Opinion
Civil No. 05cv0574-WQH(POR).
November 17, 2005
REPORT AND RECOMMENDATION DENYING PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Armando Mercado, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. He challenges his San Diego Superior Court conviction for burglary on two grounds: (1) denial of his due process right to a fair trial as a result of ineffective assistance of counsel; and (2) denial of his due process right to a fair trial when the trial court allegedly issued an improper response to the jury's request for a readback that included potentially exculpatory evidence. (Petition at 6.)
The Court has considered the Petition, Respondent's Answer, Petitioner's Traverse and all the supporting documents submitted by the parties. Based upon the documents and evidence presented in this case, and for the reasons set forth below, the Court recommends that the Petition be DENIED and the case be dismissed with prejudice.
II. Statement of Facts
This Court gives deference to state court findings of fact and presumes them to be correct. Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness). In the present case, Petitioner has not attempted to rebut the factual findings made by the state court. The following facts, therefore, are taken verbatim from the California Court of Appeal's opinion in Petitioner's case.
One morning at about 8:00 a.m., [Petitioner] began ringing Araceli Ortiz's doorbell and knocking on her door. Ortiz looked out through the peephole in the front door. She did not recognize [Petitioner]. She also saw a bicycle leaning against a post on her front porch. The bicycle was black, with a thin frame and rounded handlebars.
[Petitioner] continued to ring the doorbell and knock on the door for several minutes. He asked if anyone was home. Ortiz was alone in the apartment except for her four-year-old son. Ortiz did not recognize [Petitioner], and his behavior scared her. She decided to lock the door and attempted to turn the lock on the door handle. However, the sound seemed to attract [Petitioner's] attention and she became concerned that he would come in. Instead of locking the door, she took the telephone and went into her bedroom. She locked the bedroom door and then tried unsuccessfully to call her husband and then the apartment complex manager.
The knocking and ringing continued. Five to ten minutes later, Ortiz heard the apartment door open and close. She went into the bathroom and called 911. She gave the operator a description of the person she had seen at her door and described the bicycle. Meanwhile, she heard someone rummaging in the kitchen. She heard someone say, "Is anybody home?" It was the same voice she had heard when [Petitioner] asked from outside whether anyone was home.
Ortiz heard the front door open and close a second time, but then saw the doorknob of her bedroom door move. Speaking more loudly, she told the 911 operator that the intruder was trying to get into her bedroom. She heard no further sounds. Less than a minute later, the police arrived.
The only items missing from the apartment were CD's and some quarters belonging to Ortiz's brother-in-law, Juan Ortiz. There was a trail of plastic shopping bags from the kitchen to Juan's bedroom.
A police officer saw [Petitioner] riding a bicycle down a small roadway within the apartment complex. Aware that the suspect had a bicycle, the officer detained [Petitioner]. Ortiz was brought to the detention site, where she identified [Petitioner] as the man who had been at her door and identified his bicycle as the one she had seen. A plastic shopping bag containing 47 CD's was found at the end of a footpath leading from Ortiz's apartment, about 150 yards from where [Petitioner] was detained. Ortiz identified the contents of the bag as the missing CD's. The quarters were not recovered.
[Petitioner] explained to the police that he had slept outside in the apartment complex the night before and had knocked on several doors that morning because he needed to use a telephone. He had kicked open the door to one apartment that appeared to be vacant but left when he saw that there was no telephone inside. He had continued to knock on doors but got no response. He denied having entered Ortiz's apartment and denied any knowledge of the CD's. He admitted that the bicycle was his. A search of his person revealed a six-inch "chisel type object" in his right front pants pocket and $96.26 in cash.
The defense was mistaken identity. Ortiz had described the person at her front door as having a full beard, while [Petitioner's] booking photo showed that he had only a goatee. The parties stipulated that the clothing depicted in a photo exhibit was the same clothing [Petitioner] was wearing when he was arrested. Ortiz told police that the man she saw at her door was wearing faded red pants and a light brown, beige or khaki button-down shirt over a similar colored T-shirt with letters or a design on it. However, the booking photo showed [Petitioner] wearing a bluish-green shirt with no visible T-shirt underneath. A photo exhibit also apparently showed that he was wearing tan pants rather than the faded red pants Ortiz described.
(Lodgment No. 4 at 3-5.)
III. State Court Proceedings
On December 19, 2002, a jury convicted Petitioner of one count of residential burglary in violation of California Penal Code § 459. (Lodgment No. 2 at 184.) Petitioner admitted the truth of three prior serious felony convictions that qualified as strikes within the meaning of California Penal Code §§ 667(b)-(i) and 1170.12, and was sentenced to a term of twenty-five years to life. (Lodgment No. 4 at 2.)
Cal. Penal Code § 459 provides: "Every person who enters any house, room, apartment . . . with intent to commit grand or petit larceny or any felony is guilty of burglary."
Petitioner appealed to the California Court of Appeal, District Four, Division Two. (Lodgment No. 4 at 1.) In his appeal, Petitioner argued (1) he was denied his due process right to a fundamentally fair trial under the Fifth and Fourteenth Amendments because his trial counsel did not object to allegedly highly prejudicial testimony; and (2) the trial court erred by improperly responding to the jury's request for readbacks that included potentially exculpatory evidence. (Lodgment No. 3 at 8, 16.) On April 13, 2004, the Court of Appeal, in a reasoned decision, affirmed the residential burglary conviction but modified Petitioner's prison sentence to include, in addition to the sentence imposed for the present offense, consecutive five-year prison terms for each of the prior serious felony convictions found to be true pursuant to California Penal Code § 667(a)(1). (Lodgment No. 4 at 14-15.)
Petitioner sought review of the Court of Appeal's decision on the ineffective assistance of counsel claim, but did not raise the trial court error claim in his appeal to the California Supreme Court. (Lodgment No. 5 at 3.) On July 14, 2004, the California Supreme Court denied the petition en banc without comment. (Lodgment No. 6 at 1.)
Subsequently, on October 14, 2004, Petitioner filed a Petition for Writ of Habeas Corpus in California Superior Court in which he contended that his trial counsel's failure to object to allegedly improper testimony violated his Sixth Amendment right to effective assistance of counsel. (Lodgment No. 7, Cal. App. Dep't Super. Ct. Pet. at 3.) The Superior Court denied the petition on November 8, 2004. (Lodgment No. 7, Cal. App. Dep't Super. Ct. at 1.) On December 30, 2004, Petitioner filed a Petition for Writ of Habeas Corpus in California Court of Appeal, District Four, Division Two, alleging the same ineffective assistance of counsel claim. (Lodgment No. 7, Cal. Ct. App. Pet. at 1.) The Court of Appeal denied the petition without comment on January 5, 2005. (Lodgment No. 7, Cal. Ct. App. Order at 1.) On February 7, 2005, Petitioner filed a Petition for Writ of Habeas Corpus in California Supreme Court, in which he again argued ineffective assistance of counsel due to trial counsel's failure to object to allegedly improper testimony. (Lodgment No. 7, Cal. Pet. at 1.) That petition is currently pending.
However, despite the pending action, Petitioner's ineffective assistance of counsel claim is considered exhausted for federal review purposes. The exhaustion doctrine requires that state prisoners provide the state courts "one full opportunity" to resolve any Constitutional claim by completing one full round of the State's established appellate review process. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). As a result, the standard is simply whether the state Supreme Court had a fair opportunity to consider the constitutional claim and to correct the alleged constitutional defect. Picard v. Connor, 404 U.S. 270, 276 (1971).
In the present case, Petitioner raised this ineffective assistance of counsel claim on direct appeal to the California Supreme Court and was denied en banc. (Lodgment No. 5 at 7; Lodgment No. 6 at 1.) Thus, further state collateral review is unnecessary for exhaustion purposes, since the California Supreme Court has already had an opportunity to resolve this constitutional claim. See O'Sullivan, 526 U.S. at 844 (stating that the exhaustion doctrine does not require prisoners to file repetitive petitions); Brown v. Allen, 344 U.S. 443, 447 (1953) (holding that to exhaust a claim, a prisoner does not have "to ask the state for collateral relief, based on the same evidence and issues already decided by direct review"), partially abrogated on other grounds by 28 U.S.C. § 2254(d) and Williams v. Taylor, 529 U.S. 362 (2000); But cf. Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983) (finding that the exhaustion doctrine was not satisfied when the prisoner had a direct appeal pending in state court). Hence, despite the pending action, Petitioner's ineffective assistance counsel claim is sufficiently exhausted for federal review purposes since it was previously raised on direct appeal to the California Supreme Court.
Furthermore, assuming arguendo that Petitioner's state habeas petition is denied, Petitioner would be barred from bringing the same ineffective assistance of counsel claim in a second federal habeas petition because it has already been raised and considered in this habeas petition, and would thus be successive. Ortiz v. Stewart, 195 F.3d 520 (9th Cir. 1999) (dismissing a petitioner's ineffective assistance of counsel claim as successive because "it was previously raised and considered in his first habeas petition").
IV. Federal Court Proceedings
Petitioner filed the current Petition for Writ of Habeas Corpus on March 22, 2005, asserting two grounds for relief: (1) the allegedly inadequate performance of his trial counsel resulted in a violation of his right to due process and his Sixth Amendment right to effective assistance of counsel; and (2) denial of his due process right to a fair trial when the trial court allegedly issued an improper response to the jury's request for a readback that included potentially exculpatory evidence. (Docket No. 1 at 6.) On June 10, 2005, Respondent filed an Answer to the Petition. (Docket No. 10.) Petitioner filed a Traverse to Respondent's Answer on July 11, 2005. (Docket No. 12.)V. Scope of Review
Title 28 U.S.C. § 2254(a), sets forth the following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.28 U.S.C. § 2254(a).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies to habeas corpus petitions filed after 1996. Lindh v. Murphy, 521 U.S. 320 (1997). The current petition was filed on April 21, 2003, and is governed by the AEDPA. As amended, 28 U.S.C. § 2254(d) now reads:
(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 State court proceeding.28 U.S.C.A. § 2254(d) (West Supp. 2001).
To obtain federal habeas relief, Petitioner must satisfy either § 2254(d)(1) or § 2254(d)(2). Williams v. Taylor, 529 U.S. 362, 403 (2000). The Supreme Court interprets § 2254(d)(1) as follows:
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decided a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Williams, 529 U.S. at 412-13.
The AEDPA also requires deference be given to state court findings of fact, with state court factual determinations presumed correct unless the petitioner rebuts them by clear and convincing evidence. 28 U.S.C. § 2254(e)(1) (West Supp. 2001). Although claims under § 2254(d)(2) are rare, perhaps because of this deferential standard, a state court decision may be found to be "based on an unreasonable determination of the facts in light of the evidence presented" if it "is so clearly incorrect that it would not be debatable among reasonable jurists." Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997), overruled on other grounds by Lindh, 521 U.S. at 320.
Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). If the dispositive state court order does not "furnish a basis for its reasoning," federal habeas courts must conduct an independent review of the record "to determine whether the state court clearly erred in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
In the present case, the California Supreme Court decision on the Petition for Writ of Habeas Corpus is currently pending and the Court of Appeal denied the Petition without comment. Additionally, the California Supreme Court on direct appeal denied review of the opinion of the California Court of Appeal without comment. Therefore, this Court shall look to the California Court of Appeal's decision on Petitioner's direct appeal in reviewing Petitioner's federal habeas claims. Nunnemaker, 501 U.S. at 801-06.
VI. Discussion
Petitioner raises two claims in his federal petition. First, Petitioner contends his trial counsel was ineffective and deprived him of a fair trial when trial counsel did not object to testimony by Officer Lonnie Battest. (Pet. at 6.) Second, Petitioner claims that his due process right to a fair trial was violated when the trial court allegedly misdirected the jury in response to a readback request. (Pet. at 6.)A. Ineffective Assistance of Counsel
Petitioner contends that his trial counsel was ineffective because counsel did not object to testimony by Officer Battest. (Pet. at 6.) According to Petitioner, this failure to object allowed Officer Battest to improperly vouch for the credibility of Ms. Ortiz and to give an inadmissible opinion as to Petitioner's guilt, thus prejudicing the jury against Petitioner. (Pet. at 6.) The state Court of Appeal provides the following factual background:
[Officer] Battest, who responded to Ortiz's call, testified on direct examination that no effort was made to obtain fingerprints in Ortiz's apartment or from the CD covers because he determined that it was unlikely that latent prints would be obtainable from any of the surfaces in the apartment or from the CD covers. However, Battest admitted on cross-examination that it would probably have been possible to retrieve latent prints from the knobs on the front door and the bedroom door.
On redirect, the prosecutor sought to justify Battest's decision not to attempt to obtain fingerprints. He asked Battest whether, if he felt "pretty confident" that the correct person was in custody, that confidence would factor into his decision "to take fingerprints or not." Battest replied, "Yes." The prosecutor asked if that was what happened in this case. Battest replied, "Yes." The prosecutor asked if, when Ortiz identified defendant as the person she saw at her door, he felt he had the correct person in custody. Again, Battest replied, "Yes." Defense counsel did not object to any of this testimony.
(Lodgment No. 4 at 5-6.)
The United States Supreme Court has recognized that the Sixth Amendment right to counsel exists in order to protect the fundamental right to a fair trial. Gideon v. Wainwright, 372 U.S. 335 (1963); Johnson v. Zerbst, 304 U.S. 458 (1938); Powell v. Alabama, 287 U.S. 45, 53 (1932). In addition, the Supreme Court has held that "the right to counsel is the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). However, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
To establish a cognizable claim for ineffective assistance of counsel, Petitioner must prove "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686; Jones v. Wood, 114 F.3d 1002, 1013 (9th Cir. 1997); Crotts v. Smith, 73 F.3d 861, 865 (9th Cir. 1996), superseded by statute on other grounds. First, Petitioner must show his counsel's performance fell "outside the wide range of professional competence," and was, in fact, deficient. Strickland, 466 U.S. at 687. "This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. Second, Petitioner must show counsel's deficient performance prejudiced his defense. Id. Prejudice is established if there is a reasonable probability that a more favorable outcome would have resulted but for the deficient performance by counsel. Id. at 694. Because Petitioner must prove both Strickland elements, the court may reject his claim upon finding either counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697.
Here, this Court denies Petitioner's claim, without a determination on the competency of trial counsel, solely on the issue of prejudice. See Strickland, 466 U.S. at 697 ("if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed"); Mayfield v. Woodford, 270 F.3d 915, 925 (9th Cir. 2001) (en banc) (finding no ineffective assistance of counsel after determining that there was no showing of prejudice and without resolving the issue of deficient performance).
Petitioner contends that but for trial counsel's failure to object to Officer Battest's testimony on redirect, there was a reasonable probability that a more favorable outcome would have resulted. However, assuming arguendo that counsel erred when he did not object to Officer Battest's testimony, the error did not rise to the level of prejudice. See Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000) (finding that the petitioner was not prejudiced by counsel's failure to seek suppression of accomplice's redacted confession); United States v. Olson, 925 F.2d 1170, 1173-74 (9th Cir. 1991) (finding no prejudice where trial counsel had no experience in mail fraud cases, failed to make pretrial motions or to request discovery, allegedly prepared witnesses inadequately, and failed to impeach witnesses); United States v. Mal, 942 F.2d 682, 689 (9th Cir. 1991) (finding no prejudice because Petitioner could not establish a reasonable probability that an objection by trial counsel to jury instructions would have changed the result of the trial). But cf. United States v. Tucker, 716 F.2d 576, 593 (9th Cir. 1983) (holding that the petitioner had demonstrated prejudice by showing that trial counsel's "grossly inadequate trial preparation compromised every significant portion of the jury's fact finding task").
This Court agrees with the California Court of Appeal that Petitioner was not prejudiced because it was not reasonably probable that any juror who was not otherwise convinced that Petitioner was guilty would be induced to abandon those doubts in reliance on Officer Battest's testimony. (Lodgment No. 4 at 8.) The reasoning of the California Court of Appeal follows:
Battest's opinion that defendant was the culprit was based solely on Ortiz's prompt identification of defendant when she saw him a few minutes after the person left her apartment. He did not offer any independent assessment of the evidence which lent additional credence to her identification or to the inference that because defendant was the person she saw at her door, he was also the person who entered the apartment. Jurors were able to assess Ortiz's credibility and the validity of her identification of defendant for themselves [citation omitted]. They were aware of the discrepancies between her description of the man she saw and defendant's actual appearance when he was detained only minutes later. They were also aware that Ortiz identified defendant's bicycle as the one she saw on her porch; that she testified that the voice she heard outside the house was the same one she heard from inside the house; that property stolen from the apartment was recovered only 150 yards from where defendant was detained and at the end of a footpath leading from Ortiz's apartment; and that defendant had a "chisel type" object — a potential burglary tool — in his pocket when he was arrested.
(Lodgment No. 4 at 7-8.)
Furthermore, in addition to weighing the totality of the circumstances, it is not reasonably probable that a juror unconvinced of Petitioner's guilt would be swayed by Officer Battest's alleged "vouching" because the trial court explicitly instructed the jurors that they were "the sole judges of the believability of a witness and the weight to be given the testimony of each witness." (Lodgment No. 2 at 169.) Finally, trial counsel's cross-examination of Ms. Ortiz should have been sufficient to expose to the jury any discrepancies or issues with the identification. United States v. Brewer, 783 F.2d 841, 843 (9th Cir. 1986). However, assuming arguendo that the cross-examination was not sufficient, the trial court still included in its jury instructions a series of factors involving issues related to identification for the jury to consider when determining the weight to be given Ms. Ortiz's identification testimony. (Lodgment No. 2 at 173.) Thus, in light of the evidence presented by the State at trial and the trial court's instructions, the California Court of Appeal properly determined that it was not reasonably probable that an objection by Petitioner's counsel would have altered the jury's verdict. (Lodgment No. 4 at 8.) Accordingly, this Court finds the state court's adjudication of this claim was not contrary to, nor an unreasonable application of, the clearly established federal law, Williams, 529 U.S. at 405-06, and that Petitioner therefore is not entitled to habeas relief on this claim.
B. Due Process Trial Rights
Petitioner's second claim is that his due process right to a fair trial was violated when the trial court allegedly issued an improper response to the jury's request for a readback. (Pet. at 6.) Petitioner contends that the readback request included potentially exculpatory evidence. (Pet. at 6.) However, Petitioner never presented this claim to the state supreme court. Nevertheless, because this Court finds that it is patently without merit and does not raise a colorable federal claim, habeas relief is denied on the merits of this claim irrespective of Petitioner's failure to present it to the state supreme court. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."); see also Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005) (holding that "a federal court may deny an unexhausted petition on the merits only when it is perfectly clear that the applicant does not raise even a colorable federal claim.").
To the extent this claim does "present a colorable federal claim" so as to preclude application of 28 U.S.C. § 2254(b)(2), the Court would alternately find that because the claim should have been raised in the state court on direct appeal but was not, it would be futile for Petitioner to return to state court with this claim, and therefore the claim is considered to be exhausted. See Cassett, 406 F.3d at 621 n. 5 ("A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer `available' to him."), quoting Coleman v. Thompson, 501 U.S. 722, 732 (1991); Phillips v. Woodford, 267 F.3d 966, 974 (9th Cir. 2001) ("[T]he district court correctly concluded that Phillip's claims were nonetheless exhausted because a return to state court would be futile."). To the extent the claim meets the technical requirements of exhaustion, this Court recommends the claim be denied on the merits for the reasons set forth herein.
The readback request, submitted during deliberations to the trial court on December 18, 2002, was as follows:
#1 Rereading of Witness #1 testimony concerning door knobs (outside door and masterbedroom [ sic]) and voices heard. [¶] #2 Rereading of Witness #3 testimony concerning door knobs while questioning Witness #1. [¶] Nothing about fingerprints and doorknobs.
(Lodgment No. 1 at 133.) (Underlining in original.)
On direct appeal, Petitioner speculated that the last sentence, "Nothing about fingerprints and doorknobs," was a note from the trial court to the jury in response to its readback request. (Lodgment No. 3 at 17.) Petitioner contended that such a response was misleading to the jury and thus substantially affected Petitioner's right to a fair trial. (Lodgment No. 3 at 18.)
Habeas relief is proper when a trial court's error denies a petitioner's due process right to a fair trial. Alcala v. Woodford, 334 F.3d 862, 884 (9th Cir. 2003). However, "[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief." James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). Cf. United States ex rel. Walker v. Fogliani, 343 F.2d 43, 48 n. 1 (9th Cir. 1965) (observing that "the claim with respect to the denial of due process was grounded upon facts which clearly appear in the written record").
In the present case, Petitioner does not cite any evidence in the record that supports this allegation nor demonstrates affirmatively that the error occurred. The record shows that the readback request was received by the trial court on December 18, 2002, and that the jury returned its verdict on December 19, 2002. (Lodgment No. 1 at 133-135.) Nowhere does the record indicate that the trial court issued a response to the readback request. ( Id. at 87, 133-34.) The "response" section of the form is blank and there is no signature from the trial judge or commissioner indicating that a response was made. ( Id. at 133.) Additionally, the alleged response was written in the section for the jury's questions or requests, not in the "response" section. ( Id. at 133.) Furthermore, the phrase itself does not appear to be a response to the two questions, since neither question mentions "fingerprints." ( Id. at 133.) Instead, it is likely that the jury was merely clarifying questions #1 and #2, stating that they were not asking for a readback of Officer Battest's testimony regarding the decision not to take fingerprints. Finally, assuming arguendo that the trial court had responded to the note, there is no evidence in the record that the jury relied upon the alleged response when it determined the verdict. (Lodgment No. 1 at 133-34; Lodgment No. 2 at 178-86.) Thus, in the absence of any evidence in the record that would support Petitioner's denial of a fair trial claim, this Court finds that Petitioner has not presented "a colorable federal claim" and dismisses the claim on the merits. Cassett, 406 F.3d at 623-24.
VII. Conclusion
After thorough review of the record in this matter and based on the foregoing analysis, it is recommended that the Petition for Writ of Habeas Corpus be DENIED and this action be DISMISSED WITH PREJUDICE. This Report and Recommendation of the undersigned Magistrate Judge is submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).Any party may file written objections with the Court and serve a copy on all parties on or before December 19, 2005. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be served and filed no later than ten days upon receipt of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.