ORDER DENYING FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS (Doc. 14)

ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE FILE

ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY

JENNIFER L. THURSTON, Magistrate Judge.

Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have previously filed their written consent to the jurisdiction of the Magistrate Judge for all purposes. (Docs. 19 & 20).

PROCEDURAL HISTORY

Petitioner is in custody of the California Department of Corrections and Rehabilitation after having been convicted in Kings County Superior Court in 2008 of: (1) gross vehicular manslaughter while intoxicated (Cal. Pen. Code § 191.5(a)); (2) driving under the influence of alcohol and causing bodily injury to another (Cal. Veh. Code § 23153(a)); (3) driving while having .08 percent or more, by weight, of alcohol in his blood and causing bodily injury to another (Cal. Veh. Code § 23153(b)); (4) failure to stop at the scene of an injury accident (Cal. Pen. Code § 20001(a)); and (5) driving with a license suspended or revoked for driving under the influence of a drug or alcohol (Cal. Pen. Code § 14601.2(a)). (Doc. 25, Lodged Documents ("LD") 1).

Petitioner appealed to the California Court of Appeals, Fifth Appellate District (the "5th DCA"), which affirmed Petitioner's conviction on February 19, 2009. (LD 1). Petitioner filed a petition for review in the California Supreme Court that was summarily denied on May 20, 2009. (LD 2).

On July 22, 2010, Petitioner filed a habeas corpus petition in the Kings County Superior Court, seeking to exhaust certain additional claims. This petition was denied on September 30, 2010. (LD 21; 22). Petitioner filed two subsequent state habeas petitions in the California Supreme Court, both of which were denied. (LD 23; 24).

On August 18, 2010, Petitioner filed the instant petition, raising six grounds for relief, and requesting a stay and abeyance until Petitioner could exhaust the unexhausted claims in the petition. (Doc. 1). On October 4, 2010, the Court granted Petitioner's request for a stay. (Doc. 5). On August 16, 2011, Petitioner notified the Court that all of his claims were fully exhausted. (Doc. 12). On September 21, 2011, Petitioner filed the instant first amended petition. (Doc. 14). On January 13, 2012, the Court ordered the stay lifted and directed Respondent to file a response to the first amended petition. (Doc. 15). On March 14, 2012, Respondent filed an Answer. (Doc. 24). Petitioner filed his Traverse on May 14, 2012. (Doc. 30). Respondent concedes that all grounds for relief in the petition have been fully exhausted. (Doc. 24, p. 8).

FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the 5th DCA's unpublished decision1:

(LD 1, pp. 2-6).

DISCUSSION

I. Jurisdiction

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, 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 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Kings County Superior Court, which is located within the jurisdiction of this court. 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), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (holding the AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

II. Legal Standard of Review

A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless he can show that the state court's adjudication of his claim:

28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 412-413.

A state court decision is "contrary to" clearly established federal law "if it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or "if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005), citing Williams, 529 U.S. at 405-406. A state court decision involves an "unreasonable application" of clearly established federal law "if the state court applies [the Supreme Court's precedents] to the facts in an objectively unreasonable manner." Id., quoting Williams, 529 U.S. at 409-410; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam).

Consequently, a federal court may not grant habeas relief simply because the state court's decision is incorrect or erroneous; the state court's decision must also be objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 511 (2003) (citing Williams, 529 U.S. at 409). In Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770 (2011), the U.S. Supreme Court explained that an "unreasonable application" of federal law is an objective test that turns on "whether it is possible that fairminded jurists could disagree" that the state court decision meets the standards set forth in the AEDPA. If fairminded jurists could so disagree, habeas relief is precluded. Richter, 131 S.Ct. at 786. As the United States Supreme Court has noted, AEDPA's standard of "contrary to, or involv[ing] an unreasonable application of, clearly established Federal law" is "difficult to meet," because the purpose of AEDPA is to ensure that federal habeas relief functions as a "`guard against extreme malfunctions in the state criminal justice systems,'" and not as a means of error correction. Richter, 131 S.Ct. at 786, quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979)(Stevens, J., concurring in judgment). The Supreme Court has "said time and again that `an unreasonable application of federal law is different from an incorrect application of federal law.'" Cullen v. Pinholster, 131 S.Ct. 1388, 1410-1411 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court "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 of fairminded disagreement." Richter, 131 S.Ct. at 787-788. Put another way, a state court's determination that a claim lacks merit bars federal habeas relief so long as "fairminded jurists could disagree" on the state court's decision. Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

Moreover, federal "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen, 131 S.Ct. at 1398 ("This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at the same time-i.e., the record before the state court.")

The second prong of federal habeas review involves the "unreasonable determination" clause of 28 U.S.C. § 2254(d)(2). This prong pertains to state court decisions based on factual findings. Davis v. Woodford, 384 F.3d at 637, citing Miller-El v. Cockrell, 537 U.S. 322 (2003). Under § 2254(d)(2), a federal court may grant habeas relief if a state court's adjudication of the petitioner's claims "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Wiggins v. Smith, 539 U.S. at 520; Jeffries v. Wood, 114 F.3d at 1500 (when reviewing a state court's factual determinations, a "responsible, thoughtful answer reached after a full opportunity to litigate is adequate to support the judgment"). A state court's factual finding is unreasonable when it is "so clearly incorrect that it would not be debatable among reasonable jurists." Id.; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004).

The AEDPA also requires that considerable deference be given to a state court's factual findings. "Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceedings, § 2254(d)(2)." Miller-El v. Cockrell, 537 U.S. at 340. Both subsections (d)(2) and (e)(1) of § 2254 apply to findings of historical or pure fact, not mixed questions of fact and law. See Lambert v. Blodgett, 393 F.3d 943, 976-077 (2004).

To determine whether habeas relief is available under § 2254(d), the federal court looks to the last reasoned state court decision as the basis of the state court's decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Where the state court decided the petitioner's claims on the merits but provided no reasoning for its decision, the federal habeas court conducts "an independent review of the record ... to determine whether the state court [was objectively unreasonable] in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2002); see Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "[A]lthough we independently review the record, we still defer to the state court's ultimate decisions." Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). Where the state court denied the petitioner's claims on procedural grounds or did not decide such claims on the merits, the deferential standard of the AEDPA do not apply and the federal court must review the petitioner's `s claims de novo. Pirtle v. Morgan, 313 F.3d at 1167.

The prejudicial impact of any constitutional error is assessed by asking whether the error had "a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007)(holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness). Some constitutional errors, however, do not require that the petitioner demonstrate prejudice. See Arizona v. Fulminante, 499 U.S. 279, 310 (1991); United States v. Cronic, 466 U.S. 648, 659 (1984). Furthermore, where a habeas petition governed by the AEDPA alleges ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), the Strickland prejudice standard is applied and courts do not engage in a separate analysis applying the Brecht standard. Avila v. Galaza, 297 F.3d 911, 918 n. 7 (9th Cir. 2002); Musladin v. Lamarque, 555 F.3d 830, 835 (9th Cir. 2009).

III. Review of Petitioner's Claims.

The instant petition itself alleges the following as grounds for relief: (1) denial of Petitioner's Trombetta motion violated his right to federal due process; (2) the trial court erred denying Petitioner's new trial motion based on Trombetta grounds; (3) the trial court erred in denying Petitioner's motion for new trial based on newly discovered evidence; (4) the failure to arraign Petitioner in a timely manner under California and federal law violated Petitioner's due process rights; (5) failure to afford Petitioner a timely preliminary hearing violated his due process rights; and (6) ineffective assistance of trial counsel based upon counsel's failure to conduct a meaningful pre-trial investigation. (Doc. 14).

A. Denial Of Petitioner's Pre-Trial Trombetta Motion.

Petitioner first contends that the trial court denied Petitioner his federal due process rights in denying Petitioner's pre-trial Trombetta motion. This contention is without merit.

1. The 5th DCA's Opinion.

The 5th DCA rejected Petitioner's claim as follows:

(LD 1, pp. 6-11).

2. Federal Standard.

Due process standards require that criminal defendants be afforded a meaningful opportunity to present a complete defense, including "what might loosely be called the area of constitutionally guaranteed access to evidence." United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). It is a violation of a criminal defendant's right to due process when law enforcement agencies fail to preserve evidence that "possess [es] an exculpatory value that was apparent before the evidence was destroyed and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably attainable means." California v. Trombetta, 467 U.S. 479, 489 (1984). Due process only requires preservation of "evidence that might be expected to play a significant role in the suspect's defense." Trombetta, 467 U.S. at 488. The exculpatory value of such evidence must have been apparent before the evidence was destroyed, and the defendant must also be unable to reasonably obtain comparable evidence. Id. at 489.

However, to protect the courts from the "treacherous task of divining the import of materials whose contents are unknown," unless a criminal defendant can show bad faith on the part of law enforcement, "failure to preserve potentially useful evidence does not constitute a denial of due process." Arizona v. Youngblood, 488 U.S. 51, 58 (1988). "Bad faith" consists of official animus towards [the accused] or a conscious effort to suppress exculpatory evidence." Trombetta, 467 U.S. at 488. "The presence or absence of bad faith by [law enforcement] for purposes of the Due Process Clause must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed." Youngblood, 488 U.S. at 56, n. *.

3. Analysis.

As indicated in the excerpt of the 5th DCA's decision quoted above, the state appellate court concluded that Petitioner had failed to establish either that the vehicle had an exculpatory value apparent at the time it was released and eventually destroyed or that the State acted with bad faith in permitting the release of the vehicle. The state court noted that Petitioner initially denied to police that he was involved in any car accident, contending instead that he had injured himself in a fall. Contradicting Petitioner was McCain, an independent eyewitness and bystander, who heard Petitioner "wrestling" around in the car immediately after the accident, before exiting the passenger-side window and then admitted to McCain that he had been the driver.

At trial, Petitioner's defense changed from not being involved in the accident at all to being merely a passenger. At that point, however, the vehicle had already been released and sold. The 5th DCA pointed out that, during the initial investigation, police obtained samples of Petitioner's hair and blood from the interior of the car,2 contradicting Petitioner's initial claim that he was not involved in the accident in any way, and establishing that he was, at the very least, within the passenger compartment of the car when the accident occurred. It was not until trial, long after the car had been released and sold, that Petitioner changed his trial strategy to one of being involved in the accident, but only as a passenger. However, at the time the Lexus was released and sold, Petitioner's claim of not being involved in the accident in any way was the defense's operative theory; hence, at that point, the vehicle did not have any apparent exculpatory value beyond that evidence, already obtained, which placed Petitioner in the vehicle, i.e., his hair and blood, and in the driver's seat, i.e., McCain's testimony. Thus, there would not be, as the state court recognized, any apparent exculpatory value to the defense in retaining the vehicle for further testing.

Indeed, none of the three defense experts could say with any certainty that any exculpatory evidence could have been garnered from the vehicle had it been retained by the police. At most, the experts opined in their declarations that exculpatory evidence "might" have been obtained upon further testing. However, as the state court observed, it would be equally probable that inculpatory evidence would have been uncovered, given the clear weight of evidence that Petitioner was the driver. Under Trombetta and Youngblood, a theoretical possibility of obtaining exculpatory evidence falls far below the standard of "apparent" exculpatory value. Thus, the state court's analysis was objectively reasonable.

Moreover, the 5th DCA concluded that the state did not act with bad faith in releasing the vehicle. This, too, was an objectively reasonable conclusion under the facts in this record. The state court expressly noted that there "was no reason for investigators to believe in August 2005 that there would be a conflict over the positions of the occupants of the vehicle because appellant denied being in the accident and McCain told police officers that appellant admitted being the driver." The state court's reasoning on this point is unassailable. Since the exculpatory value of the vehicle to the defense was not apparent at the time the Lexus was released, and in the absence of any other defense evidence of bad faith, the state court's conclusion that no showing of bad faith had been made was justified.

As the United States Supreme Court has made clear, "habeas corpus is not to be used as a second criminal trial, and federal courts are not to run roughshod over the considered findings and judgments of the state courts that conducted the original trial and heard the initial appeals." Williams, 529 U.S. at 383. Here, it is evident that the state courts fully litigated the Trombetta issue, both at the trial level and on appeal, and were in agreement that no constitutional violation had occurred under the appropriate state and federal standard. Petitioner has presented no argument in these proceedings and pointed to no evidence or circumstance that would justify this habeas court running "roughshod" over the considered findings and rulings of the state courts in this case.

B. Denial of Petitioner's Motion For New Trial Based Upon Trombetta.

Petitioner next contends that denial of his motion for a new trial based upon Trombetta grounds was error. This contention is also without merit.

1. The 5th DCA's Opinion.

The 5th DCA rejected Petitioner's claim as follows:

(LD 1, pp. 11-13).

2. Analysis.

As Respondent correctly contends, Petitioner fails to state a federal claim. By contending that the state court violated state law in denying his motion for a new trial, i.e., abused its discretion, he does not allege a specific violation of the Constitution or federal law. His claim is entirely one of state law, and generally, issues of state law are not cognizable on federal habeas. Estelle v. McGuire, 502 U.S. 62, 67 (1991) ("We have stated many times that `federal habeas corpus relief does not lie for errors of state law.'"), quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Gilmore v. Taylor, 508 U.S. 333, 348-49 (1993) (O'Connor, J., concurring) ("mere error of state law, one that does not rise to the level of a constitutional violation, may not be corrected on federal habeas"). Accordingly, the claim must be rejected on that basis alone.

However, even considered on its merits, such a claim is fatally flawed. As the 5th DCA observed, Petitioner's written new trial motion was based upon newly discovered evidence, not destruction of evidence. It was only during the hearing itself that defense counsel appeared to articulate a Trombetta claim as grounds for a new trial. The trial court essentially refused to hear that claim. Now, Petitioner's argument that such a refusal was an abuse of discretion cannot stand. As discussed previously, the state court's rejection of Petitioner's Trombetta claim on its merits was objectively reasonable because Petitioner had not established that the Lexus had a readily apparent exculpatory value to the defense at the time it was released and sold, nor had he established bad faith on the part of the State in releasing the car. Given those circumstances, Petitioner cannot show that the trial court's refusal to consider the claim post-trial was an abuse of the trial court's discretion. Petitioner has not established that he suffered any constitutional violation as a result of the sale of the vehicle, he had a full and fair pre-trial hearing on the issue, and the trial judge's refusal to permit Petitioner a second bite of the apple in his new trial hearing was not unreasonable.3

C. Denial Of Petitioner's Motion For New Trial Based On Newly Discovered Evidence.

Next, Petitioner claims that the trial court erred in denying his motion for new trial based on newly discovered evidence. Again, this contention lacks merit.

1. The 5th DCA's Decision.

The 5th DCA rejecting Petitioner's claim as follows:

(LD 1, pp. 13-18).

2. Federal Standard.

As Respondent correctly notes, Petitioner's claim that the trial court abused its discretion when it denied his new trial motion involves the application or interpretation of state evidence law, and, consequently, it is not cognizable on federal habeas review. See 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 67-68 (reiterating that "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions"); Smith v. Phillips, 455 U.S. 209, 221(1982); Langford, 110 F.3d at 1389 ("We accept a state court's interpretation of state law, ... and alleged errors in the application of state law are not cognizable in federal habeas corpus"). Even if Petitioner were attempting to characterize this state law claim as a federal constitutional claim, this is not sufficient to render it such. See, e.g., Cacoperdo, 37 F.3d at 507.

Regarding newly discovered evidence, such evidence is a ground for habeas relief only when it bears on the constitutionality of a petitioner's conviction and would probably produce an acquittal. Spivey v. Rocha, 194 F.3d 971, 979 (9th Cir.1999). Due process provides a defendant the right to present a defense by compelling the attendance and presenting the testimony of witnesses. Washington v. Texas, 388 U.S. 14, 18-19 (1967). However, it is well established that trial judges have the discretion to preclude evidence if its probative value is outweighed by other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury. Holmes v. South Carolina, 547 U.S. 319, 326 (2006). If the exclusion of certain evidence violates a petitioner's right to present a defense, habeas corpus relief can only be granted if the constitutional error was not harmless, that is, error that resulted in actual prejudice, or had a substantial and injurious effect or influence in determining the jury's verdict. Jackson v. Nevada, 688 F.3d 1091, 1104-1105 (9th Cir.2012), petition for cert. filed, 81 U.S.L.W. 3349 (U.S. Dec. 3, 2012) (No. 12-694) (citing Fry v. Pliler, 551 U.S. 112, 121-122 (2007) and Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). In determining whether the alleged error was harmless under Brecht, the court considers such factors as, "(1) the importance of the witness's testimony in the prosecution's case; (2) whether the testimony was cumulative; (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; (4) the extent of cross-examination otherwise permitted; and (5) the overall strength of the prosecution's case. Merolillo v. Yates, 663 F.3d 444, 455 (9th Cir.2011) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).

3. Analysis.

Based upon the foregoing authority, the Court concludes that Petitioner's claim is based entirely on state law and, therefore, is not cognizable in federal habeas corpus proceedings. California law vests in the trial judge the authority and discretion to hear post-trial motions and correct trial errors; however, there is nothing in this record to suggest that an error regarding newly discovered evidence was committed; thus, the trial judge did not abuse his discretion.

In any event, Petitioner's claim would fail on the merits because the two pieces of "newly discovered evidence," i.e., the recantation by Petitioner's aunt and the post-trial recollection of passenger Tony Jeff, both to the effect that Petitioner was not the driver, are insufficient to meet the high threshold for obtaining a new trial based on newly discovered evidence.

Petitioner's argument to the contrary, Ms. Contreras' recantation is not "newly discovered evidence." A prosecution witness' subsequent recantation does not constitute "newly discovered evidence" because trial cross-examination affords defense counsel the opportunity to discover and reveal the motivation for and the alleged falsity of the witness' trial testimony. See Davis v. Blackburn, 789 F.2d 350, 352 (5th Cir.1986); see also People v. Parrison, 137 Cal.App.3d 529, 541(1982). Similarly, the Ninth Circuit has held that, when a potential witness refuses to testify at a criminal trial but later discloses evidence favorable to the defendant, the disclosure does not constitute "newly discovered evidence." United States v. Lockett, 919 F.2d 585, 591-92 (9th Cir.1990). Even if this Court were to regard the aunt's recantation as "newly discovered evidence," the recantation would not furnish a basis for federal habeas relief. In Townsend v. Sain, 372 U.S. 293, 317 (1963), the United States Supreme Court stated: "Of course, [newly discovered] evidence must bear upon the constitutionality of the [habeas] applicant's detention; the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus."

Several circuit courts have followed this directive in summarily denying habeas petitions predicated on evidence relevant merely to the guilt of a state prisoner. See Boyd v. Puckett, 905 F.2d 895, 896-97 (5th Cir.), cert. denied, 498 U.S. 988 (1990); Stockton v. Virginia, 852 F.2d 740, 749 (4th Cir.1988), cert. denied, 489 U.S. 1071 (1989) ("a habeas petitioner must show that the prosecutor or other government officer knew the testimony in question was false in order to prevail") (citations and quotations omitted); De Martino v. Weidenburner, 616 F.2d 708, 711 (3rd Cir.1980); Anderson v. Maggio, 555 F.2d 447, 451 (5th Cir.1977) (recantation of prosecution witness); Burks v. Egeler, 512 F.2d 221, 229-30 (6th Cir.), cert. denied, 423 U.S. 937 (1975) (perjury by trial witnesses does not merit habeas relief absent a showing of prosecutorial involvement in the perjury).

In the context of a motion under 28 U.S.C. § 2255, the Ninth Circuit has held that the existence of perjured trial testimony will not merit collateral relief unless "the prosecuting officials knew at the time such testimony was used that it was perjured." Marcella v. United States, 344 F.2d 876, 880 (9th Cir.1965), cert. denied, 382 U.S. 1016 (1966). However, the Ninth Circuit has stated: "Newly discovered evidence warrants federal habeas relief if it would `probably produce an acquittal.'" Harris v. Vasquez, 913 F.2d 606, 626 (9th Cir.1990), citing Quigg v. Crist, 616 F.2d 1107, 1112 (9th Cir.), cert. denied, 449 U.S. 922 (1980); accord Gordon v. Duran, 895 F.2d 610, 614-15 (9th Cir.1990). The Ninth Circuit first made this observation in Quigg v. Crist, supra. The Quigg Court relied upon the Eighth Circuit's decision in Mastrian v. McManus, 554 F.2d 813, 822 (8th Cir.), cert. denied, 433 U.S. 913 (1977). Yet, the Mastrian Court stated:

Id. (emphasis added). Consequently, it appears uncertain whether courts within the Ninth Circuit may grant habeas relief based on newly discovered evidence relevant solely to the guilt of a state prisoner. IbId.

In any event, this Court does not view Ms. Contreras' recantation as reliable. "The recanting of prior testimony by a witness is ordinarily met with extreme skepticism." United States v. Nixon, 881 F.2d 1305, 1311 (5th Cir.1989); see In re Weber, 11 Cal.3d 703 (1974); People v. McGaughran, 197 Cal.App.2d 6 (1961) (involving recantation of fourteen year old victim of attempted statutory rape); Iowa v. Tharp, 372 N.W.2d 280, 282 (Iowa App.1985) (involving recantation of fifteen year old stepdaughter/victim of sexual abuse); People v. Andrews, 360 Mich. 572, 104 N.W.2d 199, 201 (1960) (involving assertion by defendant's eleven year old daughter that she previously testified falsely because, inter alia, her father abused her mother). The 5th DCA noted that, in light of the almost certain family pressures brought to bear on the aunt following Petitioner's conviction and lengthy prison sentence, see Iowa v. Tharp, 372 N.W.2d 280, 282 (Iowa App.1985) ("In cases of this type, where families are torn apart, there is great pressure on the family member to `make things right'"); Commonwealth v. Thompson, 271 Pa.Super. 170, 412 A.2d 630 (1979) (court refused to overturn conviction of defendant for raping eleven year old stepdaughter who later recanted her trial testimony), Ms. Contreras' decision to change her testimony casts grave doubt on her credibility. See Davis v. Blackburn, 789 F.2d 350, 352 (5th Cir.1986) (stressing importance of trial judge's evaluation of recanting witness' testimony); see also United States v. Brown, 417 F.Supp. 340 (E.D.Pa.1976).

By contrast, McCain was a disinterested bystander who merely happened to be present when the accident occurred and had no reason to lie. McCain consistently repeated his claim that immediately after the accident, Petitioner emerged from the vehicle and admitted that he had been the driver. In light of the corroboration of the aunt's trial testimony and the trial judge's evaluation of the aunt's recantation, this Court does not view her present recantation as credible.

Similarly, Tony Jeff's declaration, while not technically a recantation, suffers from similar characteristics that bear on reliability and credibility. Tony Jeff did not testify at trial, although he was a passenger in the vehicle and would, it must be presumed, have knowledge of facts material to the legal issues in the trial. The record is silent on why the defense did not choose to call Tony Jeff as a witness on behalf of Petitioner; however, the defense decision not to call Mr. Jeff, combined with his convenient "recollections" that Petitioner was also a passenger, not a driver, some months after the trial, do nothing to bolster Mr. Jeff's credibility. Like Ms. Contreras, he is a close family member who, after learning that Petitioner was convicted and sentenced to a long prison term, would have every motivation to place the blame for the accident on the deceased victim, who could not be convicted or punished.

Based on the foregoing, the Court concludes that the state court adjudication rejecting Petitioner's claim was objectively reasonable. Habeas proceedings are about substance, not appearance. To justify habeas relief, there must be some articulable, substantive constitutional violation, not merely a collection of weakly supported allegations of impropriety by the trial judge.

The first amended petition alleges that the trial court's denial of the motion for new trial on newly discovered evidence rose to the level of a federal due process violation. However, Petitioner's broad assertion of a constitutional error does not transform what is in essence a state claim into a federal one. Merely placing a "due process" label on an alleged violation does not entitle Petitioner to federal relief. Langford v. Day, 110 F.3d 1386, 1388-89 (1996). Broad, conclusory allegations of unconstitutionality are insufficient to state a cognizable claim. Jones v. Gomez, 66 F.3d 199, 205 (9th Cir.1995); Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991) (bald assertions of ineffective assistance of counsel did not entitle the petitioner to an evidentiary hearing); see also Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.1999), citing Gray v. Netherland, 518 U.S. 152, 162-63 (1996) ("general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion).

D. Failure To Afford Petitioner A Timely Arraignment.

Petitioner also claims that his due process rights were violated when the state court failed to afford Petitioner a timely arraignment. This contention is without merit.

1. The Superior Court's Decision.

The Superior Court rejected Petitioner's claim as follows:

(LD 22, p. 2).

2. Federal Standard.

State courts may decline to review a claim based on a procedural default. Wainwright v. Sykes, 433 U.S. 72, 86-87(1977). As a general rule, federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991); LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001); see Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991); Park v. California, 202 F.3d 1146, 1150 (2000) ("A district court properly refuses to reach the merits of a habeas petition if the petitioner has defaulted on the particular state's procedural requirements. ..."); see also Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935). This concept is commonly referred to as the procedural default doctrine, and is based on concerns of comity and federalism. Coleman, 501 U.S. at 730-32. If the court finds an independent and adequate state procedural ground, "federal habeas review is barred unless the prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice." Noltie v. Peterson, 9 F.3d 802, 804-805 (9th Cir. 1993); Coleman, 501 U.S. at 750; Park v. California, 202 F.3d 1146, 1150 (9th Cir. 2000).

The mere occurrence, however, of a procedural default will not necessarily bar a federal court from reviewing claims in a petition for writ of habeas corpus. In order for the procedural default doctrine to apply and thereby bar federal review, the state court determination of default must be grounded in state law that is both adequate to support the judgment and independent of federal law. Ylst, 501 U.S. at 801; Coleman, 501 U.S. at 729-30; see also Fox Film Corp., 296 U.S. at 210. Put another way, the procedural default doctrine will apply only if the application of the state procedural rule provides "an adequate and independent state law basis" on which the state court can deny relief. Park, 202 F.3d at 1151, quoting, Coleman, 501 U.S. at 729-30.

"For a state procedural rule to be `independent,' the state law basis for the decision must not be interwoven with federal law." LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001) (citing Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)); Morales v. Calderon, 85 F.3d 1387, 1393 (9th Cir. 1996) ("Federal habeas review is not barred if the state decision `fairly appears to rest primarily on federal law, or to be interwoven with federal law.'" (quoting Coleman, 501 U.S. at 735, 111 S.Ct. 2456)). "A state law is so interwoven if `the state has made application of the procedural bar depend on an antecedent ruling on federal law [such as] the determination of whether federal constitutional error has been committed.'" Park, 202 F.3d at 1152 (quoting Ake v. Oklahoma, 470 U.S. 68, 75 (1985)).

To be deemed adequate, the state law ground for decision must be well-established and consistently applied. Poland v. Stewart, 169 F.3d 573, 577 (9th Cir. 1999) ("A state procedural rule constitutes an adequate bar to federal court review if it was `firmly established and regularly followed' at the time it was applied by the state court.")(quoting Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850 (1991)). Although a state court's exercise of judicial discretion will not necessarily render a rule inadequate, the discretion must entail "`the exercise of judgment according to standards that, at least over time, can become known and understood within reasonable operating limits.'" Id. at 377 (quoting Morales, 85 F.3d at 1392).

3. Analysis.

Here, the state court found that Petitioner's claim was barred under three separate state procedural theories: (1) the claim could have been raised, but was not, in the direct appeal (Dixon), it was successive (Clark), and untimely (Robbins). As discussed below, all three are proper bases for barring Petitioner's claim in these proceedings.

a. Dixon.

A citation to In re Dixon refers to California's procedural rule which provides that a California court, in a habeas corpus proceeding, will not review the merits of a claim if that claim could have been raised in a timely appeal but was not. In re Dixon, 41 Cal.2d at 759 ("[I]n the absence of special circumstances constituting an excuse for failure to employ [the] remedy [of direct review], the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction"). See In re Harris, 5 Cal.4th 813, 823 (1993) (explaining In re Dixon rule). Despite the petitioner's failure to bring a claim on direct appeal from a conviction, a California court will hear the merits of case if the court finds one of four exceptions. The four exceptions to the Dixon bar are: 1) fundamental constitutional error; 2) a lack of fundamental jurisdiction by the trial court over the petitioner; 3) the trial court's acting in excess of jurisdiction; and 4) an intervening change in the law. Fields, 125 F.3d at 763, quoting, In re Harris, 5 Cal.4th at 828-842.

Since the California Supreme Court's 1998 decision in In re Robbins, 18 Cal.4th 770, 811-812 & n. 32 (1998), the Dixon rule has been independent of federal law. Park v. California, 202 F.3d 1146, 1152 (2000). Since the California Supreme Court's 1993 decisions in In re Harris, 5 Cal.4th 813, 823 (1993) and In re Clark, 5 Cal.4th 750 (1993), the Dixon rule has been consistently applied, i.e., "adequate." Park, 202 F.3d at 1152. Hence, any state court ruling procedurally barring a habeas claim because the petition failed to raise that claim in his direct appeal, i.e., the Dixon rule, will be barred on federal habeas review unless the petitioner can demonstrate (1) cause for the default and actual prejudice resulting from the alleged violation of federal law, or (2) a fundamental miscarriage of justice. Harris v. Reed, 489 U.S. 255, 262-63 (1989); Coleman v. Thompson, 501 U.S. 722, 750 (1989).

b. Clark.

It is the policy of California courts to "deny an application for habeas corpus which is based upon grounds urged in a prior petition which has been denied, where there is no shown change in the facts or the law substantially affecting the rights of the petitioner." In re Clark, 5 Cal.4th 750, 759 (1993). Before assessing the merits of a second petition, California courts will first ask whether the failure to present the claims underlying the new petition in a prior petition has been adequately explained, and whether that explanation justifies the piecemeal presentation of the petitioner's claims. In making this determination, the court will consider whether the facts on which the claim is based, although only recently discovered, could and should have been discovered earlier. Claims that are based on a change in the law which is retroactively applicable to final judgments will be considered if promptly asserted and if application of the former rule is shown to have been prejudicial.

Unjustified successive petitions will not be entertained on their merits absent facts demonstrating a fundamental miscarriage of justice. Id. at 775. In non-death penalty cases, a fundamental miscarriage of justice will have occurred if any of the following are demonstrated: (1) that an error of constitutional magnitude led to a trial that was so fundamentally unfair that absent the error no reasonable judge or jury would have convicted the petitioner; (2) that the petitioner is actually innocent of the crime or crimes of which he was convicted; or (3) that the petitioner was convicted or sentenced under an invalid statute. Clark, 5 Cal.4th at 797-798.

c. Robbins.

The Superior Court's citation to In re Robbins reflects that the habeas petition was denied because it was deemed untimely. Walker v. Martin, 562 U.S. ____, ____,131 S.Ct. 1120, 1126 (2011) ("A summary denial citing ... Robbins means that the petition is rejected as untimely."). In Martin, the Supreme Court was faced with the issue of whether the California Supreme Court's denial of a habeas petition citing In re Clark, supra, represented an adequate procedural bar that prevented Martin's claims from being reviewed on the merits when he sought federal habeas relief. Martin had filed a successive petition for habeas corpus in the California Supreme Court, raising a claim for ineffective assistance of counsel that he had failed to previously raise in his original state habeas petition. Martin, 131 S.Ct. at 1126. The California Supreme Court's order denying the petition read in its entirety: "Petition for writ of habeas corpus is DENIED. (See In re Clark (1993) 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729, In re Robbins (1998) 18 Cal.4th 770, 780, 77 Cal.Rptr.2d 153, 959 P.2d 311.)." Id.

The Supreme Court concluded that such a dismissal on timeliness grounds under California law represented an adequate and consistently applied independent state law bar such that Martin was precluded from bringing his federal claims in federal court. Id. at 1128-29; see Coleman v. Thompson, 501 U.S. 722, 729 (1991).]

d. Conclusion.

A state procedural bar that is both adequate and independent will be enforced by the federal court on habeas review unless Petitioner shows cause and prejudice or a fundamental miscarriage of justice. Harris, 489 U.S. at 262; Coleman, 501 U.S. at 750. In his Traverse, Petitioner has not put forward either contention. Rather, while conceding that both the law governing a timely arraignment and that governing preliminary hearings are state law, Petitioner asserts merely that he was "unable to respond to the charges against him as he was unaware of the charges for nearly a year," that as a result, "[e]vidence was destroyed and/or lost," and that "[o]pportunities were waylaId." (Doc. 30, p. 14). However, such vague and generalized contentions are insufficient to establish either cause or prejudice. Accordingly, the claim is barred in these proceedings.

E. Failure to Subject Petitioner To A Timely Preliminary Examination.

Next, Petitioner claims that his due process rights were violated when the state court failed to conduct a timely preliminary hearing. This contention too is barred.

1. The Superior Court's Decision.

The Superior Court rejected Petitioner's claim as being procedurally barred on the same three grounds as in the previous claim.

2. Analysis.

As with the previous claim, all three procedural bars are both independent and adequate. In his Traverse, Petitioner fails to set forth a cognizable claim establishing either cause or prejudice. Accordingly, the claim is barred and will not be addressed on its merits in these proceedings. Harris, 489 U.S. at 262; Coleman, 501 U.S. at 750.

F. Ineffective Assistance Of Trial Counsel.

Finally, Petitioner claims that he was denied his Sixth Amendment right to the effective assistance of counsel. As explained by the Superior Court's written decision rejecting this claim, Petitioner contends that trial counsel failed to conduct an adequate investigation, and that, if he had, he would have discovered the following: (1) the lack of an arraignment and timely preliminary hearing; (2) the failure to serve a valid arrest warrant for nearly nine months; (3) the fact that the complaint was stamped twice; and (4) that, under California Penal Code § 1417.9, the prosecution had a duty to retain biological evidence in connection with a criminal case and, considering the sale and demolition of the Lexus, this statute would have been violated. (Doc. 14, pp. 91-92). Again, Petitioner's contention is without merit.

1. The Superior Court's Ruling.

After discussing the standard of review for claims of ineffective assistance of counsel, the Superior Court rejected Petitioner's claim as follows:

(LD 22, pp. 2-5).

2. Federal Standard.

Effective assistance of appellate counsel is guaranteed by the Due Process Clause of the Fourteenth Amendment. Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of appellate counsel are reviewed according to Strickland`s two-pronged test. Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir.1989); United States v. Birtle, 792 F.2d 846, 847 (9th Cir. 1986); see also Penson v. Ohio, 488 U.S. 75(1988) (holding that where a defendant has been actually or constructively denied the assistance of appellate counsel altogether, the Strickland standard does not apply and prejudice is presumed; the implication is that Strickland does apply where counsel is present but ineffective).

To prevail, Petitioner must show two things. First, he must establish that appellate counsel's deficient performance fell below an objective standard of reasonableness under prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Second, Petitioner must establish that he suffered prejudice in that there was a reasonable probability that, but for counsel's unprofessional errors, he would have prevailed on appeal. Id. at 694. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome of the appeal. Id. The relevant inquiry is not what counsel could have done; rather, it is whether the choices made by counsel were reasonable. Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir.1998).

With the passage of the AEDPA, habeas relief may only be granted if the state-court decision unreasonably applied this general Strickland standard for ineffective assistance. Knowles v. Mirzayance, 556 U.S. ___, 129 S.Ct. 1411, 1419 (2009). Accordingly, the question "is not whether a federal court believes the state court's determination under the Strickland standard "was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Knowles v. Mirzayance, 556 U.S. ___, 129 S.Ct. at 1420. In effect, the AEDPA standard is "doubly deferential" because it requires that it be shown not only that the state court determination was erroneous, but also that it was objectively unreasonable. Yarborough v. Gentry, 540 U.S. 1, 5 (2003). Moreover, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard. See Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)("[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations").

The state court expressly identified and applied the appropriate federal standard by referencing Strickland. Thus, the only issue is whether the state court's adjudication, i.e., that defense counsel's representation was neither deficient nor prejudicial, was not contrary to or an unreasonable application of Strickland. For the reasons discussed below, the Court concludes that it was not.

3. Analysis.

Petitioner failed to establish either defective performance by trial counsel or prejudice. Regarding the purported lack of a timely arraignment and preliminary hearing, the Superior Court concluded, applying California law, that the procedural anomalies relied upon by Petitioner did not violate state law. (LD 22, pp. 4-5). Moreover, the Superior Court rejected Petitioner's claim that an adequate investigation and further legal research would have uncovered California Penal Section § 1417.9, regarding a prosecutor's duty to retain evidence, concluding that the statute applied to post-conviction motions for DNA testing by those convicted of felonies, not pre-trial Trombetta motions. (LD 22, p. 3).

Insofar as the Superior Court's decision was based upon the state court's analysis and application of California law, this Court is bound by a state court's determination and application of its own laws. Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir. 1989). Insofar as Petitioner's claim is premised upon a federal constitutional violation, Petitioner has failed to show how these technical procedural issues would rise to the level of a federal due process violation.

Most importantly, however, Petitioner has failed to show how, even if trial counsel's performance could be characterized as technically deficient, he was prejudiced in any way by such defects in state trial procedure. As both Respondent and the Superior Court point out, the complaint could have been re-filed and the prosecution could have proceeded with the prosecution, thus precluding any possible benefit Petitioner might contend he would have obtained if trial counsel had, originally, conducted a proper investigation, detected these procedural anomalies, objected to them, and obtained dismissal of the original complaint. Although the first amended petition boldly asserts, without any citation to fact or law, that the "outcome of the case would have been different" had the trial court dismissed the case without prejudice and the prosecutor re-filed it (Doc. 14, p. 92), such a self-serving statement, without any reason or evidence to support it, falls far short of an adequate showing of prejudice under Strickland.

Regarding the destruction of the statements by Ms. Contreras and Mr. Tony, the Superior Court pointed out that, even had trial counsel somehow conducted a thorough investigation into the timeliness of the arraignment and preliminary hearing, it is unclear how such an investigation would have uncovered evidence of statements by those two witnesses when neither witness remembered giving those written statements until after trial. (LD 22, p. 5).

Regarding the destruction of the vehicle, the Court has already considered at length and in various contexts whether Petitioner was prejudiced by the release and sale of the Lexus and concluded that the state court's rejection of this claim was not objectively unreasonable. Without any deficient performance on the part of trial counsel regarding the circumstances of the vehicle's release and subsequent destruction, and absent any proof whatever of actual prejudice, Petitioner's Strickland claim as to the vehicle must be rejected. In sum, Petitioner has failed to show that any of his claims for relief have merit. Accordingly, the Court will deny the petition with prejudice.

Moreover, the Court declines to issue a certificate of appealability. 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 as follows:

If a court denied a petitioner's petition, the court may only issue a certificate of appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further'." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).

In the present case, the Court finds that Petitioner has not made the required substantial showing of the denial of a constitutional right to justify the issuance of a certificate of appealability. Reasonable jurists would not find the Court's determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Thus, the Court DECLINES to issue a certificate of appealability.

ORDER

For the foregoing reasons, the Court HEREBY ORDERS as follows:

1. The first amended petition for writ of habeas corpus (Doc. 14), is DENIED with prejudice;

2. The Clerk of the Court is DIRECTED to enter judgment and close the file;

3. The Court DECLINES to issue a certificate of appealability.

IT IS SO ORDERED.