ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

OTIS D. WRIGHT, II, District Judge.

Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that: (1) Petitioner's "Motion for Leave to Expand Record, etc." is denied; and (2) Judgment shall be entered denying and dismissing the Petition with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner.

LET JUDGMENT BE ENTERED ACCORDINGLY.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable Otis D. Wright, II, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 By a Person in State Custody" on January 2, 2018, accompanied by a supporting memorandum ("Pet. Mem."). Respondent filed an Answer on March 1, 2018. On March 22, 2018, Petitioner filed a Traverse and a "Motion for Leave to Expand Record."

BACKGROUND

An Information charged Petitioner with: (1) infliction of corporal injury causing a traumatic condition upon a spouse or cohabitant in violation of California Penal Code section 273.5(a) (Count 1); (2) making criminal threats in violation of California Penal Code section 422 (Count 2); (3) attempting to prevent or dissuade a witness from reporting a suspected crime in violation of California Penal Code section 136.1(b)(1) (Count 3); (4) maliciously taking down, removing, injuring, obstructing and severing a telephone line in violation of California Penal Code section 591 (Count 4); (5) possession of a firearm within ten years of a conviction for assault with a firearm on a peace officer in violation of former California Penal Code section 12021(c)(1) (Count 6); and (6) possession of ammunition while being prohibited from owning and possessing a firearm in violation of California Penal Code section 12316(b)(1) (Clerk's Transcript ["C.T."] 34-35).1 The Information also alleged that Petitioner committed the offense alleged in Count 3 for the benefit of, at the direction of or in association with a criminal street gang within the meaning of California Penal Code section 186.22(b), but the court dismissed that allegation at the close of the evidence (Reporter's Transcript ["R.T."] 433; C.T. 35, 383). The Information further alleged that Petitioner had suffered prior convictions for assault with a firearm on a peace officer and voluntary manslaughter which qualified as serious felony convictions within the meaning of California Penal Code section 667(a) and also qualified as strikes within the meaning of California's Three Strikes law, California Penal Code sections 667(b) — (i) and 1170.12(a) — (d) (C.T. 36-37).2

A jury found Petitioner guilty of misdemeanor battery on a spouse or cohabitant in violation of California Penal Code section 243(e)(1) (a lesser offense to the offense alleged in Count 1) and found Petitioner guilty of the offenses alleged in Counts 3, 5 and 6 (R.T. 530-31; C.T. 386-87, 391-92, 394-95). The jury found Petitioner not guilty of the offense alleged in Count 4 (R.T. 530; C.T. 387, 393). The jury deadlocked on Count 2 and the court declared a mistrial as to that count (R.T. 529; C.T. 386).

Petitioner waived a jury trial of the prior conviction allegations (R.T. 9; C.T. 289). In a bifurcated proceeding, the court found true the prior conviction allegations and denied Petitioner's request to strike the prior strike convictions pursuant to People v. Superior Court (Romero), 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 (1996) ("Romero") (R.T. 550-66; C.T. 461-62). The court sentenced Petitioner to a total term of fifty years to life plus eleven years (R.T. 563-65; C.T. 462-63).

The California Court of Appeal reversed the convictions on Counts 5 and 6 but otherwise affirmed the judgment (see People v. Hernandez, 217 Cal.App.4th 559, 159 Cal.Rptr.3d 35 (2013)).

On remand, the court dismissed Counts 5 and 6 and held a new sentencing hearing (Reporter's Transcript of Proceedings on December 20, 2013, Respondent's Lodgment 12). Petitioner's counsel filed a new Romero motion, which the court denied (id., pp. 4-5; Clerk's Transcript, Respondent's Lodgment 13, pp. 41-57, 68). The court sentenced Petitioner to a total term of thirty-one years to life (Reporter's Transcript of Proceedings on December 20, 2013, Respondent's Lodgment 12, pp. 13-15; Clerk's Transcript, Respondent's Lodgment 13, pp. 69-70).

The Court of Appeal modified the judgment with respect to the calculation of presentence credits, fines and assessments, but otherwise affirmed the judgment (Respondent's Lodgment 18; see People v. Hernandez, 2015 WL 1455213 (Cal. App. Mar. 27, 2015)). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgments 19, 20). The United States Supreme Court denied certiorari. See Hernandez v. California, 137 S.Ct. 507 (2016).

On June 22, 2015, Petitioner filed a habeas corpus petition in the California Supreme Court in case number S227226, which that court denied on September 30, 2015, with citations to People v. Villa, 45 Cal.4th 1063, 90 Cal.Rptr.3d 344, 202 P.3d 427 (2009) (habeas petitioner may not challenge expired conviction for which he or she is no longer in custody), and In re Robbins, 18 Cal.4th 770, 780, 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998) (setting forth California's timeliness rules for habeas corpus petitions).3

On March 1, 2016, Petitioner filed a habeas corpus petition in the Riverside County Superior Court in case number RIC1602573 (Respondent's Lodgment 21). The Superior Court denied the petition on March 7, 2016 (Respondent's Lodgment 22). The Superior Court checked the box on the form order stating that the petition failed to state a prima facie factual case for Petitioner's release and that the petition made assertions regarding the applicable law that were contrary to established California case decisions (Respondent's Lodgment 22). The court also wrote on the form: "Petitioner had a full opportunity to litigate his motion for new trial and Romero motion; the Court properly exercised its discretion in denying the motions" (Respondent's Lodgment 22).

On April 11, 2016, Petitioner filed a habeas corpus petition in the Court of Appeal in case number E065734, which that court denied summarily on April 21, 2016 (see Petition, Ex. 6).4

On May 3, 2016, Petitioner filed a second habeas corpus petition in the Court of Appeal in case number E065928, which that court denied summarily on May 9, 2016 (see Petition, Ex. 5).5

On May 11, 2017, Petitioner filed a second habeas corpus petition in the Riverside County Superior Court in case number RIC1708679 (Respondent's Lodgment 23). The Superior Court denied the petition on June 12, 2017, checking the boxes on the form order indicating that: (1) the petition failed to state a prima facie factual basis for relief, failed to allege supporting specific facts and/or asserted conclusions not supported by the record; and (2) the petition was successive under In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993) (Respondent's Lodgment 24).

On July 27, 2017, Petitioner filed a third habeas corpus petition in the Court of Appeal in case number E068786, which that court denied summarily on August 11, 2017 (see Petition, Ex. 2; Respondent's Lodgment 25, Exs. 1, 2).6

On September 11, 2017, Petitioner filed a second habeas corpus petition in the California Supreme Court in case number S244259, which that court denied summarily on November 21, 2017 (Petition, Ex. 1).7

SUMMARY OF TRIAL EVIDENCE

The Court has conducted an independent review of the Reporter's Transcript and has confirmed the accuracy of the following summary of the evidence in People v. Hernandez, 2015 WL 1455213 (Cal. App. Mar. 27, 2015). See Nasby v. McDaniel, 853 F.3d 1049, 1052-53 (9th Cir. 2017); see also Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state court decision).

(Respondent's Lodgment 18, pp. 2-6; see People v. Hernandez, 2015 WL 1455213, at *1-3).

PETITIONER'S CONTENTIONS

Although the Petition and Traverse are not models of clarity, it appears Petitioner contends:

1. Petitioner allegedly is actually innocent of his Three Strikes sentence because the evidence assertedly did not support the finding that Petitioner's prior aggravated assault conviction qualified as a strike (Petition, Ground One; Traverse, pp. 9-10);

2. The judgment imposing a Three Strikes sentence allegedly is "void" because Petitioner assertedly did not make a valid waiver of a jury trial of the prior conviction allegations (Petition, Ground Two; Traverse, pp. 10-12);

3. The sentencing court allegedly exceeded its jurisdiction by imposing a Three Strikes sentence because the prior assault conviction assertedly was obtained by means of an allegedly unlawful plea bargain (Petition, Ground Three; Traverse, pp. 12-13);

4. Petitioner's trial and appellate counsel allegedly rendered ineffective assistance in the following ways:

(Petition, Ground Four; Traverse, pp. 13-15); and

5. The sentencing court allegedly lacked jurisdiction to impose a sentence above the statutory maximum of three (3) years for the instant offenses; the sentencing court imposed an assertedly unlawful enhanced sentence based on prior convictions; the state courts allegedly refused to "provide any record development to uncover the miscarriage of justice this case contains [sic]" (Petition, Ground Five; Traverse, pp. 16-17).

DISCUSSION8

For the following reasons, Petitioner has not shown that he is in custody in violation of the Constitution, laws or treaties of the United States. See 28 U.S.C. § 2254(a). Therefore, Petitioner is not entitled to federal habeas relief. See Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).9

I. Grounds One, Three and Five Do Not State Cognizable Claims for Federal Habeas Relief.

In Grounds One, Three and Five, Petitioner challenges the prior convictions used to enhance Petitioner's current sentence. Under Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 403-04 (2001) ("Coss"), a state habeas petitioner generally may not challenge a prior expired conviction used to enhance a criminal sentence on the ground that the prior conviction was obtained unconstitutionally, unless there was a failure to appoint counsel in violation of the Sixth Amendment. In dicta, the plurality in Coss suggested the possibility that a habeas petitioner could challenge a prior conviction used to enhance the petitioner's current sentence where the petitioner could not be faulted for failing to obtain a timely review of a constitutional claim, either because a state court without justification had refused to rule on a constitutional claim properly presented to it, or because the petitioner had uncovered "compelling evidence" of his innocence after the time for review had expired that could not have been timely discovered. Id. at 403-05. The Ninth Circuit has held that habeas review is available in the circumstances described by the Coss plurality. Dubrin v. People of the State of California, 720 F.3d 1095, 1098 (9th Cir. 2013).

Petitioner does not assert a failure to appoint counsel in the criminal proceedings resulting in the prior convictions. The record shows that, on March 23, 1995, Petitioner was represented by counsel when Petitioner pled guilty to voluntary manslaughter, pled guilty to assault with a firearm on a peace officer, and admitted firearm enhancements (Supplemental Clerk's Transcript, Respondent's Lodgment 7, pp. 55-58).

Nor is there any indication in the record that a state court ever refused without justification to rule on Petitioner's properly presented challenge to his prior convictions. Compare Dubrin v. People of the State of California, 720 F.3d at 1099 (petitioner could attack prior conviction where state courts wrongly told him that he was ineligible for state habeas relief).

Petitioner argues that the state courts erred in summarily denying Petitioner's challenge to the sufficiency of the evidence to support the prior convictions "without any record development" (see Pet. Mem. Pp. 2, 5, 12, 16). Petitioner relies on a statement in the Court of Appeal's 2015 opinion in Petitioner's second appeal, in which the Court of Appeal stated that the record included evidence of the prior convictions but assertedly did not include evidence of the facts in the underlying cases (Respondent's Lodgment 18, p. 8; see People v. Hernandez, 2015 WL 1455213, at *3). The Court of Appeal referred to the summary of the underlying facts in the prosecution's written opposition to Petitioner's Romero motion, "which the [sentencing] court relied on at the sentencing hearing without objection" (Respondent's Lodgment 18, p. 8; see People v. Hernandez, 2015 WL 1455213, at *3). The Court of Appeal described the facts as follows:

(Respondent's Lodgment 18, p. 8; see People v. Hernandez, 2015 WL 1455213, at *3-4).

Petitioner does not deny that he suffered the prior convictions,10 and does not contend the Court of Appeal's recitation of the facts underlying his prior convictions was erroneous. Petitioner's Romero motion on remand referenced the preliminary hearing transcript in the prior case (Clerk's Transcript of Proceedings on Remand, Respondent's Lodgment 13, p. 56). While the Clerk's Transcript in the present proceeding does not contain a copy of the preliminary hearing transcript, the copy of that transcript is attached to one of Petitioner's Superior Court petitions (see Respondent's Lodgment 21, attached Reporter's Preliminary Hearing Transcript of Proceedings on June 2, 1994). This transcript confirms the accuracy of the Court of Appeal's recitation of the facts underlying the assault conviction. See id. Additionally, Petitioner's Romero motion did not challenge the sufficiency of the evidence to support the priors, but rather alleged the assertedly mitigating factor that, in committing the assault, Petitioner "merely pointed a gun out the window of a car, without actually firing" (see Clerk's Transcript of Proceedings, Respondent's Lodgment 13, p. 56). Petitioner's declaration attached to the Romero motion stated that Petitioner had "pleaded guilty to manslaughter and assault with a deadly weapon on a police officer (but no shots were fired at them). . . ." Id., p. 43. In the present proceeding, Petitioner does not attempt to describe what sort of "record development" purportedly was lacking so as to render the state courts' decisions supposedly defective. Conclusory allegations are insufficient to show an entitlement to federal habeas relief. See Jones v. Gomez, 66 F.3d 199, 204-205 (9th Cir. 1995), cert. denied, 517 U.S. 1143 (1996).

In any event, in light of Petitioner's plea of guilty to the prior offenses, the state courts did not err in denying Petitioner's challenge to the sufficiency of the evidence to support Petitioner's prior convictions. People v. Maultsby, 53 Cal.4th 296, 302, 134 Cal.Rptr.3d 542, 165 P.3d 1038 (2012) ("A guilty plea admits every element of the offense charged and is a conclusive admission of guilt.") (citations omitted); People v. Batista, 201 Cal.App.3d 1288, 1292, 248 Cal.Rptr. 46 (1988) (guilty plea admitted sufficiency of evidence to support conviction).11

Furthermore, Petitioner has not produced any new "compelling evidence" of his supposed innocence of the prior convictions that could not have been timely discovered. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (In order to make a credible claim of actual innocence, a petitioner must "support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial"); Dirden v. Sherman, 2016 WL 3660850, at *6-7 (C.D. Cal. Feb. 4, 2016), adopted, 2016 WL 3660844 (C.D. Cal. July 6, 2016) (applying Schlup standard to Coss actual innocence exception). Petitioner's conclusory allegations of alleged actual innocence are insufficient. See Larson v. Soto, 742 F.3d 1083, 1096 (9th Cir. 2013) (speculative evidence insufficient to show actual innocence); Solomon v. Diaz, 2013 WL 6512938, at *10 (C.D. Cal. Dec. 11, 2013) ("Petitioner's conclusory allegations are insufficient to meet the exacting Schlup actual innocence standard.").

Additionally, and in any event, the underlying facts of the prior convictions were immaterial to the state court's determination that the prior convictions qualified as strikes. Although the Petition is unclear, in Petitioner's Superior Court petition in case number RIC1602573, Petitioner argued that the assault conviction purportedly did not constitute a strike because Petitioner allegedly did not fire the gun or cause any injury (see Respondent's Lodgment 21, pp. 3-4).12 Even assuming Petitioner makes the same argument here, any such argument is unavailing. In California, an assault "is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." Cal. Penal Code § 240. "Present ability to injure under California law exists when a defendant has attained the means and location to strike immediately." Creech v. Frauenheim, 800 F.3d 1005, 1012 (9th Cir. 2015), cert. denied, 136 S.Ct. 1465 (2016) (citation and internal quotations omitted). "It is a defendant's action enabling him to inflict a present injury that constitutes the actus reus of assault. There is no requirement that the injury would necessarily occur as the very next step in the sequence of events, or without any delay." People v. Leonard, 228 Cal.App.4th 465, 486, 175 Cal.Rptr.3d 300, 319 (2014) (citation, internal quotations and brackets omitted). "One may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on use of a deadly weapon or instrument or, alternatively, on force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial." Id. (citations and internal quotations omitted). Pointing a gun at a person constitutes assault with a firearm. See Raviart v. McGrath, 619 Fed. App'x 620, 621 (9th Cir. 2015) (act of drawing a gun on police officer confronting petitioner sufficed to show assault with a deadly weapon under California law); People v. Fain, 34 Cal.3d 350, 356-57, 193 Cal.Rptr. 890, 667 P.2d 694 (1983) (evidence sufficient to show assault with a deadly weapon where defendant pointed loaded gun at victim from a distance of approximately five feet and ordered victim to put money down and accompany other victims to restroom); People v. Escobar, 11 Cal.App.4th 502, 503, 13 Cal.Rptr.2d 927 (1992) (evidence sufficient to show assault with a firearm where defendant cocked gun concealed in a briefcase and victim heard the gun being cocked); People v. Orr, 43 Cal.App.3d 666, 671-72, 117 Cal.Rptr. 738 (1974) (defendant who exited van and pointed loaded shotgun at officer in police car committed assault).13

To the extent Petitioner contends that the state courts did not provide Petitioner with a full and fair opportunity to litigate his claims, any such contention lacks merit. Petitioner availed himself of the opportunity to litigate his claims in state court on direct and collateral review. See Durbin v. People of the State of California, 720 F.3d at 1099; cf. Stone v. Powell, 428 U.S. 465, 494 (1976) (habeas relief unavailable for alleged Fourth Amendment search and seizure violation where state provided an opportunity for full and fair litigation of the claim) (cited in Durbin, 720 F.3d at 1099). Petitioner's lack of success in the state courts does not demonstrate any deficiency in the state's procedures. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996) (under Stone v. Powell, "[t]he 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).

Accordingly, because none of the exceptions to the Coss bar apply, Petitioner is not entitled to federal habeas relief on Grounds One, Three or Five of the Petition.

II. The Claimed Absence of a Valid Waiver of Jury Trial Regarding the Prior Conviction Allegations Does Not Merit Federal Habeas Relief.

In California, a defendant enjoys a limited statutory right to a jury trial of prior conviction allegations. See Cal. Penal Code § 1025; People v. Epps, 25 Cal.4th 19, 22-25, 104 Cal.Rptr.2d 572, 574-77, 18 P.3d 2 (2001). This statutory jury trial right does not extend to the issue of whether the defendant is the person who suffered the prior conviction. See Cal. Penal Code § 1025(c). This jury trial right also does not extend to the determination of whether a prior conviction is a serious felony where the facts showing the offense was a serious felony were "established by virtue of the conviction itself. . . ." People v. Gallardo, 4 Cal. 5th 120, 135, 226 Cal.Rptr.3d 379, 407 P.3d 55 (2017). Petitioner appears to argue that the record does not show any valid waiver of Petitioner's statutory right to a jury trial of the prior conviction allegations (Pet. Mem., p. 11).

To the extent Petitioner contends the alleged absence of a valid jury waiver violated state law, federal habeas relief is unavailable. See Estelle v. McGuire, 502 U.S. at 67-68; see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) ("it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts") (original emphasis); Hendricks v. Vasquez, 974 F.2d 1099, 1105 (9th Cir. 1992) ("Federal habeas will not lie for errors of state law").

To the extent Petitioner asserts a denial of the federal constitutional right to a jury trial, any such assertion lacks merit. There is no federal constitutional right to a jury trial on the fact of a prior conviction. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); People v. Gallardo, 4 Cal. 4th at 124-25 ("where the criminal law imposes added punishment based on findings about the facts underlying a prior conviction," a jury must determine those facts).14 Here, Petitioner's prior convictions for voluntary manslaughter and assault with a firearm on a peace officer constituted strikes as a matter of law, regardless of any underlying facts. See Cal. Penal Code § 667(d)(1) (defining a strike as any offense defined as a violent felony under section 667.5(c) or a serious felony under section 1192.7(c); § 1170.12(b)(1) (same); § 667.5(c)(1) (voluntary manslaughter); § 1192.7(c)(31) (assault with a firearm on a peace officer). Thus, the determination whether the prior convictions constituted strikes was "purely legal with no factual content whatever." See People v. Kelii, 21 Cal.4th 452, 456, 87 Cal.Rptr.2d 674, 981 P.2d 518 (1999); see also People v. Guerrero, 44 Cal.3d 343, 346, 243 Cal.Rptr. 688, 748 P.2d 1150 (1988) ("[i]n general, the application of section 667 is unproblematical; virtually all the `serious' felonies listed in section 1192.7(c) are in fact felonies specifically defined in the Penal Code").

Finally, and in any event, the record shows that Petitioner, represented by counsel, personally waived his right to a jury trial of the priors in open court (R.T. 9).15 The record does not suggest any defect in this waiver.

For the foregoing reasons, Petitioner is not entitled to federal habeas relief on Ground Two of the Petition.

III. Petitioner's Claims of Ineffective Assistance of Counsel Do Not Merit Habeas Relief.

A. Background

On April 26, 2011, at a hearing following the verdict, Petitioner's retained counsel, Karen Lockhart, informed the court that a "complete breakdown in the attorney-client relationship" assertedly had occurred between counsel and Petitioner (R.T. 538). Counsel said that Petitioner wanted her to file a motion for a new trial on frivolous grounds and on the ground of ineffective assistance of counsel, and that counsel and her client were "no longer able to communicate with each other" (R.T. 538). After confirming that Ms. Lockhart had been retained, the court asked Petitioner if he understood that the court would relieve counsel because of the claimed breakdown of the attorney-client relationship (R.T. 538). Petitioner said he understood and asked to address the court (R.T. 539).

The court asked Ms. Lockhart if she wanted Petitioner to address the court, to which counsel responded, "No." (R.T. 539). The court told Petitioner that his counsel believed it was not in Petitioner's interest to address the court and that the court did not want to communicate with Petitioner "in any way that was inappropriate" which "[m]ight jeopardize [Petitioner's] case" (R.T. 539). The court asked Petitioner whether he had any objection to an order relieving counsel (R.T. 539). The following occurred:

(R.T. 539-40). The court granted counsel's motion to withdraw and appointed the public defender to represent Petitioner (R.T. 540). The court asked a representative of the public defender's office who was present in the courtroom to investigate whether there was any conflict which would prevent representation of Petitioner and to confer with Petitioner "to make sure he understands what is going on" (R.T. 541). The court also confirmed the sentencing hearing date of May 27, 2011 (R.T. 541).

On May 27, 2011, the deputy pubic defender appointed to represent Petitioner filed a document titled "Hearing Regarding Counsel Status" (C.T. 410-20). The document reviewed the statutory grounds for a motion for a new trial and stated, inter alia, that the deputy public defender appointed to represent Petitioner had not received any information indicating that Ms. Lockhart was ineffective in her representation of Petitioner (C.T. 420).

At the May 27, 2011 hearing, the court stated that there appeared to be "some confusion" regarding the status of counsel for Petitioner (R.T. 543). The court explained to Petitioner that if Petitioner wanted to fire Ms. Lockhart he could, and "[it] wasn't up to the court" (R.T. 543). The court said that Petitioner now was without counsel, and that if Petitioner did not have funds to hire a new attorney, the court would appoint the public defender (R.T. 543-44).

The court also said that the public defender's office had investigated the alleged conflict described by Ms. Lockhart and had determined that there was no conflict (R.T. 544-45). The court told Petitioner that if he wanted to keep Ms. Lockhart as his retained counsel, the court would contact her to "come in" and continue to represent Petitioner (R.T. 545). The court again said that, if Petitioner did not want Ms. Lockhart to represent him, Petitioner had only to say so (R.T. 545).

Petitioner asked to speak to the attorney appearing with him at the hearing (R.T. 546). When the proceedings resumed, the attorney appearing with Petitioner said that Petitioner wanted a Marsden hearing16 (R.T. 546). After the court explained that Petitioner could not have a Marsden hearing because Ms. Lockhart was retained rather than court-appointed,17 Petitioner said, "I want to fire Ms. Lockhart." (R.T. 547). The court granted Petitioner's request and asked whether Petitioner had funds to hire a new attorney (R.T. 547). Petitioner said, "At the moment, no" but asked the court for a continuance so Petitioner could speak to his family about retaining private counsel (R.T. 547). The court relieved the public defender's office and told Petitioner "You are, at the moment, without counsel" (R.T. 548). The court said that Petitioner only had to ask for counsel and the court would appoint the public defender, adding, "But you have to ask me." (R.T. 548). The court said it would continue the matter for one week (R.T. 548). Petitioner asked whether he could have a "conflict panel" attorney appointed instead of the public defender (R.T. 548). The court explained that it could not do so unless the court first appointed the public defender and then Petitioner made a successful Marsden motion (R.T. 548). Petitioner replied, "I understand" (R.T. 549). Petitioner confirmed that he wanted a week's continuance (R.T. 549). The court told Petitioner: "All right. For the next week, you will have no lawyer" (R.T. 549). Petitioner responded, "Thank you." (R.T. 549). Petitioner waived his right to be sentenced that day (R.T. 549). The court continued the matter to June 3, 2011 (R.T. 549). On June 3, 2011, the court appointed a private attorney, Jon Schlueter, to represent Petitioner (C.T. 422).

Mr. Schlueter represented Petitioner at the hearing on the prior conviction allegations, in the proceedings up to and including sentencing and in the proceedings following remand (R.T. 550-66; Reporter's Transcript of Proceedings on December 20, 2013, pp. 1-16; C.T. 422, 461-73; Clerk's Transcript, Respondent's Lodgment 13, pp. 1, 38-60, 68-69). Attorney Roger Angres represented Petitioner during Petitioner's direct appeals (see Respondent's Lodgments 9, 11, 15, 17, 19).

B. Governing Legal Standards

To establish ineffective assistance of counsel, a federal habeas petitioner ordinarily must show that: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 697 (1984) ("Strickland"). A reasonable probability of a different result "is a probability sufficient to undermine confidence in the outcome." Id. at 694. The court may reject the claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697; Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) ("Failure to satisfy either prong of the Strickland test obviates the need to consider the other.") (citation omitted).

Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford, 384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (quoting Strickland, 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. The court may "neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight. . . ." Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert. denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see Yarborough v. Gentry, 540 U.S. 1, 8 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.") (citations omitted). Petitioner bears the burden to show that "counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, 562 U.S. 86, 104 (2011) (citation and internal quotations omitted); see Strickland, 466 U.S. at 689 (petitioner bears burden to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy") (citation and quotations omitted).

"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently." Harrington v. Richter, 562 U.S. at 111 (citations omitted). Rather, the issue is whether, in the absence of counsel's alleged error, it is "`reasonably likely'" that the result would have been different. Id. (quoting Strickland, 466 U.S. at 696). "The likelihood of a different result must be substantial, not just conceivable." Id. at 112.

C. Analysis

1. Trial Counsel

a. Ms. Lockhart

Petitioner contends that Ms. Lockhart operated under a conflict of interest while supposedly representing Petitioner at the trial of the priors. Prejudice may be presumed where a petitioner shows counsel "actively represented conflicting interests." Mickens v. Taylor, 535 U.S. 162, 175 (2002) (citation, internal quotations and emphasis omitted); Cuyler v. Sullivan, 446 U.S. 335, 347 (1980); see also Earp v. Ornoski, 431 F.3d 1158, 1182-83 (9th Cir. 2005), cert. denied, 547 U.S. 1159 (2006). Petitioner does not allege such a conflict of interest, however. Therefore, Strickland's prejudice rule applies. See Weaver v. Massachusetts, 137 S.Ct. 1899, 1915 (2017); Hovey v. Ayers, 458 F.3d 892, 908-09 (9th Cir. 2006).

Petitioner confusingly contends Ms. Lockhart's alleged conflict purportedly rendered the judgment "void as a matter of law" because the trial on the prior conviction allegations allegedly was a "critical stage in the proceeding where the right to effective assistance of counsel attaches" (Pet. Mem., p. 3). In a declaration submitted as an exhibit to the Petition, Petitioner also states that Ms. Lockhart's office "was raided by law enforcement based on their belief she was aiding [Petitioner] in some type of conduct other than my criminal defense," which alleged event supposedly caused Ms. Lockhart to operate under a conflict while representing Petitioner (Petition, Ex. 3).

Contrary to Petitioner's apparent assertion, Petitioner was not without counsel at the trial on the prior conviction allegations; as indicated above, Mr. Schlueter represented Petitioner in those proceedings. Furthermore, nothing in the record supports Petitioner's conclusory and unsubstantiated allegations that any conflict of interest stemmed from any supposed law enforcement "raid." See Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir.), amended on other grounds, 253 F.3d 1150 (9th Cir. 2001) (habeas petitioner "must prove an actual conflict of interest through a factual showing on the record"; conclusory allegations insufficient) (citation and internal quotations omitted); see generally James v. Borg, 24 F.3d 20, 26 (9th Cir.), cert. denied, 513 U.S. 935 (1994) (conclusory allegations do not merit habeas relief). Notably, in addressing the court concerning Ms. Lockhart's declaration of a conflict, neither Ms. Lockhart nor Petitioner mentioned any purported law enforcement "raid" on Ms. Lockhart's office.

Additionally, Petitioner has failed to show how Ms. Lockhart's purported conflict of interest prejudiced Petitioner in any way. See Strickland, 466 U.S. at 694; see also Bible v. Ryan, 571 F.3d 860, 871 (9th Cir. 2009), cert. denied, 559 U.S. 995 (2010) (speculation insufficient to show Strickland prejudice). Petitioner "fired" Ms. Lockhart, and the court appointed new counsel, before the trial of the priors and before any further proceedings occurred in the case.

b. Mr. Schlueter

Petitioner appears to fault Mr. Schlueter for failing to assert that Petitioner supposedly lacked "conflict-free representation" at the trial of the priors (Pet. Mem., p. 3). As indicated above, Mr. Schlueter, not Ms. Lockhart, represented Petitioner in that proceeding. Counsel cannot be faulted for failing to make a meritless argument. See Gonzalez v. Knowles, 515 F.3d 1006, 1017 (9th Cir. 2008); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996), cert. denied, 519 U.S. 1142 (1997); Shah v. United States, 878 F.2d 1156, 1162 (9th Cir.), cert. denied, 493 U.S. 869 (1989).

Petitioner also asserts that Mr. Schlueter failed to investigate the facts and law regarding Petitioner's prior conviction allegations. The record shows Mr. Schlueter was aware of those allegations and of the facts underlying them (see C.T. 465-68) (first Romero motion); Clerk's Transcript, Respondent's Lodgment 13, pp. 47-57) (second Romero motion). In any event, as discussed above, Petitioner's prior convictions were strikes as a matter of law, regardless of any underlying facts. Additionally, Petitioner does not allege what other facts Mr. Schlueter should have uncovered concerning those convictions which would have generated a reasonable probability of a different outcome at the trial of the priors, and hence has not shown the requisite prejudice. See Strickland, 466 U.S. at 694.

Petitioner further alleges that Mr. Schlueter erred in failing to object to the portion of the prosecution's opposition to the Romero motion in which the prosecution stated facts underlying the prior convictions (Pet. Mem., pp. 3-4). Petitioner contends that counsel should have objected when the prosecution purportedly "misled the court with inadmissible evidence that was not part of the `record of conviction'" (Pet. Mem., p. 4). Petitioner misconstrues the California cases holding that, in determining whether a prior conviction was a serious felony, a court may consider the entire record of conviction. See People v. Woodell, 17 Cal.4th 448, 452, 71 Cal.Rptr.2d 241, 950 P.2d 85 (1998) ("[s]ometimes the definition of the qualifying prior conviction is not completely congruent with the definition of the crime of which the defendant has been convicted"; in such cases the court may look to the entire record of conviction, but no further, to determine whether the prior qualifies as a strike); see also People v. Trujillo, 40 Cal.4th 165, 175-77, 51 Cal.Rptr.3d 718, 146 P.3d 1259 (2006) (list of serious felonies in section 1192.7 "is not limited to specific, discrete offenses," but also refers to specified criminal conduct; in the latter case, the court may consider the "entire record of conviction" to determine whether the prior offense was a serious felony); People v. Guerrero, 44 Cal.3d 343, 346-47, 352, 243 Cal.Rptr. 688, 748 P.2d 1150 (1988) (holding that where the record of conviction did not disclose the facts of the offense actually committed, the court must presume that the prior conviction was for the least offense punishable by law). These cases speak to the universe of information from which a court may make a strike determination where that determination is governed by the facts underlying the conviction; these cases do not require a court to review the entire record of conviction where the prior conviction constitutes a strike as a matter of law under section 1192.7(c) or section 667.5(c). As indicated above, Petitioner's prior convictions were strikes as a matter of law, regardless of any underlying facts. Counsel was not ineffective in failing to make a meritless objection. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005), cert. denied, 546 U.S. 1137 (2006) ("trial counsel cannot have been ineffective for failing to raise a meritless objection"); see also Gonzalez v. Knowles, 515 F.3d at 1017; Rupe v. Wood, 93 F.3d at 1445; Shah v. United States, 878 F.2d at 1162.

2. Appellate Counsel: Mr. Angres

The standards of Strickland and its progeny govern claims of ineffective assistance of appellate counsel as well as claims of ineffective assistance of trial counsel. See Smith v. Robbins, 528 U.S. 259, 285-86 (2000); Bailey v. Newland, 263 F.3d 1022, 1028 (9th Cir. 2001), cert. denied, 535 U.S. 995 (2002); see also Daire v. Lattimore, 818 F.3d 454, 461 (9th Cir. 2016) (en banc) (clearly established Supreme Court law holds that Strickland applies to claim of ineffective assistance of counsel in noncapital sentencing proceedings). Appellate counsel has no constitutional obligation to raise all non-frivolous issues on appeal. See Pollard v. White, 119 F.3d 1430, 1435 (9th Cir. 1997); see also Moormann v. Ryan, 628 F.3d 1102, 1109 (9th Cir. 2010), cert. denied, 565 U.S. 921 (2011) (appellate counsel is not required to raise a meritless issue on appeal). "A hallmark of effective appellate counsel is the ability to weed out claims that have no likelihood of success, instead of throwing in a kitchen sink full of arguments with the hope that some argument will persuade the court." See Pollard v. White, 119 F.3d at 1435.

Petitioner contends Mr. Angres allegedly committed the same purported errors as trial counsel regarding the imposition of a Three Strikes sentence. Because, as discussed above, Petitioner has failed to demonstrate that trial counsel's actions or omissions were unreasonable and prejudicial, Petitioner has failed to demonstrate that appellate counsel was ineffective for failing to raise these meritless claims on appeal. See Moormann v. Ryan, 628 F.3d at 1109 (where petitioner failed to show trial counsel's alleged ineffectiveness prejudiced petitioner, appellate counsel's failure to argue trial counsel's alleged ineffectiveness on appeal "was neither deficient representation nor prejudicial"); Featherstone v. Estelle, 948 F.2d 1497, 1507 (9th Cir. 1991) (where trial counsel's performance did not fall below the Strickland standard, "petitioner was not prejudiced by appellate counsel's decision not to raise issues that had no merit") (footnote omitted).

IV. Petitioner's Motion to Expand the Record Should Be Denied.

Petitioner seeks an expansion of the record to include Petitioner's state court petitions and the corresponding orders denying those petitions which were not included in Respondent's Lodgments, purportedly to show the asserted insufficiency of the "state writ process" alleged in Ground Five of the Petition ("Motion for Leave to Expand Record, etc.," pp. 1-2). In the Traverse, Petitioner states that the requested expansion of the record supposedly will show that the state courts assertedly denied Petitioner "a lawful opportunity to address the void judgment under attack" (Traverse, p. 5). As discussed above, Coss bars federal habeas review of Ground Five of the Petition. Moreover, Petitioner's multiple, unsuccessful attempts to obtain relief in the state courts on both direct and collateral review do not demonstrate that the state courts denied Petitioner the opportunity to attack the judgment of conviction. Petitioner does not show how the requested expansion of the record to include Petitioner's other state court petitions will remove the Coss bar or otherwise entitle Petitioner to federal habeas relief. Petitioner's "Motion for Leave to Expand Record, etc." should be denied. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) ("if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing"); Williams v. Woodford, 384 F.3d 567, 589 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (conclusory allegations do not show entitlement to evidentiary hearing).

RECOMMENDATION

For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) denying Petitioner's "Motion for Leave to Expand Record, etc."; and (3) directing that Judgment be entered denying and dismissing the Petition with prejudice.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.