ORDER, AMENDED FINDINGS AND RECOMMENDATIONS

TIMOTHY J BOMMER, Magistrate Judge.

I. INTRODUCTION

Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury of spousal rape, sodomy by force and corporal injury on a spouse. Petitioner received a sentence of seventeen years imprisonment. Petitioner raises numerous ineffective assistance of counsel claims in his federal habeas petition; specifically: (1) ineffectiveness for failing to impeach Petitioner's wife (Rosa) on her prior crimes ("Claim I"); (2) ineffectiveness for failing to establish Rosa's biasness and motive to lie ("Claim II"); (3) ineffectiveness for failing to impeach Rosa with other acts which reflected her dishonesty and manipulation ("Claim III"); (4) ineffectiveness for failing to impeach Rosa with her prior purportedly inconsistent statements of the assault ("Claim IV") (5) ineffectiveness for failing to impeach Rosa with dildo photos ("Claim V"); (6) ineffectiveness for failing to consult with a forensic expert on sexual assault, failing to subpoena records from Planned Parenthood, failing to contact people from an ambulance who might have seen the incident and failing to subpoena Rosa's psychiatric records ("Claim VI"); (7) ineffectiveness for failing to have Petitioner testify on his own behalf at trial ("Claim VII"); and (8) ineffectiveness for failing to present evidence of Petitioner's good character ("Claim VIII"). For the following reasons, the habeas petition should be denied.

II. FACTUAL BACKGROUND1

(Slip Op. at p. 1-5.)

III. PROCEDURAL HISTORY

After Petitioner was convicted by a jury, he moved for a new trial. (See Clerk's Tr. at p. 368.) In the motion for a new trial, Petitioner listed the following items which he argued established that a new trial was necessary:

(Clerk's Tr. at p. 372-73.)

The court denied Petitioner's motion for a new trial on November 2, 2007. In denying the motion for a new trial, the judge stated the following:

(Reporter's Tr. at p. 429-32.)

Petitioner was sentenced in February 2008. Petitioner filed an appeal to the California Court of Appeal. (See Respondent's Lodged Doc. Ex. 3.) Petitioner did not raise any of the issues he raises in this federal habeas petition in that appeal. The California Court of Appeal denied that appeal on October 22, 2009. (See Slip Op.)

As his direct appeal was pending, Petitioner also filed a petition for writ of habeas corpus in the California Court of Appeal, First Appellate District (Case No. A123244), which raised the issues Petitioner raises in his federal habeas petition. The California Court of Appeal summarily denied this state habeas petition without discussion on October 22, 2009. (See Resp't's Lodged Doc. Ex. 14.) Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court which raised the ineffective assistance of counsel claims that Petitioner raises in his federal habeas petition. The California Supreme Court summarily denied the state habeas petition on January 13, 2010.

Petitioner filed the instant federal habeas petition in June 2010. Respondent answered the petition in October 2010. Petitioner filed a traverse in November 2010. Oral argument was held on March 5, 2012 and the arguments of counsel have been considered herein.

IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS

An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1994); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the state court proceedings unless the state court's adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court. See 28 U.S.C. 2254(d). Where a state court provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether the state court was objectively unreasonable in its application of clearly established federal law. See Musladin v. Lamarque, 555 F.3d 830, 835 (9th Cir. 2009).

As a threshold matter, a court must "first decide what constitutes `clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "`[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").

V. ANALYSIS OF PETITIONER'S CLAIMS

A. Claim I

In Claim I, Petitioner argues that his trial counsel was ineffective for failing to impeach Rosa with evidence of her prior criminal acts. Petitioner argues that trial counsel should have impeached Rosa with the following: (1) in October 1998, Rosa "accompanied by her then two-year old son in a stroller, stole various items from Macy's in Fairfield. She was approached by security after leaving the store, and the Macy's merchandise, as well as merchandise from two other stores, were retrieved from under the stroller. [Rosa] initially told the police that her name was Alicia Perez" (Pet'r's Pet. at p. 17.); (2) in June 1999, Rosa stole a purse from the Leather Loft in Vacaville, California; (3) in April 2000, police responded to a report that Rosa had assaulted her children and "was taking an axe and destroying objects inside the residence, and was attempting to get petitioner to assault her so she could call the police and have him arrested" (Id.); (4) in May 2002, Rosa stole shoes from Mervyn's in Fairfield, California; a subsequent search of found stolen credit cards and driver's licenses on Rosa's person and Rosa "gave conflicting statements regarding the credit cards and the driver's license to store security" and to the police (Id.); (5) in September 2005, police investigated a report that Rosa had sexually abused her daughter.

The Sixth Amendment guarantees effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated the test for demonstrating ineffective assistance of counsel. First, the petitioner must show that considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. See id. at 688. Petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. See id. at 690. The federal court must then determine whether in light of all the circumstances, the identified acts or omissions were outside the range of professional competent assistance. See id. "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id.

Second, a petitioner must affirmatively prove prejudice. See id. at 693. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine the confidence in the outcome." Id. "The likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011). A reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by defendant as a result of the alleged deficiencies . . . [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (citing Strickland, 466 U.S. at 697). When analyzing a claim for ineffective assistance of counsel where a state court has issued a decision on the merits, a habeas court's ability to grant the writ is limited by two "highly deferential" standards. Premo v. Moore, ___ U.S. ___, 131 S.Ct. 733, 740, 178 L.Ed.2d 649 (2011). "When § 2254(d) applies the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. (internal quotation marks and citation omitted); see also Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) ("Under § 2254(d)'s `unreasonable application' clause, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied Strickland incorrectly. Rather, it is the habeas applicant's burden to show that the state court applied Strickland to the facts of his case in an objectively unreasonable manner.") (citations omitted).

Petitioner's trial counsel, Martin Tejada, testified at the motion for new trial hearing. In response to questioning, Tejada testified that he thought the facts of the various police reports were relatively benign, that bringing up such minor arrests would not help Petitioner and that the age of the relative incidents all entered into his decision to not impeach Rosa on these incidents. (See Reporter's Tr. at p. 380-84.) Trial counsel's strategy for impeaching a witness involves tactical decisions that are given great deference. See Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000). A petitioner pleading ineffective assistance of counsel due to counsel's failure to impeach a witness must demonstrate that, had the witness been impeached in the manner requested by petitioner, there would be a reasonable probability that the verdict would have been different. See United States v. Holmes, 229 F.3d 782, 789-90 (9th Cir. 2000).

Petitioner's trial counsel was aware of these prior arrests and made the tactical decision not to seek to impeach Rosa with these prior arrests at trial. Petitioner argues that Rosa's credibility was a key factor and that trial counsel's failure to impeach Rosa on her prior arrests fell below an objective standard of reasonableness. In Harrington, 131 S.Ct. 770, the Supreme Court explained the analysis a federal habeas court should undertake in analyzing a Strickland claim under AEDPA. Specifically, the Court stated:

Harrington, 131 S.Ct. at 785. Thus, Petitioner has to show that the adjudication of this Claim in state court was unreasonable not only on whether counsel's performance fell below an objective standard of reasonableness, but also whether its decision on Strickland's prejudice prong was unreasonable.

Trial counsel's cross-examination of Rosa was perhaps lacking in several respects. Tejada could have impeached Rosa on whether she had previously been arrested for the items listed above such as shoplifting and burglary, but he chose not to do so for the reasons stated in the motion for new trial transcript.

While Petitioner's trial counsel could have perhaps done a better job impeaching Rosa, this does not necessary entitle Petitioner to federal habeas relief. Even assuming (without deciding) that the state court's adjudication of whether trial counsel's performance fell below an objective standard of reasonableness was unreasonable, Petitioner would still have to show that the state court's rejection of this Claim was unreasonable based on Strickland's prejudice prong as well. Accordingly, the Supreme Court has explained that "[a] state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself."2 Harrington, 131 S.Ct. at 785. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree" on the correctness of the state court's decision." Id. at 786 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

Even assuming arguendo that the decision that Petitioner's trial counsel's cross-examination of Rosa fell below an objective standard of reasonableness as it relates to Claim I, Petitioner still has not established that he is entitled to federal haebas relief on Claim I. Petitioner has failed to make a showing that the adjudication of Claim I on prejudice grounds was unreasonable for the following reasons.

As stated supra, in analyzing Petitioner's motion for a new trial, the judge cited to the physical evidence which implicated Petitioner in the charged crimes. Petitioner argues that the injuries that Rosa suffered were not substantial and that her injuries were relatively minor.

The evidence at trial included detailed testimony about Rosa's injuries. The SART nurse testified that:

(Reporter's Tr. at p. 180-81.) The nurse also testified that Rosa's injuries to her anus included splits in her skin, bruising in the area all around the anal opening and fluid oozing from the area. (See id. at p. 186.) The nurse testified that this was indicative of trauma and that in her opinion the injuries that Rosa received to her anal area were forcible injuries.3 (See id. at p. 186-87.) The nurse also testified that Rosa had a small scratch and bruise on her left wrist, facial bruising, swelling and a lip laceration. (See id. at 187-88.) The nurse stated that these injuries were consistent with what Rosa told her, namely that "slapping, being held down, and anal penetration, would all match the bruises, welts and abrasions that I observed on her body." (Id. at p. 188.).

The record also indicated that male semen DNA evidence found in and around the victim's anus was linked to Petitioner. The following colloquy took place during trial between the prosecutor and the DNA expert:

(Reporter's Tr. at p. 241-42.)

Beyond the physical evidence which implicated Petitioner, Petitioner also made a statement to the police which was inconsistent with the physical evidence produced at trial. When Petitioner was arrested he made a statement to the police that Rosa only orally copulated him on the night of the incident. This statement was inconsistent with the fact that Petitioner's DNA evidence was found in and around Rosa's anus. Petitioner attempts to counter this point by arguing that trial counsel should have pursued a defense at trial that Petitioner was framed by Rosa. Petitioner argues that trial counsel should have argued at trial that Rosa orally copulated Petitioner, then transferred the semen to a dildo which she subsequently inserted into her anus. Under this theory, Petitioner also argues Rosa's physical injuries including her cuts, bruises and red marks were self-inflicted.

Petitioner fails to show to a reasonable probability that the outcome of the proceeding would have been different had this theory been attempted. Petitioner's argument that he was framed is pure conjecture and is not based on any evidence produced at trial or before the state court which would show to a reasonable probability that the outcome of the proceeding would have been different. Petitioner cites to a forensic expert's report that transferring semen from one's mouth to a dildo and then inserting it in the anus is possible. However, the fact that an expert provided trial counsel with this report does not establish that Petitioner was prejudiced by counsel's failure to pursue this trial strategy. The prejudice prong requires a showing that the likelihood of a different result was substantial, not just conceivable. See Harrington, 131 S.Ct. at 792. The state court determined that the physical evidence against Petitioner, including the physical injuries that Rosa sustained, was strong. AEDPA's standard requires that deference be given to the state court, even when fairminded jurists could disagree. See id. at 786. In light of the physical evidence produced at trial, which included Saldana's injuries which the SART nurse testified was consistent with what Rosa had told her, along with Petitioner's DNA evidence found in and around Rosa's anus, coupled with Petitioner's inconsistent statement to the police, the adjudication of the prejudice prong was not an unreasonable application of the Strickland standard. See Strickland, 466 U.S. at 694 (stating that a reasonable probability is an a probability sufficient to undermine confidence in the outcome).

Among the cases that Petitioner relies on to support his arguments is Reynoso v. Giurbino, 462 F.3d 1099 (9th Cir. 2000). He asserts that Reynoso indicates that "[c]ourts have found prejudicial error from omissions of counsel far less than those involved here." (Pet'r's Pet. at p. 61.) In Reynoso, the Ninth Circuit found that the petitioner had satisfied the Strickland prejudice prong when counsel failed to impeach several witnesses. It noted that the prosecution's case was weak and that the State presented no physical evidence tying the petitioner to the murder. See id. at 1102. In summing up the prosecution's case, the Ninth Circuit explained that:

Reynoso, 462 F.3d at 1116-17. In analyzing the prejudice issue, the Ninth Circuit noted that the prosecutor emphasized during his closing argument that neither Terrones nor Mendoza had demonstrated any bias or a motive to lie. The Ninth Circuit determined that the failure of Reynoso's trial counsel to question the witnesses regarding their financial interests in the award was prejudicial. See id. at 1117.

Unlike Reynoso, the case against Petitioner did not only rely on eyewitness testimony. It included physical evidence which implicated Petitioner as the perpetrator of the charged crimes that was lacking in Reynoso. This included the physical manifestations of the assault that were indicated on Rosa's body. The SART nurse testified Rosa's injuries were consistent with her story of being raped and assaulted. It also included Petitioner's DNA in and around Rosa's anus. The location of the DNA evidence was inconsistent with Petitioner's statement to the police that the only sexual activity that occurred between Rosa and himself that night was oral sex. As previously stated, Petitioner provided no hard evidence that he was framed by Rosa. Petitioner asserts that the forensic expert's report stated that it is possible for semen to be transferred from one's mouth to a dildo and then inserted into the anus thereby resolving the issue of how Petitioner's DNA got inside Rosa's anus. However, the expert's proposed hypothetical does not establish that Petitioner is entitled to federal habeas relief. As previously stated, to show prejudice the likelihood of a different result must be substantial, not just conceivable. The fact that the expert states that such a transfer of semen from mouth to dildo to anus is a possibility is insufficient to find that the state court's adjudication of this Claim was unreasonable under the prejudice prong. Furthermore, it is worth noting that the evidence against Reynoso did not include physical evidence nor statements from the defendant that were in direct contrast to the evidence produced at trial. Reynoso is distinguishable and Petitioner's reliance on this case to support his prejudice argument is unavailing.

Petitioner's reliance on Williams v. Washington, 59 F.3d 673 (7th Cir. 1995) is also unmoving. In that case, the Seventh Circuit noted that the only evidence against the petitioner was the molestation victim's direct testimony and the petitioner's co-defendant's confession. See id. at 682. The Seventh Circuit noted that counsel should have attempted to protect the petitioner from the co-defendant's confession which inculpated petitioner in the crime. Additionally, trial counsel could have neutralized the effect of the victim's letter which implicated petitioner in the crimes as well as sought out evidence of the victim's lack of credibility. See id. at 684. Comparatively, Petitioner's case included physical evidence which implicated Petitioner in the crimes as well as Petitioner's statement to the police which was inconsistent with the physical evidence.

Petitioner's reliance on Moffett v. Kolb, 930 F.2d 1156 (7th Cir. 1991) is also unavailing. In Moffett, the petitioner raised an ineffective assistance of counsel claim and argued that his counsel failed to introduce evidence of a police report containing a witness's [Brown] statements on his knowledge of the shooting. Specifically, the petitioner asserted counsel was ineffective by failing to introduce this evidence because the report indicated that the witness saw another man [Antonio] lift a gun and that this other person stated after the incident, "if it didn't work, then how come the gun went off when I fired it?" Id. at 1159-60. The Seventh Circuit explained that the error that petitioner's trial counsel made was failing to impeach the witness on his statement that he never saw Antonio hold the gun. The Seventh Circuit also noted that the jury did not hear Brown's statement to the police that Antonio himself had made a statement acknowledging that he had been the person who shot. See id. at 1161-62. Ultimately, the court found that these errors were prejudicial because: (1) there was no direct testimonial evidence that Moffett was the individual who shot; and (2) the strongest evidence that Moffett shot consisted of swabs taken from Moffett's right hand that contained traces of barium and antimony above threshold levels while Antonio's did not. However, the expert testified that the existence or non-existence of barium and antimony above threshold levels was not conclusive proof that an individual did or did not fire a gun. See id. at 1162-63. Ultimately, the Seventh Circuit decided that if the jury had been aware of Brown's omitted statements, it might have taken a more critical look at the limitations of the barium-antimony evidence. See id. at 1163.

Unlike Moffett, there was direct testimony from Rosa that Petitioner sexually assaulted her. While Moffett had physical evidence in the form of the barium-antimony test, the physical evidence in Petitioner's case was different and more damaging. It included physical manifestations that an assault took place as illustrated on various parts of Rosa's body including her genitals. As the SART nurse testified, Rosa's injuries were indicative of trauma and consistent with her story of being slapped, held down and that Petitioner had anal sex with her. (See Reporter's Tr. at p. 186.) At a minimum, based on the evidence previously described, the state court's denial of Claim I was not unreasonable under the Strickland prejudice prong. Therefore, Petitioner is not entitled to federal habeas relief on Claim I.

B. Claim II

In Claim II, Petitioner argues that trial counsel failed to establish Rosa's bias and motive to lie in light of the child custody dispute she was in with Petitioner. Specifically, Petitioner asserts in his petition that, "[b]oth prior to and after the alleged sexual assault, Rosa had sought to obtain primary custody of the children, but after contested evidentiary hearings, primary custody was awarded to petitioner. At no time did [trial counsel] bring out these facts, nor did he present any evidence that would have established that Rosa had a motive to lie." (Pet'r's Pet. at p. 19.)

Petitioner asserts that the child custody issues reflected an ongoing hostile dispute between Petitioner and Rosa that was not brought out at trial. At trial the following colloquy took place between Petitioner's trial counsel and Rosa on cross-examination:

(Reporter's Tr. at p. 118-19.)

Petitioner asserts that counsel should have undertaken a more intensive cross-examination of Rosa on the child custody dispute. Specifically, he argues that:

(Pet'r's Pet. at p. 19.)

Respondent contends that trial counsel's actions were not unreasonable because there were negative aspects that arose during the child custody proceedings against Petitioner that would have been brought out at trial had counsel raised the child custody issue more than he did at trial. Respondent asserts that:

(Resp't's Answer at p. 11-12.) Petitioner responds that the only act of violence against Rosa from Petitioner that was not based solely on the untrustworthy testimony of Rosa was the December 2001 slapping incident which was already admitted at trial. (See Pet'r's Traverse at p. 8.)

In Reynoso, the Ninth Circuit differentiated between evidence attacking a witness's general credibility or demonstrating the inconsistency of a witness's statement with evidence which would tend to show why a witness may have had a motive to lie. See 462 F.3d at 1113. While Claim I focused on trial counsel's purported ineffectiveness for failing to impeach Rosa on general credibility evidence, Claim II is more akin to evidence which would tend to show why a witness may have a motive to lie. In Reynoso, counsel's performance was deemed insufficient by her failure to cross-examine witnesses about reward money for turning in petitioner. As described in supra Part V.A, the Ninth Circuit noted that there was no physical evidence which tied the Reynoso to the murder. However, in Petitioner's case, there was physical evidence which tied him to the charged crimes. This included the physical manifestations of the assault as indicated by the various injuries found on Rosa as testified to at trial. Additionally, Petitioner's DNA was found in and around Rosa's anus. The fact that Petitioner's DNA evidence was found in Rosa's anus was inconsistent with Petitioner's statement to the police that Rosa and Petitioner only engaged in oral sex on the night of the incident. Thus, while Reynoso instructs that a court should examine motive to lie evidence more closely, in this case, the physical evidence and Petitioner's statement to the police upon his arrest lead to a finding that the state court was not unreasonable in denying this Claim. Petitioner failed to show to a reasonable probability that the outcome of the proceeding would have been different had trial counsel engaged in a more thorough cross-examination of Rosa on the child custody dispute. To reiterate, a federal habeas court does not analyze the prejudice prong of an ineffective assistance of counsel claim to determine whether there is a reasonable probability that the outcome of the proceeding would have been different. Instead, the analysis is whether the state court's denial of a claim was unreasonable. While a court might have arrived at a different decision under a de novo standard, based on the evidence cited above, Petitioner has failed to meet the burden that the state court's rejection of his claim was unreasonable based on a lack of prejudice. Accordingly, Claim II should be denied.

In a footnote, Petitioner argues that trial counsel was ineffective for failing to offer evidence on the issue of Rosa's potential motive to lie to gain immigration status. (See Pet'r's Pet. at p. 30 n. 8.) In support of this theory, Petitioner cites to 8 U.S.C. § 1229b4 and argues that by lying about the assault, it would enable Rosa to obtain legal status in the United States as a battered spouse. Respondent argues section 1229b is inapplicable to Rosa because she is in this country illegally and section 1229b only applies to lawful alien residents. Petitioner contends that the issue is not the applicability of whether section 1229b applied to Rosa but rather whether Rosa believed she could gain immigration status by being deemed a battered spouse thereby giving her a reason and motive to lie about the purported sexual assault. (See Pet'r's Traverse at p. 17-18.) However, for the reasons and evidence discussed above, even if the state court's decision was unreasonable because counsel's performance fell below an objective standard of reasonableness, Petitioner has failed to show that the state court's decision was unreasonable based on the prejudice prong.

C. Claim III

In Claim III, Petitioner argues that trial counsel was ineffective for failing to impeach Rosa with other acts which reflected upon her dishonesty, manipulation and bias. More specifically, Petitioner argues that trial counsel was ineffective in failing to call witnesses who would have set forth evidence of Rosa's dishonesty and bias. First, Petitioner argues that trial counsel should have called Erica Casillas, Rosa's former roommate, as a witness. Petitioner asserts that:

(Pet'r's Pet. at p. 25.) Within this Claim Petitioner also argues that his trial counsel was ineffective for failing to call Petitioner's sisters, Rose Ake, Maria Ruiz, and Eliza Cobos. More specifically, Petitioner asserts that these witnesses would have testified that:

(Id. at p. 26.)

During the hearing, Petitioner's trial counsel was questioned extensively regarding the reasons why he did not call these witnesses. The following colloquy took place between the prosecutor and Mr. Tejada at the hearing:

A: It was one sister more than anyone else, but, yes.

A: There were a couple of issues. One was I didn't know how strong their testimony would be, because of the fact they were relatives to Mr. Ramirez. I thought the prosecution in this case would point that out as they were just being biased family members. There were also some problems, I thought, with the fact that they had some incidents with the alleged victim in this case, as well. There were police reports. [¶] There was one report in particular that I recall where I believe Mr. Ramirez was accused of domestic violence on the victim. The sister testified that, in fact, it was the victim who struck Mr. Ramirez first, but there was an independent witness who indicated it was Mr. Ramirez who struck the victim first. [¶] And I thought, based on the totality of the circumstances, that it would create more problems for the case in regards to Mr. Ramirez than help him.

(Reporter's Tr. at p. 356-62.)

In order to show ineffective assistance of counsel based on the failure to call a witness, the Petitioner must show that the particular witness was willing to testify, see United States v. Harden, 946 F.2d 1229, 1231-32 (9th Cir. 1988); would have testified, see Allen v. Woodford, 366 F.3d 823, 846 n.2 (9th Cir. 2004), amended by, 395 F.3d 979, 1002, n. 2 (9th Cir. 2005); what their testimony would have been (see United States v. Berry, 814 F.2d 1406, 1409 (9th Cir. 1987); and that their testimony would have been sufficient to create a reasonable doubt as to guilt. See Tinsley v. Borg, 895 F.2d 520, 532 (9th Cir. 1990).

The record indicates that trial counsel attempted to locate Erica Casillas but that he was unable to locate her prior to trial. Petitioner fails to show that the state courts' denial of Petitioner's ineffective assistance of counsel claim for failing to call Erica Casillas was unreasonable. Counsel testified he tried to locate Ms. Casillas but was unable to leading up to the trial. Thus, it was not unreasonable to conclude that counsel's performance did not fall below an objective standard of reasonableness.

Petitioner's trial counsel also testified during the motion for new trial hearing that he was concerned with possible bias issues if he called Petitioner's relatives as witnesses. The state courts' denial of this Claim was not an unreasonable application of the Strickland standard. See McCauley-Bey v. Delo, 97 F.3d 1104, 1106 (8th Cir. 1996) (finding no prejudice from counsel's failure to call witnesses because impact of uncalled witness would have been negligible due to close relationship to defendant); Bergman v. Tansy, 65 F.3d 1372, 1380 (7th Cir. 1995) (holding counsel was not ineffective for failing to call family members who would have easily been impeached for bias); Romero v. Tansy, 46 F.3d 1024, 1030 (10th Cir. 1995) (noting testimony by defendant's family members is of "significantly less exculpatory value than the testimony of an objective witness").

Even assuming arguendo that the failure to call the witnesses listed above was an unreasonable application of the first prong of the Strickland standard, Petitioner has still failed to establish that he is entitled to federal habeas relief. As previously stated, the physical evidence in this case implicated Petitioner in the crime. Additionally, Petitioner's statement to the police upon his arrest was inconsistent with the DNA physical evidence found in and around Rosa's anus. Furthermore, at least with respect to a claim that Petitioner failed to call Loriana Lopez as a witness, he did not provide an affidavit from her regarding what her testimony would have been. See Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000) (denying ineffective assistance of counsel claim based on lack of preparation for failure to call witnesses when no affidavits were submitted to support petitioner's assertion as to what testimony would have been provided). Thus, the denial of this Claim was not an unreasonable application clearly established federal law as set forth under the Strickland prejudice prong. Accordingly, Petitioner is not entitled to federal habeas relief on Claim III.5

D. Claim IV

In Claim IV, Petitioner argues that his trial counsel was ineffective for failing to impeach Rosa with her purportedly different descriptions of the sexual assault. For example, Petitioner argues that trial counsel failed to flesh out during cross-examination of Rosa that her statement to police on June 13, 2003 did not mention that Petitioner had a girlfriend and that a phone call Petitioner received by his girlfriend was the reason she did not want to have sex with Petitioner. Petitioner argues that Rosa never mentioned this in previous testimony during the child custody hearing or in her police statement. Additionally, Petitioner lists the following purported discrepancies in his federal habeas petition that he argues should have been discussed at trial by his counsel:

(Pet'r's Pet. at p. 30-32.)

Petitioner is not entitled to federal habeas relief on Claim IV. First, many of the purported inconsistencies listed above were not necessarily inconsistencies. By way of example only, number 6 listed above is not necessarily an inconsistent statement and/or amounts only to a trivial difference. Cf., United States v. Harris, 394 F.3d 543, 556 (7th Cir. 2005) (failing to impeach a witness on trivial matter did not constitute ineffective assistance); Campbell v. United States, 364 F.3d 727, 735 (6th Cir. 2004) (agreeing with analysis that failing to impeach a witness on minor inconsistencies in testimony did not amount to ineffective assistance of counsel). Item 7 is also trivial and/or not an inconsistency in that it merely indicates that during trial Rosa could not recall how her rings were removed. Thus, the state court's denial of this Claim was not unreasonable.

Additionally, and perhaps more importantly, Petitioner failed to show that the denial of this Claim was an unreasonable application of the Strickland prejudice prong. The injuries that Rosa suffered illustrated that a sexual assault occurred. The SART nurse testified that the injuries suffered were consistent with forcible trauma and with Rosa's story as stated in supra Part V.A. Furthermore, Petitioner's statement to the police that he only received oral sex from Rosa was inconsistent with the DNA evidence found in and around Rosa's anus. For the foregoing reasons, Petitioner is not entitled to federal habeas relief on Claim IV.

E. Claim V

In Claim V, Petitioner argues that trial counsel was ineffective for failing to introduce two pictures of Rosa that were purportedly inside a Father's Day card Petitioner received from his son that depicted Rosa inserting a dildo into her anus. Petitioner argues that the photos were relevant because they had a tendency to prove or disprove the truthfulness of Rosa's testimony. (See Pet'r's Traverse at p. 31.) Petitioner asserts:

been viciously assaulted.

(Id.)

In response, Respondent cites to the motion for new trial transcript and explains that trial counsel stated that he chose not to use these photographs because they were taken after the alleged assault. Petitioner responds that they are relevant to Rosa's credibility and illustrate she wanted to continue a sexual relationship with him even after being sexually assaulted.

The timing of when the photos were taken does have some initial facial appeal, particularly after considering the fact that trial counsel's only stated reason for not seeking to admit the photographs was that they were taken after the incident. See Duncan v. Ornoski, 528 F.3d 1222, 1237 n. 7 (9th Cir. 2008) ("In light of the Supreme Court's admonitions that reviewing courts may not substitute their own strategic reasoning for that of trial counsel in order to find that counsel's performance was justified, we do not consider these additional speculative justifications to be Cheroske's actual reasons for declining to test Duncan's blood. See Wiggins [v. Smith], 539 U.S. [510], 526-27 [2003] ("[T]he `strategic decision' the state courts and respondents all invoke to justify counsel's limited pursuit of mitigating evidence resembles more a post hoc rationalization of counsel's conduct than an accurate description of their deliberations prior to sentencing."); see also Alcala v. Woodford, 334 F.3d 862, 871 (9th Cir. 2003) ("We will not assume facts not in the record in order to manufacture a reasonable strategic decisions for Alcala's trial counsel."); United States v. Burrows, 872 F.2d 915, 918 (9th Cir. 1989) (per curiam) (holding trial counsel deficient for failing to investigate an insanity defense partly because "the district court's assumptions that the attorney must have considered an insanity defense and might have rejected it for strategic reasons appear not to have been based on the record")).

Nevertheless, even assuming arguendo that it was an unreasonable application of the first prong of the Strickland test when the state court concluded that trial counsel's performance did not fall below an objective standard of reasonableness with respect to attempting to admit the photographs, Petitioner failed to show that denying this Claim under the Strickland prejudice prong was unreasonable. For the reasons previously discussed, the case against Petitioner included not only the testimony of Rosa, but also physical evidence which showed that a sexual assault occurred and which linked Petitioner to the crime. This included injuries in and around Rosa's genitals as well as cuts and bruises all around Rosa's body. The SART nurse testified that these injuries were consistent with trauma and that they were consistent with Rosa's story. Furthermore, Petitioner's statement to the police was inconsistent with the DNA evidence of Petitioner found in and around Rosa's anus. Finally, it is worth noting that evidence of Petitioner and Rosa's sexual relationship after the sexual assault occurred was admitted at trial. Thus, Petitioner failed to show that the adjudication of this Claim was unreasonable in determining that the outcome of the proceeding would have been different had counsel sought to admit the two dildo photographs at trial. Thus, Claim V should be denied.

F. Claim VI

In Claim VI, Petitioner makes several distinct arguments. Specifically, he argues that counsel was ineffective because he, "never consulted with a forensic expert in the field of sexual assault. He never subpoenaed records from Planned Parenthood regarding what Rosa had told Planned Parenthood about her injuries. He did not attempt to contact anyone who might have been connected to the ambulance which Rosa had said was nearby at the time of the incident." (Pet'r's Pet. at p. 34-35.) Additionally, Petitioner argues that trial counsel was ineffective for failing to subpoena any of Rosa's psychological records. (See id.)

With respect to the forensic report, Petitioner cites to a forensic report dated December 9, 2004. In the report, the forensic expert was asked whether Rosa could have transferred semen from her mouth, after oral copulation, to her rectum. The forensic expert stated in her report that:

More specific to this particular case, are the following issues:

(Pet'r's Pet. Ex. 1-EE.) Petitioner argues that by failing to call any forensic expert, it illustrates that trial counsel did not properly investigate the case because he failed to make informed decisions. (See Pet'r's Traverse at p. 32-33.)

At the outset, the expert stated that the scenarios that she presented in her report "do not realistically account for the injuries on Rosa's person as documented on the OCJP form that she alleged she received during the sexual assault including injuries to her anal area. These injuries appear consistent with her statement of events." (Pet'r's Pet. Ex 1-EE.) Even the forensic expert recognized that the physical injuries suffered by Rosa were consistent with a sexual assault. Petitioner failed to show that it was unreasonable to conclude that Petitioner did not suffer prejudice by counsel's failure to call a forensic expert. As previously explained, the prejudice prong of the Strickland test requires a substantial showing that the outcome of the proceeding would have been different, not merely that such a showing is conceivable. See Harrington, 131 S.Ct at 792. In this case, the fact that an expert stated that while it was possible to transfer semen to a dildo and then insert it into an anus after a male is orally copulated, does not establish to a reasonable probability that the outcome of the proceeding would have been different had such a defense been attempted. The physical evidence cited by the state court in finding that there was no prejudice was not an unreasonable application of clearly established federal law. While the alternative defense theory was perhaps theoretically possible, it was not unreasonable to find that the Petitioner failed to show that he was prejudiced for failing to call the forensic expert in light of the evidence against Petitioner as previously described.

Next, Petitioner argues that his trial counsel was ineffective for failing to subpoena records from Planned Parenthood regarding what Rosa had told Planned Parenthood about her injuries the day after the incident. As Petitioner admits in his traverse, "it is unknown what is in the records." Thus, Petitioner fails to show that the state court's rejection of this Claim was unreasonable. Petitioner cannot show to a reasonable probability that subpoenaing the Planned Parenthood records would have changed the outcome of the trial. Petitioner's prejudice argument is mere speculation as to what the records contained and does not rise to the level sufficient to undermine the outcome of the trial.

Petitioner also argues that trial counsel was ineffective for failing to contact anyone connected to an ambulance which Rosa said was nearby at the time of the purported assault. In his traverse, Petitioner asserts that, "[i]t is unknown if anyone connected to the ambulance witnessed the incident because Tejada failed to investigate this possibility. A reasonably competent attorney would have attempted to locate witnesses who at the time of the alleged assault were, according to [Rosa]'s testimony in the family law case, `parked like not even one block from us.'" (Pet'r's Traverse at p. 36.) However, Petitioner presents no evidence to a reasonable probability that he was prejudiced by this error. He fails to present any evidence as to what these unnamed ambulance witnesses would have stated in their trial testimony. Thus, he fails to show to show that the denial of this argument was unreasonable.

Petitioner next argues that trial counsel was ineffective when he failed to subpoena Rosa's psychological records. In his traverse, Petitioner states that "[t]he records might have contained information which could be used to impeach [Rosa]'s credibility regarding the subject assault." However, Petitioner's claim of ineffectiveness with respect to this argument is purely speculative such that he fails to show to a reasonable probability that the outcome of the proceeding would have been different had these records been subpoenaed. Furthermore, it is worth reiterating that this case was not only based on Rosa's testimony, but also on the physical evidence. The SART nurse testified at trial that Rosa's injuries were consistent with trauma and consistent with Rosa's story. Additionally, Petitioner's statement to the police upon his arrest was contradicted once his DNA was found in and around Rosa's anus.

For the foregoing reasons, Petitioner is not entitled to federal habeas relief on any of his ineffective assistance of counsel arguments within Claim VI.

G. Claim VII

In Claim VII, Petitioner argues that trial counsel was ineffective when he failed to have Petitioner testify. "[A] defendant in a criminal case has the right to take the stand and to testify in his or her own defense. Rock v. Arkansas, 483 U.S. 44, 49 (1987). Because the right is personal, it may be relinquished only by the defendant himself, and his relinquishment of that right must be knowing and intentional. See United States v. Pino-Noriega, 189 F.3d 1089, 1094 (9th Cir. 1999). However, a defendant's waiver of the right to testify need not be explicit, and may be inferred from his failure to testify or to notify the trial court of his desire to do so. See id. at 1094-95. Additionally, "[a]lthough the ultimate decision whether to testify rests with the defendant, he is presumed to assent to his attorney's tactical decision not to have him testify." United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993). "[I]f the defendant wants to testify, he can reject his attorney's tactical decision by insisting on testifying, speaking to the court, or discharging his lawyer." Id. Thus, "[w]hen a defendant remains `silent in the face of his attorney's decision not to call him as a witness,' he waives the right to testify." Pino-Noreiga, 189 F.3d at 1095 (quoting United States v. Nohara, 3 F.3d 1239, 1244 (9th Cir. 1993)); see also Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000) ("Dows argues that Egger denied him his right to testify at trial by threatening to walk out on Dows int eh middle of trial if he insisted on testifying. Again, this argument is without factual support. In its order denying Dows a new trial, Judge Martinez noted that at no time during the trial did Dows ever indicate that he wanted to testify or that he was prevented from doing so by counsel."); Gutierrez v. Subia, Civ. No. 07-742, 2008 WL 1968357, at *15-16 (C.D. Cal. Apr. 30, 2008) (finding no ineffective assistance of counsel because petitioner waived claim because there was no indication in the record that he contemporaneously made known any desire to testify during trial); McElvain v. Lewis, 283 F.Supp.2d 1104, 1118 (C.D. Cal. 2003) (finding that where petitioner remained silent when trial counsel rested without calling him as a witness that petitioner waived right to testify and cannot claim ineffective assistance of counsel due to trial counsel's failure to call him as a witness); Dewberry v. Cambra, Civ. No. 97-2408, 1998 WL 908923, at *11 (N.D. Cal. Dec. 22, 1998) (denying petitioner's claim that counsel was ineffective in advising him not to testify because petitioner did not object at trial).

Petitioner cites to several declarations to support this Claim. First, Petitioner relies on his habeas counsel's declaration in which she states that, "based on my communications with petitioner, and also, discussions [she has] had with his sisters, that petitioner was at all times, ready, willing and able to testify on his own behalf at the trial of this matter. During discussions with Tejada, Tejada advised petitioner not to testify. Petitioner adamantly disputes Tejada's contention, at the hearing on the motion for new trial, that he chose not to testify. Petitioner, was, in fact, eager to testify and to refute Rosa's allegations, but was discouraged by Tejada from doing so." (Pet'r's Pet. Ex. 1 at ¶ 10.) Petitioner's sisters also provided similar declarations. For example, Rose Ramirez stated that she "was present during conversations between petitioner and Martin Tejada regarding whether or not petitioner should testify. I heard Mr. Tejada tell petitioner that it would not be a good idea for him to testify, and that it would ruin the outcome of the trial. I never heard petitioner indicated that he did not want to testify. Petitioner at all times expressed a desire to testify in this matter." (Id. Ex. 6 at ¶ 6.) Petitioner's other sister, Maria Ruiz as well as Petitioner's friend, Alma Lopez submitted similar declarations. (See id. Ex. 7 at ¶ 6 & 8.)

Claim VII should be denied. Petitioner was silent during trial regarding his request to testify at trial. See, e.g., United States v. Edwards, 897 F.2d 445, 447 (9th Cir. 1990) ("Neither the prosecution nor the court was given any reason to think the defendant desired to testify. In such circumstances, [t]o hold that a defendant may abide by his lawyer's advice and not take the stand and then invalidate the trial because he so acted is not fair to the government.") (internal quotation marks and citation omitted); see also, Carter v. Lee, 283 F.3d 240, 249 (4th Cir. 2002) ("the advice provided by a criminal defense lawyer on whether his client should testify is a paradigm of the type of tactical decision that cannot be challenged as evidence of ineffective assistance.") (internal quotation marks and citations omitted). Petitioner remained silent when trial counsel rested without calling Petitioner as a witness. For these reasons, Petitioner fails to show that he is entitled to federal habeas relief on this ineffective assistance of counsel claim.

H. Claim VIII

In his final Claim, Petitioner argues that his trial counsel was ineffective for failing to introduce evidence of his good character. In this case, it is easier to analyze this Claim under Strickland's prejudice prong. In light of the evidence against Petitioner which included not only Rosa's testimony, but the physical manifestations of the sexual assault on Rosa, Petitioner's DNA evidence found in and around Rosa's anus, and the fact that Petitioner's statement to the police was inconsistent with this DNA finding, Petitioner failed to show that additional character evidence would have changed the outcome of the proceeding to a reasonable probability. Thus, the denial of this Claim was not unreasonable.

I. Cumulative Error

While not listed as a separate claim by Petitioner in his counseled habeas petition, Petitioner also argues that "[t]he combined effect of all the omissions was stunning and unquestionably prejudiced petitioner and deprived him of a fair trial." (Pet'r's Pet. at p. 60.) Thus, Petitioner asserts a claim of cumulative ineffective assistance of counsel based on the purported errors listed above. "Cumulative error applies where, although no single trial error examined in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors has still prejudiced a defendant." Jackson v. Brown, 513 F.3d 1057, 1085 (9th Cir. 2008). Nevertheless, as described above, Petitioner failed to show that counsel was ineffective on some of the Claims described supra. Furthermore, even assuming arguendo that the adjudication by the state court that counsel's performance was an unreasonable application of clearly established federal law, Petitioner still would not be entitled to federal habeas relief on this cumulative error argument. The evidence against Petitioner included not only Rosa's testimony regarding the sexual assault, but also the physical manifestations of the assault which the SART nurse testified to were consistent with Rosa's story. Furthermore, Petitioner provided a statement to the police that was inconsistent with the DNA evidence found in and around Rosa's anus. Accordingly, under these circumstances, Petitioner fails to show that the adjudication of this argument by the state court was an unreasonable application of clearly established federal law based on the prejudice prong.

VI. CONCLUSION

Accordingly, IT IS HEREBY ORDERED that the findings and recommendations entered March 20, 2012 is VACATED.

IT IS HEREBY RECOMMENDED that the petition for writ of habeas corpus be DENIED.

The amended findings and recommendations is submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these amended findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Amended Findings and Recommendations." Any reply to the objections shall be served and filed within seven days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In any objections he elects to file, Petitioner may address whether a certificate of appealability should issue in the event he elects to file an appeal from the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).