ORDER DENYING SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY

ERICA P. GROSJEAN, District Judge.

Petitioner Julie Condon is a state prisoner, represented by counsel, proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In her second amended petition for writ of habeas corpus, Petitioner raises the following claims for relief: (1) prosecutorial misconduct; (2) unlawful search and seizure; (3) ineffective assistance of counsel; (4) false testimony of a prosecution witness; (5) judicial bias; and (6) jury misconduct.

For the reasons discussed herein, the Court finds that denial of the second amended petition for writ of habeas corpus is warranted.

I.

BACKGROUND

In 2011, Petitioner was convicted after a jury trial in the Tuolumne County Superior Court of possession of heroin for sale (count I), transportation of heroin (count V), and transportation of methamphetamine (count VI). Petitioner also was convicted of the lesser included offenses of possession of methamphetamine (count II), possession of hydrocodone, morphine, and codeine (count III), and possession of diazepam (count IV). In a bifurcated proceeding, Petitioner admitted the allegations that she had three prior drug offense convictions. Petitioner was sentenced to an aggregate imprisonment term of fifteen years, eight months. People v. Condon, No. F062801, 2012 WL 3222660, at *1 (Cal. Ct. App. Aug. 9, 2012).

On August 9, 2012, the California Court of Appeal, Fifth Appellate District, affirmed the judgment. Condon, 2012 WL 3222660, at *4. The California Supreme Court denied Petitioner's petition for review on November 14, 2012. (LDs1 3, 4). Thereafter, Petitioner filed a state petition for writ of habeas corpus in the Riverside County Superior Court, which transferred the petition to the Tuolumne County Superior Court (LDs 5, 6). The petition was denied on May 8, 2013. (ECF No. 18 at 5).2 Petitioner then filed a state habeas petition in the California Court of Appeal, Fifth Appellate District, which denied the petition on September 18, 2013. (LDs 7, 8). Finally, Petitioner filed a state habeas petition in the California Supreme Court, which summarily denied the petition on February 11, 2014. (LDs 9, 10).

On April 5, 2013, Petitioner initiated federal habeas proceedings in the Sacramento Division of the Eastern District of California. On May 24, 2013, the matter was transferred to this Court. (ECF No. 11). On July 25, 2013, the Court granted Petitioner's request to stay the case pending exhaustion of claims in state court. (ECF No. 17). On March 26, 2014, the stay was lifted, and Petitioner filed her second amended petition on April 23, 2014. (ECF Nos. 22, 26). Respondent filed an answer to the second amended petition and Petitioner filed a traverse. (ECF Nos. 35, 41). On July 21, 2015, the Court appointed counsel for Petitioner. (ECF No. 55). On January 19, 2016, a supplemental traverse with respect to the ineffective assistance of counsel claim was filed. (ECF No. 65). On March 21, 2016, Respondent filed a reply. (ECF No. 69). The parties have consented to the jurisdiction of a United States magistrate judge to conduct all proceedings in this case pursuant to 28 U.S.C. § 636(c). (ECF Nos. 14, 45).

II.

STATEMENT OF FACTS3

Condon, 2012 WL 3222660, at *1-3 (footnotes omitted).

III.

STANDARD OF REVIEW

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that she suffered violations of her rights as guaranteed by the United States Constitution. The challenged convictions arise out of the Tuolumne County Superior Court, which is located within the Eastern District of California. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(d).

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner can show that the state court's adjudication of his claim:

28 U.S.C. § 2254(d); Davis v. Ayala, 135 S.Ct. 2187, 2198 (2015); Harrington v. Richter, 562 U.S. 86, 97-98 (2011); Williams, 529 U.S. at 413. Thus, if a petitioner's claim has been "adjudicated on the merits" in state court, the "AEDPA's highly deferential standards" apply. Ayala, 135 S. Ct. at 2198. However, if the state court did not reach the merits of the claim, the claim is reviewed de novo. Cone v. Bell, 556 U.S. 449, 472 (2009).

In ascertaining what is "clearly established Federal law," this Court must look to the "holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412. In addition, the Supreme Court decision must "`squarely address[] the issue in th[e] case' or establish a legal principle that `clearly extend[s]' to a new context to the extent required by the Supreme Court in . . . recent decisions"; otherwise, there is no clearly established Federal law for purposes of review under AEDPA and the Court must defer to the state court's decision. Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2008) (alterations in original) (quoting Wright v. Van Patten, 552 U.S. 120, 125, 123 (2008)).

If the Court determines there is clearly established Federal law governing the issue, the Court then must consider whether the state court's decision was "contrary to, or involved an unreasonable application of, [the] clearly established Federal law." 28 U.S.C. § 2254(d)(1). A state court decision is "contrary to" clearly established Supreme Court precedent if it "arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A state court decision involves "an unreasonable application of[] clearly established Federal law" if "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents." Richter, 562 U.S. at 102. That is, a petitioner "must show that the state court's ruling on the claim being presented in federal court 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 103.

If the Court determines that the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law," and the error is not structural, habeas relief is nonetheless unavailable unless it is established that the error "had substantial and injurious effect or influence" on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation mark omitted) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

The AEDPA requires considerable deference to the state courts. The Court looks to the last reasoned state court decision as the basis for the state court judgment. See Brumfield v. Cain, 135 S.Ct. 2269, 2276 (2015); Johnson v. Williams, 133 S.Ct. 1088, 1094 n.1 (2013); Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Richter, 562 U.S. at 99. 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). Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). The federal court must review the state court record and "must determine what arguments or theories . . . could have supported, 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 [the Supreme] Court." Richter, 562 U.S. at 102.

IV.

REVIEW OF CLAIMS

A. Prosecutorial Misconduct

In her first claim for relief, Petitioner asserts that the prosecution engaged in misconduct by failing to disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), and by the late disclosure of a police report and the fact that a prosecution witness would be testifying for immunity. (ECF No. 26 at 5, 10). Respondent argues that the state court's denial of this claim was reasonable under controlling Supreme Court precedent. (ECF No. 35 at 16).

This claim was raised on direct appeal to the California Court of Appeal, Fifth Appellate District, which denied the claim in a reasoned opinion. (LDs 1, 2). The claim was also raised in the petition for review, which was summarily denied by the California Supreme Court. (LDs 3, 4). Generally, federal courts "look through" summary denials and review the last reasoned state court opinion. See Brumfield, 135 S. Ct. at 2276; Ylst, 501 U.S. at 806.

In denying the prosecutorial misconduct claim, the California Court of Appeal stated:

Condon, 2012 WL 3222660, at *3-4.

A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed. Brady, 373 U.S. at 87. Even in the absence of a specific request, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise a reasonable doubt about the defendant's guilt. United States v. Agurs, 427 U.S. 97, 112 (1976). "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

The Court finds that the California Court of Appeal's decision was not contrary to, or an unreasonable application of, clearly established federal law, nor was it based on an unreasonable determination of fact. Here, the prosecution disclosed to the defense on the eve of trial that Kulp had received a promise not to have felony charges brought against her in exchange for her testimony against Petitioner. Petitioner's counsel was aware of this information at the time of trial and utilized this information during his cross-examination of Kulp and in closing argument. (1 RT4 201-03, 2 RT 325-26). Petitioner fails to demonstrate how knowledge of this information at an earlier time would have been favorable to the defense or that there was a reasonable probability that the result of the proceeding would have been different. As Petitioner has not established that she suffered any prejudice as a result of the belated disclosure, she has not shown that the evidence was material as required by Bagley. See Bagley, 473 U.S. at 682. The state court's decision denying the prosecutorial misconduct claim was not "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103. Accordingly, Petitioner is not entitled to habeas relief on her first claim, and it must be denied.

B. Fourth Amendment Claim

In her second claim for relief, Petitioner asserts that the search warrant was not supported by probable cause and that it was deficient for failing to particularize all places to be searched and items to be seized, in violation of the Fourth Amendment. (ECF No. 26 at 5, 12). Petitioner contends that the two confidential informants upon whom police relied to establish probable cause were not credible and were not tested for reliability. (Id. at 12). Respondent argues that this claim is procedurally defaulted, and in any event, fails to state grounds for federal habeas relief. (ECF No. 35 at 17).

1. Procedural Default

A federal court will not review a petitioner's claims if the state court has denied relief on those claims pursuant to a state law procedural ground that is independent of federal law and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). This doctrine of procedural default is based on the concerns of comity and federalism. Id. at 730-32. In determining whether a state procedural ruling bars federal review, the Court looks to the "last reasoned opinion on the claim." Ylst, 501 U.S. at 804. "Where there has been one reasoned state judgment rejecting a federal claim, [the Court presumes] later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground" unless "strong evidence can refute" the presumption. Id. at 803, 804.

"[A] procedural default based on an ambiguous order that does not clearly rest on independent and adequate state grounds is not sufficient to preclude federal collateral review." Valerio v. Crawford, 306 F.3d 742, 774 (9th Cir. 2002) (en banc) (internal quotation marks omitted) (quoting Morales v. Calderon, 85 F.3d 1387, 1392 (9th Cir.1996)). Where a state court denies a habeas petition containing multiple claims, does not "specify which claims were barred for which reasons," Valerio, 306 F.3d at 775, and "affords no basis for choosing between a state law ground that would bar federal review, and one that would not, that decision cannot bar federal review," Koerner v. Grigas, 328 F.3d 1039, 1052 (9th Cir. 2003).

Here, the unlawful search and seizure claim was raised in all of Petitioner's state habeas petitions. The Tuolumne County Superior Court denied the petition, stating with respect to all of Petitioner's claims except ineffective assistance of counsel:

(ECF No. 18 at 3-4). The California Court of Appeal, Fifth Appellate District, denied the petition because it was "conclusional, unaccompanied by all reasonably available documentary items needed to review her claims, and many of her claims could have been, but were not, raised on appeal." (LD 8). The California Supreme Court summarily denied the petition. (LD 10).

Generally, federal courts "look through" summary denials and review the last reasoned state court opinion. See Brumfield, 135 S. Ct. at 2276; Ylst, 501 U.S. at 806. Although Respondent relies on the Tuolumne County Superior Court's decision in support of the procedural default argument, the last reasoned opinion is the California Court of Appeal's denial of Petitioner's state habeas petition. See Ylst, 501 U.S. at 802 (defining an unexplained order as one "whose text or accompanying opinion does not disclose the reason for the judgment"); Lambright v. Stewart, 241 F.3d 1201, 1205 (9th Cir. 2001) ("The district court incorrectly based its conclusion that it could not consider Lambright's constitutional claim on the state court's first, rather than last, reasoned opinion . . ."). The California Court of Appeal denied the petition because it was "conclusional, unaccompanied by all reasonably available documentary items needed to review her claims, and many of her claims could have been, but were not, raised on appeal." (LD 8) (emphasis added). The California Court of Appeal failed to "specify which claims were barred for which reasons,"5 Valerio, 306 F.3d at 775, and Respondent has failed to demonstrate that a denial of a "conclusional" petition "unaccompanied by all reasonably available documentary items needed to review her claims" is an independent and adequate state ground that precludes federal review. Accordingly, Petitioner's Fourth Amendment claim is not procedurally defaulted. As the California Court of Appeal did not reach the merits of the claim, the claim is reviewed de novo. Cone, 556 U.S. at 472.

2. Analysis

The Supreme Court has held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 494 (1976). See Newman v. Wengler, 790 F.3d 876, 881 (9th Cir. 2015) (holding Stone survived enactment of the AEDPA). The only inquiry this Court can make is whether Petitioner had a full and fair opportunity to litigate her claim. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996) ("The relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did, in fact, do so, or even whether the claim was correctly decided.") (citations omitted).

In this case, Petitioner's Fourth Amendment claim could have been litigated in the state trial court, but defense counsel failed to timely move to traverse the search warrant and suppress evidence. (CT6 32; 1 RT 100, 102, 106-07). Petitioner also could have raised her claim in her direct appeal. On January 12, 2012, Petitioner's appellate counsel filed a Wende7 brief and a declaration in which she stated that she had advised Petitioner that Petitioner could file a supplemental brief within thirty days of the filing of the opening brief. On January 11, 2012, the California Court of Appeal invited Petitioner to submit additional briefing, but Petitioner failed to do so. Condon, 2012 WL 3222660, at *3.

The Court finds that the state courts provided Petitioner with a "full and fair opportunity to litigate" her Fourth Amendment claim. Stone, 428 U.S. at 494. See Gordon v. Duran, 895 F.2d 610, 613-14 (9th Cir. 1990) (holding that the availability to file a suppression motion pursuant to California Penal Code section 1538.5 provided opportunity in state court for full and fair litigation of Fourth Amendment claim). Accordingly, Petitioner is not entitled to habeas relief on her second claim and it must be denied.

C. Ineffective Assistance of Counsel

In her third claim for relief, Petitioner claims that her trial counsel was ineffective for: (1) failing to review police reports and file pretrial motions to suppress; (2) proceeding to trial unprepared; (3) failing to inquire into three potential conflicts of interest; and (4) failing to review the presentence report with Petitioner. (ECF No. 26 at 6, 15). Petitioner also claims ineffective assistance of appellate counsel. (ECF No. 65 at 16). Respondent argues that the state courts reasonably denied Petitioner's various ineffective assistance claims. (ECF No. 35 at 19).

1. Applicable Standard of Review

Ineffective assistance of counsel was raised in all of Petitioner's state habeas petitions. The Tuolumne County Superior Court denied the ineffective assistance of counsel claim on the merits. The California Court of Appeal, Fifth Appellate District, denied the petition because it was "conclusional, unaccompanied by all reasonably available documentary items needed to review her claims, and many of her claims could have been, but were not, raised on appeal." (LD 8). The California Supreme Court summarily denied the petition. (LD 29). Generally, federal courts "look through" summary denials and review the last reasoned state court opinion. See Brumfield, 135 S. Ct. at 2276; Ylst, 501 U.S. at 806. Both Petitioner and Respondent's briefs look to the Tuolumne County Superior Court's decision. However, this Court has not been presented with authority that supports looking through a higher court's procedural denial of a habeas petition to a lower court's merits denial. As discussed in section IV(B)(1), supra, the California Court of Appeal's denial of Petitioner's state habeas petition is the last reasoned opinion. As the California Court of Appeal did not reach the merits of the ineffective assistance of counsel claim, it is reviewed de novo. Cone, 556 U.S. at 472.

2. Strickland Legal Standard

The clearly established federal law governing ineffective assistance of counsel claims is Strickland v. Washington, 466 U.S. 668 (1984), which requires a petitioner to show that (1) "counsel's performance was deficient," and (2) "the deficient performance prejudiced the defense." Id. at 687. To establish deficient performance, a petitioner must demonstrate that "counsel's representation fell below an objective standard of reasonableness" and "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 688, 687. Judicial scrutiny of counsel's performance is highly deferential. A court indulges a "strong presumption" that counsel's conduct falls within the "wide range" of reasonable professional assistance. Id. at 687. A reviewing court should make every effort "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at that time." Id. at 689. To establish prejudice, a petitioner must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. A court "asks whether it is `reasonable likely' the result would have been different. . . . The likelihood of a different result must be substantial, not just conceivable." Richter, 562 U.S. at 111-12 (citing Strickland, 466 U.S. at 696, 693).

3. Failure to Review Police Report and Challenge Search Warrant

Petitioner asserts that trial counsel was ineffective for failing to timely review a police report that appeared to describe the arrests and identities of confidential informants and for failing to challenge the search warrant. (ECF No. 26 at 15). Petitioner argues that if counsel had reviewed the police report, counsel could have challenged the search warrant by filing a motion to traverse the search warrant and suppress evidence on the basis that the officer falsely stated in the affidavit that the confidential informants were reliable. (ECF No. 65 at 11, 14).

In order to establish ineffective assistance of counsel based on defense counsel's failure to litigate a Fourth Amendment issue, petitioner must show that: (1) the overlooked motion to suppress would have been meritorious, and (2) there is a reasonable probability that the jury would have reached a different verdict absent the introduction of the unlawful evidence. Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1170 (9th Cir. 2003). See also Styers v. Schriro, 547 F.3d 1026, 1030 n.5 (9th Cir. 2008) ("Generally, a defendant claiming ineffective assistance of counsel for failure to file a particular motion must not only demonstrate a likelihood of prevailing on the motion, but also a reasonable probability that the granting of the motion would have resulted in a more favorable outcome in the entire case."). A search warrant "cannot be issued but upon probable cause, supported by affidavit." Cal. Penal Code § 1525. California courts apply Fourth Amendment standards in determining the sufficiency of the affidavit supporting a search warrant and in deciding what remedy may be available. Humphries v. Appellate Division, 29 Cal.4th 569, 573 (2002); People v. Ayala, 23 Cal.4th 225, 254-55 (2000). To prevail on a motion to traverse a warrant, a defendant must show: (1) the supporting "affidavit included a false statement made `knowingly and intentionally, or with reckless disregard for the truth,' and (2) `the allegedly false statement was necessary to the finding of probable cause.'" People v. Hobbs, 7 Cal.4th 948, 974 (1994) (quoting Franks v. Delaware, 438 U.S. 154, 155-56 (1978)).

Having considered the parties' written submissions, oral arguments at the hearing, and the sealed affidavit in support of the search warrant,8 the Court finds that counsel's performance did not prejudice the defense. Accordingly, Petitioner is not entitled to habeas relief for ineffective assistance with respect to trial counsel's failure to timely review the police report and challenge the search warrant.

4. Decision to Proceed to Trial Unprepared

Petitioner asserts that trial counsel was ineffective for deciding to proceed to trial after counsel's request for a continuance was denied. (ECF No. 26 at 6). Petitioner argues that trial counsel made an unethical decision to proceed to trial without a defense instead of withdrawing as counsel. (Id. at 15). Petitioner does not demonstrate that a motion to withdraw as counsel raised on the morning of trial would have been granted. Further, a defense was proffered at trial. Trial counsel argued, and Petitioner testified, that the drugs in Petitioner's possession were for her personal use. (1 RT 235-36, 242; 2 RT 324-25, 336-39). The basis for trial counsel's request for a continuance was to further investigate Kulp and Klunis in order to challenge the warrant. (1 RT 94-103). As stated in section IV(C)(3), supra, counsel's failure to challenge the search warrant did not prejudice Petitioner since the warrant was supported by probable cause. Thus, Petitioner has failed to demonstrate that she was prejudiced by trial counsel's failure to move to withdraw from the case and his decision to proceed to trial without having sufficiently investigated Kulp, Klunis, and the search warrant. Accordingly, the Court finds that Petitioner is not entitled to habeas relief for ineffective assistance with respect to trial counsel's failure to withdraw and decision to proceed with trial after the request for a continuance was denied.

5. Conflicts of Interest

Petitioner asserts that trial counsel was ineffective for failing to inquire into the following three alleged conflicts of interest: trial counsel knew Matthew Klunis, trial counsel had a heavy caseload and was unable to diligently defend Petitioner, and the presentence report was prepared by the probation officer of Petitioner's brother. (ECF No. 26 at 15-16).

The Supreme Court has held that "[i]n order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). Here, Petitioner has not demonstrated that an actual conflict of interest existed or that any alleged conflict of interest adversely affected her trial counsel's performance. Petitioner provides no evidence to support her allegation that trial counsel may have represented Klunis, and Petitioner fails to show how this alleged conflict of interest actually affected the adequacy of counsel's representation. Petitioner also has not shown how her counsel's large workload adversely affected counsel's performance. Petitioner does not point to specific acts or omissions that may have resulted from counsel's heavy workload. See Strickland, 466 U.S. at 690; Woods v. Sinclair, 764 F.3d 1109, 1132 (9th Cir. 2014) (Petitioner "must point to specific acts or omissions that may have resulted from counsel's inexperience and other professional obligations" because "these alleged deficiencies . . . do not, in and of themselves, amount to a Strickland violation.").

Petitioner alleges that counsel failed to investigate the possible conflict of interest of the probation officer. The fact that the probation officer who wrote Petitioner's presentence report was her brother's probation officer does not establish that the probation officer had a conflict of interest. Counsel's failure to further investigate this issue does not constitute deficient performance. In support of her claim that the probation officer had a conflict of interest, Petitioner alleges that the presentence report erroneously stated that Petitioner was on felony probation at the time of her arrest and that she transported methamphetamine into the state of California. (ECF No. 26 at 16). However, the presentence report does not state that Petitioner was on felony probation at the time of her arrest. (CT 92-106). Additionally, the presentence report set forth Petitioner's prior convictions, which correctly included a conviction for transportation in 2005.9 (Id. at 97). Petitioner also appears to allege that the recommendation in the presentence report is higher than what the probation officer told Petitioner she would recommend. (ECF No. 26 at 16). Petitioner does not establish that the higher recommendation is unlawful or erroneous. Thus, the probation officer allegedly increasing the recommended sentence does not establish that the probation officer had a conflict of interest, and trial counsel was not deficient for failing to investigate this issue.

Based on the foregoing, the Court finds that Petitioner is not entitled to habeas relief for ineffective assistance with respect to these alleged conflicts of interests.

6. Failure to Review the Presentence Report with Petitioner

Petitioner asserts her trial counsel was ineffective for failing to review the presentence report with her. (ECF No. 26 at 15). Petitioner alleges that she informed him that it was not accurate. (Id. at 16). As discussed in section IV(C)(5), supra, the presentence report did not contain the errors alleged by Petitioner, and Petitioner fails to establish how "there is a reasonable probability that . . . the result of the proceeding would have been different" if counsel had reviewed the presentence report with Petitioner. Strickland, 466 U.S. at 694. Accordingly, the Court finds that Petitioner is not entitled to habeas relief for ineffective assistance with respect to trial counsel's failure to review the presentence report with Petitioner.

7. Ineffective Assistance of Appellate Counsel

Petitioner asserts that appellate counsel was ineffective for filing a Wende brief instead of challenging Petitioner's convictions for both transportation and simple possession, which Petitioner argues is necessarily included in the offense of transportation. (ECF No. 65 at 16). Petitioner argues that dismissal of the possession charge would have reduced her sentence. (Id.). Under California law, "only a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding. An offense that may be a lesser included offense because of the specific nature of the accusatory pleading is not subject to the same bar." People v. Reed, 38 Cal.4th 1224, 1229 (2006) (internal quotation marks omitted) (quoting People v. Scheidt, 231 Cal.App.3d 162, 165-66 (Cal. Ct. App. 1991)). In People v. Rogers, the California Supreme Court recognized that "[a]lthough possession is commonly a circumstance tending to prove transportation, it is not an essential element of that offense and one may `transport' marijuana or other drugs even though they are in the exclusive possession of another." 5 Cal.3d 129, 134 (1971). Based on Reed and Rogers, challenging the transportation and simple possession convictions as unlawful multiple convictions was not a meritorious issue with a reasonable probability of success. Therefore, appellate counsel was not ineffective for failing to raise this issue. See Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012) ("Counsel is not necessarily ineffective for failing to raise even a nonfrivolous claim, so clearly we cannot hold counsel ineffective for failing to raise a claim that is meritless.") (citing Knowles v. Mirzayance, 556 U.S. 111, 127 (2009)). Accordingly, Petitioner is not entitled to habeas relief for ineffective assistance with respect to appellate counsel's decision to file a Wende brief.

D. False Testimony

In her fourth claim for relief, Petitioner asserts that the officer testified falsely that he witnessed a drug transaction between Klunis and Petitioner and that Petitioner admitted to selling drugs to minors. (ECF No. 26 at 6, 18). Respondent argues that this claim is procedurally defaulted, and in any event, is facially insufficient to warrant federal habeas relief. (ECF No. 35 at 21).

This claim was raised in all three of Petitioner's state habeas petitions. As discussed in section IV(B)(1), supra, the last reasoned opinion is the California Court of Appeal's denial of Petitioner's state habeas petition and a "procedural default based on an ambiguous order that does not clearly rest on independent and adequate state grounds is not sufficient to preclude federal collateral review." Valerio, 306 F.3d at 774 (9th Cir. 2002) (internal quotation marks omitted) (quoting Morales, 85 F.3d at 1392). Accordingly, this claim is not procedurally defaulted. As the California Court of Appeal did not reach the merits of the claim, the claim is reviewed de novo. Cone, 556 U.S. at 472.

The prosecution's knowing use of perjured testimony to obtain a conviction can violate due process. See Napue v. Illinois, 360 U.S. 264, 269 (1959). "Under this clearly established Supreme Court precedent, the petitioner must show that (1) the testimony (or evidence) was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (3) that the false testimony was material." Soto v. Ryan, 760 F.3d 947, 958 (9th Cir. 2014) (citing United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003)). In assessing materiality, the Court must determine whether "there is `any reasonable likelihood that the false testimony could have affected the judgment of the jury.'" Id. (quoting Hayes v. Brown, 399 F.3d 972, 978 (9th Cir. 2005)).

Contrary to Petitioner's assertions, the officer did not testify at trial that he witnessed a drug transaction between Klunis and Petitioner. In pertinent part, the officer testified as follows:

(1 RT 151) (emphasis added).

In addition, the officer did not testify at trial that Petitioner in fact sold drugs to children. Rather, in describing his conversation with Petitioner after her arrest, the officer testified that he "told her that she was a no-good piece of trash and that she sells heroin to kids." (1 RT 144). The officer testified that in response to his accusation, Petitioner stated, "They were already addicted when I sold to them." (1 RT 145). On cross-examination, the officer testified that Petitioner never used the word "kids." (1 RT 174). The officer did not testify at trial that Petitioner in fact sold heroin to children; he testified about his accusation that she sold heroin to kids and Petitioner's response to his accusation. Petitioner has not provided any support, other than her own testimony at trial, that any comment about her selling drugs to children was actually false. Moreover, Petitioner has failed to show that the prosecutor knew or should have known this comment to be false. Accordingly, Petitioner is not entitled to habeas relief on her fourth claim and it must be denied.

E. Judicial Bias

In her fifth claim for relief, Petitioner asserts that the trial court was biased. (ECF No. 26 at 6). In support of this claim, Petitioner raises the following trial court actions: denial of the defense's request for a continuance, denial of disclosing the sealed affidavit that supported probable cause for the search warrant, denial of an in camera hearing regarding the validity of the search warrant, denial of the defense's motion for new trial and 1118.2 motion, failure to inquire into conflicts of interest, imposing an aggravating sentence and raising bail based on unproven allegations, and making derogatory remarks regarding Petitioner's appearance. (Id. at 6, 20). Respondent argues that this claim is procedurally defaulted, and in any event, facially insufficient to warrant federal habeas relief. (ECF No. 35 at 21).

This claim was raised in all three of Petitioner's state habeas petitions. As discussed in section IV(B)(1), supra, the last reasoned opinion is the California Court of Appeal's denial of Petitioner's state habeas petition and a "procedural default based on an ambiguous order that does not clearly rest on independent and adequate state grounds is not sufficient to preclude federal collateral review." Valerio, 306 F.3d at 774 (internal quotation marks omitted) (quoting Morales, 85 F.3d at 1392). Accordingly, this claim is not procedurally defaulted. As the California Court of Appeal did not reach the merits of the claim, the claim is reviewed de novo. Cone, 556 U.S. at 472.

The Supreme Court has long recognized that due process "clearly requires a `fair trial in a fair tribunal' before a judge with no actual bias against the defendant or interest in the outcome of his particular case." Bracy v. Gramley, 520 U.S. 899, 904-05 (1997) (quoting Withrow v. Larkin, 421 U.S. 35, 46 (1975)). "The Constitution requires recusal where `the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.'" Hurles v. Ryan, 752 F.3d 768, 788 (9th Cir. 2014) (quoting Withrow, 421 U.S. at 47). Thus, to establish a due process violation Petitioner need not prove actual bias, just an intolerable risk of bias. Hurles, 752 F.3d at 789. However, Petitioner must "overcome a presumption of honesty and integrity in those serving as adjudicators." Withrow, 421 U.S. at 47. The Supreme Court has held that in the absence of some extrajudicial source of bias or partiality, "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion" and "judicial remarks during the course of trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases ordinarily do not support a bias or partiality challenge . . . [unless] they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky v. United States, 510 U.S. 540, 555 (1994). See Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir. 2008) (applying Liteky in § 2254 habeas proceeding governed by the AEDPA); United States v. Sypolt, 346 F.3d 838, 840 (8th Cir. 2003) (If a petitioner's "claim fails to pass muster under § 455 [federal recusal statute] . . . it cannot survive the more rigorous standards required of a claim under the due process clause.").

Here, the trial court's actions Petitioner sets forth to support her claim for judicial bias all involve judicial rulings and remarks made during the course of trial. Petitioner does not demonstrate that the trial court's rulings were the product of some extrajudicial source of bias or partiality. Upon review of the record, the trial court's remarks challenged by Petitioner do not display a deep-seated favoritism or antagonism that would make fair judgment impossible. (1 RT 184-88). Based on the foregoing, Petitioner has failed to "overcome [the] presumption of honesty and integrity in those serving as adjudicators." Withrow, 421 U.S. at 47. Accordingly, Petitioner is not entitled to habeas relief on her fifth claim and it must be denied.

F. Jury's Failure to Follow Court Instruction

In her sixth claim for relief, Petitioner asserts that the jury failed to follow the court's instructions and convicted her of possession of heroin for sale without full review of all the facts. (ECF No. 26 at 7, 24). In the answer, Respondent does not address this claim. This claim was raised in all three of Petitioner's state habeas petitions. As discussed in section IV(B)(1), supra, the last reasoned opinion is the California Court of Appeal's denial of Petitioner's state habeas petition. As the California Court of Appeal did not reach the merits of the claim, the claim is reviewed de novo. Cone, 556 U.S. at 472.

Petitioner alleges that the jury did not follow the court's instructions and failed to fully review all the evidence. The jury in Petitioner's case was instructed with a modified version of CALCRIM No. 301, which provided that "testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence." (CT 48). Petitioner argues that because the jury only requested the testimony of Kulp during deliberations and did not request the testimony of other witnesses, the jury failed to fully review all the evidence. The Court finds this argument unpersuasive because the fact that the jury did not request the testimony of other witnesses does not necessarily imply that the jury failed to fully review all the evidence. "A jury is presumed to follow [the court's] instructions," and Petitioner has failed to overcome this presumption. Weeks v. Angelone, 528 U.S. 225, 234 (2000) (citing Richardson v. Marsh, 481 U.S. 200, 211 (1987)).

The Court "must construe pro se habeas filings liberally." Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005) (citing Maleng v. Cook, 490 U.S. 488 (1989)). To the extent that Petitioner asserts that there was insufficient evidence to support her conviction for possession of heroin for sale, the Court finds that Petitioner is not entitled to habeas relief. The Supreme Court has held that when reviewing a sufficiency of the evidence claim, a court must determine whether, viewing the evidence and the inferences to be drawn from it in the light most favorable to the prosecution, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). A reviewing court "faced with a record of historical facts that supports conflicting inferences must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id. at 326.

Petitioner argues that Kulp's testimony was hearsay, Kulp never witnessed any transaction, and Kulp was not credible because she participated in the crime and was given immunity. (ECF No. 26 at 24). "[U]nder Jackson, the assessment of credibility of witnesses is generally beyond the scope of review." Schlup v. Delo, 513 U.S. 298, 330 (1995). See also Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004) ("A jury's credibility determinations are . . . entitled to near-total deference under Jackson."). Thus, Petitioner's arguments regarding Kulp's credibility are not sufficient to provide relief under Jackson.

State law provides "for `the substantive elements of the criminal offense,' but the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law." Coleman v. Johnson, 132 S.Ct. 2060, 2064 (2012) (quoting Jackson, 443 U.S. at 319). Here, the jury was instructed with CALCRIM No. 2302, which provided that to find a defendant guilty of possession of heroin for sale, the prosecution must prove that: (1) the defendant unlawfully possessed a controlled substance; (2) the defendant knew of its presence; (3) the defendant knew of the substance's nature or character as a controlled substance; (4) when the defendant possessed the controlled substance, she intended to sell it; (5) the controlled substance was heroin as charged in Count I; and (6) the controlled substance was in a usable amount. (CT 55-56).

From Petitioner's arguments, it appears she is challenging whether there was sufficient evidence to find that she intended to sell the heroin. Viewing the record in the light most favorable to the prosecution and presuming all conflicting inferences were resolved in the prosecution's favor, a rational trier of fact could find beyond a reasonable doubt that Petitioner possessed heroin for sale. The officer testified at trial that Petitioner had admitted to him that she sold heroin. (1 RT 141-42). Kulp testified at trial that she and Klunis discussed going to see Petitioner to purchase heroin. Kulp further testified that she saw Petitioner going toward the post office, that Klunis also went toward the post office, and that afterwards Klunis returned with heroin, which he did not have prior to going to the post office. (1 RT 196-97). Jackson "makes clear that it is the responsibility of the jury—not the court—to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury." Cavazos v. Smith, 132 S.Ct. 2, 4 (2011) (per curiam). Under this deferential standard of judicial review, the Court finds that a rational trier of fact could find the essential elements of possession of heroin for sale beyond a reasonable doubt. Accordingly, Petitioner is not entitled to habeas relief on her sixth claim and it must be denied.

G. Certificate of Appealability

Having found that Petitioner is not entitled to habeas relief, the Court now turns to the question of whether a certificate of appealability should issue. See Rule 11, Rules Governing Section 2254 Cases. A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides:

If a court denies a habeas petition on the merits, the court may only issue a certificate of appealability "if jurists of reason could disagree with the district court's resolution of [the petitioner's] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the merits of his case, he must demonstrate "something more than the absence of frivolity or the existence of mere good faith on his . . . part." Miller-El, 537 U.S. at 338.

In the present case, the Court finds that reasonable jurists would not find the Court's determination that Petitioner's federal habeas corpus petition should be denied debatable or wrong, or that the issues presented are deserving of encouragement to proceed further. Petitioner has not made the required substantial showing of the denial of a constitutional right. Therefore, the Court declines to issue a certificate of appealability.

V.

ORDER

Accordingly, the Court HEREBY ORDERS that:

IT IS SO ORDERED.