time there with Detective Chuck Bump from 12:20 p.m. until 1:03 p.m. (RT 80-81, 110; CST [Tr. Exh. 37, LD 18] 16-52.) Molsbergen testified that Petitioner had asked to speak again and initiated the conversation. The detective read Miranda rights to Petitioner, who agreed to talk and waived his rights. (RT 103, 80-81; CST 16.)

Petitioner said that at the general store where he was drinking beer, he called Bonham, who said she had called Jasmine to see about bringing Jasmine's math book home and was uncertain if she was coming up. (CST 16-17.) Petitioner was depressed about his wife, went to the English gate at about 9:30 or 10:00, and parked; he knew that Bonham would see him sitting there if she did come by, and they could drink beer together. He drank beer and wrote a note to his wife. After about a half hour or forty-five minutes, Bonham arrived. As was their custom when they would meet, they drove to a place where no one could see the two married persons drinking beer. Bonham wore a long sweater, and Petitioner did not know if she had anything under it; sometimes Bonham would come and meet him in a nightgown if it was late. (Id. at 17-18, 26.)

Petitioner said he did not know if he would have sex with her that night; he had sex with her two or a very few times before, but most of the time they would just fool around so she would not get pregnant. (Id. at 25, 44.) Cathy Bonham's husband, Jim, and Petitioner had argued, and Petitioner had not had sex with Cathy after that conversation, in which Petitioner had promised he would never be around her again; Petitioner estimated it had been a week and a half since he last had sex with her. (Id. at 44.)

Petitioner got out his gun and said he felt like committing suicide but would or could not do it because of Jasmine. He popped the clip, pulled it down a little bit, cocked it, and "(Inaudible)" to his head, saying that was just what he felt like doing to himself. (Id. at 19.) Bonham reminded Petitioner that he had to think of Jasmine, and she took the gun from him. He told her to wait a minute, but she said she knew what she was doing with a gun. Then she cocked it with a thumb and a finger and shot it out the window; she gave the gun back to Petitioner at his request.

Petitioner sat there with the clip, cocking it back and forth, and then he slid the clips close to the top so that it was not clipped; then he put it to his head again and said it was what he would do if he did not have his daughter. Bonham then said, "Let me show you what that looks like," and she took it and put it against her head. She said, "Doesn't this look terrible?" She pulled the trigger, and at once she had a blank look on her face, her arm fell down, a little bit of blood started trickling out of the hole where she was shot, and she fell to the side. (CST 18-19.)

Petitioner told Molsbergen and Bump that he could not remember how many times each person cocked the gun, but Bonham had shot the gun out the window. (Id. at 30.)

Petitioner felt panic, confirmed that Bonham was dead, drove home, called his wife to come get Jasmine, spoke with his father and sister, and told them someone had died. Petitioner said that despite having had several beers, he still knew what he was doing. (Id. at 19.) He started driving Bonham to the hospital and then returned to his house, drank more beer, and thought that he did not want his estranged wife, whom he wanted to have back, to know that he had had a relationship with Bonham, who was his wife's "old best friend." (Id. at 20.) Bonham had been in his bed watching TV with Petitioner a few days before, and Petitioner thought authorities might search the house and find "hair spray and whatever" and know that Bonham had been there. (Id. at 20.) Petitioner burned the sheets and everything on his bed with gasoline in a barbeque so his wife would not find out that Bonham had been in Petitioner's bed. (Id. at 21.)

Petitioner said that the gun had been lying crosswise on the seat and the console. Upon the arrival of his wife, Connie, and her companion, a person named "Spanky," Spanky went back to the car to confirm that Bonham was dead, and she admitted to Petitioner that she touched the gun but wiped if off. (Id. at 21.) Petitioner gave the note he had written to his wife. Petitioner instructed Connie and Spanky to report the shooting as soon as they got home, and then he reported it himself. (Id. at 22.)

Petitioner did not recall that at his home he had said that he had wrapped the decedent in the bed linens; he had taken Elavil before those questions were asked, and he was under the influence and falling asleep. (Id. at 34.) Petitioner said that he took an overdose of Elavil thirty-five to forty minutes before Molsbergen had talked with him, and that he had told the other officer that he took a handful in order to sleep. (Id. at 19, 40-41.) Petitioner had a pitcher of beer with his meal, returned and drank another pitcher over a long period of time, and then bought some beer. He had not taken medication that day. (Id. at 35-36.) Petitioner had taken Elavil for eight years for dizzy spells with irregular heartbeat; when he took Elavil, it would not change him or do anything to him except eliminate the spells. (Id. at 45-46.)

During the encounter, Molsbergen walked out a few times to get water and a tape; he did not recall if he was in the interview when Officer Bump accused Petitioner of having said he had shot out the window himself. (RT 107-08.)

Molsbergen testified at trial that at some point he told Petitioner about the decedent's car having been at Petitioner's home that night; Molsbergen thought it was possibly credible information when he questioned Petitioner, but he ultimately determined that it was not credible information. (RT 84.) Further, the absence of the bedding from Petitioner's bed originally had led officers to believe that the shooting could have occurred somewhere other than the vehicle. (Id. at 86.) It was questioned whether or not the decedent had been shot in the car, and Molsbergen presented that to Petitioner, who insisted that the shooing occurred in the vehicle. Ultimately, Molsbergen had no evidence to show that the shooting did not occur in the car. (Id. at 107.) He recalled saying to Petitioner that in the previous statement, Petitioner had said he fired the gun out the window once; however, Molsbergen had not heard that from Petitioner, was not sure where he obtained the information, did not intend to say something known to be untrue when he said it, had no evidence to support it, but had recalled it as having been said in one of the interviews. (Id. at 108-11.)

At trial Molsbergen testified that he recalled that Officer Bump had asked Petitioner to go to the sheriff's department for a nitrate specimen, a test for determining if a person has fired a handgun. (Id. at 112.) That test was not done on Petitioner. (Id.)

Petitioner alleged in his petition before the California Supreme Court that he was given Xanax and was under its influence when a recorded statement was taken, and when he was released from the hospital and a second recorded statement was taken. (LD 11, typed p. 16.) He alleged that a prison physician had reviewed his records and was shocked that statements of Petitioner were used in court because at an unspecified time, Petitioner was near possible heart failure. (LD 11, typed pp. 2-3.)

Petitioner alleged that after his stomach was lavaged and he experienced sinus tachycardia, he had blurred vision and saw green spots for three days; he opined that at the house he had confusion and hallucinations. (LD 11, typed p. 21.) When the statement was taken at the sheriff's office after Petitioner's release from the hospital, Petitioner did not have the mental capacity to waive his rights because he was under the influence of Xanax; he was fed numerous details that did not occur and told to believe them. (Id. at typed pp. 21-22.)

Petitioner alleges in the FAP that before the tape recorder was turned on, Molsbergen made knowingly false statements that the fatal shot could not have occurred in the car, forensics had proven there was not enough blood in the car, and the victim's car had been seen parked behind Petitioner's car at his house the night of the shooting. (FAP 68.)

5. Statement to Detective Molsbergen during the Walk-Through (Fifth Statement)

On December 2, 1997, Molsbergen interviewed Petitioner a fourth time during a walk-through at the scene of the shooting; the interview resulted from Petitioner's statement to District Attorney's investigator Fabian Benabente that Petitioner would like to go out and show the officers the scene. (RT 103, 109.) Molsbergen was within earshot of all that was said; he recalled telling Petitioner that the last time Petitioner had said that he fired the gun out the window once; however, the detective had not heard that from Petitioner but recalled it as having been said. (Id. at 108-09.) Another officer told Petitioner that the body could not have been dead in the car because of a lack of blood in the car. (Id. at 118.)

Detective Molsbergen had thought it possible that the shooting could have occurred somewhere other than in Petitioner's vehicle because of the burned bedding found in the barbeque outside Petitioner's house. (RT 85-86.) Molsbergen testified at trial that when interviewing a suspect, he tried to nail down the story. One tactic was trying to tell a suspect that something could not have been one way to see if they changed their story; however, he did not use that tactic in the present case or intentionally deceive Petitioner. He had information that the decedent's car had been at Petitioner's house earlier, but he had no physical evidence to support it; he confronted Petitioner with that statement, and Petitioner insisted the car was never at his house to his knowledge. The detective questioned whether or not the decedent was shot in the vehicle. (Id. at 105-06.) Molsbergen was not sure where he got the information that Petitioner had admitted to firing the gun out the window, but there was no evidence to support that. (Id. at 111.)

D. Analysis

The voluntariness of a confession is a legal question not entitled to a presumption of correctness, but a state court's findings of fact underlying the issue are entitled to a presumption of correctness pursuant to 28 U.S.C. § 2254(e)(1).⁴ Rupe v. Wood, 93 F.3d 1434, 1444 (9th Cir. 1997). Here, the state court made no express findings.

4 Title 28 U.S.C. § 2254(e) (1) provides that in a proceeding instituted by a person imprisoned pursuant to a state court judgment, a determination of a factual issue made by a state court shall be presumed to be correct, and the petitioner shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

In determining whether a statement or confession was involuntary and obtained in violation of the principles of due process of law protected by the Fifth and Fourteenth Amendments, a court examines whether a defendant's will was overborne by the circumstances surrounding the giving of the statement or confession. Dickerson v. United States, 530 U.S. 428, 434 (2000). A court considers the totality of all the surrounding circumstances, including the characteristics of the accused and the details of the interrogation. Id. Thus, circumstances such as the nature and length of the questioning, the location of the questioning, the presence or absence of advice as to rights, the use of tactics such as fear or trickery, and the maturity, physical condition, mental health, and other circumstances of the accused are considered. Withrow v. Williams, 507 U.S. 680, 693-94 (1993). However, it is clearly established that coercive police activity is a necessary predicate to a finding that a confession is not "voluntary" within the meaning of the Due Process Clause of the Fourteenth Amendment. Colorado v. Connelly, 479 U.S. 157, 167 (1986).

1) The First Statement

Here, there were no circumstances of coercion during the first conversation with Deputy Campbell. Campbell asked Petitioner to repeat his story, but there is no evidence of prolonged interrogation or badgering. The deputy had arrived at about 4:00 a.m., had reviewed the physical evidence before talking to Petitioner, and then after the questions, Petitioner had taken a nap and was still asleep when Detective Molsbergen arrived at about 6:15 p.m. In view of the time frame and the vague, general nature of Petitioner's assertions of improper questioning, it is reasonable to conclude that Petitioner's allegations of prolonged, badgering interrogation were exaggerated or untrue. Compare, Colorado v. Connelly, 479 U.S. 157, 164 n. 1 (collecting cases reflecting more prolonged, repeated sessions of questioning accompanied by overt coercion or deprivation of necessities such as sleep, water, or food).

With respect to the location of the questioning in Petitioner's living room, Petitioner himself had called the authorities to his home, and the nature of the questioning was consistent with an initial and basic attempt to determine what had happened, to ascertain the location of the death, and to locate any evidence. Although Petitioner alleged that he was directed to remain in one place, Molsbergen testified that when he arrived at the home, he saw Petitioner on a couch or ottoman in the living room. The officers were obviously engaged in securing the scene. Under these circumstances, some restriction from roaming about the premises was not sufficient to reflect coercion of a type that would overbear one's will. Considering all the evidence, it is reasonable to conclude that Petitioner was not as restricted as he later claimed.

Although Petitioner had consumed, and smelled of, alcohol and was slow in talking and acting, Deputy Campbell observed that Petitioner did not appear to be under the influence because he was lucid, coherent, and capable of articulation. Considering his recent presence at the death of a friend, Petitioner's anxiety, thoughtfulness, and confusion as to the precise time were not inconsistent with a capacity to answer questions. Petitioner related the pertinent events in reasonable detail and in chronological order. Although Petitioner alleged very generally that his repeated requests to make telephone calls were rejected, any refusal to permit him to continue to make calls to his family while he was conversing with the officers was not necessarily coercive, but rather was consistent with a desire to secure the scene and prevent interference with the investigation.

With respect to Petitioner's taking medication, it is not unreasonable to conclude that because Deputy Campbell did not observe the number of pills that Petitioner took, the deputy was uncertain of the amount of medication consumed and the possible extent of the effect of the medication. Further, in light of Petitioner's comment to the responding officer that he had taken his medication for many years and was very tolerant of its effects, his taking his medication did not reasonably signal an overdose or any undue, underlying distress or mental limitation. Petitioner's sleeping around dawn was likewise reasonably interpreted as reflecting tiredness; it further reflects that he was at liberty to behave as he desired absent interference with the attempt to secure the scene and gather information. Petitioner's assertion that he passed out, as distinct from falling asleep, lacks support in the evidence and is inconsistent with his later awakening, remaining conscious, and giving another coherent statement at his home before subsequently exhibiting signs of being under the influence of medication.

Further, the Court notes that merely being under the influence of a medication does not constitute being coerced. Cf. United States v. Kelley, 952 F.2d 562, 565-66 (9th Cir. 1992), disapproved on other grounds in United States v. Kim, 105 F.3d 1579, 1581 (9th Cir. 1997) (being on the verge of heroin withdrawal was held insufficient to demonstrate involuntariness where the defendant exhibited the ability to think rationally and where there were no circumstances of coercion); United States v. Lewis, 833 F.2d 1380, 1384-86 (9th Cir. 1987) (statements taken at a hospital several hours after the defendant was administered a general anesthetic were held to be voluntary where the defendant purported to feel all right, was responsive, and demonstrated unimpaired recollection); United States v. Martin, 781 F.2d 671, 672-74 (9th Cir. 1993) (statements made to police at a hospital were voluntary despite a defendant's being in pain and under the influence of Demerol, a pain-killing medication, where he was conscious, relatively coherent during the questioning, and sat up and spoke freely).

After considering the circumstances surrounding Petitioner's statement, the Court concludes that Petitioner has not demonstrated that his first statement was coerced or involuntary.

2. The Second Statement

With respect to Detective Molsbergen's questioning of Petitioner at his home to obtain Petitioner's second statement, Molsbergen observed that when Petitioner awoke, he got his bearings after a few minutes. Molsbergen did not see him ingest the medication. Deputy Campbell testified that it was after Petitioner took a nap that he awoke, anxious and shaking, and proceeded to take some medication from a bottle. Thus, the facts reasonably support a conclusion that Petitioner was not yet suffering from a drug overdose at the time Molsbergen interviewed him at the house.

Further, Petitioner's assertion that he had taken medication and was suffering from an overdose when he spoke with the detectives at his home was made in his fourth statement taken at the sheriff's office. (LD 18, 19, 25-26.) A reasonable fact finder could conclude that by that time, Petitioner had been arrested and desired to undercut the validity or reliability of his previous statements

Petitioner was able to relate to Molsbergen the previous night's history from before 9:00 p.m. when he was at the store in Raymond until he arrived home and made telephone calls. It was not until Petitioner was arriving at the sheriff's office that Campbell observed him exhibiting an unsteady step and slurred speech. Considering all the circumstances at the house, it is reasonably concluded there was no prolonged questioning, deprivation of the necessities of life, or other conduct that could be considered coercive. Petitioner has not shown that his statement was coerced or involuntary.

3. The Third Statement

The first statement given at the hospital occurred at 1:15 a.m. on November 26, about fourteen hours after Petitioner's lavage at 11:04 on November 25, and a few hours before nurses' notes reflect that he was talkative, declaring his innocence, and expressing hope that investigation would demonstrate his innocence. (LD 18, 1; LD 11.) Although Petitioner alleges that he was deprived of sleep, the records show that after the lavage, Petitioner was lethargic; thereafter, there are no notes for the afternoon and evening of November 25. In the FAP, Petitioner himself stated that he slept after his emergency treatment, awoke for questioning by officers guarding him, and then slept again until 1:00 a.m. on November 26, when he was questioned. (FAP 69.) Although Petitioner categorized the sleep as "medically induced," the meaning of this assertion is unclear. Nevertheless, it appears even from his own allegations that he was not deprived of sleep in the approximately thirteen hours that passed between the lavage and the interrogation.

Petitioner asserts that he lacked capacity because he had been given a tranquilizer. Petitioner provides no details concerning his condition that would warrant a conclusion that having been administered Xanax rendered him incapable of giving a statement. Further, there is no expert testimony concerning the timing and dosage of any tranquilizers or the effect on Petitioner's state of mind at the time. The copies of printed material concerning the medications lack a foundation and, in any event, do not demonstrate the effect of the medications on Petitioner at the pertinent time.

In addition, the transcript of the recorded statement reflects that Petitioner acknowledged that his rights had been read to him, and he understood that he was being questioned; he then proceeded to answer questions without reservation. (LD 18, 1.) There is no indication that Petitioner was unwilling to give a statement; indeed, to the contrary, when Petitioner gave his fourth statement at the sheriff's office after release from the hospital, Petitioner had inquired about when it was that Petitioner allegedly had said that Petitioner himself had shot the gun out the window. In response, Detective Molsbergen said:

No, as a matter of fact, it's on the other side of that tape that you and I talked at the hospital after you called and said you wanted to talk to us.

(LD 18, 15.) Petitioner replied:

Okay, I did not fire that gun out the window. (Id.) Petitioner did not take the opportunity to contradict Molsbergen's characterization of the earlier recorded statement as having been pursuant to Petitioner's invitation or suggestion. The Court concludes that the evidence reasonably supports a conclusion that Molsbergen was summoned to the hospital at Petitioner's behest.

Considering the responsive, detailed answers given by Petitioner during the questioning, Petitioner's documented condition a few hours after the questioning, his willingness to talk about the death and his expressions of innocence to persons in the vicinity, his demonstrated understanding of the interrogation process, and his acknowledgment that he had been read his rights, it is reasonably concluded that Petitioner understood his rights and willingly gave them up when he proceeded to answer questions.

A valid waiver of Miranda rights generally results in a finding of voluntariness of a confession following the waiver. DeWeaver v. Runnels, 556 F.3d 995, 1003 (9th Cir. 2009), cert. denied, 130 S.Ct. 183 (2009) (quoting Missouri v. Seibert, 542 U.S. 600, 608-09 (2004) and Berkemer v. McCarty, 468 U.S. 420, 433 n.20 (1984)). Petitioner's recorded acknowledgment of having been read his rights and being willing to give a statement militate against a finding of coercion.

With respect to the nature of the questioning and of any representations made to Petitioner during the questioning, the questioning included inquiries regarding what happened as well as requests for details concerning his meeting with Bonham and the shooting and for explanations of his burning of the bedding and his delay in contacting authorities. Petitioner was asked about the inconsistency of his previous statement that the death occurred about 10:00 p.m., when the 9-1-1 call came after 3:00 a.m., which resulted in his admission that he was mixed up as to time. (LD 18, 3-4.) He was apparently confronted with photographs of burned items, and he denied having burned any pants. (Id. at 12.) Molsbergen stated that the victim's car was seen parked behind Petitioner's car at Petitioner's house, but Molsbergen later stated that he had no evidentiary basis for that assertion. Petitioner denied having parked Bonham's car there or knowing that it was there, although he indicated that it was possible that she had been there when he was not there. (Id. at 5-6, 9, 13.) The transcript does not indicate that any other misrepresentations of fact were made by the detective with respect to this statement.

Generally, confronting a person with the evidence against the person is not in itself coercive. United States v. Orso, 266 F.3d 1030, 1039 (9th Cir. 2001) (overruled on another point in Missouri v. Seibert, 540 U.S. 600 (2004)). Further, although a misrepresentation of fact made by an officer during questioning is a relevant circumstance, it is generally not sufficient in itself to render a statement involuntary; rather, the focus is on whether considering all the circumstances, the confession is the product of an essentially free and unconstrained choice by its maker. Frazier v. Cupp, 394 U.S. 731, 737-39 (1969) (misrepresentation that another party had confessed); Pollard v. Galaza, 290 F.3d 1030, 1033-34 (9th Cir. 2002).

Here, the misrepresentation concerning the presence of the victim's car at Petitioner's house was not critical to the pertinent transaction; Petitioner himself stated that it was possible that the car was there, but it would have been before he had arrived and without his knowledge. It thus does not logically tend to show coercion either on its own or in light of all the other circumstances.

In summary, Petitioner's assertions concerning his lack of capacity during the questioning at the hospital are vague and conclusional. There is no expert opinion testimony concerning Petitioner's actual state of mind at the pertinent time. General information regarding the effects of Xanax or Elavil lacks the specificity necessary to pinpoint the precise effect of drugs or alcohol on Petitioner at any specific time. It does appear that Petitioner continued to have green visions during his hospitalization, but no other records reflect symptoms that could possibly interfere with giving a statement. A review of the transcript shows that the questioning was not prolonged. Petitioner's answers were responsive and detailed; his only uncertainty or confusion was with the precise times of the events, which was understandable concerning Petitioner's anxiety and his ingestion of alcohol on the evening of the death.

The Court concludes that the totality of the circumstances attending Petitioner's first statement at the hospital do not demonstrate coercive conduct or that Petitioner's will was overborne. Compare, Mincey v. Arizona, 437 U.S. 385, 398-99 (1978) (confession held to be involuntary where the defendant had been seriously wounded just a few hours earlier and ultimately required a month's hospitalization, had been described by his doctor on arrival at the hospital as "depressed almost to the point of coma," had received some treatment but was still in the intensive care unit, complained of "unbearable" leg pain, was evidently confused and unable to think clearly about either the events in question or the circumstances of his interrogation, gave facially incoherent answers, repeatedly declined to answer questions without a lawyer, and was questioned while he was lying on his back on a hospital bed, encumbered by tubes, needles, and breathing apparatus); Henry v. Kiernan, 197 F.3d 1021, 1026-30 (9th Cir. 1999) (confession held to have been actively coerced and involuntary where the interrogation was continued for an hour after the defendant stated that he wanted counsel, police knew that the Miranda protocol had been violated and deliberately continued with the interrogation, the interrogator misrepresented the consequences of the statement by informing the defendant that any statement could not be used against him for any purpose, the statements were admitted as substantive evidence of guilt and not only as impeachment, and the defendant was rambling, unresponsive, confused, frightened, sobbing, and incoherent while making the statement).

4. The Fourth Statement

With respect to the statement taken upon Petitioner's release from the hospital, Petitioner was told that his statement was being recorded and would be transcribed, and he expressly acknowledged that he had been read his constitutional rights, his family had retained an attorney to represent him, and with that in mind, he wished to make a statement. (LD 18, 1-2.) This evidence strongly indicates that Petitioner's participation was voluntary.

The session lasted for forty minutes. (Id. at 1, 37.) Petitioner began by making a long, uninterrupted narrative statement (id. 1-7); he was then questioned concerning some details of his statement and his communications with the victim and with another woman. He was then confronted with his four different versions of the cocking and shooting of the gun, and Detective Bump stated that at the hospital, Petitioner had said to a deputy the other day that Petitioner had shot the gun out of the window. Petitioner denied having said that. (Id. at 14-15.) Petitioner stated that he did not remember how many times each person cocked the gun, but he remembered that it was Bonham who had shot the gun out the window. (Id. at 15.)

Petitioner argues that his statement was involuntary because of misrepresentations of fact made by the officers. However, Detective Molsbergen testified that he did not intentionally deceive Petitioner; he had information that the decedent's car had been at Petitioner's house but no physical information to support it, and Petitioner denied that the car had been there. (RT [LD 20] 106.) At one point it was questioned whether or not the decedent had been shot in the vehicle, and Molsbergen presented that to Petitioner, who insisted the shooting occurred in the vehicle. (Id. at 107.) The detective also had recalled that Petitioner had said that he shot the gun out the window, but Molsbergen admitted that he did not personally hear that and was not sure where he got that. (Id. at 109-11.)

The record does not require or substantially support a finding of intentional misrepresentation, but in any event, the matters misrepresented were not sufficient to constitute coercion or to cause Petitioner's will to be overborne. Petitioner was not misled as to matters essential to understanding the significance of his rights or the consequences of giving a statement. Cf., Moran v. Burbine, 475 U.S. 412, 423-24 (1986).

The Court concludes that the totality of the circumstances attending Petitioner's fourth statement do not demonstrate coercive conduct or that Petitioner's will was overborne. Considering all the circumstances, it is concluded that the evidence reasonably supports a conclusion that Petitioner's fourth statement was voluntary.

5. Fifth Statement

Petitioner's fifth statement was essentially consistent with his fourth statement. Petitioner argues that it was involuntary because of misrepresentations of fact made by the officers.

In view of all the circumstances, the Court concludes that Petitioner's fifth statement made at the walk-through on December 2 was likewise voluntary. The evidence supports a reasonable conclusion that Petitioner initiated the contact, was given his rights, and waived his rights. There are no indicia or circumstances of coercion.

In summary, consideration of the totality of the circumstances pursuant to the correct legal standard results in an objectively reasonable conclusion that Petitioner's statements were not involuntary or coerced. Petitioner has not shown that the state court's decision denying his petition was contrary to, or an unreasonable application of, clearly established federal law. Further, Petitioner has not shown that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.

V. Alleged Violation of Petitioner's Miranda Rights

Petitioner argues that the first two statements he gave at the house were taken in violation of the protocol established in Miranda v. Arizona, 384 U.S. 436 (1966) and thus were erroneously admitted in the prosecution's case-in-chief. Further, he argues that his later statements were inadmissible because of the preceding Miranda violations.⁵

5 Petitioner also contends that the admission of his extra-judicial statements kept him from testifying. (FAP 41.) However, Petitioner does not inform the Court what the substance of his testimony would have been. Further, in any event, if Petitioner had testified, even statements taken without adequate Miranda warnings would have been admissible to impeach Petitioner. Harris v. New York, 401 U.S. 222, 226 (1971).

In order to implement the Fifth Amendment privilege against self-incrimination made binding upon the states by the Fourteenth Amendment, the Supreme Court has held that statements made in the course of interrogation while a person is in custody are not admissible in the prosecution's case-in-chief in a criminal case unless the defendant is advised that 1) he has the right to remain silent, 2) anything he says can be used against him in court, 3) he has a right to counsel before questioning and to counsel's presence during interrogation, 4) if he is indigent, counsel will be appointed for him before interrogation, and 5) the government demonstrates by affirmative evidence that the defendant voluntarily and intelligently waived his privilege against self-incrimination and his right to counsel. Miranda v. Arizona, 384 U.S. 436, 468-75 (1966); Harris v. New York, 401 U.S. 222, 226 (1971).

However, the Court in Miranda v. Arizona expressly noted the following:

General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information
they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.

Miranda, 384 U.S. 436, 468.

It is undisputed that Petitioner was not given his Miranda warnings and did not waive his rights before he made the statements to Deputy Campbell and Detective Molsbergen at his home in the early morning following the shooting.

Even if the atmosphere of an interrogation is coercive, Miranda warnings are required to be given only when one who is interrogated is restricted to the extent that he is in custody. Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (holding that a suspect was not in custody when he voluntarily came to the police station at an officer's request, was told he was not under arrest and was falsely informed that his fingerprints had been discovered at the scene of a theft, confessed to having committed the theft after having been questioned for five minutes in an office with the door closed, and then departed after a half-hour interrogation); Orozco v. Texas, 394 U.S. 324, 325-27 (1969) (holding that a suspect was in custody where he was interrogated by four police officers who came to his boardinghouse and questioned him in his bedroom at 4:00 a.m. at a time when he was under arrest and not free to leave).

The Supreme Court has reiterated that the test for custody is "simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125 (1983) (quoting Oregon v. Mathiason, 429 U.S. at 495). In Beheler, the defendant invited officers to his home shortly after a companion's commission of a homicide in the defendant's presence, made statements to police and consented to a search of his home that resulted in authorities' finding the murder weapon, and then voluntarily accompanied officers to the police station; he was told he was not under arrest. He was interviewed at the station for thirty minutes after having been drinking and while emotionally distraught. He made a statement about the murder without being given Miranda warnings. He then returned home, and he was arrested five days later. After receiving Miranda warnings, he made a second statement and said that he had given his earlier statements voluntarily. Because the defendant's freedom was not restricted in any way, the Court held that he was not in custody at his home or during the interview at the station, and his statements were all admissible. 463 U.S. at 1123-24. The proximity of the questioning to the crime and the clear focus on him as a suspect did not render the interrogation custodial. Id. The Court found significant the fact that the defendant himself had invited the police to his home. Id. at 1125.

More recent cases direct that custody must be determined by how a reasonable person in the suspect's situation would perceive his circumstances. Berkemer v. McCarty, 468 U.S. 420, 442 (1984). In Berkemer, it was held that a suspected drunk driver was not in custody when a police officer, who at the outset intended to arrest him, effected a traffic stop, questioned him, administered a field sobriety test, and elicited admissions that he had been drinking and ingesting a drug. There was no custody because the officer had not informed the driver of his intent to arrest him, and thus the officer's unexpressed intention did not bear upon the issue of custody. The Court stated, "[T]he only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." Id.

In the instant case, this Court must thus examine all the objective circumstances surrounding the interrogation and determine how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her freedom of action, Stansbury v. California, 511 U.S. 318, 322-23, 325 (1994), or, whether or not a reasonable person would have felt he or she was at liberty to terminate the interrogation and leave, Thompson v. Keohane, 516 U.S. 99, 112 (1995).

Here, Petitioner himself called 9-1-1 and summoned authorities to his residence. Officers were then engaged in a preliminary investigation and were attempting to obtain information, determine the location of the shooting, and collect evidence. The questioning of Petitioner was not accusatory or prolonged. Petitioner was allowed to remain in his own living room, to rest, and even to sleep at will while the officers were present. Further, he was permitted to take medication as he chose. Although Petitioner claimed that he was required to stay on the floor of his living room and was not allowed to move, the state court could have considered the totality of the countervailing circumstances and could have reasonably determined that Petitioner was not as restricted in movement as he later claimed.

Further, a reasonable person in Petitioner's circumstances at his house could reasonably have believed that he was not suffering constraints tantamount to a formal arrest, but rather was simply restricted from roaming at large while the extent of the scene was being determined and while evidence was being collected. Although Petitioner failed to supply any details as to any requests to use the telephone, a reasonable person in the circumstances could have understood that a temporary cessation of the numerous calls Petitioner had already made to his family and friends that night was not indicative of a formal arrest, but rather was simply an incident of an ongoing investigation. Petitioner consistently gave the appearance of someone who welcomed the presence of the law enforcement officers and desired to reveal to them not only his version of the events with the decedent, but also other evidence that he believed would establish his innocence of any crime. Although Petitioner was slightly restricted, considering all the circumstances, a reasonable person would not have believed that he was under a formal arrest or that he was suffering a restriction of his freedom of movement tantamount to a formal arrest.

Because this case arises pursuant to 28 U.S.C. § 2254 (d)(1), this Court must determine whether a state court decision that Petitioner was not in custody would be contrary to, or involve an unreasonable application of, clearly established federal law, or a decision based on an unreasonable determination of the facts before it.

The present case is similar to Yarborough v. Alvarado, 541 U.S. 652, 663-667 (2004), where the state court had concluded that an inexperienced minor's two-hour interview at a police station, where he was brought by his legal guardians, was not custodial even though his parents were not allowed to be present because he was told it would be brief, was asked if he wanted breaks, and was allowed to leave at its conclusion. The Supreme Court in Yarborough found that the state court adjudication was not objectively unreasonable, emphasizing that fairminded jurists could disagree as to how to apply the very general test of custody, and that the subjective factors of a suspect's age and experience were given undue weight by the lower federal court that had found that the state court's determination was unreasonable. 541 U.S. at 666-69.

Here, the state court's application to the pertinent circumstances of clearly established federal law concerning custody for Miranda purposes was not objectively unreasonable. Fairminded jurists could disagree how to apply the very general test of custody to the circumstances presented at Petitioner's home. Likewise, its determination was not based on an unreasonable determination of the facts in light of the evidence before it.

Petitioner argues that because Miranda warnings were deliberately withheld at the time of his first two statements, his later waivers of his Miranda rights were ipso facto invalid. Petitioner relies on Missouri v. Seibert, 542 U.S. 600 (2004),⁶ in which a plurality found that the giving of Miranda warnings and obtaining a waiver of rights was ineffective to establish a valid waiver where the waiver was preceded by an exhaustive custodial interrogation, which was proximate in time and similar in content, and was undertaken without giving Miranda rights.

6 Seibert involved the intentional withholding of Miranda advisements during initial custodial interrogation at a police station after the defendant had been formally arrested, followed by the giving of Miranda warnings, waiver of Miranda rights, and subsequent statements by the person in custody. 542 U. S. 600, 604-05, 610-11. Three justices agreed that the state of mind or intentionality of the officers was not the appropriate focus of the analysis. 542 U.S. 617 n.6 (Justice Souter, with Justices Stevens and Ginsburg joining). Justice Breyer required exclusion of the later, warned statements unless the initial failure to warn during custodial interrogation was in good faith. 542 U.S. 617-18. Justice Kennedy required exclusion of the later statements if the procedure of "confession first, then warn" was deliberately employed and there was an absence of curative measures undertaken before the later statement was made. 542 U. S. 618-22.

Here, as the foregoing analysis reflects, Petitioner's unwarned statements were made when Petitioner was not in custody. The present case may thus be distinguished from Seibert. Further, although Petitioner alleged in a conclusional fashion that the officers had intentionally withheld Miranda warnings at Petitioner's home in order to elicit incriminating statements before Petitioner understood his rights, there was no evidence before the state court of deliberate withholding of Miranda warnings. The state court could reasonably have found that the reason why no warnings were given at Petitioner's house was because the questioning there was not custodial.

In any event, Seibert was decided on June 28, 2004, or twelve days after June 16, 2004, the date on which the California Supreme Court denied Petitioner's habeas petition raising the pertinent issues.⁷ Under §2254(d)(1), "clearly established Federal law, as determined by the Supreme Court of the United States" includes only the Supreme Court's decisions as of the time of the relevant state court adjudication on the merits. Cullen v. Pinholster, 131 S.Ct. at 1399. Here, when the state court made the pertinent decision, Seibert had not been decided and thus was not clearly established.

7 A decision of the California Supreme Court denying a petition for writ of habeas corpus is final immediately upon filing. Cal. Rules of Ct., Rule 8.532(b)(2)(C) (formerly, Rule 29.4, adopted eff. Jan. 1, 2003).

Petitioner contends that he raised the allegedly erroneous admission of his extra-judicial statements in his later (third) petition to the California Supreme Court, which was filed long after the date of the Seibert decision.

In Baldwin v. Reese, 541 U.S. 27 (2004), the Court held that a state prisoner does not fairly present a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so. The Supreme Court ruled that judges reviewing a petition were not required to read lower court opinions or lower court briefs in the pertinent case that were not included in the petition or briefing of the petition. Baldwin v. Reese, 541 U.S. at 32. Likewise, in Castillo v. McFadden, 399 F.3d 993 (9th Cir. 2005), the court held that to present a claim fairly for the purposes of exhaustion, a petitioner must have presented his federal, constitutional issue before the state court within the four corners of his appellate briefing. Id. at 999-1000 (citing Baldwin v. Reese, 541 U.S. 27).

Here, review of the petition for review filed in the California Supreme Court in the third round of post-judgment, collateral proceedings reveals that the issue of Petitioner's statements was not stated as a question presented in the petition. (LD 30, 1a-1c.) Further, the issue was not stated in argument in the petition. The issue was only mentioned in response to a query on the petition form concerning previous petitions or applications. Petitioner noted that it was an issue that had been raised in a separate petition filed in a previous case. (LD 30, petition form at p. 6.) Such a listing of the legal issue raised in a previous petition does not constitute fair presentation of the claim under the foregoing authorities. Therefore, the Court concludes that Petitioner did not raise issues concerning his statements before the California Supreme Court in the third and final round of post-judgment, collateral proceedings. The Court further concludes that Seibert was thus not clearly established federal law available to Petitioner on June 16, 2004, when the California Supreme Court denied the pertinent petition in which Petitioner had raised the issue.

Before Seibert, in Oregon v. Elstad, 470 U.S. 298 (1985), it was held that a brief, inculpatory, and voluntary statement made by a suspect at his home before Miranda warnings were given and as he was being arrested did not bar admission of a later, inculpatory statement made at the police station after the suspect had been warned and had waived his Miranda rights. In Elstad, the Court determined that in the absence of coercion or improper tactics in obtaining the initial, unwarned statement, a later waiver of Miranda rights after being given Miranda warnings would normally be considered voluntary and effective. The Court had expressly declined in Michigan v. Tucker, 417 U.S. 433, 450-52 (1974) to remedy Miranda violations by excluding any "fruits" of Miranda violations in the form of third-party statements discovered as the result of a Miranda violation. In Elstad, the Court reaffirmed that after a Miranda violation, subsequent warning of Miranda rights and waiver thereof by a suspect who proceeded to make a statement were generally sufficient to protect the goals of assuring trustworthy evidence and deterring improper police conduct. 470 U.S. at 308-09.

Aside from the coercion and Seibert claims, Petitioner does not allege that the Miranda warnings that he was given at the hospital, the sheriff's station, or the walk-through were otherwise defective in any substantive respect.

The Court therefore concludes that with respect to Petitioner's subsequent waiver of his Miranda rights while in custody, a state court decision that Petitioner's Miranda waiver was valid did not result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, or that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court.⁸

8 Petitioner alleges in the traverse additional facts concerning the 9-1-1 call, and he asserts that a preliminary hearing transcript indicated that Deputy Campbell was instructed to take Petitioner into his house and obtain a statement, followed by Campbell's taking Petitioner into his house by the arm and without asking consent to enter. (Doc. 98, 31-32.) The Court notes that it is not clear that these facts were before the California Supreme Court. In any event, in light of Petitioner's having called law enforcement to his house, even if these facts were before the state courts, they would not have changed the analysis of the voluntariness of Petitioner's statements or alleged violations of the Miranda protocol.

VI. Ineffective Assistance of Trial Counsel

Petitioner argues that his right to the effective assistance of trial counsel under the Sixth and Fourteenth Amendments was violated because trial counsel failed to 1) investigate and present exculpatory evidence in the form of an opinion or report of criminalist Stephen O'Clair regarding the jammed cartridge case in the gun's chamber (FAP 25-27); 2) present the exculpatory evidence of criminalist Steven Dowell concerning the results of a gunshot residue test performed on the victim (FAP 28-29); 3) consult, hire, and present the evidence of an expert such as Joseph Orantes to examine and opine concerning all the "readily available" exculpatory forensic evidence (FAP 29-32); 4) object to the use of Petitioner's involuntary, unwarned statements (FAP 32); 5) investigate and call Avila to impeach the testimony of Sanchez, the jailhouse informant (FAP 32-33); and 6) request discovery regarding, and properly investigate, Sanchez (FAP 33-34).

A. Facts as Reflected by the Evidence Introduced at Trial

The evidence admitted at trial concerning Petitioner's statements has been previously summarized in connection with the claims concerning the voluntariness of Petitioner's statements and waiver of Miranda rights. As noted, Deputy Campbell testified at trial concerning his arrival at Petitioner's house, discovery of the decedent, his observations of Petitioner, the first statement given by Petitioner on November 25, 1997, and Campbell's transporting Petitioner to the sheriff's office and then to the hospital. Detective Molsbergen testified concerning Petitioner's four additional statements made to Molsbergen at his house, at the hospital when arrested, at the sheriff's office, and at the walk-through.

The additional trial evidence will be briefly summarized.

A photograph or photographs of the decedent, as observed upon Campbell's arrival, were admitted into evidence. (RT 23.) Campbell testified that another deputy arrived within two minutes of Campbell's arrival. (RT 29.)

Detective Molsbergen testified that upon arrival at Petitioner's home, he saw a white female with a bleeding head wound sitting on the right front seat of a Mustang and leaning to the right with her head against the top of the door panel. (RT 44.) A wound to the left side of her head, just right above her ear, was visible. The handle of a black, semi-automatic handgun was partially under the victim's left arm; the gun was registered to Petitioner, who admitted that it was his gun. The victim wore a white or tan sweater that was hip-length or longer, and no shoes, but shoes were found on the right floorboard around her feet. A set of keys to the decedent's car was looped around her right thumb. Both passenger and driver windows were down. (RT 44-45, 58, 63.) Photographs taken contemporaneously reflected these observations, including the firearm at the victim's left hip. (RT 46, 58.) A paper bag and tape were used to cover the decedent's hands to facilitate recovery of evidence at an autopsy. (RT 62.) Drips or trails of blood on the right inner door panel were visible. (Id.) The gun was confiscated and booked into evidence by Investigator Angus, who processed the scene and testified that it was a nine millimeter Glock. (RT 47, 72-73.) Angus checked the gun for palm prints and fingerprints and found none. (RT 74.) Molsbergen testified that only one gun was found in Petitioner's car, and there was found no other evidence to support the presence of another gun in the car. (RT 101.) Pieces of satin found in the pit by Petitioner's home were almost completely burned, and Molsbergen could not determine what they had been before being burned. (RT 54-55.)

While Petitioner was on his way down to the valley with Deputy Campbell, he directed Molsbergen and others via radio to the spot where the decedent had actually been shot, where Molsbergen found a green Ford Taurus registered to the decedent; later he did a walk-through with Petitioner at the scene. (RT 56.) Eventually Petitioner tried to show Molsbergen where he was parked when the shooting occurred, but the place he pointed out was not where the decedent's vehicle was found; rather, it was seventy-five to a hundred feet from where the vehicle was found on the morning of the twenty-fifth. (RT 93.) Law enforcement personnel used a metal detector in an attempt to locate bullets or casings, projectile brass, or other evidence at both the site of the decedent's vehicle and the location Petitioner had believed the shooting occurred. (RT 57, 94.) Nothing was found with the metal detector. (RT 94.) Angus's search of the car for spent casings revealed none other than the one in the chamber of the handgun. (RT 94.) Angus drew a diagram of the scene, including Petitioner's home and a fire pit located about ninety-five feet from the house and fifty-five feet from the driveway. (RT 70-71.) He confirmed that the decedent wore no underwear, and she had a sweatshirt over her lap. (RT 72.)

Molsbergen talked with Petitioner's wife, Connie, who said that she had destroyed a note or notes. (RT 83-84.) No note was ever recovered. (RT 51.) An attempt to subpoena Petitioner's wife failed because Molsbergen was unable to locate her. (RT 85.)

Records revealed that the decedent had a concealed weapon permit for a Jennings .22 caliber automatic, which would function in a similar manner as the semi-automatic that killed her because if a round is fired, the slide goes back; if there is a new cartridge in the magazine, it will load the cartridge into the chamber. The decedent had to take a class and a test in order to obtain the permit. (RT 97-98.)

Molsbergen also testified at trial that his measurements reflected that the Raymond General Store was about 2.1 miles from the English property where the shooting occurred; the English property was 4.2 miles from Petitioner's house; the drive from Connie's house in southeast Fresno to Petitioner's home took an hour and fifteen to thirty minutes; and the drive from the decedent's home to Petitioner's took approximately forty-three or forty-five minutes. (RT 86-87.) Telephone records revealed that two calls were made from the Raymond General Store to the decedent's house: one of zero minutes in duration at 7:15 p.m., and a completed call of almost three minutes at 7:36 p.m. (RT 88.) Two calls were made from the Frontier Inn to the decedent's home, the first being a coin call lasting for three minutes at approximately 8:53, and the second a collect call at 8:59 p.m. that lasted six minutes. (Id.) A forty-five second call from Petitioner's house to the house of Connie, his wife, was made on the twenty-fifth at seven minutes after midnight. (RT 87-88.) A collect call lasting ten minutes was made from Connie's home to Petitioner's home immediately afterwards. (RT 89-90.) A grid search of the areas where the decedent's car was parked and where Petitioner thought the shooting had occurred revealed no metal. (RT 94.)

An identification specialist from the Madera County Sheriff's Office testified that the Glock nine millimeter gun had about fifteen bullets in the magazine and appeared to be full, but he was not sure; it bore no fingerprints or palm prints, but considering the gun's texture and surface, the lack of prints was not unusual. (RT 69, 72-75.) When recovered, the gun had a cartridge that was jammed; the slide had come back and closed onto an expended shell or bullet. The specialist explained that one part of a bullet flies out the end of the gun, and the other stays in the gun and is pushed to the side. In this case, a cartridge was jammed in the area where the part stayed and was pushed out the side at the point of the gun's ejection port. (RT 76.) Detective Molsbergen testified that one casing remained in the chamber of the handgun, and no others were found; the round did not eject out of the top part of the gun as it typically did. (RT 94-95.)

Detective Molsbergen testified that the gun was a semi-automatic pistol, with cartridges maintained in a magazine that feeds into the grip of the pistol. A release on one side lets the action of the slide move forward. If there are cartridges in the magazine, the action of the slide moving forward will force a round into the chamber. If pushed, a magazine release button will cause the magazine to come out such that if the magazine is lowered out of the locked position, then even if a cartridge is in the magazine, it would not feed a cartridge in. (RT 91.) Petitioner had described to Molsbergen a process of slight release of the magazine, pulling the slide back, pushing that back in, pushing the magazine back in and pulling the trigger, which would "dry fire" the gun. After the trigger is pulled, the gun is uncocked and would not fire again; the trigger could not be pulled back unless the slide is pulled back and released. (RT 91-92.) Once the slide is cocked and is engaging in the trigger, and a bullet is actually brought back up into the chamber, then after the gun is fired, each successive pull of the trigger should or would load a new cartridge behind it until the magazine is empty. After a round is actually fired, another one is automatically chambered, assuming the magazine is in; if there is a bullet in the chamber and the slide is pulled back, it would eject the live round and automatically chamber another round if the magazine is pushed in. It was only if a bullet was discharged from the gun that it would recoil on its own and bring another one up. If there is a bullet in the chamber, the gun can be fired if the magazine is not in. (RT 96, 152-53.) If a cartridge does not fully eject, a new round cannot feed in. (RT 100.) There were eleven (11) bullets in the magazine of the gun, which held a maximum of eighteen (18), when the gun was booked into evidence. (RT 100.)

Rebecca Fuller, the mother of the decedent, testified that Bonham was thirty-five when she died, was right-handed all her life, and had been separated from her husband for about three or four months. Fuller and the decedent were very close and spoke very frequently; Bonham had been very happy, was starting back to school to study to be a nutritionist, and was trying to get a better job. Bonham behaved normally on the day of her death; she had never talked about killing herself or ending her life. She was knowledgeable about guns and had taken a gun safety course to obtain a permit. She had her gun at home and was not carrying it. (RT 120-25, 127.)

Joy Bonham, the decedent's fourteen-year-old daughter, testified that on November 24, 1997, she lived with her mother and her three brothers. The decedent put them to bed around 9:00 or 10:00 p.m., told the witness that she loved her, and behaved normally; she would not have taken her own life because she had much to look forward to, had just started school, and still had her children to raise. The decedent was right-handed and never used her left hand alone; she had taught her daughter not to play with guns. (RT 137-41.)

The registrar at Reedley College confirmed that the decedent had been registered for the fall and the upcoming spring semester. (RT 141-45.)

Dowell Cash, a friend of the decedent for twenty-six years, had visited the decedent two weeks before her death. Bonham had received a telephone call, had a short conversation, became agitated, slammed the phone down, and an hour later walked Cash to his car, where a red Mustang driven by Petitioner went by very slowly. Petitioner stared at Cash, took off very fast, drove to the end of the block, turned around and returned driving fast, and flipped Cash off. (RT 173-180.)

Cash testified that the decedent had been a caring, loving, and helpful person. She was right-handed and had been separated from her husband for about six months, had a more positive and uplifted state of mind after the separation, and planned to become a nurse. (RT 180-183, 187.) She was not the type of person to consider killing herself and had never tried to do so. She behaved responsibly around guns; she would not, and had not, put a gun to her head. (RT 184-85.)

The decedent's friend for twelve years, Susan Patterson, testified that Bonham was not suicidal but was level-headed, caring, responsible, loving, generous, and kind. Bonham had told Patterson about her relationship with Petitioner, and Patterson thought she was a little bit ashamed because she was married at the time. (RT 188-94.)

Rudy Sanchez testified that he was thirty-three years old and had spent most of his life between the ages of eleven and twenty-five in jail or prison. He first went to San Quentin when he was twenty or twenty-one, but he stayed out of prison for almost eight years after he turned twenty-five. On direct examination, Sanchez testified that he had a felony conviction for drug sales, but on cross-examination he admitted that he had four felony convictions. (RT 197-98, 243.) He previously had been a confidential informant for the police in San Francisco in 1989 in order to leave the county and get out of a prison gang. (RT 245.)

Sanchez had lived in Madera since he was paroled there in 1989. In 1997, he entered a guilty plea to a felony charge of conviction of assault with intent to commit rape and received a sentence of one year local (county) time and five years felony probation; he went to jail on it in September 1997. He completed his sentence and got out of jail on May 15, 1998, having received the typical one-third off his sentence for good time and work time credit. (RT 199-200.) At the time of the trial, he was on felony probation, and if he violated probation, he would get five years in prison. He considered testifying against another inmate to be a death sentence; however, he was testifying in order to tell the truth. (RT 202-03.)

Sanchez met Petitioner in jail right after Thanksgiving and began talking to him around Christmas despite having told Petitioner that he did not want to hear about his case because it was "heavy." Petitioner would just start talking to Sanchez; Sanchez never asked him questions. Sanchez became Petitioner's best friend in jail. Sanchez knew nothing about Petitioner's case except what he was told by Petitioner. Little by little, Petitioner told Sanchez that he was accused of shooting his daughter's Sunday school teacher and his wife's best friend, Cathy Bonham, with whom Petitioner often had sex when they met down the road from his house. Bonham would not wear underwear or panties when they met. Petitioner would laugh and smirk when he told Sanchez about their sex life, and he showed no remorse, although Sanchez once saw him crying while holding her picture from a newspaper article in his cell. (RT 203-08, 210-11.) Petitioner told Sanchez that he and his wife had separated but that before the incident, his wife was going to come back, and Petitioner wanted his family to get back together. (RT 209.)

Petitioner told Sanchez that he had called Bonham to meet him because her husband had found out about their relationship, and they met in the usual spot. Petitioner told Bonham he was upset about what had happened earlier between Petitioner and Bonham's husband, so they "got into it where he was upset." (RT 211-13.) Petitioner told Bonham to go to her car, and she went to get a gun that was in her trunk. She came into Petitioner's car on the passenger side. (RT 213-14.) Sanchez testified in pertinent part:

I don't know what was going on, but they--that--he said that he had her grab--put the gun in her hand and he had another gun in his hand up to her chest, put the other gun by her head--her hand first, his hand on top of her hand-
Q All right.
A - and then pull the trigger.

(RT 214.) Sanchez clarified that Petitioner said he had his hand on top of her hand on a gun which was pointed at her head, and he had another gun pointed at her chest; Petitioner pulled the trigger. (Id.) Petitioner said the gun was a Glock S-15. (RT 216.)

Petitioner told Sanchez that he did it because he was worried about cops finding out what was going on, or that everything was wasted or just fell apart. (RT 214-15.) He thought the husband was going to tell Petitioner's wife, so he was upset at the time. (RT 216.)

Petitioner said after he shot Bonham, he sat in the car, had a beer, drove around a little bit, returned to his home, burned the blankets, and called his wife because he did not want Jasmine to find out what happened. (RT 216.) He called the cops and then took pills and kept drinking. (RT 216-17.) Petitioner said he burned a blanket so no one would know they were having sex. After everything that had happened that night, he drank beer and took some pills but did not say he wanted to kill himself. (RT 212-13.)

In October, about a month after being in custody for the last time, Sanchez started reading the Bible, learned and felt a lot, and decided to come forward with his information because he had "like a guilty conscience"; holding inside of him and knowing the truth was something he had to live with. (RT 217-18.) His last stint in jail actually changed him a bit, and he was trying to better himself. (RT 218, 222.)

Sanchez wrote a letter to the prosecutor, Linda Zebari, of the District Attorney's Office in April, a month before he was released on May 15; he asked Zebari to come and speak with him. (RT 220.) He gave the letter to officers at the jail. (RT 249-50.) The letter was introduced into evidence. (Ex. 41.) Sanchez testified that at that time, he had been sentenced, his case had been resolved, and he had nothing pending except driving on a suspended license, something that he had not ever talked to Zebari about; that case was dismissed when he was sentenced on his felony, and it was another prosecutor and not in exchange for anything, and it was before he wrote his letter. (RT 222-23.) Zebari and Molsbergen came to talk to Sanchez, who told them basically what he had testified to that day. (RT 220-21.)

Sanchez denied having asked the D.A.'s office or law enforcement for any favors in return, although on cross-examination he admitted that when he spoke with Molsbergen, he had asked that Petitioner not be arrested until after Sanchez was released from jail because he was scared for his safety while in custody. (RT 221, 247-48.)

Molsbergen testified that when he and Zebari had gone to the jail to visit with Sanchez on April 27, 1998, Sanchez did not ask for anything in return other than that Petitioner not be arrested before Sanchez's release from jail. (RT 256.) Molsbergen thought that he first heard that Sanchez had contacted the district attorney before April 22 or April 23, 1998. (RT 256-57.)

Deputy District Attorney Robert McGurty testified that he was a Chief Deputy District Attorney who had prosecuted for Madera for four and one-half years; he was assigned a felony case of Rudy Sanchez, who on March 2, 1998, entered a plea to a felony assault with intent to commit rape in violation of Cal. Pen. Code § 220 pursuant to McGurty's offer, and received in exchange a year in county jail and felony probation for five years. Sanchez was sentenced on March 23, 1998. Although McGurty was vaguely aware of the Cottrell case and its facts when he made the agreement with Sanchez, he did not have any idea that Sanchez was in any way involved with the Cottrell case, and it did not enter into his considerations for making the offer. (RT 257-60.) McGurty also recalled that after the plea, he saw Sanchez again in the Borden Court for a traffic violation and another misdemeanor charge and dismissed the charges because previously Sanchez had pled guilty to a felony, and it was McGurty's practice to dismiss minor cases; it had nothing to do with the Cottrell case. (RT 261.)

Sanchez testified that he continued to see Petitioner after release from custody, and Petitioner showed him where the crime occurred. (RT 225, 246.) Sanchez wrote to Petitioner's parents, Petitioner, and his daughter in the same month he wrote the district attorney, saying that Petitioner was a great person. He asked Petitioner's parents for $20 for toiletries, but the request was returned by jail personnel. (RT 231-34, 236-37, 253-54.) After release, Sanchez stayed at Petitioner's house and worked with him once for food. (RT 246-47.)

Sanchez testified that Petitioner was obsessed with his guns, taught his daughter to take the S-15 apart and put it back together, and would shoot off his S-15 to let his neighbors know he was home. He called his guns his "babies." (RT 227-28 249-50.)

Detective Molsbergen attended the autopsy of Bonham, which was performed by Dr. Jerry Nelson, a pathologist. (RT 92-93.)

Jerry Nelson testified he was a medical doctor and had been a pathologist for thirty-four years; he held a board certification in anatomical and clinical pathology and had performed 7,760 autopsies, of which 780 were gunshot wounds, and 226 were suicides by intentional gunshot wounds; he had testified 392 times. (RT 154-57, 167.) He performed an autopsy of the decedent on November 26, 1997, at 3:00 p.m.; he found an entry and exit wound of the head that was a contact wound in which the muzzle of the gun was against the skin, with no bullet present in the cranium cavity. The cause of death was a gunshot wound to the cerebrum, with entry at the left temple and scalp one-half inch above the left ear canal, and exit at the most rear portion of the right parietal scalp two and one-half inches behind the right ear canal. (RT 158-60.) He had never seen a suicide by gunshot inflicted with the non-dominant hand. (RT 161.) The angle of the wounds found in the decedent's head was demonstrated with a witness at trial and was five to ten degrees downward and thirty degrees toward the rear; however, the position of the head and of the arm and hand at the time of the shooting was uncertain. (RT 161-64, 166, 169-70.)

Dr. Nelson opined that because of the use of the left hand he was very suspicious that the decedent's wound was not self-inflicted and was perhaps a homicide. (RT 164, 171.) Accidental shootings were more likely with a rifle or shotgun and with an angle other than the classic example in a suicide; the angle of decedent's wounds was not classic for suicide (wounds directed to the rear and somewhat upward), but it was not impossible. (RT 167-68, 171-72.)

B. Evidence before the Madera County Superior Court on Petitioner's Motion for New Trial

Petitioner was represented by David Elgin on his motion for a new trial heard on June 18, 1999. (RT 372, 376, 380.)

The evidence introduced at the motion for new trial was summarized by the DCA in its decision in the consolidated appeal and habeas proceedings, the pertinent portion of which is set forth at length below in connection with the analysis of the pertinent claims.

Additional evidence in the record that was not noted by the DCA included a letter written to the trial judge by a fellow jail inmate of Petitioner and Sanchez, Michael J. Avila, dated February 16, 1999, in which Avila described conduct and statements of Rudy Sanchez, whom Avila had known at the jail. Avila wrote that while Petitioner was incarcerated, Sanchez outwardly manifested the behavior of a Christian, but afterward he grew angry, cursed, and neglected his studies. Sanchez told Avila that he was taking notes on Petitioner's case and believed that Petitioner was an idiot for talking to him because Sanchez had warned Petitioner it could be used by inmates for their own benefit. Avila stated that Sanchez told Avila that Petitioner was his "meal ticket."

Before Petitioner's trial, Avila had given his contact information to Petitioner for the use of Petitioner's trial counsel, John Garvin; on January 20, 1999, during the trial, Avila called Garvin's office and left his number and a message with Garvin's secretary to contact him immediately as a possible defense witness for Petitioner, but he never heard back from anyone from Garvin's office. Avila stated that he had a phone record of the call placed to Garvin's office. (CT [LD 17] 123-24.)

Telephone records confirmed that Avila had called trial counsel's office on the second day of the jury trial and left a message but received no return call. The contents of the message were not corroborated; Garvin did not recall receiving any messages from or concerning Avila either before or during trial. Garvin only became aware of him after trial; therefore, he had not contacted Avila. (CT 160, 166, 191.)

Garvin had reviewed all discovery and the criminal history of Sanchez; he had contacted Petitioner's family, and his investigator interviewed Sanchez for an hour, but no written report was made. (CT 161.) Garvin believed that the prosecutor lacked evidence; the greatest obstacle was the jailhouse informant. (RT 403.) When Garvin's investigator interviewed him, he found Sanchez highly credible. (RT 404.)

David Smothers, a criminal law practitioner for seven years with experience in felony jury trials, had been assigned to the Cottrell case in 1997 and early 1998. He considered O'Clair's opinion that an expended cartridge in the chamber was indicative of a self-inflicted gunshot wound and Dowell's tests on gunshot residue to be crucial, exculpatory information. Smothers was not allowed to present it at the preliminary hearing, but Smothers won a 995 motion on the ground that it had been erroneous not to permit introduction of the evidence. (CT 164.)

C. Trial Counsel's Failure to Investigate and Present Evidence

Petitioner argues that his trial counsel's omissions violated his right under the Sixth and Fourteenth Amendments to the effective assistance of counsel based on counsel's failure to 1) investigate and present exculpatory evidence of criminalist Stephen O'Clair regarding the jammed cartridge case in the gun's chamber (FAP 25-27); 2) present the exculpatory evidence of criminalist Steven Dowell concerning gunshot residue (FAP 28-29); 3) consult, hire, and present the opinion of an expert such as Joseph Orantes concerning all the "readily available" exculpatory forensic evidence (FAP 29-32); 4) object to the use of Petitioner's involuntary statements (FAP 32); 5) investigate and present Avila as a witness to impeach the testimony of Sanchez, the jailhouse informant (FAP 32-33); and 6) request discovery regarding, and properly investigate, Sanchez (FAP 33-34).

1. Background concerning Subclaims 1,2,3, and 5

Petitioner raised subclaims 1, 2, 3, and 5 in his motion for new trial and on appeal, and the appellate court affirmed the appeal with an unpublished opinion that constituted a reasoned decision on the merits. (Doc. 3, Exs. to Pet., Vol. II, Ex. I.) A petition for review was denied by the California Supreme Court on January 3, 2002, without any statement of reasons or citation of authority. (Id. at Ex. II.) Petitioner raised the same subclaims in subsequent habeas corpus petitions in the Madera County Superior Court (MCSC), District Court of Appeal (DCA), and California Supreme Court. (LD 8, 10, 11-13.) Petitioner also raised additional claims concerning ineffective assistance based on the failure to object to Petitioner's pretrial statements and to obtain extra-record evidence via discovery concerning the jailhouse informant.

In its order denying the petition for writ of habeas corpus, the MCSC cited to the earlier opinion and orders of the DCA and Supreme Court; it stated that with respect to ineffective assistance of trial counsel, the issue had been raised and rejected on appeal and on the initial habeas petition before the DCA; further, review by the California Supreme Court was denied. (Doc. 3, Ex. III; doc. 59, 121-22.) The MCSC then stated:

On the issue of ineffective assistance of trial counsel, this court finds insufficient justification for renewal of that issue on habeas corpus. In re Harris (1993) 5 Cal.4th 813, 825, 829. On the issue of ineffective assistance of appellate counsel, petitioner has failed to show by a preponderance of the evidence facts that establish a basis for relief for habeas corpus. In re Visciotti (1996) 14 Cal.4th 325, 351. The petition is denied.

The succeeding petitions filed in the DCA and California Supreme Court were denied without any statement of reasoning or authority. (LD 10, doc. 59, 124; LD 11-13, doc. 59, 126.)

The MCSC's citation to In re Harris, 5 Cal.4th 813, 825, 829 (1993) was an invocation of the procedural rule of California jurisprudence often referred to as the "Waltreus rule," which provides that an issue raised and determined on appeal cannot be raised in a subsequent petition for writ of habeas corpus, and an attempt to do so will be met by a summary denial of a habeas petition. Forrest v. Vasquez, 75 F.3d 562, 563 (9th Cir. 1996).

In Ylst v. Nunnemaker, 501 U.S. 797 (1991), the state intermediate appellate court rejected on appeal a Miranda claim because it was being raised for the first time on appeal, and the California Supreme Court denied a petition for discretionary review of the appellate court's ruling. The Petitioner then raised the claim in petitions for habeas relief filed in the trial court, intermediate appellate court, and California Supreme Court. The petitions were summarily denied in the lower courts, but the California Supreme Court denied the petition with a citation of various authorities, including In re Waltreus, 62 Cal.2d 218, 225 (1965). After filing a petition in federal court and suffering a dismissal for failure to exhaust state court remedies, the petitioner filed a second habeas petition raising the Miranda claim in the California Supreme Court, which was summarily denied.

The Supreme Court held that the California Supreme Court's silent denial of the second habeas petition did not disturb or lift the earlier decision invoking a procedural bar, and it did not otherwise constitute a decision on the merits of the Miranda claim. The Court directed federal courts to determine the reason for an unexplained decision by applying the following presumption:

Where there has been one reasoned state judgment
rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground. If an earlier opinion "fairly appear[s] to rest primarily upon federal law," Coleman, 501 U.S., at 740, 111 S.Ct., at 2559, we will presume that no procedural default has been invoked by a subsequent unexplained order that leaves the judgment or its consequences in place. Similarly where, as here, the last reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits.

Ylst, 501 U.S. 797, 803. The Court reasoned that the appropriate interpretation of unexplained orders is that they "say nothing," and thus the appropriate principle of construction is a presumption that gives them no effect and which simply "looks through" them to the last reasoned decision. Id. at 804. The presumption may be rebutted by strong evidence. Ylst, 501 U.S. at 804-05.

The Court further noted that because a petitioner in California is not required to seek state habeas relief in order to exhaust state court remedies, the denial of a state habeas petition on Waltreus grounds has no bearing on a petitioner's ability to raise a claim in federal court. Id. at 805. Thus, the Court characterized a Waltreus denial on state habeas as neither a ruling on the merits nor a denial on procedural grounds, and it instructed that federal courts "look through" a denial based on Waltreus to previous state court decisions. Id. at 805-06.

Therefore, where the California Supreme Court denies a habeas petition or petition for review without citation or comment, a district court will "look through" the unexplained decision of that state court to the last reasoned decision of a lower court as the relevant state-court determination. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Taylor v. Maddox, 366 F.3d 992, 998 n.5 (9th Cir. 2004); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000). Further, where the intermediate court of appeal adopted the reasoning of the trial court, the federal court also discusses the trial court's decision. Taylor v. Maddox, 366 F.3d 992, 998 n.5 (9th Cir. 2004).

Here, the unexplained denials of the DCA and California Supreme Court did not disturb the decision of the MCSC, which in turn rested upon Waltreus. This Court looks through the MCSC's "Waltreus" decision on habeas, and through the previous, unexplained decision of the California Supreme Court denying review of the DCA's opinion in the consolidated appeal and first state habeas proceeding. The last reasoned decision on the merits of sub-claims 1, 2, 3, and 5 concerning the ineffective assistance of counsel was thus the opinion of the DCA, which addressed both the appeal pending before that court and the simultaneously filed habeas petition. The DCA's opinion also relied on and adopted the trial court's reasoning.

Accordingly, this Court will look to the opinion of the DCA and the pertinent aspects of the trial court's decision.

With respect to the record on which the decision in this Court should be based, Respondent contends that Petitioner is limited to the documents presented to the trial court in connection with motion for a new trial. In the petition for writ of habeas corpus filed in the DCA, Petitioner relied on the trial court record with respect to the claim of ineffective assistance of counsel; the only additional evidence presented to the DCA consisted of declarations concerning Sanchez's alleged recantation, which pertained to Petitioner's claim of newly discovered evidence, and not to Petitioner's claim concerning ineffective assistance of counsel. (LD 14 [HC1], 3, 11-12, 15, 17-18, 21.) The Court will thus determine Petitioner's ineffective assistance sub-claims 1, 2, 3, and 5 based on the evidence considered by the trial court and by the DCA in the appellate proceedings.

2. The State Court Proceedings concerning Subclaims 1, 2, 3, and 5

In a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct; the petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. 28 U.S.C. § 2254(e)(1); Sanders v. Lamarque, 357 F.3d 943, 947-48 (9th Cir. 2004).

Here, because Petitioner has not produced clear and convincing evidence to rebut the presumption of correctness, the Court will set forth the factual summary from the opinion of the California Court of Appeal, Fifth Appellate District, filed on October 22, 2001, in consolidated cases numbered F033539 and F037604:⁹

9 See, Galvan v. Alaska Dep't. Of Corrections, 397 F.3d 1198, 1199 n.1 (9th Cir. 2005) (setting forth a factual summary from the state appellate court' sdecision).

Shortly after the verdicts, the prosecutor put on the record the opinion a Department of Justice analyst shared with her before trial that Bonham probably shot
herself and the possibility she and predecessor defense counsel with whom she shared that opinion might never have so informed Cottrell's trial attorney:
"'Several months ago after this case was refiled I called Stephen O'Clair, the DOJ analyst, who wrote a report regarding the shell casing found in the chamber of the gun. Mr. O'Clair wrote in his report that the casing left in the chamber of the gun was quote, "Indicative of a self-inflicted gunshot wound or someone preventing the slide from going backward when it was fired. It is also possible that the suspect was holding the pistol loosely when it was fired and the cartridge case did not eject," end quote.
"During my telephone conversation with Mr. O'Clair he told me that, quote, 'off the record, in his opinion, she, the victim, probably shot herself.' I do not know what he based his opinion on.
"At the time of this conversation the attorney of record for Mr. Cottrell was Tim Neal of John Barker's office. I called Mr. Neal and told him what Mr. O'Clair had told me. I got the impression Mr. Neal did not find the information important.
"Barker's office subsequently declared a conflict on the case and John Garvin became the attorney of record. I don't recall whether or not I ever told John Garvin [Cottrell's trial attorney] about Mr. O'Clair's statement to me. I don't know if Mr. Neal ever passed the information on to Mr. Garvin. Regardless, I'd like this information to be put on the record.'"
The trial court promptly appointed a new attorney to file a new trial motion on the ground of ineffective assistance. The trial court appointed the criminalist whom the new attorney requested, heard evidence and argument, and denied the motion.
Cottrell's motion argued that in two respects his trial attorney rendered ineffective assistance, first by failing to call three witnesses at trial -- Department of Justice senior criminalist Stephen O'Clair, Los Angeles County Coroner's Office research criminalist Steven Dowell, and former jail inmate Mike Avila -- and then by failing to secure a criminalist to help present an effective defense. The prosecution opposed the motion.
Characterizing the investigation of Cottrell's trial attorney's performance as "adequate," though not "complete," the trial court noted that his introduction of evidence of a self-inflicted wound showed he was a reasonably competent attorney acting as a diligent
advocate, even though he might have called more witnesses on that issue than he did. Emphasizing his "vigorous cross-examination throughout the trial" that subjected the prosecution's case to "meaningful adversarial testing" and brought to the jury's attention the issues of the self-inflicted wound and the reliability of the informant, the trial court found Cottrell had a fair trial and denied the motion.

(Pet (Doc. 3) Exs. Vol. II, Ex. I, 9-10.)

The DCA considered subclaims 1, 2, 3, and 5 and upheld the trial court's findings of fact:

The adjudication of a statutory new trial motion rests so completely within the trial court's discretion that only a showing of a manifest abuse of discretion will permit the appellate court to disturb the trial court's ruling. (People v. Delgado (1993) 5 Cal.4th 312, 328; § 1181.) The standard of review of the trial court's ruling on a new trial motion on the nonstatutory ground of ineffective assistance is different, however. (Cf. § 1181.) That requires a two-step process analogous to the trial court's ruling on a section 1538.5 motion and the appellate court's review of that ruling. (People v. Taylor (1984) 162 Cal.App.3d 720, 724; cf. § 1181.)
In the first step, the trial court makes findings of fact as to which, on appeal, all presumptions favor the trial court's exercise of its discretion to judge the credibility of witnesses, resolve conflicts in testimony, weigh evidence, and draw factual inferences. (People v. Taylor, supra, 162 Cal.App.3d 720, 724.) If substantial evidence supports the trial court's findings of fact, whether express or implied, the appellate court will uphold those findings. (People v. Leyba (1981) 29 Cal.3d 591, 596-597.)
Applying that standard of review, we find no justification for disturbing those findings. "The trial judge is the one best situated to determine the competency of defendant's trial counsel. Where, as here, defendant is represented by different counsel on the motion for a new trial and the issue is called to the trial court's attention, the trial judge's decision is especially entitled to great weight and we defer to his fact finding power." (People v. Wallin (1981) 124 Cal.App.3d 479, 483; see, e.g., People v. Aubrey (1999) 70 Cal.App.4th 1088, 1104, disapproved on another point in People v. Rubalcava (2000) 23 Cal.4th 332, 334, fn. 8; 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 225, p. 350.)

(Doc. 3, Exs. Vol. II, Ex. I, p. 11.)

The DCA then set forth the governing legal standards concerning the issues of deficient performance and prejudice:

In the second step, the trial court decides, on the basis of those findings, whether the party [claiming] ineffective assistance discharged the burden of proof of deficient performance under an objective standard of professional reasonableness test and of prejudice under a test of reasonable probability of a different outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-698; People v. Osband (1996) 13 Cal.4th 622, 664; People v. Taylor, supra, 162 Cal.App.3d at p. 725.) Both the performance and prejudice components of that inquiry are mixed questions of fact and law. (Strickland v. Washington, supra, 466 U.S. at p. 698.) Insofar as an ineffective assistance claim constitutes a question of law instead of a question of fact, the substantial evidence rule does not bind the appellate court, which instead has "'the ultimate
responsibility... to measure the facts, as found by the trier, against the constitutional standard ....' On that issue, in short, the appellate court exercises its independent judgment." (People v. Leyba, supra, 29 Cal.3d at p. 597; cit. omitted; fn. omitted; see People v. Bess (1984) 153 Cal.App.3d 1053.)
To establish prejudice, the accused must show a reasonable probability that but for the trial attorney's deficient representation, the outcome of the proceeding would have been more favorable to the accused. (Strickland v. Washington, supra, 466 U.S. at pp. 688, 693-694; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) If the accused cannot establish prejudice, a claim of ineffective assistance fails without the need for the appellate court to determine whether trial counsel's performance was deficient. (Strickland v. Washington, supra, 466 U.S. at p. 697; see also In re Alvernaz (1992) 2 Cal.4th 924, 945.)

(Doc. 3, Pet., Exs. Vol. II, Ex. I, 11-12.)

The DCA then reviewed the evidence and arguments presented on the motion for new trial:

With regard to O'Clair, the criminalist who performed tests on Cottrell's Glock, the motion argued his trial attorney failed to contact him even though his report noted: "A fired cartridge case was reportedly found in the chamber of the pistol. This is indicative of a self-inflicted gun shot wound or someone preventing the slide from going backward when it was fired. It is also possible that the suspect was holding the pistol loosely when it was fired and the cartridge case did
not eject." His trial attorney stated in a declaration he did not contact O'Clair because he found his statements "repetitive of other evidence in the case," notably the coroner's testimony "that the shot was consistent with a self inflicted gunshot wound."
At the hearing on the motion, Cottrell's trial attorney testified he thought O'Clair would not "shed any additional light" because his testimony would "go both ways." The prosecution's opposition argued O'Clair's testimony had the potential to hurt the defense, in light of evidence of Cottrell's drinking before the shooting, since a "drunk pointing a gun at someone's head would very likely be holding the gun loosely." Not calling O'Clair, the prosecution argued, was "a valid tactical decision."
With regard to Dowell, the criminalist who performed a gunshot residue (GSR) test on Bonham, the motion argued Cottrell's trial attorney failed to contact him even though his report found gunshot residue on her hands. His report noted Bonham "may" have discharged a firearm or otherwise had her hands in an environment of gunshot residue or received those particles from an environmental source. Adverting to the instruction that if circumstantial evidence permits two reasonable interpretations the jury must adopt that which points to innocence and reject that which points to guilt, the motion argued Cottrell's trial attorney failed to utilize the synergy of O'Clair's and Dowell's testimony. (CALJIC No. 2.01.)
On the other hand, Cottrell's trial attorney stated in a declaration he researched gunshot residue, conferred with Dowell, and decided "his testimony would not be helpful." Likewise, the prosecution's opposition argued Dowell's "testimony would have been useless for either side" since anyone sitting in the front seat at the time of the shooting would acquire gunshot residue. At the hearing on the motion, Cottrell's trial attorney testified he anticipated the prosecution would not call Dowell and hoped to cast doubt on the thoroughness of the investigation by bringing before the jury the failure to perform a GSR test on his client.
With regard to Avila, another inmate who met Cottrell and Sanchez in county jail, the motion argued Sanchez told Avila "Cottrell was his meal ticket," Avila informed Cottrell's trial attorney's office he was a witness for the defense, and no one ever returned his call. Cottrell's trial attorney states in a declaration he did not contact Avila because no one told him about him until after trial. The prosecution's opposition notes Avila called his office during trial, criticizes the expectation he should return calls in the middle of
a murder trial with "no indication that the message held any importance," and suggests analysis of the issue not as ineffective assistance but as newly discovered evidence. At the hearing on the motion, no one questioned Cottrell's trial attorney about Avila. (Footnote omitted.)
The motion refers to attached "declaration and phone records," and the opposition refers to the declaration attached to the motion, but the appellant's opening brief gives no citation to the record for those attachments. (Cf. Cal. Rules of Court, rule 15(a).) Nor does the respondent's brief, which states "Avila's declaration is not in the record." Our review of the record confirms that, so we rely instead on summaries of his declaration in the motion and in the opposition. (See Duarte v. Chino Community Hospital (1999) 72
Cal.App.4th 849, 856.)
With regard to Cottrell's trial attorney's not securing a criminalist, the motion argued expert testimony was imperative since neither O'Clair nor Dowell could testify the shooting of Bonham was "accidental and self-inflicted." The motion attached the report of the defense criminalist whom the trial court appointed and who concluded Bonham died from an accidental self-inflicted gunshot. Cottrell's trial attorney stated in a declaration he relied on the pathologist's finding "that the shot was consistent with a self-inflicted wound" and testified at the hearing on the motion he conferred with half a dozen or so attorney and expert members of the criminal defense network he had developed in his years of practice before he chose "to go after the reasonable doubt argument" by focusing on the prosecution's inability to show who pulled the trigger.

(Id. 12-14.)

The DCA then set forth its conclusions:

In the exercise of our independent judgment, we find on that record Cottrell did not discharge his burden of proof. Even without testimony by O'Clair, Dowell, or a defense criminalist, the evidence presented to the jury alternative scenarios of a gunshot wound Cottrell inflicted on Bonham and of a gunshot wound she inflicted on herself, by accident or by suicide. His ingestion of copious quantities of alcohol and Elavil suggested a plausible reason why his statements to investigators were not entirely consistent. The pathologist, though skeptical Bonham shot herself, was not entirely dismissive, admittedly relying on an assumption about not shooting oneself with the non-dominant hand. As the new trial motion acknowledged,
any testimony from O'Clair and Dowell could only be disjunctive, allowing for the same alternative scenarios as did the pathologist. Were pretrial discovery to have disclosed a defense criminalist, one could well have expected the prosecution to have countered with yet another criminalist. We perceive no intrinsic defense advantage to a "battle of the experts" over the evidence in the record.
The impact of Avila's testimony on the trial could only have been negligible. First, considering his testimony as newly discovered evidence, mere impeachment on the issue of credibility with no proof of the accused's innocence generally will not surmount the hurdle of immateriality. (People v. Green (1982) 130 Cal.App.3d 1, 11; People v. Quaintance (1978) 86 Cal.App.3d 594, 602; 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crim. Judgm., § 96, p. 128; see § 1181, P(8).) Second, Sanchez's testimony was of dubious credibility, as argument to the jury shows, even without Avila's testimony. Both counsel impugned Sanchez's character, Cottrell's trial attorney calling him an "opportunist" and "a user and abuser of people," the prosecutor denigrating her own witness as "odd" and "weird." Bearing out the prosecutor's prediction that the case was neither "easy" nor "normal," the jury deliberated for over four hours, listening to the readback of Sanchez's testimony, to the pathologist's testimony, and to the instruction on personal use of a firearm before reaching verdicts. In short, on none of the four grounds on which Cottrell sought a new trial does the record show deficient performance under an objective standard of professional reasonableness test or prejudice under a test of reasonable probability of a different outcome. (Strickland v. Washington, supra, 466 U.S. 668, 687-698.)

(Id. at 14-16.)

3. Analysis of Sublaims 1,2,3, and 5 ¹⁰

10 To the extent that Petitioner argues that Dr. Nelson gave false or erroneous testimony concerning the angle of the head wound, the Court does not consider the matter because Petitioner did not exhaust state court remedies concerning such claim.

The law governing claims concerning ineffective assistance of counsel is clearly established for the purposes of the AEDPA deference standard set forth in 28 U.S.C. § 2254(d). Premo v. Moore, -U.S. -, 131 S.Ct. 733, 737-38 (2011); Canales v. Roe, 151 F.3d 1226, 1229 n.2 (9th Cir. 1998).

To demonstrate ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments, a convicted defendant must show that 1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms in light of all the circumstances of the particular case; and 2) unless prejudice is presumed, it is reasonably probable that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-94 (1984); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). A petitioner must identify the acts or omissions of counsel that are alleged to have been deficient. Strickland, 466 U.S. at 690. This standard is the same standard that is applied on direct appeal and in a motion for a new trial. Id. at 697-98.

In determining whether counsel's conduct was deficient, a court should consider the overall performance of counsel from the perspective of counsel at the time of the representation. Strickland, 466 U.S. at 689. There is a strong presumption that counsel's conduct was adequate and within the exercise of reasonable professional judgment and the wide range of reasonable professional assistance. Id. at 688-90. The challenger's burden is to show "that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment." Id. at 687.

In determining prejudice, a reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Strickland, 466 U.S. at 694. In the context of a trial, the question is thus whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt. Id. at 695. This Court must consider the totality of the evidence before the fact finder and determine whether the substandard representation rendered the proceeding fundamentally unfair or the results thereof unreliable. Id. at 687, 696.

Where the state court has applied the correct, clearly established federal law to a claim concerning the ineffective assistance of counsel, a federal district court analyzes the claim under the "unreasonable application" clause of § 2254(d)(1), pursuant to which habeas relief is warranted where the correct law was unreasonably applied to the facts. Weighall v. Middle, 215 F.3d 1058, 1062-62 (2000) (citing Williams v. Taylor, 529 U.S. 362 (2000)).

The Supreme Court has described the high bar presented by § 2254(d)(1) for prevailing on a claim of ineffective assistance of counsel:

"To establish deficient performance, a person challenging a conviction must show that 'counsel's representation fell below an objective standard of reasonableness.' [Strickland,] 466 U.S., at 688 . A court considering a claim of ineffective assistance must apply a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance. Id., at 689 . The challenger's burden is to show 'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.' Id., at 687 .
"With respect to prejudice, a challenger must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' ...
" 'Surmounting Strickland's high bar is never an easy task.' Padilla v. Kentucky, 559 U.S. ----, ---- [130 S.Ct. 1473, 1485, 176 L.Ed.2d 284] (2010). An
ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial [or in pretrial proceedings], and so the Strickland standard must be applied with scrupulous care, lest 'intrusive post-trial inquiry' threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U.S., at 689-690 . Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is 'all too tempting' to 'second-guess counsel's assistance after conviction or adverse sentence.' Id., at 689 ; see also Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether an attorney's representation amounted to incompetence under 'prevailing professional norms,' not whether it deviated from best practices or most common custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052.
"Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both 'highly deferential,' id., at 689 ; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is 'doubly' so, Knowles, 556 U.S., at ----, 129 S.Ct., at 1420. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S., at ---- [129 S.Ct., at 1420]. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard."

Premo v. Moore, -U.S. -, 131 S.Ct. 733, 739-40 (2011) (quoting Harrington v. Richter, -U.S.-, 131 S.Ct. 770 (2011)).

Here, the state court applied the appropriate, clearly established federal law embodied in the Strickland case. Petitioner identified the specific omissions alleged to have been substandard. As the foregoing, extensive summary of the pertinent evidence shows, no basis in the record appears for determining that the state court unreasonably determined the facts in light of the evidence presented in the state proceedings.

The state court concluded that the failure to call O'Clair to opine concerning the jammed cartridge case was not outside the wide range of professionally competent assistance and was not prejudicial. This determination was not contrary to, or an unreasonable application of, clearly established federal law. O'Clair opined not that there was one, clear explanation for the jamming; rather, he offered three possible explanations: a self-inflicted wound, which was helpful to Petitioner; prevention of the slide from going backward upon firing, which was consistent with Petitioner's having held his hand on the gun when it was fired; or a loosely held pistol, which was consistent with the victim's holding the gun under duress or not having proper hold of the gun due to Petitioner's also holding it, or with an intoxicated person's handling of the gun. The testifying pathologist's opinion did not exclude a self-inflicted wound and was based on an assumption regarding use of the non-dominant hand. The facts, which included the victim's having keys in her dominant hand at the time of the shooting and being situated so that her left hand was next to Petitioner, did not compel acceptance of the pathologist's assumption. Counsel's theory was that the victim pulled the trigger, and his strategy was to narrow the evidence and avoid confusing the jury. Considering counsel's independent research and investigation as well as the theory of the case, O'Clair's opinion was reasonably determined not to have been so exculpatory that failure to present it fell below professional norms or prejudiced the outcome of the trial.

Although Dowell's report was consistent with a self-inflicted wound, it also was consistent with the victim's hands having been in an environment of gunshot residue or receiving the residue from an external or environmental source. A particle was found on the palm of the victim's right hand. (CT 152.) The evidence was thus not necessarily exculpatory, and it did not preclude or contradict possible prosecution theories that gunshot residue was a result of Petitioner's discharging the weapon. Trial counsel reasonably believed that in light of other evidence, including Petitioner's own statements and conduct, a jury might question the reasonableness of an interpretation of the evidence that pointed to innocence. Further, counsel desired to underscore the incomplete nature of law enforcement's investigation of the incident by showing that the GSR test had been run on the victim but not on Petitioner. The state court's application of the law to these facts was not unreasonable.

Although Orantes opined that the victim's wound was accidental and self-inflicted, trial counsel had reasonably relied on Dr. Nelson's finding that the wound was consistent with a self-inflicted wound. Counsel had made a reasonably informed tactical decision that because no definitive evidence of either homicide or self-infliction was present, the focus should be on reasonable doubt. The state court reasonably relied on not only the opinion evidence, but also the demonstrative evidence regarding the unusual position and angle of the gunshot wound. The gunshot residue evidence upon which Orantes relied showed gunshot residue on both of the victim's hands and thus provided a basis for both sides' theories about the incident. Further, Orantes' point that the expended cartridge was retained in the firing chamber because the discharge produced a contact wound was questionable considering other testimony that the cartridge case was jammed in the ejector port. (CT 154, RT 76.)

The state court reasonably determined that the jury had been presented with the "alternative scenarios" of accidental or suicidal self-infliction on the one hand, and shooting by Petitioner on the other, even without the additional evidence from O'Clair, Dowell, and Orantes. (Opinion at 15.) Further, it was reasonably concluded that the prosecution could have been expected to counter any disclosed expert opinion evidence with contradictory opinion evidence and thus to have mounted a "battle of the experts." (Id.) In this regard, the state court did not unreasonably apply clearly established federal law.

With respect to Avila, who Petitioner asserts could have testified that Sanchez had characterized Petitioner as his "meal ticket" and displayed self-interest, the state appellate court noted in its opinion that the record did not contain Avila's declaration. (Op. at 14 n.3.) The court instead relied on summaries of the declaration contained in the motion and opposition. (Id.) The record contains a motion to defer judgment filed by Petitioner proceeding pro se on February 19, 1999, followed by a letter from Avila addressed to the trial judge dated February 16, 1999, and received by the trial court on February 22, 1999. (CT [LD 17] 120-25.) Although Avila stated that he called trial counsel's office and left a message that he was a possible witness for the defense, the specifics of that transaction are not set forth. The appellate court noted that no one questioned trial counsel concerning Avila at the hearing on the motion to suppress, and counsel had declared that he was unaware of the witness until after trial and that no party had informed him of his existence. (Op. at 13-14.) Thus, the record was sufficiently vague to preclude a sound conclusion that counsel's failure to discover, respond to, or investigate Avila was substandard practice.

The state court concluded that even if Avila had testified, his testimony would only have constituted further impeachment of Sanchez, who already had provided testimony of "dubious credibility." (Op. at 15.) The state court did not unreasonably apply clearly established federal law. The record contained Petitioner's counsel's extensive cross-examination and impeachment of Sanchez, who admittedly had accepted Petitioner's hospitality, treacherously insinuated himself into the lives of Petitioner's family members, sought money from Petitioner's parents, and suffered four felony convictions before a purported religious conversion. Sanchez's previous cooperation with law enforcement in order to escape from a gang was also before the jury. As the appellate court noted, even the prosecutor had admitted to the jury that Sanchez's motivation was unclear and that he was odd and weird. Although Sanchez was a key witness, given the uncertainty of what Avila's actual testimony under penalty of perjury would have been, and considering the extensive impeachment of Sanchez at trial, it was reasonable for the state court to conclude that Petitioner's counsel had not rendered objectively substandard representation and that it had not been shown that had Avila testified, there was a reasonable probability that the result of the trial would have been different.

Further, focusing on the totality of the evidence further reflects the reasonableness of the conclusion that Petitioner had not shown that had Avila testified, a more favorable result was reasonably probable. Sanchez knew many details concerning Petitioner's conduct on the night of the shooting and his previous relationship with the victim. Thus, the assertion that Petitioner had revealed further details of the shooting itself was fully believable. Independent evidence corroborated Sanchez's testimony. Avila was a recidivist whose information was gathered while he was in custody. There is no evidence that Sanchez ever indicated to Avila that Sanchez's representations of what Petitioner had told him were untrue; rather, Avila at best provided a basis for inferring that Sanchez proceeded according to his self-interest, a conclusion that was brought out at trial in both the evidence and argument. Further, Sanchez had been sentenced already, and there was uncontradicted evidence that there had been no agreement concerning Petitioner in connection with Sanchez's guilty plea.

Other evidence provided an independent basis for the trier of fact to conclude that Petitioner had inflicted the fatal wound, including Petitioner's inconsistent statements concerning the character of the shooting as an accidental or intentional act, other significant inconsistencies in his stories, his burning of evidence and delay in contacting authorities after the shooting, and his motive to conceal his relationship with the victim.

In summary, the state court's conclusion that Petitioner had not demonstrated either substandard representation of counsel or prejudice was not an unreasonable application of clearly established federal law. Further, the state court decision did not result in an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

4. Counsel's Failure to Object to Admission of Petitioner's Statements as Involuntary or in Violation of Miranda

In the fourth sub-claim of ineffective assistance of counsel, Petitioner argues that trial counsel was ineffective for failing to object on due process grounds to admission of Petitioner's pretrial statements because they were 1) involuntary, and 2) intentionally obtained in violation of the requirements established by Miranda v. Arizona.

This sub-claim or set thereof was first raised during the second round of habeas proceedings in the petition filed in the MCSC. (HC2-MCSC, LD 8, 15-22.) The MCSC noted that the ineffectiveness of trial counsel had been raised and rejected on appeal and in the habeas petition filed in the appellate court, as to which review was denied by the California Supreme Court. In denying the petition, the MCSC stated:

On the issue of ineffective assistance of trial counsel, this court finds insufficient justification for renewal of that issue on habeas corpus. In re Harris (1993) 5 Cal.4th 813, 825, 829.

The issue was not raised in Petitioner's petition to the DCA, which was summarily denied, and the Supreme Court summarily denied the petition in which Petitioner raised the issue.

If it is presumed that the California Supreme Court's summary denial incorporated the trial court's invocation of the Waltreus rule, then there would be no decision on the merits to review. When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply, and a federal habeas court must review the claim de novo. Cone v. Bell, 556 U.S. 449, 129 S.Ct. 1769, 1784 (2009); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

However, if it were concluded that the California Supreme Court's summary denial was on the merits, then there would be a decision on the merits to review, but no statement of reasoning. Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

Here, regardless of the way the California Supreme Court's decision is characterized, the foregoing analysis of Petitioner's claims of due process and Miranda violations concerning Petitioner's extra-judicial statements shows that the claims were without merit. Thus, efforts by counsel to exclude the statements from evidence would have been futile. Petitioner has not shown that any prejudice resulted from counsel's failure to object to the evidence of his statements. Thus, Petitioner has not shown that trial counsel engaged in prejudicial, substandard practice by failing to raise the claims concerning Petitioner's extra-judicial statements. Cf. James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994).

Petitioner's sixth and last set of sub-claims of ineffective assistance of trial counsel is based on counsel's failure to conduct an adequate investigation and to request discovery, which allegedly resulted in counsel's failure to obtain recordings of Sanchez's conversations with Petitioner after Petitioner's release from jail, a crime report of Sanchez's possession of cocaine in jail, and a laboratory report indicating the absence of spermatozoa in the victim's vaginal swab. These claims relate to, and are in some respects dependent upon, Petitioner's claims that the government's failure to disclose these materials to defense counsel constituted a violation of the Due Process Clause and the government's duty to disclose materials to the defense pursuant to Brady v. Maryland, 373 U.S. 83, 87-88 (1963).

In the interest of judicial economy, the Court will defer analysis of the ineffective assistance of counsel sub-claims relating to the materials that are the subject of Brady claims until after the Court's analysis of the pertinent Brady claims.

VII. Prosecutorial Misconduct

Although the claim is placed within a larger argument concerning cumulative error, Petitioner seeks reversal based on allegations that in closing argument, the prosecutor vouched for Sanchez's credibility, argued extra-record matters that were not in evidence, and violated the advocate-witness rule. (FAP 46-52.)

A. Exhaustion of State Court Remedies

Respondent argues that this claim or group of sub-claims concerning prosecutorial misconduct was not presented as a federal claim in the state courts, and thus state court remedies were not exhausted. Respondent asserts that the entire petition should be dismissed because it contains a claim that has not been exhausted. (Ans., doc. 75, 99:6-18.)

A petitioner who is in state custody and wishes to challenge collaterally a conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 1988).

A petitioner can satisfy the exhaustion requirement by providing the highest state court with the necessary jurisdiction a full and fair opportunity to consider each claim before presenting it to the federal court, and demonstrating that no state remedy remains available. Picard v. Connor, 404 U.S. 270, 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full and fair opportunity to hear a claim if the petitioner has presented the highest state court with the claim's factual and legal basis. Duncan v. Henry, 513 U.S. 364, 365 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 (1992), superceded by statute as stated in Williams v. Taylor, 529 U.S. 362 (2000) (factual basis).

Additionally, the petitioner must have specifically told the state court that he was raising a federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir.2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir. 1998). In Duncan, the United States Supreme Court reiterated the rule as follows:

In Picard v. Connor, 404 U.S. 270, 275...(1971),
we said that exhaustion of state remedies requires that petitioners "fairly presen[t]" federal claims to the state courts in order to give the State the "'opportunity to pass upon and correct' alleged violations of the prisoners' federal rights" (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.

Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 2001), stating:

Our rule is that a state prisoner has not "fairly presented" (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law. See, Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held that the petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is "self-evident," Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 7... (1982), or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds, see, e.g., Hiivala v. Wood, 195 F.3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); Crotts, 73 F.3d at 865.
...
In Johnson, we explained that the petitioner must alert
the state court to the fact that the relevant claim is a federal one without regard to how similar the state and federal standards for reviewing the claim may be or how obvious the violation of federal law is.

Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 2001).

Citation to either a federal or state case involving the legal standard for a federal constitutional violation is sufficient to establish exhaustion. Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005) (citing Lyons v. Crawford, 232 F.3d 666, 670 (2000), as modified by 247 F.3d 904 (9th Cir. 2001)).

Examination of the petition for review filed in the California Supreme Court reflects that Petitioner identified among the questions presented for review the issue of whether he was denied due process and a fair trial when the prosecutor 1) called another prosecutor to the stand to testify concerning Sanchez's credibility, 2) vouched for the credibility of the state's key witness and argued matters not within the record, and 3) used false testimony. (Doc. 30, 1b.) Petitioner cited Giglio v. United States, 405 U.S. 150, 154 (1972), concerning the failure to disclose a key prosecution witness's agreement with the prosecution and to correct false testimony on the matter as a denial of the due process clause. (Id. at 4e.) In connection with the contention concerning prosecutors acting as witnesses, Petitioner relied on federal authority, United States v. Prantil, 764 F.2d 548, 552-53 (9th Cir. 1985), concerning a defendant's constitutional right to confrontation and cross-examination guaranteed under the Sixth Amendment; likewise, in connection with references to extra-record evidence, Petitioner relied on United States v. Edwards, 154 F.3d 915, 921 (9th Cir. 1998), concerning placing the prestige of the government behind the witness, or indicating that information not presented to the jury supports the testimony of a witness whose credibility is crucial, as likely to jeopardize the fundamental fairness of the trial. Petitioner expressly contended that the prosecutor's argument concerning Sanchez's false claims, her use of another prosecutor's testimony, and her personal vouching by testifying indirectly as to how deals were made all combined to constitute a denial of due process so serious that reversal was required even without a showing of prejudice. (LD 30, 4i-4j.)

The Court concludes that Petitioner, acting on his own behalf, sufficiently raised the claim or claims as federal claims to exhaust his state court remedies.

B. Procedural Default

The claim of prosecutorial misconduct was first raised in the third round of state habeas in a petition filed in the MCSC as part of a claim concerning cumulative prejudice. (HC3-MCSC, LD 28, doc. 36, pp. 13-25.) The MCSC denied the petition because the petition was successive, and Petitioner was presenting claims in a piecemeal fashion. (LD 28, 1-2.) The MCSC also stated the following with respect to Petitioner's claim of cumulative prejudice:

Since there has been no legal error and petitioner's factual allegations lack credibility his claim must be denied.

(LD 28, 3.) The claim was raised in the habeas petition to the DCA (LD 29, 4d-4j), which denied the petition, stating that Petitioner was filing piecemeal petitions, and citing to In re Clark, 5 Cal.4th 750, 767-68 (1993) (LD 29). The claim was raised in the petition for review filed in the California Supreme Court, which was summarily denied. (LD 30, 4d-4k, & order of denial.)

The doctrine of procedural default is a specific application of the more general doctrine of independent state grounds. It provides that when a prisoner has defaulted a claim by violating a state procedural rule which would constitute adequate and independent grounds to bar direct review in the United States Supreme Court, he or she may not raise the claim in federal habeas, absent a showing of cause and prejudice or that a failure to consider the claim will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003). This rule applies regardless of whether the default occurred at trial, on appeal, or on state collateral review. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).

However, a procedural default is not jurisdictional. Trest v. Cain, 522 U.S. 87, 89 (1997). Instead, it proceeds from concerns of comity and federalism because a prisoner's failure to comply with a state's procedural requirement for presenting a federal claim has deprived the state courts of an opportunity to address the claim in the first instance. Coleman v. Thompson, 501 U.S. 722, 831-32 (1991). Therefore, a court may bypass an issue of procedural bar in the interest of judicial economy, such as where the issue of procedural default is complex and the claim may easily be resolved against the petitioner. Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (citing 28 U.S.C. § 2254(b)(2), which permits a federal court to deny a habeas petition on the merits notwithstanding the applicant's failure to exhaust state remedies); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (noting the power of appellate courts to reach the merits of habeas petitions if on their face and without regard to any facts that could be developed in a lower court, they are clearly not meritorious).

With respect to the claims denied as successive or piecemeal, the Court exercises its discretion to consider the merits of the claims in the interest of the efficient use of resources.¹¹

11 In view of the Court's determination to reach potentially procedurally defaulted issues in the interest of judicial economy, the Court finds it unnecessary to reach Petitioner's argument that the Court should bypass the procedural default because Petitioner is actually innocent of the homicide (FAP 54-56), or issues of cause and prejudice or fundamental miscarriage of justice.

C. Background

In his final petition filed in the California Supreme Court, Petitioner alleged that the prosecutor knowingly used false testimony, violated the advocate-witness rule, and vouched for Sanchez. (HC3-CASC, LD 30, 4d.) Petitioner referred to Sanchez's testimony that he had never asked law enforcement or the D.A. for any favors. (Id. at 4d-4h; RT 221.) Petitioner noted the testimony of Madera County Deputy District Attorney Robert McGurty, who had prosecuted Sanchez on the charge of felony assault with intent to rape, that Petitioner's case had nothing to do with the plea in the sexual assault case. (Id. at 4h; RT 257-62.) Petitioner noted Sanchez's "recantation," in which Sanchez allegedly stated that he lied about Petitioner's confession because he was scared of other inmates' disclosing the nature of his crime (sexual assault) to other inmates, and of being faced with a long prison term if drug charges were filed.¹²(Id.) Petitioner argued that Sanchez's credibility was a major issue, and the police knew that Sanchez's testimony that he expected nothing was untrue; thus, the prosecutor deliberately and knowingly used false evidence.

12 The alleged "recantation" of Sanchez is more fully discussed in connection with the Brady claims.

Petitioner also argued that the prosecutor's argument to the jury constituted vouching, pointing to the prosecutor's argument that Sanchez had no motive to lie, had nothing to gain by testifying, had never asked for or been offered anything, and was honest and forthright. (Id. at 4g-4h, RT 315-16.)

The prosecutor's initial argument covered the physical evidence, Petitioner's statements, and the testimony and credibility of Sanchez. (RT 303-24.) She argued that credibility was determined by what one sees and hears, and that she believed that Rudy came off as very credible during his testimony. (RT 315.) She argued that he had no reason to lie and ample reason to avoid prison, where he could be labeled as an informant or even killed; he had nothing to gain from testifying in the sense that he never was offered, or got, anything, and he was trying to do the right thing despite a criminal past. (Id.) She noted the evidence of multiple details concerning Petitioner's life and his relationship with the victim to which Sanchez testified, arguing that this evidence substantially corroborated Sanchez's testimony. (RT 316-18.)

Defense counsel's argument likewise covered the physical evidence, Petitioner's statements, and Sanchez. He argued that Sanchez was an opportunist, drug dealer, perpetrator of assault with intent to rape, and a user and abuser of Petitioner and his family who was not entitled to the jury's trust. He asserted that because Sanchez was a recidivist serving a term of probation for five years, Sanchez was interested in helping the prosecution so that he could rely on that cooperation when he next returned to the criminal justice system. Defense counsel noted the lack of corroboration for Sanchez's testimony that there were two guns in the car, and the inconsistency of such a circumstance with the physical evidence. (RT 324-38.)

Petitioner emphasizes one portion of the prosecutor's final closing argument, which occurred right after the prosecutor stated that the bullet path and Sanchez were the major pieces of evidence supporting a conviction:

Talking about Rudy Sanchez. Mr. Garvin paints him as an opportunist. What was he trying to get here? He says, "Gee, in the future he is going to violate his probation and then he is going to come to the DA and say, 'I did this' and "I did that[.]'" That's not necessarily how we operate. So we make a deal with someone and we give something in return, defense finds out about it, it will come out. There's even a contract made up. That's that.
He never asked for anything. He never got anything. And I bet that he doesn't expect anything. I don't think he's going to fall by the way side next month, next week, next year, go back to his old ways, starts selling drugs or doing whatever, I don't know. But you have to judge him by what he's like today or yesterday when he testified. You heard him. You saw him.

(LD 30, 4h, RT 342-43.) She argued that his testimony regarding two guns was a weird thing to make up, and she characterized Sanchez's behavior in his friendship with Petitioner as odd. (Id. at 344.)

D. Analysis

Prosecutorial misconduct requires reversal of a conviction for a new trial if it so infects the trial with unfairness as to make the resulting conviction a denial of due process. Darden v. Wainwright, 477 U.S. 168, 181 (1986); Comer v. Schriro, 480 F.3d 960, 988 (9th Cir. 2007). Prosecutorial misconduct deprives the defendant of a fair trial as guaranteed by the Due Process Clause if it prejudicially affects the substantial rights of a defendant. United States v. Yarbrough, 852 F.2d 1522, 1539 (9th Cir. 1988) (citing Smith v. Phillips, 455 U.S. 209, 219 (1982)).

Vouching consists of placing the prestige of the government behind a witness through personal assurances of the witness's veracity, or suggesting that information not presented to the jury supports the witness's testimony. United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993). Vouching for the credibility of a witness or expressing a personal opinion concerning the accused's guilt can pose two dangers. First, it can convey the impression that evidence known by the prosecutor but not presented to the jury supports the charges, and thus it can jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury. United States v. Young, 470 U.S. 1, 18 (1985). Second, the prosecutor's opinion reflects the imprimatur of the government and may induce the jury to trust the government's judgment rather than its own assessment of the evidence. Id. at 18-19. Where a prosecutor engages in argument that violates the ethical principle that a lawyer not express a personal belief or opinion in the truth or falsity of any testimony or evidence, the violation must be viewed in context to determine whether the prosecutor's conduct affected the fairness of the trial. United States v. Young, 470 U.S. at 10-11. To determine whether prejudicial error occurred, a court must consider the probable effect of the prosecutor's argument on the jury's ability to judge the evidence fairly. Id. at 12. Vouching for a witness's credibility is more likely to be damaging where the credibility of the witness is crucial. United States v. Edwards, 154 F.3d 915, 921 (9th Cir. 1998).

However, prosecutors may argue reasonable inferences based on the evidence, including that one of the two sides is lying. United States v. Necoechea, 986 F.2d 1273, 1276.

Attorneys are generally prohibited from taking the witness stand to testify in a case they are litigating because it raises a risk that jurors will be unduly influenced by the prestige and prominence of the prosecutor's office and will base their credibility determinations on improper factors. United States v. Edwards, 154 F.3d 915, 921 (9th Cir. 1998). Related concerns for maintaining the appearance of justice and public confidence in the administration of justice are especially significant where the testifying attorney represents the prosecuting arm and advocate of the government. Id. The rule functions to maintain a boundary between the advocate and the witness by preventing an attorney from appearing as both a witness and an advocate in the same litigation. United States v. Prantil, 764 F.2d 548, 552-53 (9th Cir. 1985). When, in context, a prosecutor is portrayed as being personally involved with an investigation or transaction that is in evidence, it can be a violation of the rules against vouching or advocates acting as witnesses. See, United States v. Hermanek, 289 F.3d 1076, 1089-99 (2002) (prosecutor's reference to the team investigating the crime as "we" and "us" was considered to be a violation).

In California, a claim of prosecutorial misconduct is forfeited on appeal if there was no objection in the trial court unless objection was impossible or futile, or a timely admonition would not have cured the harm caused by the misconduct. People v. Cole, 33 Cal.4th 1158, 1201 (2004). Failure to comply with California's rule requiring a contemporaneous objection has been held to result in a procedural default of a prosecutorial misconduct claim. See, Rich v. Calderon, 187 F.3d 1064, 1069-70 (9th Cir. 1999) (citing Coleman v. Thompson, 501 U.S. 722, 729-32, 750 (1991)). Here, there was no objection to any of the alleged misconduct at the trial level. It does not appear that objection was impossible or futile. Thus, a state court could reasonably have denied the claim based on a conclusion that the issue had been waived.

However, as previously noted, the Court will proceed to the merits of the claim. An examination of the substance of Petitioner's claim results in a conclusion that the advocate-witness rule was not violated by the prosecutor's calling Deputy District Attorney McGurty to testify concerning the absence of an agreement relating to Sanchez's sexual assault conviction, or by the prosecutor's argument concerning McGurty's testimony. There is no suggestion in the record that the prosecutor in Petitioner's murder case participated in Petitioner's sexual assault case. Further, the record does not support an inference that McGurty participated in the investigation or prosecution of Petitioner's murder case; rather, McGurty did not know that Sanchez was involved in Petitioner's case when he prosecuted Sanchez for sexual assault, offered to accept a plea of guilty to sexual assault with intent to rape in exchange for a sentence of one year in jail and felony probation for five years, and noted the entry of a plea of guilty by Petitioner on March 23, 1998. (RT 259-60.) McGurty was thus a witness with personal knowledge of the plea bargaining process in the prosecution of Sanchez's sexual assault case, which was a separate prosecution. The fact that McGurty happened to be a prosecutor in the same office as the prosecutor of Petitioner's case does not endow him with the status of an advocate in Petitioner's case. Accordingly, no violation of the advocate-witness rule has been established.

With respect to vouching, the prosecutor did assert what she thought of Sanchez's credibility. (RT 315.) However, that remark was preceded by her statement that a persons's credibility is determined by what was seen and heard, and followed immediately by a review of Sanchez's testimony and motivation and the pertinent corroborating evidence. (RT 315-16.) The prosecutor also stated that she did not think that Sanchez was going to go back to his old ways. (RT 343.) However, that statement was followed directly by her admonition that the jury had to judge him by what was seen and heard when he testified. (RT 343.) The comments that could be understood as personal opinion were made in the context of a review of Sanchez's testimony and the related evidence. Although she occasionally expressed her argument as her own thoughts, the prosecutor's comments were not glaring statements of opinion as distinct from comment on what she thought the reasonable inferences were to be drawn from the evidence.

In controverting defense counsel's argument that Sanchez wanted to curry favor with the prosecution for his eventual advantage in connection with any future contacts he might have with law enforcement, the prosecutor referred to how "we" operate, how "we" make a deal with someone, and how "we" give something in return. This identification with the larger prosecution team did raise a risk of improper influence upon the jury with respect to a credibility determination. However, that determination concerned directly the testimony of McGurty, whom defense counsel declined to cross-examine. The prosecutor's comment about how they operated thus could reasonably have been understood as comment upon the evidence, which reflected a plea bargain that was written up and recorded in a file, as distinct from a vague, amorphous, unilateral expectation of leniency at some uncertain time in the future. The prosecutor was underlining the fact that the evidence reflected that Sanchez never requested or received any benefit in connection with the murder case, including any favors in relation to the sexual assault prosecution. Her argument was thus based on the evidence in the record, and it did not raise any appreciable risk that the jury would think she was relying on unspecified, extra-record evidence. To the extent that she injected the stature of the prosecutor's office into her argument, her remarks were directly focused on the credibility of McGurty. In context, it is clear that the prosecutor was arguing that there was no component in Sanchez's plea bargain that related to Sanchez's conduct or testimony in Petitioner's murder prosecution, and that some vague hope for an indefinite benefit in the future did not suffice as a basis for significant bias or interest on the part of Sanchez in connection with the testimony he gave in Petitioner's case.

The Court concludes that viewing the argument in the context of the evidence admitted at trial, the prosecutor's argument was not likely to affect the jury's ability to judge the evidence fairly. Petitioner has failed to show that any misconduct on the part of the prosecutor affected the fairness of the trial. The Court concludes that the state court's denial of Petitioner's claim was not contrary to, or an unreasonable application of, clearly established federal law. Further, it did not result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented to the state court.

VIII. Failure to Disclose Material, Exculpatory Evidence

Petitioner argues that his right to due process of law protected by the Fifth and Fourteenth Amendments was violated by the prosecution's failure to disclose material, exculpatory evidence. (FAP 34-39.) Because the claims were raised in different state-court proceedings, different decisions adjudicated the various issues. Thus, each claim will be set forth and analyzed separately.

A. Failure to Disclose Evidence that Sanchez Possessed Cocaine in Jail

Petitioner argues he was denied due process of law by the prosecution's failure to disclose an incident report of the Madera County Department of Corrections (MCDC) dated June 23, 1997, in which it was reported that Sanchez possessed "crack" cocaine when he was searched upon his arrival at jail on June 22, 1997. (FAP 34-35.)

Although Sanchez's alleged recantation of his trial testimony was raised in Petitioner's first habeas petition heard by the DCA concurrently with Petitioner's direct appeal (LD 10), the Brady issue as such was first presented to the DCA in Petitioner's second round of state habeas proceedings. (LD 10, ground 3.) The petition was denied on April 3, 2003, without a statement of reasoning or authority. (Doc. 59, 124.) The claim was presented in a petition for writ of habeas corpus filed in the California Supreme Court (LD 11), which also summarily denied the petition (doc. 59, 126).

The claim based on the failure to disclose the incident report was not raised in Petitioner's third round of state habeas proceedings, so the California Supreme Court's summary denial is the most recent decision on the claim. Because the parties advance no basis in the record to rebut the presumption that the summary decision was an adjudication on the merits within the meaning of § 2254(d)(1), the Court will consider the Supreme Court's decision. See, Harrington v. Richter, 131 S.Ct. at 784-85. Where a state court has not explained its reasons, the petitioner's burden is met by showing there was no reasonable basis for the state court to deny relief. Id. at 784. This Court will review the state court's decision and the record and will determine if the state court's decision was contrary to, or an unreasonable application of, clearly established Supreme Court law. See, Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63, 75-76); Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

1. Background

The petition filed in the California Supreme Court included as an exhibit an incident report, dated June 23, 1997, made by Officer D. Bonilla of the MCDC, that reflects that Rudy Sanchez admitted to the officer that on the street he had been given a substance that he knew was a narcotic. Sanchez stated that he intended to dispose of it but did not have time to do so before being arrested and incarcerated. (LD 11, exs. (unpaginated).) The rock measured 1/4 inch by 1/4 inch and tested positive for crack cocaine. (Id.) The report reflects that a crime report was "to be written subsequently." (Id.)

The exhibits to the petition included another incident report written by Officer D. Zepeda on November 11, 1997, when Sanchez planned to appear in the Borden Municipal Court on the sexual assault charge. The report reflected Sanchez's reported fear of gang-related violence from the boyfriend of the mother of the victim of the assault with which he was charged. (Id.) Zepeda informed Correctional Officer Gonzalez of the problem, who interviewed Petitioner. Extra security was provided. (Id.)

The petition considered by the California Supreme Court included copies of the declarations concerning Sanchez's post-trial statements which were the basis of Petitioner's unsuccessful argument in the first habeas petition before the DCA that Sanchez's alleged recantation was newly discovered evidence that warranted a new trial.

In a declaration dated February 9, 2001, Petitioner's sister, Cheri Cottrell Bodle, stated that when visiting Sanchez in prison in November 2000, he orally admitted that he had lied in court and that Petitioner had never admitted killing Bonham. Further, he told Bodle that he had been caught using "crank" while incarcerated in the jail, and in return for not being charged, he was persuaded to "snitch" on Petitioner and was told what to say and how to say it. (LD 11, ex. 1.) Bodle declared that Sanchez said he was instructed to stay close to Petitioner and befriend him after release. Sanchez allegedly stated that he did so and later told his story to the officers investigating the shooting. Bodle declared that Sanchez said that the prosecutor was unaware of Sanchez's drug problem in the jail, and Sanchez did not know if any of the investigating deputies were aware. Bodle declared that Sanchez wrote and signed short statements and an apology freely and voluntarily, and without any coaching from Bodle. Bodle sent the papers to Mr. Blake, Petitioner's appellate attorney. (Id.)

The exhibits also included two short statements and an apology allegedly written by Sanchez in Bodle's presence. (LD 11, ex. 1.)

One statement dated November 30, 2000, was allegedly signed by Rudy Sanchez, who gave his address and prisoner number as well, and was written to Mr. Smothers, Petitioner's former trial attorney. Sanchez wrote:

Well first of all Dale is innocent. Everything that was said on my behalf, was lie's. I realize I have to do what is right. Mr. Smother take
Dale case. He's innocent he never shot Kathy [B]onham.

(Id.)

In another statement, which was undated but allegedly signed by Sanchez, the following was stated:

I Rudy Sanchez was scare for my safety, because of what happen, about drugs in the Madera County Jail, I did what I did because, I was looking at a lot of time, before my oranginl charge, what I'm in here now for, I was told to work for Gonzale's, so nothing will happen, I'm, a gang drop out, and I was scared.

(Id.)

The third statement was undated and was written on a copy of a portion of the book of Psalms from the Bible. The handwritten text stated:

Dale I'm sorry for what I did don't give up. Please forgive me. Your sister will work it out.

(Id.) The statement was followed by the words "Bobby Fisher," an alleged reference to chess master Bobby Fischer by Sanchez, who Bodle declared had taught Petitioner to play chess. (Id.)

The habeas petition before the California Supreme Court also included the declaration of Stevan Rosenlind, an experienced, licensed private investigator and educator who was retained by Petitioner's appellate counsel, Christopher Blake, and was present with Blake during a visit to Sanchez in prison on January 26, 2001, when Blake showed Sanchez the previously described letters believed to have been given to Bodle. Rosenlind declared that Sanchez indicated that he had written the letters in Bodle's presence, twice saying, "When I wrote those letters...." Sanchez read over the letter written on Bible verses and then made statements to Rosenlind indicating that Sanchez was affirming and acknowledging that he personally wrote the letter. (Id.)¹³

13 No declaration from Blake was included in the petition filed in the California Supreme Court.

The habeas petition¹⁴ filed in the California Supreme Court included summaries of the evidence presented at trial, including Sanchez's testimony. (LD 11-13.)

14 Although Petitioner's supplements to the petition were received and not filed by the California Supreme Court (LD 12-14), Respondent notes the supplements and does not object to consideration of them. (Ans. , doc. 75, 55:18-19.)

Rudy Sanchez was in the Madera County Jail from June 22 through 26, 1997, and it was in connection with this custody that Sanchez was found to have been in possession of crack cocaine on June 23, 1997. (LD 11, p. A, 14.) Bonham died on the night of November 24, 1997. (Id. at "Page a-1.") Petitioner was arrested at the hospital and placed into the Madera County Jail on November 27, 1997. (Id. at "Page a-3"; LD 12 at 7.)

Sanchez returned to jail custody on September 17, 1997, in connection with a charge of assault with intent to commit rape and remained there until May 15, 1998. (LD 11, pp. A, a-6.) Sanchez had been in prison at least three times, mostly for drug-related offenses. (Id. at p. a-6.) Sanchez pleaded guilty to the charge of assault with intent to commit rape pursuant to a plea bargain and served only one year with four years probation. (LD 11, pp. A, a-7.) Sanchez had been a "snitch" in San Francisco. (Id. at p. a-7.)

The initial charge that Petitioner had murdered Bonham was dismissed on April 6, 1998, after a preliminary hearing held in February 1998 and a motion to dismiss pursuant to Cal. Pen. Code § 995 on the grounds of insufficiency of evidence and denial of a substantial right because Petitioner's counsel was not permitted to cross-examine Detective Molsbergen concerning his investigation and findings from the Department of Justice and the Los Angeles Coroner's Office that showed that all the evidence was consistent with a self-inflicted gunshot wound. (LD 32, ex. d, mot. at 2-4, p. 2.) Petitioner was released from custody. The main difference between the first and second prosecution was the presence of Sanchez at the second trial. (LD 13, 8.) Charges were not re-filed until Sanchez surfaced, alleging that Petitioner had confessed. (LD 12, 7.)

At trial, Sanchez denied having asked for or having expected any favors from anyone in a position of authority in return for being an informant. (Id. at 8.) The prosecutor argued that Sanchez did not have any motive to lie, was thus credible, and provided primary or major evidence, without which the trial would not have occurred. (Id.)

Respondent asserts that when considering Petitioner's Brady claim concerning the incident report, the state court had before it the facts developed in the first habeas corpus petition filed in the DCA that was pending simultaneously with his direct appeal to that Court. (Answer, doc. 75, 45-46, 46 n. 27.) Respondent cites to LD 14, which is a copy of the docket in Dale L. Cottrell on Habeas Corpus, case number S115848 (HC2-CASC). Review of the docket reveals no entry that would indicate that all the facts developed in the first habeas petition in the DCA were before the California Supreme Court; instead, it reflects that all the documents received by the court were submitted by Petitioner, and review of those documents does not provide support for Respondent's assertion.

Further, the issues raised in Petitioner's first habeas corpus petition before the DCA that was pending contemporaneously with his appeal (HC1) did not include a claim of violation of due process due to a failure to disclose a report of possession by Sanchez of cocaine in jail; rather, the petition concerned whether Petitioner was entitled to a new trial, or a further hearing on his motion for new trial, based on previously raised claims of ineffective assistance of counsel and newly discovered evidence that suggested a recantation and cooperation by Sanchez with law enforcement. The allegedly newly discovered evidence did not include the report that is the subject of the instant contention, although it did suggest that Sanchez had done what he did because of concerns related to drugs in jail.¹⁵ Therefore, it does not appear that the DCA's opinion in the consolidated appeal and habeas petition would have contained any findings of fact pertinent to the Brady issue.

15 The Court notes that in the petition pending before this Court, Petitioner has not raised any claim concerning the alleged recantation.

2. Legal Standards

The Due Process Clause of the Fifth and Fourteenth Amendments imposes upon the prosecution a duty to disclose evidence in its possession that is favorable to an accused if it is material either to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87-88 (1963). The prosecution violates its constitutional duty to disclose to the defense material exculpatory evidence where, regardless of whether the defense requested the evidence, 1) the evidence was favorable to the accused because it was either exculpatory or impeaching; 2) the evidence was suppressed by the government either willfully or inadvertently; and 3) prejudice resulted from the failure to disclose. Strickler v. Greene, 527 U.S. 263, 280 (1999).

Evidence is material in this context if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Kyles v. Whitley, 514 U.S. 419, 433-34 (1995). A reasonable probability of a different result is shown when the government's evidentiary suppression undermines confidence in the outcome of the trial. United States v. Bagley, 473 U.S. 667, 678 (1985). Although each item of undisclosed evidence must be evaluated, the cumulative effect of all suppressed evidence is evaluated for purposes of materiality. Kyles, 514 U.S. at 436-37.

3. Analysis

The Respondent does not contend that the MCDC report was not suppressed or that the report was outside the scope of the prosecutor's duty of disclosure.¹⁶ Thus, the Court will consider whether prejudice resulted from the prosecution's failure to disclose the report by determining whether the undisclosed report was material.

16 Even though a prosecutor is actually unaware of exculpatory or impeaching evidence that is in the government's hands, the prosecutor has a duty to learn of any such evidence known to others acting on the government's behalf. This is because the prosecution is in a unique position to obtain information known to other agents of the government, and thereby to ensure the accuracy and fairness of trials by submitting all available evidence bearing on guilt or innocence to the adversary process. Carriger v. Stewart, 132 F.3d 463, 479-80 (9th Cir. 1997). It has been held that when the state chooses to use a career criminal as a witness, it is the state's obligation to turn over all pertinent information bearing on the witness's credibility, including criminal records and correctional files. Id. at 480.

The state court was presented with a record that demonstrated that Sanchez's testimony provided the sole evidence of Petitioner's confession of guilt. Further, it showed that the prosecutor emphasized Sanchez's testimony in closing argument to the jury. The prosecutor characterized Sanchez's testimony and the evidence concerning the path of the bullet through the victim's head as the two major or primary pieces of evidence in the case, without which none of the participants in the trial would be there. The prosecutor also argued that Sanchez had no motive to lie and had never asked for or been offered anything in exchange for his testimony. The central issue in the case was whether the death was the result of suicide, accident, or the criminal act of Petitioner. Sanchez's testimony thus made conviction more likely, and it is possible that the introduction of evidence that would significantly impeach Sanchez might have changed the result.

Sanchez's possession of cocaine upon his arrest some five months before Bonham's death and over a year before Sanchez's testimony at trial could provide a basis for an inference of bias or interest. Because significant time had already elapsed between the jail possession incident and Bonham's death without referral for prosecution, and further considering that Sanchez was affirmatively prosecuted for a serious felony during the interim without any apparent consideration by the prosecutor's office, the inference of bias would not have been particularly strong. Nevertheless, a reasonable juror could have concluded that Sanchez would have some degree of subjectively based fear of prosecution for the drug possession and thus would have a desire to please or cooperate with authorities.

However, the evidence before the state court did not establish that there was a deal or agreement with authorities that Sanchez would give particular testimony or would otherwise cooperate in Petitioner's case in order to avoid prosecution for the offense or to receive other consideration related to the drug possession. The declaration of Bodle as to what Sanchez told her would have been hearsay if offered to prove the truth of the matter asserted, namely, that Petitioner had a deal with authorities. See, Cal. Evid. Code § 1200.¹⁷ Sanchez's alleged oral statements to Bodle were not made under penalty of perjury. Further, they were vague and devoid of underlying facts: Sanchez did not identify the person or persons who allegedly had persuaded him to "snitch" on Petitioner, and he did not provide any facts concerning the circumstances concerning the making of the alleged deal.

17 Cal. Evid. Code § 1200 provides that hearsay evidence, defined as evidence of a statement made other than by a witness while testifying at the hearing that is offered to prove the truth of the matter stated, is inadmissible except as otherwise provided.

Sanchez's written statements were likewise unsupported by a declaration or verification and were similarly vague and uncertain. It is unclear to what Sanchez was referring when he wrote that everything that was said on his behalf was lies. A conclusion that this was a reference to Sanchez's trial testimony is not supported by the plain meaning of the statement, which refers to things being said on Sanchez's behalf, but not to testimony given by Sanchez himself that related to Petitioner. It is unclear how Sanchez's having to do what was right related to Smothers' taking Petitioner's case; Sanchez did not indicate that he himself had lied on the stand or had engaged in any misconduct. His assertions of Petitioner's innocence, which could not have had a basis in personal knowledge, were unexplained and unsupported by any statement of fact.

Similarly, Sanchez's statements concerning what he did were barren of any indication or description of what it was that he did. His expressed fear for his safety appears to have rested on what happened about drugs in the jail and on his predicament of already being a gang drop-out and "snitch," who was facing a long period of incarceration on the assault with intent to rape. He omitted any details about the alleged instruction to work for "Gonzale's so nothing will happen...." Without any information about the persons involved or any other circumstance except for a general indication of timing, a state court could reasonably have concluded that the Petitioner had not stated a prima facie case that Sanchez received any promises or instructions.

The third statement constituted an apology for what Sanchez did and a request for forgiveness. However, the conduct that precipitated the communication was not specified. Therefore, the state court could have reasonably concluded that Sanchez was referring to his giving testimony against his friend after having developed a friendship in order to gain information that Sanchez ultimately intended to transmit to the authorities in the hope of receiving some favorable treatment. The statements lack the requisite specificity to support a conclusion that Sanchez was apologizing for having given false testimony, or that a representation that he had falsified testimony was implied in his statements.

Rosenlind's declaration that Sanchez confirmed having written the statements was hearsay because it was a statement made by one other than Rosenlind that was offered to prove the truth of the matter asserted.

Further, Petitioner had alleged in his petition that the prosecutor and Detective Molsbergen had denied the existence of any deal with Sanchez.

Evidence that testimony was given by a witness with the hope that it would result in a reduced sentence for pending criminal charges does not constitute sufficient evidence to establish an agreement. Williams v. Woodford, 384 F.3d 567, 598-99 (9th Cir. 2004) , reh. den. in Williams v. Woodford, 396 F.3d 1059 (9th Cir. 2005). In the absence of a promise or a deal, a witness's subjective belief that he might receive lenient treatment in exchange for testifying does not render perjurious the witness's testimony that he received no promises that he would benefit from testifying. Hovey v. Ayers, 458 F.3d 892, 917 (9th Cir. 2006).

Here, the evidence before the state court showed that when Sanchez testified at the trial over a year after he was found in possession of cocaine in the jail, he had not been referred for prosecution or charged criminally in connection with the possession, but he had been charged with a quite serious, separate offense involving a sexual assault and had received one year in jail and five years probation. The evidence arising after the trial did not establish that he had given false testimony at the trial, that any favors or benefits had been promised to Sanchez, or even that he had received any benefits in connection with his cooperation and testimony.

The state court could have reasonably concluded that despite his cooperation, there was no agreement with Sanchez, who had a lengthy history of involvement in controlled substances, was charged with a subsequent offense, and faced a lengthy probation period that could have resulted in his return to prison for a substantial time upon a violation of probation. The state court could have reasonably concluded that the evidence showed no more than that Sanchez had a subjective belief that he might receive lenient treatment in exchange for transmitting information concerning, and testifying about, Petitioner's involvement in the killing of Bonham.

The jury had before it Sanchez's history as an informant and a person convicted of multiple, drug-related offenses, sentenced to prison three times, and resigned to a lengthy period of probation and the attendant possibility of a return to custody for a substantial term upon any probation violation. This evidence independently and significantly impeached Sanchez's credibility on the ground of bias. Evidence that Sanchez had yet another potential reason for wanting to avoid or reduce time in custody did not provide a significantly different basis of impeachment from that already presented to the trier of fact. Generally, where the undisclosed evidence provides duplicate grounds for impeachment that were actually presented to a jury, it does not provide the defense with a new and different ground of impeachment, and thus the evidence is not material. Barker v. Fleming, 423 F.3d 1085, 1096-97 (9th Cir. 2005) (citing Silva v. Brown, 416 F.3d 980 (9th Cir. 2005)). The state court could reasonably have concluded that with respect to its impeachment value, the report would not have affected the trier's determination because it was essentially duplicative, and thus, it was not material.

The major physical evidence in the case concerned the path of the bullet through the victim's skull. The probative value of this evidence was not affected by the non-disclosure of the report. Although Sanchez's testimony concerning Petitioner's confession gave the jury a basis for interpreting that evidence, the probative value of the physical evidence was not dependent upon Sanchez's testimony. The evidence before the trier included the opinion of Dr. Nelson concerning the rarity of self-inflicted gunshot wounds that were caused by the non-dominant hand and resulted in a path through the skull such as that found in Bonham's case.

The state court was also presented with a summary of multiple items of evidence that corroborated Sanchez's testimony concerning the substance of the statements Petitioner made to him. Much of this evidence was derived from Petitioner's own statements to the police, and some of it was independently corroborated by physical evidence. It is not the sort of evidence that would be in the possession of the public or persons who were not involved in the investigation of the offense. The evidence that corroborated Sanchez's testimony consisted of details concerning Petitioner's relationship with the victim and the events of the evening of Bonham's death, including Petitioner's affair with Bonham, Petitioner's telephone call to Bonham in which a meeting was arranged, the previous incident in which Petitioner and Bonham's husband played "Russian roulette," Petitioner's having sex with Bonham at or near the location of the shooting, Petitioner's shooting Bonham in the head while she had her hand on the gun, and Petitioner's return to his house and incineration of the bedding in order to avoid discovery of his sexual relationship with the victim.

The evidence before the state court also included all of Petitioner's statements, which presented inconsistencies concerning not only the precise conduct of Petitioner and Bonham in the car, but also the nature of the shooting as suicide or accident. This evidence warranted an inference of Petitioner's consciousness of guilt. Further, although a portion of Petitioner's delay of several hours in calling authorities was explained, some of it remained unexplained.

Because in this case the verdict is supported by other, strong circumstantial evidence from multiple sources, this case is unlike Smith v. Cain, -U.S.-, 132 S.Ct. 627, 629-31 (2012), in which the sole evidence connecting the petitioner to the crimes of murder during armed robbery was the testimony of a witness that he had no doubt from standing face-to-face with one of the gunmen that the petitioner was one of several perpetrators. The Court found to be material undisclosed detective's notes, made at the time of the crime and a few days after, that the witness had not seen faces and could not identify any perpetrators. In Smith, the evidence was material because it directly contradicted testimony that provided the sole basis for connecting the petitioner to the crime. Here, the undisclosed evidence is not inconsistent with other, similar evidence of Sanchez's criminal activity and cooperation with law enforcement. Further, other evidence here links the Petitioner to the crime and provides the trier of fact a basis for drawing inferences as to Petitioner's conduct, state of mind, and motive. Viewing all the evidence supports a conclusion that the report was not material.

The state court could reasonably have concluded that in view of the nature of the information Sanchez possessed about the pertinent events, and in light of the other, independent evidence tending to show Petitioner's guilt of an intentional shooting, the undisclosed report at most provided an additional basis for a finding of bias on the part of Sanchez, and thus it did not undermine confidence in the outcome of the trial.

Therefore, Petitioner has not shown that the state court decision that the undisclosed evidence was not material was an objectively unreasonable application of clearly established federal law.

B. The Allegedly Recorded Conversations

Petitioner alleges that the prosecution's failure to disclose that after Sanchez was released from jail, Sanchez was working for the prosecution and recorded unspecified conversations with Petitioner while wearing a "wire," constituted a failure to disclose material exculpatory evidence and violated Petitioner's right to due process of law. (FAP 29-30.) Petitioner alleges that the defense could have used the undisclosed evidence to show 1) the prosecution had the opportunity to obtain Petitioner's confession on tape, and 2) Petitioner did not confess to Sanchez. Petitioner alleges that when they were out of custody, Sanchez asked him whether he killed Bonham and why, and Petitioner emphatically denied killing her. (Id. at 30.) Petitioner also argues that if the defense had known that Sanchez was recording conversations while working for the government, it could have introduced the absence of any taped admission by Petitioner to raise a reasonable doubt in the jury's mind. (Id.) Finally, Petitioner contends that showing that Sanchez asked Petitioner whether he killed Bonham would constitute proof that Petitioner had never previously confessed to Sanchez. (Id.)

Petitioner first raised this issue in his third habeas round in the petition filed in the MCSC (HC3-MCSC, LD 36), which denied the petition on grounds of 1) failure to justify delayed and piecemeal presentation of claims, and 2) a lack of merit (LD 28).¹⁸ Petitioner next raised the issue in a petition filed in case number F051651 in the DCA (HC3-DCA, LD 29), which denied the petition as follows:

18 The court concluded that because the basis for the claim was an anonymous letter, and because the information upon which the claim depended was unverified, not specific, and not material, it was insufficient to provide the basis for a claim for relief. (LD 28 , 2.)

The "Petition For Writ Of Habeas Corpus," filed in this court on November 16, 2006, is denied. Petitioner is filing piecemeal petitions and the issue of Brady v. Marilyn (sic) (1963) 373 U.S. 83, is without merit. (In re Clark (1993) 5 Cal.4th 750, 767-768.)

(LD 29.) Petitioner last raised the issue in a petition for review filed in case number S152051 in the California Supreme Court (HC3-CASC, LD 30), which summarily denied the petition (LD 30).

Pursuant to Ylst v. Nunnemaker, 501 U.S. 797, 801-02, it is rebuttably presumed that the California Supreme Court denied the petition for the same reasons as did the DCA. No basis for rebuttal of the presumption has been asserted by the parties.

1. Procedural Default

Here, the Court looks through the California Supreme Court's decision to the DCA's decision, which clearly and expressly stated that Petitioner was filing piecemeal petitions, a reference to the bar of successive petitions set forth in the case and pages cited by the DCA, namely, In re Clark, 5 Cal.4th 750, 767-68 (1993).

Again, considering the nature of the issues raised in the petition before the Court and the need for cumulative analysis, the Court exercises its discretion to consider the merits of the procedurally defaulted Brady claim.

2. Background

The Court takes judicial notice of the docket of the petition for review in case number S152051 (HC3-CASC), which reflects that one doghouse of record was received from the DCA, which presumably was the record of the third-round habeas proceeding in the DCA. Further, the California Supreme Court also received from the DCA the transcripts and briefs that had been filed in the consolidated direct appeal and first round of habeas in DCA case number F033539.

In the petition for review filed in the California Supreme Court, Petitioner alleged that the prosecution withheld the fact that Sanchez was working for the prosecution after his release from jail and was wearing a wire and recording Petitioner's conversations with him. Petitioner alleged that "during the time period in which he was working for the prosecution, wearing a wire and recording Petitioner's conversations with him," Sanchez asked Petitioner whether he killed Bonham and why, and Petitioner emphatically denied killing her. (Pet. rev., LD 30, 3-3a.)

The California Supreme Court had before it the exhibits filed in the habeas petition filed in the DCA, which included a letter to Petitioner that Petitioner alleged he had received around July 2005. (HC3-DCA, LD 29, pet. at p. 6b, att. I.) The letter bore no visible date or signature. It stated that Petitioner probably did not remember the writer, who was an aspiring writer who was monitoring Petitioner's case after having met Petitioner briefly when Petitioner had been delivering rocks to the neighbor of the letter writer. The letter stated that testing of the "substance" in Bonham was negative for sperm, and it referred to the test report, which was enclosed. The letter stated the following concerning Sanchez:

I have something else that will come as an even greater shock. Rudy Sanchez, the informant who testified against you, was wearing a wire and recording conversations between you and him during the period between his release from jail and your re-arrest. Those tapes also should have been turned over to your lawyer as part of discovery. They were withheld because, of course, they were not helpful to the prosecution. I contacted the prison and asked whether prisoners were allowed to receive tapes in the mail. They said only if the tapes came from "an approved vendor." (?) I assure you however that you were being recorded, but just in case you have some doubts I will tell you how you can verify this information.

(Id.) Thereafter the writer explained the procedure to follow to request the records and any DNA records from the Department of Justice under the California Public Records Act, noting that if the records do not exist, "they" would tell Petitioner; otherwise, they would inform him of a fee for the copies or tell him that they are exempt from disclosure. (Id.) The letter continued:

Additionally, you might want to take a good look at the police reports your lawyer received in discovery. If you do not have at least 70 pages you might want to include a request for the reports when asking for the tapes from the Sheriffs Department.

(Id.)

There are unexplained redactions of the letter, with the second sentence, and later five lines in the penultimate paragraph, completely blacked out. (Id.) There is no apparent explanation for these obliterations. Further, Petitioner did not submit any declaration to explain whether or not he knew the identity of the writer or otherwise to provide any details concerning the circumstances relating to the receipt of the letter. Finally, Petitioner did not submit any declaration from trial counsel concerning whether or not counsel had received all of the police reports.

After allegedly discovering that the pages of the copies of police reports he had received from his counsel were numbered "25" through "58," Petitioner wrote the Madera County Sheriff's Department a letter dated July 25, 2005, to request copies of the police reports and "all records and audio recordings of Dale L. Cottrell, and specifically all recorded conversations between Dale L. Cottrell and Rudy Sanchez made between the dates of May 15, 1998 and August 3, 1998. (LD 29, att. J.) On August 3, 2005, the records supervisor of the sheriff's department wrote Petitioner and stated that the request for reports and recordings was received but that according to Cal. Govt. Code § 6254(f), the records were considered investigative records and not subject to public disclosure or disclosure to Petitioner. It was suggested that Petitioner contact his attorney. (Id., att. K.)

At the end of September 2005, Petitioner wrote Mr. Garvin, his trial counsel, and informed Garvin that DNA testing on the semen found in Bonham had revealed that the semen was not Petitioner's. He further stated that he had learned that Sanchez had been working for the prosecution, wearing a wire, and recording his conversations with Petitioner during the time between Sanchez's release from county jail and Petitioner's re-arrest. (LD 29, att. N.) Petitioner asked Garvin whether he had made a formal or informal discovery request, had relied on previous counsel's informal written discovery request, or had any copies of the police reports beyond the thirty-four (34) pages Garvin had turned over to Petitioner's successor (appellate) counsel in view of Petitioner's information and belief that there were at least seventy (70) pages of reports. (Id.) If the reports had not been turned over, Petitioner asked Garvin to indicate whether the prosecutor had been asked for, or had offered, an explanation fo their absence. Petitioner requested a declaration concerning the discovery request. (Id.)

Within a week, Garvin responded that he no longer had any documentation regarding Petitioner's case, and he did not independently recall whether he filed a separate discovery motion, relied on the one filed by previous counsel, or requested it orally in court; he no longer recalled any specifics concerning the case, but he stated he would forward the correspondence to the chief defense attorney at the alternate defense office, who would have the file. (Id., att. O.)

The answer relied on the usual course of business in the prosecutor's office concerning whether trial counsel received the report of testing due to trial counsel's refusal to permit access to the file without a court order. (LD 29, att. P, 2.) In the answer the respondent denied the allegation that anyone in the prosecutor's or sheriff's office had any information concerning Sanchez's wearing a radio transmitter or that any law enforcement agency working on the case made or received sound recordings of any meeting between Sanchez and Petitioner after Petitioner's release from jail. (Id.) It was alleged that counsel had received the report on the vaginal swab of the victim. (Id.)

3. Analysis

It must be determined whether the state court's decision that Petitioner's Brady claim was without merit was an objectively unreasonable application of federal law.

Unless a procedural bar is apparent, an appellate court in California receiving a habeas petition considers whether the petition states a prima facie case for relief, i.e., whether it states facts which, if true, entitle the petitioner to relief. In re Clark, 5 Cal.4th 750, 769 (1993) (citing In re Lawler, 23 Cal.3d 190, 194 (1979)). If no prima facie case for relief is stated, or if it is determined that all claims are procedurally barred, the court will summarily deny the petition. People v. Romero, 8 Cal.4th 728, 737 (1994); People v. Duvall, 9 Cal.4th 464, 475 (1995).

Here, in summarily denying the claim, the state court determined that no prima facie case was stated.

In California, one seeking habeas relief must file a verified petition that states the basis of the alleged illegality concerning the Petitioner's restraint. Cal. Pen. Code § 1474. The verification requirement means that the allegations of fact showing that the challenged imprisonment is illegal must be verified, and the operative facts must be set forth in a form such that perjury may be assigned upon the allegations if they are false. Cal. Pen. Code 1474; Ex parte Walpole, 84 Cal. 584 (1890). The petition must specify the facts on which the petitioner bases the claim that the restraint is unlawful. In re Lawler, 23 Cal.3d at 194. A petition must state fully and with particularity the facts on which relief is sought. People v. Duvall, 9 Cal.4th 464, 474. Conclusional allegations made without any explanation of the basis for the allegations will not support the issuance of an order to show cause. Id. The petition should include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations. Id. It is the burden of a petitioner challenging a criminal conviction to prove by a preponderance of the evidence the facts that establish a basis for relief. In re Bolden, 46 Cal.4th 216, 224 (2009). The placement of the burden on the petitioner reflects the presumption of the regularity and finality of the proceedings that resulted in a final judgment of conviction. Id.

The letter Petitioner alleged he received is undated and unsigned. Petitioner does not explain the redactions. Although the letter writer refers to having met Petitioner, Petitioner does not even set forth his own personal knowledge (or absence thereof) concerning the identity of the writer of the letter. The state court could reasonably have concluded that there was no sufficient basis to conclude that the letter was genuine.

The operative allegations set forth in the letter were not verified or specifically set forth. The assertions that Sanchez was working for the prosecution, wore a "wire," and recorded conversations with Petitioner were set forth in the unverified letter; Petitioner had no personal knowledge concerning the substance of the letter, and thus any assertions of his concerning it would be hearsay.

Further, specific facts were not set forth in the petition. There was no information concerning how the recording or recordings were allegedly made or the medium on which they were recorded. There are no specific facts from which it might be inferred that Sanchez was working for the prosecution, or that the prosecutor or any governmental agency involved in the investigation or prosecution of the case possessed any recordings or any information concerning the allegations that Sanchez was working for the prosecution. Petitioner's verified allegations thus do not provide a reasonable factual basis for the conclusion that Sanchez recorded conversations with Petitioner while working for the prosecution, or that the prosecution suppressed such information.

The correspondence with the sheriff's department does not provide a basis for an inference that recordings or previously suppressed police reports existed or were in the hands of the law enforcement agency. At all pertinent times, Cal. Govt. Code § 6253(c) required that an agency determine and promptly give notification of whether a request for records in whole or in part sought copies of disclosable public records in the possession of the agency. 2001 Cal. Stat., ch. 355, § 2. However, disclosure was not required "of complaints to, or investigations conducted by... any state or local police agency, or... any investigatory or security files complied by any other state or local police agency...." Cal. Govt. Code § 6254(f), 2005 Cal. Stat. ch 22, § 71. Likewise, with exceptions not pertinent to the present controversy, disclosure was not required of any investigatory files complied by any state or local agency for correctional or law enforcement purposes. Id. Because Petitioner's request was for records relating to an investigation concerning whether there was a violation of law, the records were exempt from disclosure pursuant to § 6254(f). Haynie v. Superior Court, 26 Cal.4th 1061, 1068-72 (2001) (sheriff's reports concerning the stop of a vehicle and investigation of its occupants for possession of guns).

Further, upon receiving the request, the agency was not required to provide any enumeration or description of any potentially responsive records which existed and were exempt from disclosure. Id. at 1075. Because the request sought police reports, some of which had been provided and all of which were exempt from disclosure, the state court could reasonably have concluded that the response of the sheriff's department reflected that police reports existed that were exempt, and that the response was uncertain with respect to any recordings. Because some police reports had been provided to Petitioner's counsel for trial, it was known and certain that some police reports existed. Thus, possession of police reports by the agency would not have provided a basis for an inference that undisclosed reports existed.

Even if the substance of the factual allegations were considered, the state court could reasonably have concluded that the allegedly suppressed evidence was not material. The core of the testimony given by Sanchez concerning Petitioner's offense related to statements Petitioner had made to Sanchez earlier while both were in custody. It was clear from the testimony of Sanchez at trial that after Petitioner was released from jail, Sanchez obtained corroborating information from Petitioner concerning the crime that Sanchez then testified to on behalf of the prosecution. Sanchez did not deny that he was helping the prosecution; rather, he only denied that he was promised anything for his cooperation other than a short delay in Petitioner's arrest to enable Sanchez to be out of custody before his cooperation with the prosecution was revealed. Thus, the jury was already aware that Sanchez had been shown to have been working during that time to obtain information that was helpful to the prosecution. That he was in some additional, vague sense working for the prosecution would not have constituted a significant addition to the body of evidence that would impeach Sanchez.

Further, contrary to Petitioner's position, the fact that a "wired" Sanchez would ask Petitioner if he killed Bonham and why was consistent with Sanchez's obvious intention to obtain information to be used in the prosecution of Petitioner; it would not have constituted persuasive evidence that Petitioner had never previously confessed to the crime. A recording of Petitioner's confession would have been even better evidence of guilt than Sanchez's verbal description of Petitioner's earlier, extra-judicial admissions. A denial by Petitioner would have been consistent with Petitioner's multiple statements to police, which were presented to the trier of fact. To the extent that a denial would have been inconsistent with Petitioner's earlier confession to Sanchez as testified to by Sanchez, it would have been reasonable for Petitioner to have been suspicious of a query made while Sanchez was out of custody and not subject to immediate retribution from inmates for being an informant. The state court could reasonably have concluded that in view of the other evidence before the trier, evidence of a recorded denial would not have had significant probative force.

In combination, the report concerning Sanchez's possession of drugs in the jail and the asserted evidence of recorded statements are not material in light of the totality of evidence. Petitioner gave numerous statements to police which, as previously detailed, were inconsistent in material respects and provided an ample basis for an inference of consciousness of guilt and fabrication of various versions of the pertinent events. Petitioner delayed before calling authorities, and he destroyed evidence. The physical evidence, as interpreted by the expert testimony at trial, was in some respects inconsistent with a self-inflicted wound; however, additional impeachment of Sanchez would not have affected the reliability or significance of this physical evidence. Sanchez had already been significantly impeached with his criminal history and previous participation as an informant, even though the evidence did not indicate that any agreement or "deal" had been made between authorities and Sanchez. Numerous details concerning the offense and the relationship between Petitioner and the victim, which would not have been known to anyone who was not a participant in the crime or a person investigating the crime, were known to Sanchez and were consistent with facts either shown by independent evidence or provided by Petitioner in his many statements. In light of the totality of the evidence, the evidence in question would not have demonstrated the necessary prejudice.

It is concluded that the state court could reasonably have concluded that the cumulative information was not material. Thus, Petitioner has not shown that the state court decision was contrary to, or an unreasonable application of, clearly established federal law.

C. Non-disclosure of the Laboratory Test Result

Petitioner alleges that the prosecution failed to disclose the results of a laboratory test taken by the Bureau of Forensic Services of the Department of Justice, which revealed that there were no spermatozoa on a vaginal slide taken from the victim at the autopsy. (FAP 37.)

Petitioner alleges that a laboratory report that was disclosed to the defense reflected that acid phosphatase, an enzyme found in semen, was detected on the vaginal swab. (Id.) Petitioner argues that the undisclosed report is material because it tended to corroborate his statements to police that he did not have sex with Bohnam that night and thus bolstered his credibility; further, evidence that there was acid phosphatase without semen tended to show that Bonham had engaged in sex with her estranged husband, who Petitioner alleges had had a vasectomy but who forced himself on Bonham on occasion and thereby caused Bonham to be depressed. (Id. at 37-38.) Bonham's being depressed would tend to support Petitioner's innocence by supporting the defense theory that Bonham shot herself because she was in a depressed state. (Id.) Petitioner points to additional evidence of interviews of the victim's teachers, which had been included in investigating officers' reports; one teacher said Bonham had been depressed before she died. (Id. at 37-39.) Petitioner also notes that the prosecutor informed the jury that Petitioner had told Rudy Sanchez that on the night of the shooting, Petitioner had had sex with the victim on the blanket that he burned. (LD 20, RT 13.) The prosecutor also detailed Petitioner's initial statement to law enforcement that he had never had sex with Bonham (RT 11), and his later statement that although he did not have sex with Bonham on the night of the shooting, he burned the bedding so that his previous sexual encounters with Bonham would not be discovered by anyone, especially Petitioner's wife, with whom he desired to reconcile (RT 11-13). Further, the prosecutor argued that the burning of the bedding supported Rudy Sanchez's testimony concerning Petitioner's having informed him that Petitioner and Bonham used to meet and have sex on the English property. (RT 311-12.) The Court notes that the trial record also contains Petitioner's statement in which he stated that he did not know if he would have sex with the victim that night. (CST 25-27, 44-45.)

Petitioner first raised this issue in his third habeas round in the petition filed in the MCSC (HC3-MCSC, doc. 36, p. 3b), which denied the petition on grounds of failure to justify delayed and piecemeal presentation of claims, and a lack of merit (LD 28).¹⁹ Petitioner next raised the issue in a petition filed in case number F051651 in the DCA (HC3-DCA, LD 29), which denied the petition with a citation to In re Clark, 5 Cal.4th 750, 767-68 (1993) because Petitioner was filing piecemeal petitions and because the Brady issue was "without merit." (LD 29.) Petitioner last raised the issue in a petition for review filed in case number S152051 in the California Supreme Court (HC3-CASC, LD 30), which summarily denied the petition (LD 30).

19 In the order of denial, the court stated the following:

Petitioner claims the prosecution failed to disclose a lab report which showed no spermatozoa on the victim's vaginal slide. Petitioner did not back up his claim with information from his own attorney. Even if not disclosed a different result was not reasonably probable. The report would not have had any effect on the credibility of his statements to the public and other physical evidence showed he had sex with the victim shortly before she was killed. Additional equivocal evidence that he may or may not have had sex with the victim was not material.

(LD 28, 2.)

For the same reasons that prompted the Court to consider the merits of the previous sub-claim concerning recordings, the Court will exercise its discretion to further judicial economy by considering on the merits this additional Brady sub-claim despite evidence of a procedural default.

The California Supreme Court had before it the record of the proceedings in the DCA, in which Petitioner detailed the contents of the reports and alleged generally that the "prosecution also withheld" the results of the test in which no sperm were detected. (LD 29, 3b-3c.) Petitioner presented the state courts with the aforementioned anonymous, undated letter, which has previously been analyzed, and which allegedly stated the following:

This will probably come as a shock to you, or perhaps not, but testing was done on the substance found in Bonham. The results were negative for sperm. Enclosed is a copy of the examination report from the Department of Justice. Your lawyer should have received a copy of that report as a part of discovery. Apparently it was withheld because it was not helpful to the prosecution.

(LD 29, att. I.) Also attached to the petition was a copy of a physical evidence examination report dated March 31, 1998, concerning a vaginal swab taken from the victim and submitted to the laboratory by the sheriff's office on December 15, 1997, which reflected no spermatozoa. (Id.) Petitioner also included correspondence from October 2005 in which he requested the reports from the Department of Justice, as well as the reports, including the earlier report of criminalist O'Clair, dated January 14, 1998, reflecting that the vaginal swab "tested positive for acid phosphatase, an enzyme found in semen." (Id., att. M.) After reciting the result of the test, the earlier report stated:

The swabs and slides from the kit will be further tested for semen and DNA typing will be done.

(Id., rep. at 1.) It further stated that the victim's sexual assault kit would be transferred to the DNA section for analysis. (Id. at 1.)

The petition also contains a copy of Petitioner's correspondence with his trial counsel, Mr. Garvin, concerning his discovery requests and their nature as formal or informal. On December 17, 1997, Petitioner's former counsel, David A. Smothers, filed a written, informal request for discovery, which sought all laboratory and other reports concerning the testing and examination of all physical evidence. (Id., att. N.) Correspondence revealed that Garvin stated that he had no independent memory of filing a separate discovery motion; he may have relied on Smothers' request or may have requested it orally in court. (Id., att. O.) No declaration from counsel was provided to the state courts. Included in the record before the DCA and California Supreme Court was Respondent's answer filed in the MCSC, in which it was alleged that pursuant to the prosecutor's office's general practice, the report was disclosed to defense counsel. (LD 28, att. P.)

The state court could reasonably have concluded that Petitioner had not established that his trial counsel had failed to receive the report or that the report was not disclosed. There is no factual basis for a conclusion that the writer of the anonymous letter had any knowledge regarding what evidence was disclosed to Petitioner's counsel. In the absence of a declaration from counsel, there was no specific factual basis for a conclusion that the evidence was not disclosed.

The record documented not only Petitioner's inconsistent statements concerning whether he had engaged in sex in the past with the victim, but also his admission that he burned his bedding in order to conceal his having had sex with the victim. The victim was found wearing a long sweater and no underwear in Petitioner's car at a location where Petitioner had admitted that they would meet and spend time together. The precise evidentiary significance of the evidence concerning the lack of spermatozoa has not been the subject of expert testimony; it is unclear whether the evidence would have the probative tendency that Petitioner asserts. However, even if it were assumed that it could be used to support the proposition that Petitioner did not have sex with the victim on the night of her death, its nondisclosure would not result in the necessary prejudice to Petitioner. The evidence would not significantly affect Petitioner's credibility.

Further, in view of Petitioner's inconsistent statements to law enforcement, the evidence would not have a significant effect on the credibility of Sanchez, who in this respect purported only to repeat what Petitioner had told him, and who was impeached substantially as previously discussed.

In addition, when such evidence is viewed in combination with the other evidence that was allegedly withheld, it does not undermine confidence in the outcome of the trial.

Accordingly, the Court concludes that Petitioner has not shown that a state court decision that the prosecution had not failed to disclose material evidence in violation of its duty of disclosure under Brady v. Maryland was an unreasonable application of clearly established federal law.

IX. Trial Counsel's Failure to Obtain Discovery and Investigate Sanchez

In the sixth sub-claim of ineffective assistance of trial counsel, Petitioner argues that trial counsel rendered ineffective assistance by failing to obtain discovery concerning, and otherwise to investigate, Sanchez. (FAP 33-34.)

Petitioner alleges that his attorney failed to make a formal request for discovery, which would have required the prosecution to disclose the full extent of Sanchez's role as an informant as well as any statements of Sanchez or Petitioner, recorded or otherwise. Petitioner alleges that his counsel relied on the discovery request made by his previous counsel, which Petitioner alleges would not have required any evidence concerning Sanchez to be turned over because Sanchez had not been part of the first prosecution. Thus, any evidence concerning Sanchez would not have materialized until after the dismissal of the first prosecution.

Further, counsel failed to obtain Sanchez's jail records, which would have shown that although he had been caught with drugs in jail, he had never been charged with the crime.

Finally, counsel failed to obtain test results that would have shown there was no sperm in the victim's vaginal swab and thus would have supported Petitioner's statements to police about not having had sex with the victim and the defense theory of a self-inflicted wound.

Petitioner first raised this claim in his third habeas round in the petition fled in the MCSC (HC3-MCSC, doc. 36, 3b), which denied the petition on grounds of failure to justify delayed and piecemeal presentation of claims, and a lack of merit (LD 28).²⁰ Petitioner next raised the issue in a petition filed in case number F051651 in the DCA (HC3-DCA, LD 29), which denied the petition with a citation of In re Clark, 5 Cal.4th 750, 767-68 (1993) because Petitioner was filing piecemeal petitions and because the Brady issue was without merit. The issue was last raised in the petition for review filed in case number S152051 in the California Supreme Court (HC3-CASC, LD 30), which summarily denied the petition (LD 30).

20 With respect to Petitioner's sub-claims concerning trial counsel's alleged ineffective assistance, the MCSC stated the following:

INADEQUACY OF COUNSEL
Petitioner argued that his attorney should have discovered recordings of Sanchez's conversations with him, however petitioner failed to show that a different result would have been reasonably probable even if the information had been discovered by his attorney.
Petitioner also alleged that his attorney failed to obtain information that Sanchez was in possession of drugs in jail in 1997. This claim was raised and rejected previously. Additionally petitioner was aware of the information since 2001 but only raised his claim now which is untimely.
It appeared that petitioner felt this additional information would be used to impeach Sanchez, however any further impeachment even if allowed by the trial court, would not have affected the outcome of the trial.
Petitioner claims attorney (sic) did not obtain the lab report showing no sperm in the evidence obtained for (sic) the victim. Petitioner did not back up his claim with any information from his own attorney. Even if true, there was no showing of prejudice to the petitioner given other evidence in the case. Additionally this was a collated (sic) issue which would have no effect on the scenario offered by the petitioner.

(LD 28, 2-3.)

A. Procedural Default

Respondent argues that this sub-claim was procedurally defaulted by Petitioner, and thus this Court should not consider it on the merits. However, Respondent also argues that the DCA must have denied the ineffective assistance claim on the merits because the ineffective assistance claim was dependent upon the related Brady claim,²¹ which the DCA expressly stated was not meritorious. Respondent urges the Court to consider the appellate court's decision as resting upon the same ground as the MCSC's decision.

21 In his state court petitions, Petitioner also had claimed that the government violated due process by failing to disclose to his counsel the materials which he here alleges that counsel was ineffective in failing to discover, namely, recordings of Sanchez's conversations with Petitioner, the report of Sanchez's possession of cocaine in jail, and a laboratory report concerning the absence of sperm in the victim's vaginal swab. These Brady claims are addressed hereinbelow .

Pursuant to Ylst v. Nunnemaker, 501 U.S. 797, 801-02 (1991), it is rebuttably presumed that the California Supreme Court denied the petition for the same reasons as did the DCA. No basis for rebuttal of the presumption has been asserted by the parties.

If the claim was procedurally defaulted, then in the interest of judicial economy, this Court exercises its discretion to consider the claim on the merits because of the relative complexity of the procedural default analysis that would need to be undertaken, and considering the nature of the sub-claims raised by Petitioner, including but not limited to the independent necessity of engaging in a cumulative analysis of the materiality or prejudicial effect of all evidence subject to Petitioner's related Brady claims.

B. Analysis

The state court could have reasonably determined that with respect to the alleged recordings of Sanchez's out-of-custody conversations with Petitioner, Petitioner had failed to show that any such recordings had ever existed. Further, the contents of any such conversations were unclear. The Court could have determined that it had not been shown that the allegedly undisclosed recordings were material or that a different result would have been reasonably probable if any recordings had been discovered; thus, it had not been shown that any prejudice ensued from any failure of counsel to request any recordings.

With respect to the MCDC report of Sanchez's possession of drugs in jail, the state court could reasonably have decided that given the other evidence in the case and the extensive impeachment of Sanchez on related grounds of his substantial criminal history and significant self-interest or bias, the Petitioner had not shown that the evidence was material, or that a different result was reasonably probable.

With respect to the laboratory report concerning the absence of sperm in the vaginal swab, the state court could have reasonably determined that in the absence of input from counsel, Petitioner had failed to establish that the report had not been disclosed to his trial counsel, who had received all other discovery, including reports, one of which referred to the victim's sexual assault kit. (CT 161, 187-88; RT 386, 395-96.) Further, the state court could reasonably have concluded that even if the report had not been discovered, Petitioner had failed to show that the evidence was material or that a different result was reasonably probably if it had been introduced at trial.

In summary, Petitioner has not demonstrated that the state court's rejection of Petitioner's claim of ineffective assistance predicated on omissions concerning discovery of evidence concerning Sanchez and the sperm test result was an unreasonable application of clearly established federal law.

X. Ineffective Assistance of Appellate Counsel

Petitioner states in the table of contents to the FAP that appellate counsel was constitutionally ineffective for failing to raise other grounds, described as "1-D, 2-A, 3-A, and 5-C." (FAP 3:6-7.) The Court understands this enumeration of issues, which corresponds to the designation of other claims in Petitioner's table of contents to the petition, to refer to appellate counsel's failure to raise the following sub-claims: 1) the ineffective assistance of trial counsel in failing to object to the state's use of Petitioner's allegedly involuntary and un-warned statements; 2) the government's failure to disclose that Sanchez had been caught possessing drugs in jail and a crime report had been written; 3) the state's use of Petitioner's allegedly involuntary and un-warned statements; and 4) the ineffective assistance of trial counsel, subsequent counsel, and appellate counsel in failing to raise the prosecutor's allegedly improper vouching, argument regarding matters outside the record, and violation of the advocate-witness rule. (FAP 2-3.)

Respondent suggests or contends that this Court should decline to consider issues concerning the ineffective assistance of appellate counsel because of an absence of material within the body of the FAP concerning the issues. Respondent further notes that the table of contents is separate from the petition and is not expressly incorporated by reference into the petition. Respondent appears to assert that because there are no verified allegations relating to the ineffective assistance of appellate counsel, the claim should not be considered. (Ans., doc. 75, 95:6-15.)

With respect to other issues, the table of contents refers to pages of the text of the petition; however, as Respondent notes, for the heading concerning ineffective assistance of appellate counsel, there is no corresponding textual reference. (Id.) Review of the body of the petition reveals no portion of text that corresponds solely to the contentions concerning appellate counsel. However, the claim concerning appellate counsel's failure to raise trial counsel's omissions appears to be wholly dependent upon the contentions concerning trial counsel's allegedly ineffective assistance, which are fully set forth. Further, the petition contains affirmative arguments concerning appellate counsel's failure to raise prosecutorial misconduct. (FAP 52-54.)

Because the claim or claims concerning appellate counsel are essentially derived from the other claims previously set forth, the Court will consider the claims, which Respondent addressed on the merits in the answer. (Ans., doc. 75, 95-97.)

A. Procedural Background

The first and third of Petitioner's sub-claims of ineffective assistance of appellate counsel (appellate counsel's failure to raise trial counsel's failure to object to Petitioner's extra-judicial statements, and to raise the prosecution's use of Petitioner's extra-judicial statements) were first raised before the MCSC in Petitioner's second round of state habeas corpus. (HC2-MCSC, LD 8 at 3, 15-22.) The MCSC ruled that as to the issue of ineffective assistance of appellate counsel, Petitioner had failed to show by a preponderance of the evidence facts that established a basis for relief. (Doc. 59.)

In the second-round petition filed in the DCA, which was summarily denied, Petitioner raised appellate counsel's failure to object to the use of Petitioner's extra-judicial statements and to raise trial counsel's failure to object to the statements, as well as appellate counsel's failure to raise the government's failure to disclose that Sanchez had been found in possession of cocaine in jail and a crime report had been written. (HC2-DCA, LD 10, 3-4D, 15-31.) In the second-round petition for writ of habeas corpus filed in the California Supreme Court, which was likewise summarily denied, Petitioner raised appellate counsel's omissions with respect to raising the inadmissibility of Petitioner's extra-judicial statements, trial counsel's failure to object to the admission of the statements, and the government's failure to disclose Sanchez's cocaine possession in jail and the related crime report. (LD 11, 3-4D, 13-22.)

Petitioner's sub-claim concerning appellate counsel's failure to raise the conduct of the prosecutor in argument (vouching, argument on extra-record matters, and violation of the advocate-witness rule) was first raised in the third round of state habeas in a petition filed in the MCSC (HC3-MCSC, LD 28, doc. 36, 16-24.) The issue was raised as part of a claim concerning cumulative prejudice. (Id. at 13-25.) The MCSC denied the petition because the petition was successive, and Petitioner was presenting claims in a piecemeal fashion. (LD 28, 1-2.) The MCSC also stated the following with respect to Petitioner's claim of cumulative prejudice:

Since there has been no legal error and petitioner's factual allegations lack credibility his claim must be denied.

(LD 28, 3.) The claim concerning appellate counsel's failure to raise the issue of prosecutorial vouching and associated argument was raised in the habeas petition to the DCA (LD 29, 4f-4k), which denied the petition, stating that Petitioner was filing piecemeal petitions, and citing to In re Clark, 5 Cal.4th 750, 767-68 (1993) (LD 29). The claim was raised in the petition for review filed in the California Supreme Court, which was summarily denied. (LD 30, 4d-4k, & order of denial.)

With respect to the claims denied as successive or piecemeal, the Court will consider the merits of the claims in the interest of the efficient use of resources.

B. Claims concerning Petitioner's Extra-Judicial Statements

Insofar as Petitioner argues that appellate counsel was ineffective for failing to argue on appeal that Petitioner's extra-judicial statements were inadmissible as involuntary or in violation of the Miranda protocol, the state court could reasonably have determined that appellate counsel made a reasonable decision not to raise the issues on appeal because the claim would have been barred by trial counsel's failure to object to the evidence. At all times pertinent to this action, Cal. Evid. Code § 353 has provided in pertinent part:

A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:
(a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion....

(1965 Cal.Stats., ch. 299, § 2.) Because it would have been futile to raise the issue on appeal without an objection having been lodged at the trial level, appellate counsel's failure to raise the issue would not have resulted in any prejudice to Petitioner, and it would not have constituted ineffective assistance of counsel. Cf., James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994).

However, review of the claim on the merits requires acknowledgment of California law to the effect that a reviewing court in California will reverse a conviction on direct appeal only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission. People v. Vines, 51 Cal.4th 830, 871-72 (2011). Where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, an appellate court will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions. People v. Weaver, 26 Cal.4th 876, 925-26 (2001).

In this case, the appellate record did not affirmatively disclose the absence of any rational tactical purpose on the part of trial counsel. Petitioner's statements constituted the only evidence of Petitioner's point of view of the pertinent events surrounding Bonham's death. The state court could reasonably have concluded that trial counsel might have had a tactical reason for not objecting to the admission of Petitioner's extra-judicial statements. Thus, the contention would not have been successful on appeal, and the failure to raise the issue would not have constituted ineffective assistance.

In addition, in proceeding with the appeal, appellate counsel was limited to the record on appeal. People v. Chi Ko Wong, 18 Cal.3d 698, 711 (1976). As the foregoing analysis of the record concerning Petitioner's statements shows, the appellate record, which did not contain any of Petitioner's hospital records, does not present a basis for a finding that Petitioner's statements were involuntary or were obtained in violation of Miranda. Accordingly, counsel's failure to raise the issue could not have constituted ineffective assistance of counsel.

Further, the analysis of the involuntariness and Miranda claims set forth hereinabove shows that even as augmented with the additional evidence set forth by Petitioner in the collateral proceedings, the record did not support a finding that Petitioner's extra-judicial statements were involuntary or obtained in violation of Miranda. Accordingly, trial counsel's failure to object to the introduction of the statements did not prejudice Petitioner, and it did not constitute ineffective assistance of counsel. Likewise, appellate counsel's failure to raise trial counsel's omission could not have constituted ineffective assistance of appellate counsel.

In summary, Petitioner has not shown that appellate's counsel's failure to raise either the prosecution's use of Petitioner's extra-judicial statements or trial counsel's failure to object to such use constituted ineffective assistance of counsel. Petitioner has not shown that a state court decision resulted in an unreasonable application of clearly established federal law.

C. Claim Based on the Failure to Raise the Non-Disclosure of Sanchez's Possession of Cocaine in Jail and of the Related Crime Report

Insofar as Petitioner alleges that appellate counsel was ineffective in omitting to raise the prosecution's failure to disclose the MCDC's report of Sanchez's possession of cocaine in custody, there is no showing that the report was part of the appellate record, which in turn limited the issues that appellate counsel could raise. Petitioner asserted in his petition for review filed in the California Supreme Court that the drug incident in jail was unknown to Petitioner, his lawyer, his investigator, or his sister until Respondent submitted a copy of the report with his response to the petition filed in the DCA. (LD 4c, n.2.) There is thus no basis for a conclusion that appellate counsel could have raised the contention in connection with the appeal.

With respect to raising the issue in the DCA habeas proceeding that was consolidated with the appeal, there is no showing that appellate counsel had any information concerning whether or not trial counsel had made a discovery request or had otherwise been responsible for any omissions that would have formed the basis of such a claim. Further, the analysis concerning the lack of materiality of the report for Brady purposes applies equally here. Petitioner has not shown that any prejudice resulted from failure to raise this issue.

Therefore, it is concluded that with respect to this claim, Petitioner has not shown an unreasonable application of clearly established federal law.

D. The Claim Based on Failure to Raise an Issue concerning Prosecutorial Misconduct or Vouching

Petitioner's sub-claim concerning appellate counsel's failure to raise the conduct of the prosecutor in argument (alleged vouching, argument on extra-record matters, and violation of the advocate-witness rule), which was raised in connection with an argument of cumulative prejudice, was denied by the MCSC as successive and piecemeal; further, the Court rejected the claim of cumulative prejudice because there had been no legal error, and Petitioner's factual allegations lacked credibility. (HC3-MCSC, LD 28, doc. 36, pp. 15-25; LD 28, 1-3.)

The sub-claim concerning appellate counsel's failure to raise the issue of prosecutorial vouching and associated misconduct in argument was further raised in the habeas petition filed in the DCA (LD 29, 4f-4k), which denied the petition, stating that Petitioner was filing piecemeal petitions, and citing to In re Clark, 5 Cal.4th 750, 767-68 (1993) (LD 29). The claim was raised in the petition for review filed in the California Supreme Court, which was summarily denied. (LD 30, 4d-4k, & ord. of denial.))

The decision of the DCA was a reasoned decision denying the petition based on piecemeal presentation of claims. The later denial by the California Supreme Court of the claim was summary in form. As a later, unexplained order rejecting the same claim, the decision is presumed to have rested on the same ground of procedural default. Ylst v. Nunnemaker, 501 U.S. 797, 801-02 (1991). However, in order to conserve judicial resources, this Court exercises its discretion to bypass the procedural default and to consider the claim on the merits.

As the analysis of the prosecutorial misconduct claim set forth hereinabove reflects, Petitioner did not show that he was deprived of a fair trial by any prosecutorial misconduct. Further, appellate counsel could not have raised the issue due to trial counsel's failure to raise the issue. Petitioner has not shown that counsel's failure to raise the issue resulted in any prejudice to Petitioner, or that had the issue been raised, it was reasonably probable that the result of the proceeding would have been different. Petitioner has not shown that there was an unreasonable application of clearly established federal law.

XI. Cumulative Error or Prejudice

Petitioner argues that he was denied due process of law considering Sanchez's recantation and the cumulative effect of several asserted errors, including 1) the prosecution's failure to disclose a) Sanchez's drug possession in custody, the related MCDC report, and audio recordings of wire-tapped conversations between Petitioner and Sanchez, and b) the laboratory report concerning the victim's vaginal swab; 2) the prosecution's use of Petitioner's extra-judicial statements; 3) prosecutorial misconduct in argument; and 4) defense counsel's failure to a) investigate and present additional forensic and expert evidence and evidence of Sanchez's drug possession, b) raise prosecutorial misconduct, and c) object to the admissibility of Petitioner's extra-judicial statements. (FAP 43-54.)

In this circuit, it has been recognized that the Supreme Court has clearly established that the combined effect of multiple trial court errors violates due process where it renders the resulting criminal trial fundamentally unfair, even though no single error rises to the level of a constitutional violation or would independently warrant reversal. Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (citing Chambers v. Mississippi, 410 U.S. 284, 298, 302-03 (1973)). Traditional principles of due process provide that cumulative errors warrant habeas relief only where the errors have so infected the trial with unfairness that the resulting conviction denies due process, such as where the combined effect of the errors had a substantial and injurious effect or influence on the jury's verdict, id. (citing Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) and Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)), and where the combined effect of individually harmless errors renders a criminal defense far less persuasive than it might otherwise have been, id. (citing Chambers, 410 U.S. at 294, 302-03).

In evaluating a due process challenge based on the cumulative effect of multiple trial errors, a reviewing court must determine the relative harm caused by the errors. If the evidence of guilt is otherwise overwhelming, the errors are considered "harmless," and the conviction will generally be affirmed. Parle v. Runnels, 505 F.3d at 927-28. The overall strength of the prosecution's case must be considered because where the government's case on a critical element is weak, or where the verdict or conclusion is only weakly supported by the record, it is more likely that trial errors will be prejudicial to the defendant. Id. at 928.

The foregoing analysis demonstrates that no single claim of Petitioner has rendered the defense far less persuasive than otherwise would have been the case or resulted in a substantial and injurious effect or influence on the jury's verdict. However, the cumulative effect of the claims will nevertheless be addressed.

Counsel's omissions with respect to presentation of additional forensic evidence available at the time of trial, which could have pointed to either guilt or innocence, did not have a substantial and injurious effect on the verdict in view of the uncertainty surrounding the character of the fatal wound as the product of accident, suicide, or the criminal agency of Petitioner. For essentially the same reason, presentation of additional expert opinion concerning the nature of the fatal injury would not significantly have changed the posture or weight of the evidence because of the likelihood that the prosecution would obtain its own expert or experts, and a "battle of experts" would have ensued.

Disclosure of the MCDC report on Petitioner's drug possession in the jail would have provided an additional basis for arguing the bias or self-interest of Sanchez, but in light of the significant impeachment at trial of Sanchez on the related grounds of his status as a career criminal with prior experience as an informant and a keen desire to avoid custody, knowledge of an additional basis for generalized bias would not have rendered a different result at trial reasonably probable. Material that otherwise might have indicated that Sanchez had backed away from his trial testimony to some extent was unsworn, vague, and uncertain; it was not sufficient to undermine confidence in the outcome of the trial. The report concerning the victim's vaginal swab did not necessarily indicate that the victim did not have sex on the night of her death, and in any event, it related only to a collateral aspect of impeachment of Petitioner, whose credibility regarding his history of sexual relations with the victim was already seriously compromised based on his own inconsistent statements as well as his admission that he destroyed evidence in order to conceal his intimacy with the victim. Petitioner failed to provide any details concerning the source of the letter allegedly sent to him concerning Sanchez's wearing a wire and the prosecution's withholding of evidence; the letter lacked any foundation and was not established as authentic. The record does not support the assertion that the prosecution withheld, or defense counsel failed to receive, police reports or reports on forensic evidence, or that Sanchez had worn a wire at the behest of the prosecution and had recorded Petitioner's statements after their release from jail.

The state courts reasonably determined that Petitioner's extra-judicial statements were not involuntary or obtained in violation of Miranda v. Arizona; further, the record does not foreclose the possibility that Petitioner's counsel had a tactical reason for failing to object to Petitioner's statements based on a desire to present to the jury a scenario involving a self-inflicted wound. Although Petitioner's statements present a basis for an inference of consciousness of guilt, Petitioner's delay in contacting authorities and other conduct on the night of Bonham's death, including taking an overdose of medication, independently warranted a strong inference of consciousness of guilt.

Although the credibility of Sanchez was an important issue in the case, the prosecutor's expression in argument of a positive view of Sanchez's credibility took place in the context of the prosecutor's evaluation of the evidence; it could reasonably have been understood as relating to the evidence, which foreclosed any pre-trial agreement between the prosecution and Sanchez for Sanchez's testimony or for other cooperation in the prosecution of Petitioner. Although the prosecutor briefly identified herself with the plea bargaining process by use of the personal pronoun "we," independent evidence in the record supported a conclusion that plea agreements were recorded in writing in the pertinent case file, as distinct from existing in some inchoate or less concrete form, and that there had been no agreement with Sanchez. The prosecutor's comments in argument did not raise any significant risk that the jurors would inappropriately defer to the prosecutor's opinion of Petitioner's credibility or would understand that some undisclosed, extra-record evidence warranted an inference of bias on the part of the Sanchez. Further, in this instance, the prosecutor's argument did not undermine the defense, which had argued that Sanchez, who was on probation for five years, was "holding an ace," in that if and when Sanchez ever returned to the courthouse, he would tell his defense attorney that he had helped the prosecution in a murder case and should get something for it. (RT 334.) The Court emphasizes that the standard of review of claims concerning prosecutorial misconduct in proceedings pursuant to § 2254 is the narrow standard of due process, and not the broad exercise of supervisory power; even improper argument does not, per se, violate a defendant's constitutional rights. Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002) (citing Thompson v. Borg, 74 F.3d 1571, 1576 (9th Cir. 1996)). Here, even when viewed cumulatively, the prosecutor's statements did not render the proceedings unfair.

Further, although Sanchez's credibility was an important issue, the substance of Sanchez's testimony concerning what Petitioner told him was corroborated by substantial, independent evidence that was not a matter of public knowledge, including the fact that Bonham's husband had learned of her affair with Petitioner and was upset, the occurrence of a prior incident between Petitioner and Bonham's husband, Petitioner's separation from his wife and desire to reconcile with her, Petitioner's desire to conceal his affair from his wife, Bonham's having been shot with Petitioner's gun, Bonham's and Petitioner's having had sex on previous occasions, Bonham's wearing no underwear when she met Petitioner, and the fact that Petitioner had burned evidence to hide his relationship with Bonham. Although Sanchez himself was a recidivist with a motive to better his situation with law enforcement, his testimony was consistent with the other evidence in the case, including physical evidence that reflected that Bonham was shot in the left side of her head, despite her being right-handed, with the angle of the bullet's path being unusual for a suicide.

Accordingly, it is concluded that Petitioner has not shown that cumulative error rendered the defense far less persuasive than it might otherwise have been, infected the trial with unfairness, or had a substantial and injurious effect or influence on the jury's verdict. Petitioner has not shown any unreasonable application of clearly established federal law.

XII. Statutory Right to the Appointment of Counsel

Petitioner argues that the MCSC denied his right under Cal. Pen. Code § 1405 and state court decisions for the appointment of counsel in his state court habeas proceedings in connection with an application for DNA testing of the victim's vaginal swab. (FAP 57-58.)

In the traverse, Petitioner also argues that counsel should have been appointed pursuant to Habeas Rule 6(a), which requires a judge to appoint counsel if necessary for effective discovery upon the Court's authorization of discovery with respect to petitioners who qualify to have counsel appointed under 18 U.S.C. § 3006A.²²

22 There currently exists no absolute right to appointment of counsel in habeas proceedings. See e.g., Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir.), cert. denied, 358 U.S. 889 (1958); Mitchell v. Wyrick, 727 F.2d 773 (8th Cir.), cert. denied, 469 U.S. 823 (1984).
A Magistrate Judge may appoint counsel at any stage of a habeas corpus proceeding if the interests of justice require it. 18 U.S.C. § 3006A; Rule 8(c) of the Rules Governing Section 2254 Cases. A district court evaluates the likelihood of a petitioner's success on the merits and the ability of a petitioner to articulate his claims pro se in light of the complexity of the of the legal issues involved. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

Federal habeas relief is available to state prisoners only to correct violations of the United States Constitution, federal laws, or treaties of the United States. 28 U.S.C. § 2254(a). Federal habeas relief is not available to retry a state issue that does not rise to the level of a federal constitutional violation. Wilson v. Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Alleged errors in the application of state law are not cognizable in federal habeas corpus. Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002). Thus, it is established that federal habeas relief is not available to redress procedural errors in the state collateral review process. Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998) (claim concerning the alleged bias of a judge in a second post-conviction proceeding for relief); Carriger v. Stewart, 95 F.3d 755, 763 (9th Cir. 1996), vacated on other grounds, Carriger v. Stewart, 132 F.3d 463 (1997) (Brady claim in post-conviction proceedings); Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (claim that a state court's delay in deciding a petition for post-conviction relief violated due process rights).

Accordingly, because Petitioner's state law claim concerning the denial of his request for appointment of counsel during the state collateral review process does not warrant relief in a proceeding pursuant to § 2254, the claim will be dismissed.

Petitioner's claim that the MCSC should have appointed counsel for Petitioner based on 18 U.S.C. § 3006A was first articulated in his traverse. (Doc. 98, 39-40.) It is improper to raise substantively new issues or claims in a traverse, and a court may decline to consider such matters; in order to raise new issues, a petitioner must obtain leave to file an amended petition or additional statement of grounds. Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994).

Here, the Court declines to consider Petitioner's claim insofar as it is based on federal statute. The Court further notes that there is no federal right to appointed counsel in state proceedings for discretionary collateral relief. Pennsylvania v. Finley, 481 U.S. 551, 555-57 (1987).

In summary, Petitioner's state law claim concerning the appointment of counsel will be dismissed.

XIII. Insufficiency of the Evidence

A. Exhaustion of State Court Remedies

Citing Jackson v. Virginia, 443 U.S. 307 (1979), Petitioner argues in the conclusion of his petition that his right to due process of law was violated because the evidence was insufficient to support his conviction of second degree murder. (FAP 73.)

In the answer, Respondent contends that Petitioner failed to exhaust his state court remedies as to this claim. In the traverse, Petitioner relies on 1) excerpts from the trial court record which reflect trial counsel's motion pursuant to Cal. Pen. Code § 1118.1 and the prosecutor's request that manslaughter instructions be given; 2) a portion of the answer filed in the first round of state habeas proceedings in the DCA (HC1-DCA) in which the prosecution noted that the first information had been set aside on grounds other than the insufficiency of the evidence; and 3) Petitioner's citation of Jackson v. Virginia, 443 U.S. 307, 319 (1979) in a supplement to his habeas petition filed in the California Supreme Court in the second round of habeas proceedings (HC2-CASC, doc. 13). (Trav., doc. 98, 40-41.)

In his supplement to the habeas petition filed in the California Supreme Court, Petitioner incorporated the facts previously set forth in his petition, which included a summary of the evidence admitted at trial. (LD 13, 40; LD 11, 3, a-1, 5-11.) Petitioner incorporated the additional grounds stated in the petition and argued that the errors resulted in a fundamentally unfair trial such that no reasonable judge or jury would have convicted Petitioner of second degree murder. (LD 13, 40.) Petitioner also pointed to the objective test announced in Jackson v. Virginia and stated that it allowed courts to vacate verdicts "which no rational person, fully cognizant of the trial record, and sufficiently brilliant to grasp the logical import of its every nuance, 'could' have entered." Id. Petitioner further cited to Schlup v. Delo, 513 U.S. 298, 330 (1995), in which the Court distinguished an inquiry concerning actual innocence from the Jackson standard and the nature of the test or inquiry for sufficiency of the evidence. (Id.) Petitioner appended to the citation a note to the effect that the Jackson standard focuses on the objective power of the trier of fact to reach its conclusion.

Fairly read, Petitioner's habeas petition and proposed supplement to the petition (LD 13) set forth the factual and legal basis of the claim and cite to federal authority in a manner that makes it clear that Petitioner was raising a federal claim regarding the insufficiency of the evidence in the trial record to support a conviction of second degree murder. Consistent with the Court's previous decision on the motion to dismiss concerning exhaustion by a supplement or proposed supplement (doc. 22, 5-7), the Court will consider the matter in the proposed supplement as having been presented to the highest state court, and the Court concludes that Petitioner exhausted his state court remedies concerning the issue of the sufficiency of the evidence to support Petitioner's conviction.

The California Supreme Court denied the petition without a statement of reasoning or authority. (LD 11.) Nothing appears to warrant departure from the presumption that the summary denial of the petition was an adjudication on the merits pursuant to 28 U.S.C. § 2254(d), and thus, in order to prevail on this issue, Petitioner must show that there was no reasonable basis for the state court to deny relief. Harrington v. Richter, 131 S.Ct. at 784-85.

B. Legal Standards

To determine whether a conviction violates the constitutional guarantees of due process of law because of insufficient evidence, a federal court ruling on a petition for writ of habeas corpus must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 20-21 (1979); Windham v. Merkle, 163 F.3d 1092, 1101 (9th Cir. 1998); Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997); Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1993) (en banc).

All evidence must be considered in the light that is the most favorable to the prosecution. Jackson, 443 U.S. at 319; Jones, 114 F.3d at 1008. It must be recognized that it is the trier of fact's responsibility to resolve conflicting testimony, weigh evidence, and draw reasonable inferences from the facts; thus, it must be assumed that the trier resolved all conflicts in a manner that supports the verdict. Jackson v. Virginia, 443 U.S. at 319; Jones, 114 F.3d at 1008. The relevant inquiry is not whether the evidence excludes every hypothesis except guilt, but rather whether the jury could reasonably arrive at its verdict. United States v. Mares, 940 F.2d 455, 458 (9th Cir. 1991). Circumstantial evidence and the inferences reasonably drawn therefrom can be sufficient to prove any fact and to sustain a conviction, although mere suspicion or speculation does not rise to the level of sufficient evidence. United States v. Lennick, 18 F.3d 814, 820 (9th Cir. 1994); United States v. Stauffer, 922 F.2d 508, 514 (9th Cir. 1990); see, Jones v. Wood, 207 F.3d 557, 563 (9th Cir. 2000). The court must base its determination of the sufficiency of the evidence from a review of the record. Jackson at 324.

The Jackson standard must be applied with reference to the substantive elements of the criminal offense as defined by state law. Jackson, 443 U.S. at 324 n.16; Windham, 163 F.3d at 1101. Further, under the AEDPA, federal courts must apply the standards of Jackson with an additional layer of deference. Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005).

In California, second degree murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as use of specified means or proof of additional mental states such as willfulness, premeditation, and deliberation, that would support a conviction for first degree murder. Cal. Pen. Code §§ 187(a), 189; People v. Knoller, 41 Cal.4th 139, 151 (2007). Malice may be either express, where there is manifested a deliberate intention to take away the life of a fellow creature, or implied, where there is an absence of considerable provocation, or when the circumstances attending the killing show an abandoned and malignant heart. Cal. Pen. Code § 188. The test for implied malice was recently reaffirmed and restated as follows:

Malice is implied when the killing is proximately caused by "'an act, the natural consequences of which are dangerous to life, which act was deliberately
performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.'" (People v. Phillips, supra, at p. 587, 51 Cal.Rptr. 225, 414 P.2d 353.) In short, implied malice requires a defendant's awareness of engaging in conduct that endangers the life of another--no more, and no less.

People v. Knoller, 41 Cal.4th at 143.

Further, the defendant must have actually and proximately caused the death by engaging in an act or omission that set in motion a chain of events that produced as a direct, natural and probable consequence of the act or omission the death of the decedent, and without which the death would not have occurred. People v. Cervantes, 26 Cal.4th 860, 866 (2001). Where the death results directly from the act of a defendant, the defendant may be criminally responsible even though there is another contributing cause. Id. at 866-67.

C. Analysis

The evidence admitted at trial has been previously summarized in detail. The victim, who had been involved with Petitioner in an affair which he perceived to be jeopardizing his marriage and causing him severe emotional stress, died in Petitioner's car and in Petitioner's presence as a result of a gunshot wound that was inflicted by Petitioner's gun at close range. The evidence concerning the victim's sophistication with firearms and her upbeat state of mind, as well as the physical evidence and related expert opinion evidence, warranted an inference that the fatal wound was not self-inflicted. This evidence, considered along with Petitioner's conduct after the shooting, including the inconsistent statements concerning the details and nature of the shooting, the extended delay in calling authorities, and the admitted destruction of evidence, warranted an inference of consciousness of guilt. A rational trier of fact could have found that Petitioner had fired the weapon and thereby caused the victim's death. Where a defendant intentionally fires a gun at a victim at close range, California courts have found sufficient evidence of implied malice because such an act is dangerous to human life and presents a high probability of death. See, People v. Woods, 226 Cal.App.3d 1037, 1048 (1991). Consideration of Sanchez's testimony further warranted an inference that Petitioner intentionally killed the victim.

The Court concludes that a rational trier of fact could have concluded from the evidence presented at Petitioner's trial that Petitioner committed second degree murder as defined by California law.

Accordingly, Petitioner has not shown that the decision of the state court denying Petitioner's petition for writ of habeas corpus on the ground of insufficiency of the evidence resulted in an unreasonable application of clearly established precedent from the United States Supreme Court.

XIV. Petitioner's Request for an Evidentiary Hearing

A. Legal Standards

Petitioner requests an evidentiary hearing. (FAP 12.)

The decision to grant an evidentiary hearing is generally a matter left to the sound discretion of the district courts. 28 U.S.C. § 2254; Habeas Rule 8(a); Schriro v. Landrigan, 550 U.S. 465, 473 (2007). To obtain an evidentiary hearing in federal court under the AEDPA, a petitioner must allege a colorable claim by alleging disputed facts which, if proved, would entitle him to relief. Schriro v. Landrigan, 550 U.S. at 474.

The determination of entitlement to relief is in turn limited by 28 U.S.C. § 2254(d)(1), which requires that for one to obtain relief with respect to a claim adjudicated on the merits in state court, the adjudication must result in a decision that was either contrary to, or an unreasonable application of, clearly established federal law. Schriro v. Landrigan, 550 U.S. at 474. Further, in analyzing a claim pursuant to § 2254(d)(1), a federal court is limited to the record that was before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 131 S.Ct. at 1398. Thus, in undertaking the analysis pursuant to § 2254(d)(1) in this order, the Court has considered only the evidence in the state court record.

It follows from the limitations imposed by the governing statute that when a state court record precludes habeas relief under the limitations set forth in § 2254(d), a district court is not required to hold an evidentiary hearing. Cullen v. Pinholster, 131 S.Ct. at 1399 (citing Schriro v. Landrigan, 550 U.S. 465, 474 (2007)). An evidentiary hearing may be granted with respect to a claim adjudicated on the merits in state court where the petitioner satisfies § 2254(d)(1), or where § 2254(d)(1) does not apply, such as where the claim was not adjudicated on the merits in state court. Cullen v. Pinholster, 131 S.Ct. at 1398, 1400-01.

An evidentiary hearing is not required where the state court record resolves the issues, refutes the application's factual allegations, or otherwise precludes habeas relief. Schriro v. Landrigan, 550 U.S. at 474. No evidentiary hearing is required for claims based on conclusory allegations. Campbell v. Wood, 18 F.3d 662, 679 (9th Cir. 1994). Likewise, an evidentiary hearing is not required if the claim presents a purely legal question, there are no disputed facts, or the state court has reliably found the relevant facts. Beardslee v. Woodford, 358 F.3d 560, 585-86 (9th Cir. 2004); Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir. 1992).

Evidentiary hearings have been authorized where the petitioner satisfied § 2254(d)(2) by showing that the state court's decision was an unreasonable determination of the facts in light of the evidence presented to the state court. Earp v. Ornoski, 431 F.3d 1158, 1166-67 (9th Cir. 2005). Pursuant to factors set forth in Townsend v. Sain, 372 U.S. 293, 313 (1963), a petitioner is entitled to an evidentiary hearing if the petitioner can show that 1) the merits of the factual dispute were not resolved in the state hearing; 2) the state factual determination is not fairly supported by the record as a whole; 3) the fact-finding procedure employed by the state was not adequate to afford a full and fair hearing; 4) there is a substantial allegation of newly discovered evidence; 5) the material facts were not adequately developed at the state court hearing, or 6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair hearing. Earp v. Ornoski, 431 F.3d at 1166-67.

B. Analysis

The foregoing analysis of Petitioner's claims that were adjudicated on the merits in state court proceedings was based on the state court record and demonstrates that habeas corpus relief is foreclosed pursuant to § 2254(d)(1). Petitioner has not shown that with respect to the claims that were adjudicated on the merits in state court proceedings, an adjudication resulted in a decision that was either contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court. Further, Petitioner has not demonstrated that any adjudication resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the sate court proceedings. When a state court record precludes habeas relief under the limitations set forth in § 2254(d), a district court is not required to hold an evidentiary hearing. Cullen v. Pinholster, 131 S.Ct. at 1399 (citing Schriro v. Landrigan, 550 U.S. 465, 474 (2007)). Thus, as to these claims, Petitioner's request for an evidentiary hearing will be denied.

Some of Petitioner's claims were determined by state courts to have been procedurally defaulted; further, as to some of these claims, the state courts also appeared to have considered the merits of the claims. For the purpose of analyzing Petitioner's request for an evidentiary hearing, it will be assumed that the claims that were found to have been subject to a procedural default in state courts were not adjudicated on the merits and that § 2254(d)(1) does not apply to such claims in the present context of this Court's review.

With respect to Petitioner's claim concerning prosecutorial misconduct, the claim concerns the prosecutor's conduct at trial during argument to the jury. Thus, by its nature, the claim is limited to the state court record, and there are no disputed facts. Further, as the foregoing analysis of the claim shows, denial of the claim would not have been based on an unreasonable determination of the facts in light of the evidence in the state court record. Thus, Petitioner has not shown entitlement to an evidentiary hearing with respect to this claim.

Likewise, the ineffective assistance of counsel claims based on failure to raise these arguments would not warrant an evidentiary hearing. See, Beardslee v. Woodford, 358 F.3d 560, 585-86 (9th Cir. 2004) (holding it was not an abuse of discretion to deny an evidentiary hearing concerning a claim of ineffective assistance of counsel by failing to object to alleged prosecutorial misconduct that was fully evident in the trial record).

With respect to Petitioner's claim of a due process violation based on the prosecution's failure to disclose that Sanchez was working for the prosecution and recording Petitioner's conversations after his release, Petitioner did not submit sufficient specific facts that, if proved, would entitle him to relief. Petitioner submitted unsworn material, including an unauthenticated letter from an anonymous source, which contained conclusional statements in place of factual allegations. Further, Petitioner has not shown that pursuant to § 2254(d)(2), the state court decision resulted in an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Petitioner's request for an evidentiary hearing as to this claim will be denied.

As to Petitioner's Brady claim concerning the alleged non-disclosure of the test result concerning acid phosphatase in the vaginal swab, even if it were assumed that the report was not disclosed to defense counsel, the report was nevertheless not material. It has not been shown that had the report been disclosed, it was reasonably probable that the result of the proceeding would have been different. The non-disclosure would not have undermined confidence in the outcome of the trial proceedings. Thus, Petitioner did not allege any disputed facts which, if proved, would have entitled him to relief. Accordingly, the request for an evidentiary hearing concerning this claim will be denied.

Petitioner's claim or claims concerning trial counsel's failure to investigate Sanchez and discover his possession of drugs in jail and the related report likewise does not warrant an evidentiary hearing. Petitioner did not show that but for counsel's errors, it was reasonably probable that the result of the proceeding would have been different. Thus, the facts alleged by Petitioner would not have entitled him to relief.

In summary, Petitioner's request for an evidentiary hearing will be denied.

XV. Request for DNA Testing

Petitioner requests that DNA testing be done on the victim's vaginal swab to determine whose bodily fluids were present. (Trav., 18-19 n.2.) Petitioner speculates that the prosecution failed to perform such a test because it was known that the victim had engaged in sexual relations with her estranged husband on the day of her death. Petitioner contends that the testing will show that Bonham was suicidal and killed herself, and thus, it will establish his innocence.

Petitioner's request is new matter appearing for the first time in the traverse. Petitioner did not exhaust a claim concerning DNA testing in the state courts. Further, in light of the limitations of § 2254(d)(1), Petitioner has not established that this Court would have the authority to consider such new evidence in relation to any of the claims that are presently before the Court in the FAP.

Accordingly, Petitioner's request for DNA testing will be denied.

XVI. Certificate of Appealability

Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the Court of Appeals from the final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A certificate of appealability may issue only if the applicant makes a substantial showing of the denial of a constitutional right. § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). A certificate should issue if the Petitioner shows that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right or that jurists of reason would find it debatable whether the district court was correct in any procedural ruling. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

In determining this issue, a court conducts an overview of the claims in the habeas petition, generally assesses their merits, and determines whether the resolution was debatable among jurists of reason or wrong. Id. It is necessary for an applicant to show more than an absence of frivolity or the existence of mere good faith; however, it is not necessary for an applicant to show that the appeal will succeed. Miller-El v. Cockrell, 537 U.S. at 338.

A district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Rule 11(a) of the Rules Governing Section 2254 Cases.

Here, it does not appear that reasonable jurists could debate whether the petition should have been resolved in a different manner. Petitioner has not made a substantial showing of the denial of a constitutional right.

Accordingly, the Court will decline to issue a certificate of appealability.

XVII. Disposition

In summary, Petitioner has not shown that he is entitled to habeas corpus relief pursuant to 28 U.S.C. § 2254. The first amended petition for writ of habeas corpus will be denied.

Accordingly, it is ORDERED that:

1) Pursuant to Fed. R. Civ. P. 25(d), Acting Warden P. D. Brazelton is SUBSTITUTED as Respondent; and

2) Petitioner's state law claim concerning the appointment of counsel is DISMISSED because it is not cognizable in a proceeding pursuant to § 2254; and

3) Petitioner's request for an evidentiary hearing is DENIED; and

4) Petitioner's request for DNA testing is DENIED; and

5) The first amended petition for writ of habeas corpus is DENIED; and

6) The Clerk is DIRECTED to enter judgment for Respondent; and 7) The Court DECLINES to issue a certificate of appealability. IT IS SO ORDERED.

Sandra M. Snyder

UNITED STATES MAGISTRATE JUDGE