ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY

Re: Dkt. No. 1

EDWARD J. DAVILA, District Judge.

Petitioner Eddie Vargas, represented by counsel, has filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 challenging a judgment of conviction from Santa Clara County Superior Court. For the reasons set forth below, the Petition for a Writ of Habeas Corpus is DENIED.

PROCEDURAL HISTORY

On July 14, 1997, a jury found Petitioner guilty of first degree murder and guilty of conspiracy to commit murder, assault with a deadly weapon, intimidation of witnesses, and possession of a concealable firearm by a convicted felon. Pet. at 9. The jury also found true the criminal street gang enhancement allegations and the prior felony convictions allegation. Pet. at 9. The state trial court sentenced Petitioner to a term of sixty years to life in state prison. Pet. at 9.

On August 6, 2001, the state appellate court affirmed the judgment. Resp. Ex. 1. On November 11, 2001, the California Supreme Court denied review. Resp. Ex. 2. On October 1, 2002, Petitioner filed a pro per petition for a writ of habeas corpus in the California Supreme Court. On April 30, 2003, the petition was denied. Resp. Ex. 3.

Petitioner filed the instant pro per petition for a writ of habeas corpus on June 24, 2003. Dkt. No. 1. In July 2005, the Court granted Petitioner's motion to appoint counsel. Dkt. Nos. 140, 142. The Court stayed the case in November 2008 to allow Petitioner to exhaust new claims in state habeas proceedings, then reopened the case at Petitioner's request in November 2011. Dkt. Nos. 189, 207. In November 2012, this Court granted Petitioner's request for a new attorney. Dkt. Nos. 226, 229. On April 3, 2015, Petitioner moved to amend his habeas petition to add the now-exhausted claims. Dkt. No. 240. On August 10, 2016, this Court denied Petitioner's motion to amend, finding that Petitioner's new claims were futile because they were procedurally barred or untimely. Dkt. No. 248. Therefore, the only claims before this Court are the claims presented in Petitioner's June 24, 2003 habeas petition.

DISCUSSION

A. Factual Background

The following facts are summarized from the opinion of the California Court of Appeal. Resp. Ex. 1. Petitioner was a member of the Nuestra Familia, a prison gang founded in September 1968 by inmates at the California State Prison San Quentin. The Nuestra Familia is considered "the most organized prison gang" in the California Department of Corrections and has influence both inside and outside of prison walls. Nuestra Familia membership is a lifetime commitment. According to the Nuestra Familia constitution, leaving the gang is punishable by death. When members defect from the Nuestra Familia, they are usually labeled traitors and killed.

One objective of the Nuestra Familia is "to build the organization on the outside, become self-supporting, work with those in alliance, any and all illegal ventures to build the funds that can be utilized to take care of members behind the walls or drug deals on the streets." To accomplish that objective, the Nuestra Familia has often targeted and killed anyone who opposes the gang, including defectors and rival gang members. In the instant case, the prosecution charged a number of crimes that were committed by various members of the Nuestra Familia. Perpetrating such activities was in furtherance of the overriding purpose of the Nuestra Familia—namely, "to establish power through the use of crime, force, and fear, and to use that power to further strengthen and perpetuate itself by killing its enemies, raising money for the gang, and instilling obedience and discipline among its members."

Petitioner was charged with the murder of Elias Rosas and conspiracy to commit various crimes. Petitioner was allegedly involved in three incidents along with other Nuestra Familia affiliates such as Bobby Lopez, Jerry Salazar, Roland Saldivar, Louis Chavez, Albert Reveles, Tim Hernandez, and Ronnie Shelton. The Court provides the full summary from the California Court of Appeal's opinion:

D-9. Attempted Murder of Urango

Resp. Ex. 1 at 10-12 (some alterations in original).

B. Standard of Review

This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The writ may not be granted with respect to any claim that was adjudicated on the merits in state court 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 the State court proceeding." Id. § 2254(d).

"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the U.S. Supreme] Court on a question of law or if the state court decides a case differently than [the U.S. Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is the holdings (as opposed to the dicta) of the U.S. Supreme Court as of the time of the state court decision. Williams, 529 U.S. at 412; Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004). While circuit law may be consulted to determine whether the circuit "has already held that the particular point in issue is clearly established by U.S. Supreme Court precedent," circuit precedent cannot "refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the U.S. Supreme] Court has not announced." Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (per curiam).

"Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the U.S. Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. "Under § 2254(d)(1)'s `unreasonable application' clause, . . . a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Instead, 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." Id. at 409. The federal habeas court must presume correct any determination of a factual issue made by a state court unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

The state court decision to which § 2254(d) applies is the "last reasoned decision" of the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991). When there is no reasoned opinion from the highest state court considering a petitioner's claims, the court "looks through" to the last reasoned opinion. See id. at 805.1 When no state court opinion explains the reasons relief has been denied, "the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Harrington v. Richter, 562 U.S. 86, 98 (2011).

The U.S. Supreme Court has vigorously and repeatedly affirmed that under § 2254, there is a heightened level of deference a federal habeas court must give to state court decisions. See Dunn v. Madison, 138 S.Ct. 9, 12 (2017) (per curiam); Kernan v. Cuero, 138 S.Ct. 4, 9 (2017) (per curiam); Virginia v. LeBlanc, 137 S.Ct. 1726, 1728 (2017); White v. Wheeler, 136 S.Ct. 456, 461 (2015); Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (per curiam). As the U.S. Supreme Court has explained, on federal habeas review, § 2254 "imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt." Hardy v. Cross, 565 U.S. 65, 66 (2011) (per curiam) (quoting Felkner v. Jackson, 562 U.S. 594, 598 (2011) (per curiam) (internal quotation marks omitted)). With these principles in mind regarding the standard and limited scope of review in federal habeas proceedings, the Court addresses Petitioner's claims.

C. Claims and Analysis

Petitioner raises the following fourteen grounds for federal habeas relief:

(1) Petitioner contends that he received ineffective assistance of counsel during proceedings on the prosecution's motion to vacate his plea agreement and that his resulting sentence constitutes cruel and unusual punishment;

(2) Petitioner contends that the trial court's restrictions on testimony about the killing of Paul Farfan violated due process and Petitioner's right to confront witnesses;

(3) Petitioner contends that the trial court's restriction of the cross-examination of John Kracht violated due process and Petitioner's right to confront witnesses;

(4) Petitioner contends that the trial court's failure to instruct on second degree murder violated due process, his right to present a defense, and his right to trial by jury;

(5) Petitioner contends that the trial court's failure to instruct the jury to decide whether one or multiple conspiracies existed violated due process and his right to trial by jury;

(6) Petitioner contends that the trial court's failure to instruct the jury to unanimously agree on the facts underlying the conspiracy violated due process and his right to trial by jury;

(7) Petitioner contends that he received inadequate notice of the conspiracy charge in violation of the Sixth Amendment and due process;

(9) Petitioner contends that there was insufficient evidence to support his conviction for conspiracy to commit murder;

(10) Petitioner contends that the trial court's failure to modify the withdrawal instruction violated due process, his right to present a defense, and his right to trial by jury;

(11) Petitioner contends that his consecutive 25-years-to-life sentences for murder and conspiracy to commit murder violated his right to trial by jury and due process;

(12) Petitioner contends that his visible shackling throughout the trial violated his right to an impartial jury and due process;

(13) Petitioner contends that he received ineffective assistance of counsel at multiple points during the litigation; and

(14) Petitioner contends that he was denied his Sixth Amendment right to present a defense of his choosing.

Each claim is analyzed in turn below.

1. Proceedings on motion to vacate Petitioner's plea agreement

Petitioner's first claim relates to the proceedings on the prosecution's motion to vacate

Petitioner's plea agreement. In March 1993, Petitioner entered into a plea agreement to cooperate with the prosecution. Pet. at 8. The relevant proceedings began in July 1994, when the prosecution moved to vacate Petitioner's plea agreement on the ground that Petitioner had violated the agreement by providing false material information. Resp. Ex. 1 at 19. In granting the prosecution's motion, the trial court relied in part on the results of a polygraph examination of Petitioner, which all of the attorneys—including Petitioner's attorney—had agreed to admit. Resp. Ex. 1 at 19-20. Although Petitioner challenged the propriety of vacating his plea agreement before the California Court of Appeal, he does not renew that challenge here. Instead, he maintains that his attorney provided ineffective assistance of counsel under the Sixth Amendment by failing to conduct an adequate investigation into whether Petitioner would pass a polygraph examination before agreeing to admission. Pet. at 9-10. Petitioner also claims that his resulting sentence of 60 years to life constitutes cruel and unusual punishment under the Eighth Amendment. Pet. at 10-11. The Court addresses these claims in turn.

a. Sixth Amendment right to effective assistance of counsel

The California Court of Appeal rejected Petitioner's ineffective assistance claim, explaining:

Resp. Ex. 1 at 23-25 (some alterations in original) (some citations omitted).

A claim for ineffective assistance of counsel is subject to the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). First, Petitioner must demonstrate that counsel's performance was deficient, i.e., that it "so undermined the proper functioning of the adversarial process that the [proceedings] cannot be relied on as having produced a just result." Id. at 686-87. In making that assessment, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689 (citation omitted). Second, Petitioner must demonstrate that counsel's deficient performance prejudiced him, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The U.S. Supreme Court has described Strickland as imposing a "highly demanding" standard which requires the Petitioner to show "gross incompetence" of his attorney. Kimmelman v. Morrison, 477 U.S. 365, 382 (1986).

Here, the California Court of Appeal did not unreasonably apply Strickland in concluding that Petitioner failed to show that his lawyer's performance was deficient. Petitioner makes the bare assertion that "reasonably competent counsel would not stipulate to the admission of polygraph results without first conducting some investigation to ensure that the stipulated evidence would be favorable to [Petitioner]." Pet. at 11. In particular, Petitioner pinpoints his counsel's failure to "conduct[] a preliminary polygraph examination" of Petitioner. Pet. at 10. But Petitioner does not identify any U.S. Supreme Court authority requiring counsel to perform this specific type of investigation.

And Petitioner's counsel supplies a legitimate basis for his decision. He believed that conducting a preliminary polygraph examination was a bad strategic move. In particular, Petitioner's counsel thought that he would not be able to conduct a secret preliminary polygraph examination of Petitioner in jail. Resp. Ex. 23. Therefore, if Petitioner's counsel conducted the preliminary polygraph and Petitioner failed, a subsequent refusal to submit to the prosecution's requested polygraph could be seen as failure to cooperate and violate Petitioner's plea agreement. Resp. Ex. 23; Resp. Ex. 8, CT 1301-04. Moreover, Petitioner's counsel had reason to believe that Petitioner would pass the polygraph. In an earlier meeting with the prosecution, Petitioner had agreed to take a polygraph examination. Resp. Ex. 23. When the judge suggested using a polygraph examination for the hearing on the motion to vacate Petitioner's plea agreement, Petitioner said that he would pass the test. Resp. Ex. 23; Resp. Ex. 6, RT 17740 ("[Petitioner] said he knew all about polygraphs, he had taken them before and that he could handle it, he could pass it."). Thus, taking into account "counsel's conversations with the [Petitioner]," Strickland, 466 U.S. at 691, Petitioner's counsel stated that he believed Petitioner could pass the examination if he told the truth. Resp. Ex. 23. And Petitioner's counsel conducted the important investigative steps of confirming the qualifications of the polygraph operator to ensure that the results would be accurate. Resp. Ex. 23. In these circumstances, the Court of Appeal did not unreasonably determine that Petitioner's counsel made an informed tactical decision, especially when Petitioner presented minimal evidence to overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. Petitioner is not entitled to habeas relief on this claim.

b. Eighth Amendment prohibition on cruel and unusual punishment

The California Court of Appeal also rejected Petitioner's Eighth Amendment claim, explaining:

Resp. Ex. 1 at 23.

It is established that, under the Eighth Amendment's prohibition against cruel and unusual punishment, a sentence that is grossly disproportionate to the crime is unconstitutional. See Solem v. Helm, 463 U.S. 277, 288 (1983); see also Lockyer v. Andrade, 538 U.S. 63, 72 (2003) ("Through this thicket of Eighth Amendment jurisprudence, one governing legal principle emerges as `clearly established' under § 2254(d)(1): A gross disproportionality principle is applicable to sentences for terms of years."). The U.S. Supreme Court cases, however, are unclear about what factors inform or signify gross disproportionality. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 965 (1991) (opinion of Scalia, J.); id. at 998 (Kennedy, J., concurring in part and concurring in the judgment); Solem, 463 U.S. at 294; see also Lockyer, 538 U.S. at 72 ("Our cases exhibit a lack of clarity regarding what factors may indicate gross disproportionality.").

The California Court of Appeal did not unreasonably apply federal law in concluding that Petitioner's sentence does not violate the Eighth Amendment. Petitioner conceded before the Court of Appeal (and concedes here) that "[a] sentence of 60 years to life for murder and conspiracy is not per se cruel and unusual." Pet. at 12. Given that proportionality is measured against the crime committed, Solem, 463 U.S. at 288, that concession would appear to end the matter. Petitioner nevertheless argues that his sentence is grossly disproportionate to the sentence that he would have received under the plea agreement and the sentence that other defendants in this case received under their plea agreements. Pet. at 12-13. No cited Supreme Court precedent authorizes such comparisons for determining gross disproportionality under the Eighth Amendment. As the California Court of Appeal observed, evaluating Petitioner's ultimate sentence against the sentence he would have received under his plea agreement is particularly unwarranted because the plea agreement was properly vacated. Resp. Ex. 1 at 23. Moreover, Petitioner's actual sentence of 60 years to life for murder and conspiracy does not appear grossly out of line with some of the comparator defendants, such as Shelton whose plea called for a sentence of 100 years to life for four murders and Salazar whose plea called for a minimum sentence of 50 years to life. Resp. Ex. 6, RT 10006, 13023. Petitioner has not demonstrated entitlement to habeas relief on his Eighth Amendment claim.

2. Examination of witnesses about the killing of Paul Farfan

Petitioner's second claim is that the trial court improperly precluded Petitioner from conducting direct and cross-examinations about the killing of Paul Farfan. Pet. at 13. Petitioner contends that cooperating witness Salazar would have testified that non-witness Vincent Arroyo ordered Farfan's murder, whereas Arroyo would have denied that he authorized the murder. Pet. at 13. In Petitioner's view, that inconsistency would have undermined Salazar's credibility and would have shown that the prosecution knowingly presented false testimony. Pet. at 13-15. Petitioner argues that prohibiting this testimony was a violation of Petitioner's Sixth Amendment right to confront witnesses and his Fourteenth Amendment right to due process. Pet. at 14.

The California Court of Appeal rejected Petitioner's claim, explaining:

Resp. Ex. 1 at 25-34 (some alterations in original) (citations omitted).

In some circumstances, a trial court's restrictions on a defendant's presentation of evidence may violate the defendant's right to present a defense. That is because, "[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the . . . Confrontation [Clause] of the Sixth Amendment, the Constitution guarantees criminal defendants `a meaningful opportunity to present a complete defense.'" Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citations omitted). The right to present evidence, however, is not absolute. See Taylor v. Illinois, 484 U.S. 400, 410 (1988) ("The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence."). Although the defense must be given a chance to expose an adverse witness's motivation in testifying, the trial judge retains "wide latitude" to "impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).

The California Court of Appeal did not unreasonably apply federal law in holding that the trial court did not violate Petitioner's right to present a defense by circumscribing any questioning about the killing of Farfan. Petitioner relies upon two U.S. Supreme Court cases, Crane and Van Arsdall, which involved situations where the circumstances more compellingly outweighed the state's interest in trial administration. In Crane, the Supreme Court concluded, "on the facts of th[e] case," that the state deprived the defendant of the opportunity to present his defense when the state offered no valid justification for "the blanket exclusion" of "competent, reliable evidence" that pertained to "the credibility of [the defendant's] confession" and, thus, was "central to the defendant's claim of innocence." 476 U.S. at 690. The Court highlighted the "peculiar circumstances of th[e] case," in which the defendant's "entire defense was that there was no physical evidence to link him to the crime and that, for a variety of reasons, his earlier admission of guilt was not to be believed." Id. at 691. In Van Arsdall, the Supreme Court found constitutional error because "the trial court prohibited all inquiry into the possibility that [the prosecution's witness] would be biased as a result of the State's dismissal of his pending public drunkenness charge." 475 U.S. at 679. While recognizing that the defense is not entitled to put on any cross-examination that it wishes, the Court explained that the trial court violated the defendant's rights when the court "cut[] off all questioning about an event that the State conceded had taken place and that a jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony." Id.

It is not unreasonable to characterize Petitioner's case as materially different from Crane and Van Arsdall. Here, the trial judge had a sufficient non-arbitrary basis to bar Petitioner's questioning under section 352 of the California Evidence Code, which permits exclusion for undue consumption of time on a collateral issue. Petitioner's proposed questions were designed to cast doubt on Salazar's credibility by demonstrating a conflict between Salazar's and Arroyo's stories about who, if anyone, had ordered a hit on Farfan. However, the prosecution did not call Arroyo as a witness, so his version of events was not before the jury. And the prosecution was ready to prove that Salazar's version of events was the correct one. Thus, allowing Petitioner's questioning would have required a mini-trial on the killing of Farfan, "a crime with which [Petitioner] was not charged," and these significant diversions would likely result in "jury confusion and inordinate consumption of time." Resp. Ex. 1 at 33. This case is unlike Van Arsdall because the questioning there related to an event that the prosecution conceded had taken place. In this case, moreover, Petitioner cross-examined Salazar on a number of other topics and had ample opportunity to argue that Salazar was lying. Therefore, introducing this testimony was not as necessary as probing the motive of the prosecution's witness in Van Arsdall or attacking the credibility of the defendant's confession in Crane. Indeed, in other cases, the Supreme Court has expressed particular concern when the state rule is so broad as to prevent the admission of "the only testimony available on a crucial issue." Washington v. Texas, 388 U.S. 14, 21 (1967). The California Court of Appeal could reasonably credit these relevant differences between Petitioner's case and the cited Supreme Court cases.

Petitioner separately contends that the trial court's exclusion was constitutionally improper because it prevented Petitioner from showing that the prosecution presented Salazar's testimony despite knowing that he was lying. It is true that a state violates due process when it knowingly presents false evidence to obtain a conviction. See Napue v. Illinois, 360 U.S. 264, 269 (1959); see also Giglio v. United States, 405 U.S. 150, 153-54 (1972). Petitioner cannot, however, make out such a claim here. Although the prosecution entered into plea agreements with both Salazar and Arroyo, the prosecution did not call Arroyo as a witness, so the issue of whether Salazar or Arroyo was telling the truth did not (and could not) arise at trial.2 And if the trial court allowed Petitioner to admit testimony about the Farfan homicide, the prosecution intended to prove that Salazar, not Arroyo, was telling the truth. Therefore, as the California Court of Appeal reasoned, the prosecution did not knowingly present any false testimony. Resp. Ex. 1 at 34. Accordingly, the Court of Appeal did not unreasonably determine that the exclusion of Petitioner's Farfan-related questions did not violate his Sixth and Fourteenth Amendment rights, and Petitioner is not entitled to habeas relief on this claim.

3. Cross-examination of John Kracht

Petitioner's third claim is that the trial court unduly restricted the scope of cross-examination of one of the prosecution's witnesses, investigator John Kracht. Pet. at 15-16. Specifically, the trial court ruled that Petitioner's questions about whether Kracht closed an investigation into a robbery involving Pablo Pena were irrelevant and tangential. Resp. Ex. 1 at 36-37. Petitioner asserts that these limitations violated his Sixth Amendment right to confront witnesses and his Fourteenth Amendment right to due process. Pet. at 15.

The California Court of Appeal rejected Petitioner's claim, explaining:

Resp. Ex. 1 at 34-37 (some alterations in original) (citation omitted).

As spelled out above, the question whether a trial court so restricted a defendant's presentation of evidence as to violate the right to present a defense implicates competing considerations. On the one hand, the Sixth and Fourteenth Amendments "guarantee[] criminal defendants `a meaningful opportunity to present a complete defense.'" Crane, 476 U.S. at 690 (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). In the context of impeachment, the defense must be given "reasonable latitude" to cross-examine witnesses in order "to place the witness in his proper setting and put the weight of his testimony and his credibility to a test." Smith v. Illinois, 390 U.S. 129, 132 (1968) (quoting Alford v. United States, 282 U.S. 687, 692 (1931)). On the other hand, trial judges retain "wide latitude" to "impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Van Arsdall, 475 U.S. at 679; see also United States v. Scheffer, 523 U.S. 303, 308 (1998) ("A defendant's right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions."). State rules excluding evidence from criminal trials therefore "do not abridge an accused's right to present a defense" as long as they are not arbitrary or disproportionate. Scheffer, 523 U.S. at 308.

The California Court of Appeal did not unreasonably apply these cases in concluding that the trial court did not unduly restrict the scope of Petitioner's cross-examination of Kracht. In sustaining the objections to Petitioner's cross-examination questions, the trial court relied on sections of the California Evidence Code that allow exclusion for lack of relevance and undue consumption of time on a collateral issue. And the trial court's rulings in those regards are reasonable, non-arbitrary limits on the scope of cross-examination because Petitioner sought to ask questions that had minimal, if any, relevance. The prosecution's theory of the case was that Petitioner's motive to have Rosas killed was that Rosas had snitched on a Nuestra Familia member, Pena, by identifying him as the perpetrator of a robbery. Petitioner desired to cross-examine investigator Kracht about the disposition of Pena's robbery prosecution—namely, that Kracht had closed the case and that Kracht had not appeared or testified at a trial involving the robbery. However, the fact that Pena was not prosecuted for robbery does not answer whether Rosas knew that Pena committed the robbery or whether Rosas identified Pena as the robber. The Court of Appeal documented other ways that Rosas could have known of Pena's involvement— including that Rosas was present during the robbery and that Pena shared that information in prison—and pointed to evidence supporting the conclusion that Petitioner ordered Rosas's murder for snitching on Pena. Resp. Ex. 1 at 36. The prosecution also presented evidence that Petitioner confessed that he ordered Rosas's murder because "[Rosas] had some situation with [Pena]." Resp. Ex. 1 at 36. Accordingly, the Court of Appeal did not unreasonably determine that the exclusion of Petitioner's cross-examination questions did not violate his Sixth and Fourteenth Amendment rights, and Petitioner is not entitled to habeas relief on this claim.

4. Failure to instruct on second degree murder

Petitioner's fourth claim is that, based on the substantial evidence that Petitioner acted in a rash manner in responding to a call from Chavez, the trial court had a sua sponte duty to instruct the jury on second degree murder. Pet. at 16-17. According to Petitioner, the trial court's failure to instruct amounted to a violation of his Sixth Amendment right to present a defense and to a trial by an impartial jury as well as his Fourteenth Amendment right to due process. Pet. at 17.

The California Court of Appeal rejected Petitioner's claim, explaining:

Resp. Ex. 1 at 37-40 (some alterations in original) (citations omitted).

In some circumstances, failure to give requested instructions violates due process. Specifically, the U.S. Supreme Court has held that in a capital case, where the evidence supports a verdict on a lesser-included offense, failure to instruct a jury on that lesser-included offense constitutes a violation of due process. Hopper v. Evans, 456 U.S. 605, 610-11 (1982); Beck v. Alabama, 447 U.S. 625, 634-38 (1980). However, the Supreme Court has limited application of that rule to the capital context. In 1973, the Court explained that it "ha[d] never explicitly held that the Due Process Clause of the Fifth Amendment guarantees the right of a defendant to have the jury instructed on a lesser included offense." Keeble v. United States, 412 U.S. 205, 213 (1973). When the Court later held that due process requires giving such an instruction in capital cases, the Court made clear that it was "not decid[ing] whether the Due Process Clause would require the giving of such instructions in a noncapital case." Beck, 447 U.S. at 638 n.14. Based on those express reservations, the California Court of Appeal could reasonably decline to extend Hopper and Beck to this noncapital case. Therefore, the Court of Appeal did not unreasonably apply Hopper or Beck in concluding that the trial court did not deprive Petitioner of due process by refusing to instruct the jury on second degree murder.3

Petitioner also cites two Ninth Circuit decisions—United States v. Escobar de Bright, 742 F.2d 1196, 1201-02 (9th Cir. 1984), and United States v. Unruh, 855 F.2d 1363, 1372 (9th Cir. 1987)—for the proposition that "[f]ailure to instruct upon the defendant's theory of the case, where there is evidence to support the instruction, is a violation of the Sixth Amendment right to present a defense and to a trial by jury, and the Fourteenth Amendment right to due process." Pet. at 17. As noted above, circuit precedent cannot "refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the U.S. Supreme] Court has not announced." Marshall, 569 U.S. at 64. Escobar de Bright and Unruh were both direct appeals, and neither purports to hold that the U.S. Supreme Court has "clearly established" that failing to instruct on the defendant's theory is a constitutional violation, let alone that that rule derives from U.S. Supreme Court precedent at all. These cases cannot serve as the basis for granting habeas relief to Petitioner. See Marshall, 569 U.S. at 64.

In any event, even if the above-referenced cases applied in this instance, Petitioner would not be entitled to habeas relief. All of the cases hold that an instruction is necessary only if the evidence supports a verdict on a lesser-included offense, but, as the California Court of Appeal reasoned, the evidence in Petitioner's case does not support a verdict on second degree murder. Petitioner points to only two facts in the record: (1) he was in bed when the three-way call came in and (2) he told Chavez on the phone, "You know what time it is, Louie? You shouldn't even have to make this call." Resp. Ex. 6, RT 17373, 12221. On their own, those facts do not indicate that Petitioner "was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment." People v. Lee, 971 P.2d 1001, 1007 (Cal. 1999) (citation omitted). Moreover, the California Court of Appeal detailed the other facts, including testimony from multiple witnesses that Petitioner had ordered the hit on Rosas and testimony from one witness that Petitioner had admitted to authorizing the murder, that strongly support premeditation and deliberation, not rashness. Accordingly, Petitioner has not shown entitlement to habeas relief on this claim.

5. Failure to instruct jury to decide whether one or multiple conspiracies existed

Petitioner's fifth claim is that the trial court erred when it failed to instruct (and therefore the jury did not decide) whether one or multiple conspiracies existed. Pet. at 17-18. Petitioner's argument appears to be that his Sixth Amendment right to trial by jury and his Fourteenth Amendment right to due process were violated because the jury did not determine a material fact necessary for guilt—namely, whether there was one conspiracy or multiple conspiracies. Pet. at 17-18.

The California Court of Appeal rejected Petitioner's claim, explaining:

Resp. Ex. 1 at 40-49 (some alterations in original) (citations omitted).

The constitutional basis for Petitioner's claim is unclear. Petitioner asserts that the trial court should have directed the jury to decide whether one conspiracy or multiple conspiracies existed. He points to the U.S. Supreme Court's decision in In re Winship, which holds that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." 397 U.S. 358, 364 (1970). The Court fails to see how that holding is implicated in Petitioner's case. As the California Court of Appeal noted, the prosecution charged Petitioner with only one count of conspiracy. Such charging decisions generally are not reviewable. United States v. Armstrong, 517 U.S. 456, 464 (1996). Because Petitioner was charged with only one count of conspiracy and the prosecution's theory of the case was that there was a single conspiracy, the jury did not need to decide whether there were multiple conspiracies. Instead, the jury was asked to determine whether the prosecution had established beyond a reasonable doubt the elements of a single conspiracy, and the jury returned a verdict that the prosecution met its burden. Thus, the jury found all facts necessary to constitute the crime of conspiracy under the applicable standard.

More broadly, Petitioner seems to contest the California Court of Appeal's holding that the facts of Petitioner's case qualify as a single conspiracy. Pet. at 18-20. But Petitioner does not explain how that challenge presents a constitutional issue. Although the Constitution requires that each necessary element of the offense be proven beyond a reasonable doubt, "the state legislature's definition of the elements of the offense is usually dispositive." McMillan v. Pennsylvania, 477 U.S. 79, 85 (1986). Here, the Court of Appeal interpreted the California crime of conspiracy to encompass an agreement to commit multiple object offenses. Based on that understanding of state law, Petitioner was not entitled to have the jury instructed in the manner he asserted. Finally, Petitioner cannot override the Court of Appeal's state-law decision by asking this Court to apply the non-constitutional methodologies for distinguishing between conspiracies used by the Supreme Court in Kotteakos v. United States, 328 U.S. 750, 754-55 (1946), or the Ninth Circuit in United States v. Zemek, 634 F.2d 1159, 1167-68 (9th Cir. 1980). Petitioner's challenge to the conspiracy instruction fails, and he is not entitled to habeas relief on this claim.

6. Failure to provide unanimity instruction

Petitioner's sixth claim is that the trial court erred when it failed to instruct the jury to unanimously agree on the facts underlying the conspiracy. Pet. at 20-22. Without such a unanimity instruction, Petitioner contends, it is "impossible to determine whether the jury unanimously agreed as to whom [Petitioner] conspired to murder." Pet. at 21. Petitioner argues that his Sixth Amendment right to trial by jury and his Fourteenth Amendment right to due process were violated because the jury may not have unanimously agreed that Petitioner committed each element of the underlying conspiracy charge. Pet. at 21.

The California Court of Appeal rejected Petitioner's claim, explaining:

Resp. Ex. 1 at 49-57 (some alterations in original) (citations omitted).

It is axiomatic that due process and the right to trial by jury "require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." United States v. Gaudin, 515 U.S. 506, 510 (1995); Patterson v. New York, 432 U.S. 197, 204 (1977). Although state criminal defendants have no federal right to a unanimous jury verdict (at least in noncapital cases), Johnson v. Louisiana, 406 U.S. 356, 359 (1972), the California Constitution requires jury unanimity in a criminal prosecution, Cal. Const. art. I, § 16. At bottom, Petitioner here does not challenge jury unanimity, but instead the California Court of Appeal's interpretation of California conspiracy law. On this point, the Supreme Court has instructed that jurors are not "required to agree upon a single means of commission" of a crime and that federal courts generally may not "substitute [their] own interpretations of state statutes for those of a State's courts." Schad v. Arizona, 501 U.S. 624, 631, 636 (1991) (plurality opinion).

Here, the California Court of Appeal fully detailed why the jury did not need to agree on whom Petitioner conspired to murder. Specifically, the Court of Appeal explained that "the specific crimes that constitute the object of the conspiracy are not elements of the conspiracy." Petitioner cites to the California Supreme Court's holding that "[a] requirement of jury unanimity typically applies to acts that could have been charged as separate offenses." People v. Beardslee, 806 P.2d 1311, 1323 (Cal. 1991). However, the Court of Appeal confronted Beardslee and described why, on the facts of Petitioner's case, the jury was properly instructed. Indeed, the California Court of Appeal has previously recognized that "the [unanimity] instruction as to a single act need not be given where the acts proved are just alternate ways of proving a necessary element of the same offense." People v. Mitchell, 232 Cal.Rptr. 438, 441 (Ct. App. 1986) (internal quotation marks and citation omitted). As Petitioner acknowledges in his supplemental points in support of traverse, his argument here overlaps with his argument that the trial court was required to instruct on multiple conspiracies, Supp. Traverse 16, an argument which the Court has addressed above.

Moreover, the California Court of Appeal rejected Petitioner's argument on another legitimate basis, which Petitioner does not challenge here. Specifically, the Court of Appeal concluded that any error was invited by Petitioner. Resp. Ex. 1 at 55. Petitioner could overcome this failure to comply with California's procedural rule only by demonstrating cause and prejudice or a fundamental miscarriage of justice, Coleman v. Thompson, 501 U.S. 722, 750 (1991), neither of which he has tried to show. Accordingly, Petitioner is not entitled to habeas relief on this claim.

7. Notice of charges

Petitioner's seventh claim is that the prosecution did not reveal until well after the start of trial that it was relying on "overt acts alleging crimes against Alfonso Urango and James Esparza." Pet. at 23. According to Petitioner, the prosecution's delay deprived him of adequate notice of the charges against him, in violation of the Sixth Amendment and his Fourteenth Amendment right to due process. Pet. at 23.

The California Court of Appeal rejected Petitioner's claim, explaining:

Resp. Ex. 1 at 57-58.

The Sixth Amendment states that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation." U.S. Const. amend. VI. Similarly, as a matter of due process, it is "clearly established . . . that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts." Cole v. Arkansas, 333 U.S. 196, 201 (1948); In re Oliver, 333 U.S. 257, 273 (1948) ("A person's right to reasonable notice of a charge against him . . . [is] basic in our system of jurisprudence. . . .").

Here, the California Court of Appeal did not unreasonably apply these broad principles in deciding that Petitioner had adequate notice of the nature and charges against him. In many ways, Petitioner's case mimics Lopez v. Smith, 135 S.Ct. 1 (2014) (per curiam), where the U.S. Supreme Court found habeas relief unwarranted. In that case, the prosecution charged the defendant with murder, a charge which encompassed both principal and aider-and-abettor liability, but focused at trial on the defendant's liability as a principal. Id. at 2. At the close of evidence, the prosecution requested an aiding-and-abetting instruction, which the trial court gave. Id. The Ninth Circuit granted habeas relief, concluding that the defendant's "Sixth Amendment and due process right to notice had been violated because . . . the prosecution (until it requested the aiding-and-abetting jury instruction) had tried the case only on the [principal liability] theory." Id. at 3. The U.S. Supreme Court reversed. The Court reasoned that "the general proposition that a defendant must have adequate notice of the charges against him" was "too abstract to establish clearly the specific rule [the defendant] need[ed]." Id. at 4.

The same is true here. Petitioner does not dispute, nor could he, that he "was on notice that he was charged with conspiracy to commit murder and assault with a deadly weapon by the omnibus conspiracy count of the indictment." Pet. at 22-23. Rather, he contends that he did not receive notice because the indictment and grand jury proceedings did not mention as an overt act anything relating to the attempts to kill Urango and Esparza. Pet. at 23. Petitioner cites no Supreme Court authority requiring such specificity. As the California Court of Appeal noted, the specific crimes that constitute the object of the conspiracy "are not elements of the conspiracy" but "only the means by which the purpose of the conspiracy was to be achieved." Resp. Ex. 1 at 57. In these circumstances, the Court of Appeal could reasonably conclude that failing to include information specific to Urango and Esparza did not undermine Petitioner's notice of the conspiracy charge. Moreover, in at least one respect, this case is less egregious than Lopez: the prosecution here did not simply request an instruction at the close of trial; rather, the prosecution discussed the Urango and Esparza incidents in its opening statement and introduced evidence during its case-in-chief. On those facts, the California Court of Appeal reasonably determined that Petitioner had "notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge." Cole, 333 U.S. at 201.

In Lopez, the U.S. Supreme Court also distinguished the exact authorities that Petitioner relies on here. First, the Court explained that the decision in Lankford v. Idaho, 500 U.S. 110 (1991), "addressed whether a defendant had adequate notice of the possibility of imposition of the death penalty—a far different question from whether respondent had adequate notice of the particular theory of liability." Lopez, 135 S. Ct. at 4. The Court further differentiated Lankford on the ground that "the trial court itself made specific statements that encouraged the defendant to believe that the death penalty was off the table." Id. Those grounds apply with equal force in the instant case. Second, the Court stated that the Ninth Circuit decision in Sheppard v. Rees, 909 F.2d 1234 (9th Cir. 1989), cannot form the basis for federal habeas relief because circuit precedent may not be used to "refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the] Court has not announced." Lopez, 135 S. Ct. at 4 (quoting Marshall, 569 U.S. at 64). The Ninth Circuit's decision in Sheppard does not directly address the issue presented in this case. See id. Therefore, for essentially the same reasons stated in Lopez, Petitioner is not entitled to habeas relief on this claim.

8. Vagueness

Petitioner's eighth claim is that his conviction for conspiracy to commit murder is unconstitutionally vague and generic. Pet. at 24-25. Specifically, he argues that because "there is no way of saying when he agreed to kill, with whom he agreed, how he agreed, or even whom he agreed to kill," it cannot be discerned whether "the jury relied on any specific illegal conduct." Pet. at 24.

The California Court of Appeal rejected Petitioner's claim, explaining:

Resp. Ex. 1 at 58.

As noted above, in at least some circumstances, a state may constitutionally submit multiple theories of criminal liability to a jury without requiring unanimity on any one of them. Schad, 501 U.S. at 631 (plurality opinion). States do not have free rein to define different courses of conduct as alternative means of committing a single offense, however. Id. at 632. Rather, the Due Process Clause mandates that "no person may be punished criminally save upon proof of some specific illegal conduct." Id. at 633. For example, a state may not "convict anyone under a charge of `Crime' so generic that any combination of jury findings of embezzlement, reckless driving, murder, burglary, tax evasion, or littering, for example, would suffice for conviction." Id.

The California Court of Appeal reasonably concluded that Petitioner's conviction stayed within these constitutional bounds. Petitioner repeats his argument that "there is no way of saying when he agreed to kill, with whom he agreed, how he agreed, or even whom he agreed to kill." Pet. at 24. The Court of Appeal again explained that Petitioner's conviction was based on a specific theory of criminal conduct under the non-generic crime of conspiracy, which does not require the jury to be unanimous on whom Petitioner conspired to kill. Resp. Ex. 1 at 58. The instant case is also materially different than Petitioner's cited authority, Suniga v. Bunnell, 998 F.2d 664 (9th Cir. 1993). In that case, unlike here, due process was implicated because the defendant "could [have] be[en] found guilty of murder on a non-existent legal theory." Id. at 669. Thus, even considering Petitioner's Ninth Circuit case, he has not shown entitlement to habeas relief on this claim.

9. Sufficiency of the evidence

Petitioner's ninth claim is that there was insufficient evidence to support his conviction for conspiracy to commit murder. Pet. at 25-27. Again emphasizing that the jury was not asked to identify the target of Petitioner's conspiracy, Petitioner argues that his conviction violates due process because "this Court cannot determine whether or not the jury found him guilty of conspiring to kill a person for whom there is constitutionally sufficient evidence in support of the conviction." Pet. at 25 (capitals omitted).

The California Court of Appeal rejected Petitioner's claim, explaining:

Resp. Ex. 1 at 58-59 (citation omitted).

Evidence is constitutionally sufficient to support a conviction when, "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam) ("[I]t is the responsibility of the jury—not the court—to decide what conclusions should be drawn from evidence admitted at trial."). The reviewing court presumes that the trier of fact resolved any factual conflicts in the record in favor of the prosecution and defers to that resolution. Jackson, 443 U.S. at 326. The U.S. Supreme Court has "made clear that [sufficiency-of-the-evidence] claims face a high bar in federal habeas proceedings." Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam).

Here, the California Court of Appeal's determination that sufficient evidence supported Petitioner's conspiracy conviction was not objectively unreasonable. The Court of Appeal explained that because there was no record evidence that Petitioner participated in or was present during the Rosas murder, the jury's determination that Petitioner was guilty of the Rosas murder necessarily demonstrates that sufficient evidence supports that Petitioner conspired to kill Rosas. Resp. Ex. 1 at 59. Indeed, Petitioner does not challenge the sufficiency of the evidence supporting his murder conviction, which included testimony that, in a three-way telephone conversation, Petitioner approved Rosas's murder and gave Chavez the authority to call the hit and testimony that, in prison, Petitioner admitted to ordering the murder. See, e.g., Resp. Ex. 6, RT 12220. Petitioner suggests that because the Court lacks an explicit indication about the jury's theory, the jury's verdict could have rested on an unsupported ground. Pet. at 26. But Petitioner does not identify any affirmative indication that the jury relied on an inadequate ground, and the Court of Appeal followed well settled state and federal law espousing the general rule that "[w]hen a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, . . . the verdict stands if the evidence is sufficient with respect to any one of the acts charged." Griffin v. United States, 502 U.S. 46, 56-57 (1991) (quoting Turner v. United States, 396 U.S. 398, 420 (1970)); see also People v. Guiton, 847 P.2d 45, 52 (Cal. 1993) ("If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground."). In any event, Petitioner does not develop an argument that the other grounds that could support his conviction (such as conspiracy to kill Urango and Esparza) are unsupported by substantial evidence.

Petitioner raises two additional points. First, he suggests that his conviction could not rest on a conspiracy to murder Rosas because he received a separate punishment for the murder. Pet. at 25-26. That issue goes to sentencing, not to the sufficiency of the evidence supporting his conviction. The Court analyzes that argument below. Second, Petitioner argues that to the extent his conviction was based on gang membership alone, the conviction violates due process. Specifically, he cites the Ninth Circuit's statement in United States v. Garcia, 151 F.3d 1243, 1246 (9th Cir. 1998), that "evidence of gang membership cannot itself prove that an individual has entered a criminal agreement to attack members of rival gangs." First and foremost, Garcia cannot serve as the basis for habeas relief because it is not a decision of the Supreme Court and does not purport to hold that the U.S. Supreme Court has "clearly established" the stated rule. See Marshall, 569 U.S. at 64. Moreover, the California Court of Appeal did not insinuate that Petitioner's membership in Nuestra Familia alone was enough to show an agreement to accomplish a specific illegal objective; rather, the Court described the defendants' agreement to commit specific crimes to advance "the overriding purpose of the [Nuestra Familia], which was to establish power through the use of crime, force, and fear, and to use that power to further strengthen and perpetuate itself by killing its enemies, raising money for the gang, and instilling obedience and discipline among its members." Resp. Ex. 1 at 45. Accordingly, Petitioner has not shown entitlement to habeas relief on the basis of insufficiency of the evidence.

10. Failure to modify withdrawal instruction

Petitioner's tenth claim is that the trial court should have modified California Jury Instructions—Criminal ("CALJIC") No. 6.20, which describes how a member of a conspiracy may effectively withdraw from the conspiracy, before giving it to the jury in this case. Pet. at 27. Specifically, he contends that the instruction could be misread to require oral communication for withdrawal, even though the law clearly allows withdrawal by a non-verbal affirmative act. Pet. at 27. He argues that this instructional error interfered with his Sixth Amendment right to present a defense and to trial by jury and violated his due process rights under the Fourteenth Amendment. Pet. at 28.

The California Court of Appeal rejected Petitioner's claim, explaining:

Resp. Ex. 1 at 59-61 (some alterations in original).

Although instructional errors are cognizable in federal habeas corpus, they "generally may not form the basis for federal habeas relief." Gilmore v. Taylor, 508 U.S. 333, 344 (1993). It is not enough that the instruction was incorrect as a matter of state law. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). Habeas relief is available if "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). Where the charge as a whole is ambiguous, the question is whether there is a "reasonable likelihood" that the jury misapplied the instruction in a way that violated the defendant's constitutional rights. Estelle, 502 U.S. at 72 (quoting Boyde v. California, 494 U.S. 370, 380 (1990)).

The California Court of Appeal did not unreasonably apply federal law when it concluded that CALJIC No. 6.20 could not be misinterpreted to mean that a defendant can withdraw from a conspiracy only by verbal communication. CALJIC No. 6.20 states: "In order to effectively withdraw from a conspiracy, there must be an affirmative and good faith rejection or repudiation of the conspiracy which must be communicated to the other conspirators of whom he has knowledge." Under the instruction, the defendant must "communicate[]" an "affirmative" rejection or repudiation to the other known conspirators. But nothing in the instruction specifies or suggests that the defendant must orally communicate the withdrawal; the instruction does not use a word like "verbal" or "oral" at all. Instead, the instruction covers non-verbal "affirmative" acts that "communicate[]" the defendant's withdrawal to his coconspirators. With no identified error of state law in the instruction, it was not unreasonable to conclude that a jury could not have been misled.

Petitioner repeats his argument that two Ninth Circuit cases—Escobar de Bright and Unruh—hold that failure to instruct on the defense's theory is an error of constitutional magnitude. Pet. at 28. For the reasons stated above, this circuit precedent cannot give rise to habeas relief in Petitioner's case. Even if Escobar de Bright and Unruh were held to apply here, those cases do not provide defendants with an unfettered right to the instructions of their choice. Rather, the holdings in those cases are tempered by the established rule that "the refusal to give a requested instruction will not be overturned `if the charge as a whole adequately covers the theory of the defense.'" United States v. Bradshaw, 690 F.2d 704, 710 (9th Cir. 1982) (quoting United States v. Kaplan, 554 F.2d 958, 968 (9th Cir. 1977)). Once Petitioner's argument that CALJIC No. 6.20 is limited to verbal communications of withdrawal is rejected, it is clear that the instruction is broad enough to encompass Petitioner's theory—namely, that he communicated his withdrawal by failing to follow orders to kill Chavez. Pet. at 27. Petitioner's challenge to the withdrawal instruction fails, and he is not entitled to habeas relief on this claim.

11. Consecutive sentences

Petitioner's eleventh claim relates to the trial court's sentencing of Petitioner to twenty-five years to life for the murder of Rosas and a consecutive twenty-five years to life for the conspiracy to commit murder. Pet. at 28. In particular, Petitioner argues that he should not receive consecutive sentences when the "jury never found him guilty of conspiring to murder any specific person other than Rosas." Pet. at 29. According to Petitioner, the trial court decided facts that increased the penalty of Petitioner's crime beyond the prescribed statutory maximum, in violation of California law and Petitioner's right to trial by jury and due process. Pet. at 29.

The California Court of Appeal rejected Petitioner's claim, explaining:

Resp. Ex. 1 at 66-68 (alterations omitted).

The Sixth Amendment's jury-trial guarantee assigns the determination of certain facts to the jury's exclusive province. Under that guarantee, the U.S. Supreme Court has held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Thus, the crucial issue is whether "the required finding expose[s] the defendant to a greater punishment than that authorized by the jury's guilty verdict." Id. at 494.

Here, the California Court of Appeal's conclusion does not run afoul of Apprendi. The jury found Petitioner guilty of murder and found Petitioner guilty of conspiracy to commit murder, assault with a deadly weapon, intimidation of witnesses, and possession of a concealed firearm by a convicted felon. Resp. Ex. 8, CT 1840-43. In undertaking the task of determining whether to run consecutively the separate twenty-five-years-to-life sentences on each count, the trial court did not make a finding that increased Petitioner's punishment beyond the statutory maximum for either the murder conviction or the conspiracy conviction. Apprendi itself is distinguishable precisely because it involved sentencing for a discrete crime, not the aggregate effect of multiple crimes. 530 U.S. at 474. Indeed, Apprendi rooted its rule in the historical tradition of having juries decide factual questions to guard against the tyranny of the state. Id. at 477. The California Court of Appeal could reasonably conclude that that same commitment is not implicated in the decision about whether sentences should run concurrently or consecutively.4

Petitioner separately argues that the Court of Appeal misapplied California Penal Code section 654. Pet. at 28. Here, the Court of Appeal fully explained why section 654 was inapplicable: the conspiracy that Petitioner was charged with had a broader objective than the specific substantive offense of murder. Resp. Ex. 1 at 66-67. Even if this Court were concerned that an error was committed, it is not the province of a federal habeas court to correct a misapplication of state sentencing law absent some identified constitutional issue. See, e.g., Richmond v. Lewis, 506 U.S. 40, 50 (1992). Accordingly, Petitioner has not shown entitlement to habeas relief on this claim.

12. Shackling

Petitioner's twelfth claim centers on the trial court's decision to have all defendants, including Petitioner, wear shackles during trial. Pet. at 30-36. Petitioner argues that the shackling violated his right to an impartial jury and due process because the trial court's decision was not justified by an essential state interest specific to the trial. Pet. at 35-36. Petitioner further states that the shackling prejudiced him because the shackles were visible to the jury throughout the trial and at least some of the jurors saw the shackles. Pet. at 36. Petitioner did not present this claim in his direct appeal. Rather, he made this claim in a petition for writ of habeas corpus to the California Supreme Court, and his petition was summarily denied on April 30, 2003. Resp. Ex. 3.

Central to the right to a fair trial, guaranteed by the Sixth and Fourteenth Amendments, is the notion that "one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial." Taylor v. Kentucky, 436 U.S. 478, 485 (1978). At the time of the California Supreme Court's decision, the U.S. Supreme Court defined shackling as "the sort of inherently prejudicial practice that . . . should be permitted only where justified by an essential state interest specific to each trial." Holbrook v. Flynn, 475 U.S. 560, 568-69 (1986). Even binding and gagging a defendant could be constitutionally permissible as a last resort. Illinois v. Allen, 397 U.S. 337, 343-44 (1970). The determination of an essential state interest "turns on the facts of the case." Hedlund v. Ryan, 854 F.3d 557, 568 (9th Cir. 2017).

On the particular facts of this case, the Court concludes that there was a reasonable basis for the California Supreme Court to deny relief. The Court recognizes the seriousness of shackling and the likelihood that the practice could influence a jury in ways that will not be readily apparent in the record. See Riggins v. Nevada, 504 U.S. 127, 137 (1992) (noting that some consequences "cannot be shown from a trial transcript"). Nevertheless, here, the facts and context reasonably demonstrate that the trial court's decision to shackle Petitioner was justified by an essential state interest specific to Petitioner's trial—namely, security of those in the courtroom.

In particular, Petitioner had decision-making authority as a member of a violent gang, which leveraged contacts inside and outside prison to kill those who opposed the gang. Petitioner (as well as the other defendants) was specifically charged with a count of conspiracy to commit witness intimidation. Resp. Ex. 8, CT 1840. And there had been incidents in the lead-up to trial with respect to certain witnesses. For example, after Mari Reyes testified before the grand jury, she was threatened by one of the Nuestra Familia members, being told that she should "be careful or else . . . [she'd] end up like the rest." Resp. Ex. 14, RT 1920-21. Similarly, one of the jailed Nuestra Familia members stated that "when the indictments do come out, we'll start from the top, the ones that done the most damage, we'll eliminate them first, and we'll go down the line." Resp. Ex. 14, RT 3234. On this record, the California Supreme Court could have reasonably concluded that shackling in this case was "justified by an essential state interest specific to [the] trial." Holbrook, 475 U.S. at 569.

Moreover, the trial court held multiple hearings to resolve particular issues related to the shackling.5 Notably, Petitioner does not identify any place in the record where either he or one of his codefendants requested to be completely free of shackles. However, multiple requests were made for less restrictive alternatives. Even though the requirement to pursue less restrictive means of shackling was not clearly established until 2005, Crittenden v. Ayers, 624 F.3d 943, 971 (9th Cir. 2010), the trial court specifically considered these alternatives and rejected more restrictive options. For example, at a pretrial hearing in August 1994, defense counsel asked that their clients be allowed to have one hand free during court proceedings. Resp. Ex. 15C, RT 1140. The prosecution objected, noting that the grand jury testimony showed that various defendants would pose a safety risk to witnesses. Resp. Ex. 15C, RT 1141. Defense counsel responded that the safety risk of unshackling one hand was minimal because their "clients would still have leg irons on and one hand restrained." Resp. Ex. 15C, RT 1142. The trial court ruled that "the defense request be honored and that one hand be unshackled." Resp. Ex. 15C, RT 1147. The court explained that such unshackling was necessary to avoid the "possible impediment to the right to present a defense and issues involving human dignity." Resp. Ex. 15C, RT 1147.

At another point in pretrial proceedings, the prosecution raised the issue of whether defendants should wear stun belts in court. When the issue first surfaced, Petitioner's counsel noted at a June 1996 hearing that stun belts would be uncomfortable and "very, very obvious to the jury"; the court deferred ruling until the belts arrived. Resp. Ex. 6, RT 17, 20. At a later hearing, Petitioner's counsel voiced concerns about using the stun belts and stated that "[Petitioner] is opposed to the use of the [stun] belt, much prefers the bolt to the floor as we talked about last Monday." Resp. Ex. 6, RT 253. Finally, when the stun belts arrived, the court held another hearing in July 1996. Resp. Ex. 6, RT 448. At that hearing, Petitioner's counsel stated:

Resp. Ex. 6, RT 452. The court concluded that though stun belts could be used, "given the duration of [the] trial, . . . and the willingness of all the defendants to agree to be shackled to the ground . . ., [the court would] exercise [its] discretion and direct that the defendants be shackled to the ground as requested." Resp. Ex. 6, RT 458-59. Based on the trial court's thorough weighing of the factors at play, the California Supreme Court had a reasonable basis to deny habeas relief.

Petitioner's responses do not alter this conclusion. Petitioner first contends that the trial judge was required to hold an evidentiary hearing and make explicit findings of an essential state interest. Pet. at 30. But, as noted above, the trial court convened multiple proceedings at which these issues were discussed in detail. In any event, neither Holbrook nor Allen—the two U.S. Supreme Court shackling cases relevant here—clearly avows that trial courts must hold an evidentiary hearing or recite specific factual findings. It was not until the 2005 decision in Deck v. Missouri, 544 U.S. 622, 634 (2005), that the U.S. Supreme Court clarified that shackling requires a case-by-case determination supported by "formal or informal findings." See also id. at 649 (Thomas, J., dissenting) (criticizing the majority's adoption of an "additional requirement of on-the-record findings" by the trial judge). Even then, the Court left open the possibility that there could be "exceptional case[s] where the record itself makes clear that there are indisputably good reasons for shackling." Id. at 635 (majority opinion). Indeed, before Deck was decided, the Ninth Circuit had stated: "[W]e have never held, and we refuse to hold now, that a trial court must conduct a hearing and make findings before ordering that a defendant be shackled." Morgan v. Bunnell, 24 F.3d 49, 52 (9th Cir. 1994) (per curiam) (quoting Jones v. Meyer, 899 F.2d 883, 886 (9th Cir. 1990)). Thus, even if the Court concluded that the trial court's findings and hearings were imperfect, neither was required by clearly established federal law as of the time of the California Supreme Court decision.

Petitioner also cites to statements by the trial judge that Petitioner believes undermines the notion that security concerns necessitated shackling. First, at one of the hearings involving the stun belts, the trial judge stated, in response to a comment from Lopez's attorney that Lopez had "never been a problem in court and . . . would prefer the shackle," that "[Lopez has] never been a problem in the courtroom. None of the defendants have been a problem in the courtroom." Resp. Ex. 6, RT 13. Then, at the hearing deciding whether to unshackle one of the defendants' hands, the trial judge stated that "there [had] been no evidence presented to [the court] to suggest that there would be an escape from th[e] courtroom . . . [or] that any of the defendants might be violent" and reiterated that "the defendants have never been disruptive and . . . have always been respectful." Resp. Ex. 15C, RT 1147. Placed in their appropriate context, those statements are not as broad as they might appear at first blush. For one thing, the judge's statements came in response to specific requests from the defense lawyers—requests not to use stun belts and requests to unshackle one hand, respectively. For another, all of those statements were made during pretrial proceedings, when the risk of danger to witnesses had not yet manifested. Most importantly, however, the defendants had been shackled during pretrial proceedings, including at the time that the trial judge made the statements. Thus, it is difficult to interpret the trial judge's statements as general observations about the defendants' behavior; it is more reasonable to understand those statements to reflect how the defendants had acted while wearing shackles. In this way, the trial judge's statements do not detract from the reasonable basis upon which the California Supreme Court could have denied relief. Accordingly, Petitioner is not entitled to habeas relief on his shackling claim.

The Court also notes that, on habeas review, Petitioner must show that the error had "substantial and injurious effect or influence in determining the jury's verdict." Hedlund, 854 F.3d at 568 n.7 (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). Petitioner cannot clear that bar here. In support of his contention that multiple jurors saw his shackles (but did not see the shackles of the other three defendants), Petition submits only his own notes from trial and his own drawing of the layout of the courtroom. Pet. Ex. 12. Those materials are not evidence and, in any event, do not definitively show what the jury could or did see. Petitioner submits no supporting documentary evidence, such as his own affidavit or an affidavit from one of the jurors.

Additionally, prejudice is diminished because Petitioner's counsel did not ask for Petitioner to be unshackled and did not object to the judge informing the jury that Petitioner was shackled. Resp. at 91. As a general matter, "[a] jury is presumed to follow its instructions." Weeks v. Angelone, 528 U.S. 225, 234 (2000). Here, the court told the jury multiple times not to consider the shackling. At the beginning of the case, the court instructed the jury from a statement prepared by one of the defense attorneys: "The defendants in this case are shackled. The fact that they are shackled is not evidence. You cannot allow that to affect your decision in this case, nor can you speculate as to the reason for the shackling." Resp. Ex. 17, RT 651. The court shortly thereafter instructed that the defendants are presumed innocent. Resp. Ex. 17, RT 652. At the end of the case, the court reminded the jury: "The fact that physical restraints have been placed on the defendants must not be considered by you for any purpose. They are not evidence of guilt, and must not be considered by you as any evidence that any defendant is more likely to be guilty than not guilty." Resp. Ex. 11, CT 755. These curative instructions provide assurance that the jury did not rely on Petitioner's shackling, especially where Petitioner's counsel agreed for the jury to be instructed in this manner.

Further, and finally, the prosecution had strong evidence tending to show Petitioner's guilt. Both Salazar and Chavez testified that Petitioner had approved the murder of Rosas in the three-way phone call; Petitioner's sister-in-law testified that she heard Petitioner's side of the conversation, which included references to Rosas and the instruction to "do what you got to do"; and Shelton testified that Petitioner confessed in prison that he told Salazar and Chavez to deal with Rosas. In light of all of these circumstances, Petitioner has not shown that, even if the trial court erred by ordering shackling, that error had substantial and injurious effect or influence in determining the jury's verdict.

13. Ineffective assistance throughout trial

Petitioner's thirteenth claim is that his attorney provided ineffective assistance at multiple stages of the litigation. Pet. at 37-56. Petitioner presented this argument for the first time in a habeas petition denied by the California Supreme Court on April 30, 2003. Resp. Ex. 3. Where, as here, an ineffective assistance claim does not accuse an attorney of totally failing to subject the prosecution's case to meaningful adversarial testing, the "specific attorney errors [are] subject to Strickland's performance and prejudice components." Bell v. Cone, 535 U.S. 685, 697-98 (2002). As noted earlier, the performance component asks whether counsel's performance "so undermined the proper functioning of the adversarial process that the [proceedings] cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686. As the U.S. Supreme Court has instructed, courts must "apply[] a heavy measure of deference to counsel's judgments." Id. at 691. The prejudice component asks whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

Petitioner's contentions fall into three groups. First, Petitioner challenges his attorney's decision to oppose the severance motion brought by other defendants. Second, Petitioner disagrees with his attorney's handling of certain evidence related to the murder of Rosas. Third, Petitioner argues that his attorney did not adequately pursue evidentiary avenues in opposing the prosecution's motion to vacate Petitioner's plea agreement. The Court analyzes each of these categories in turn.

a. Motion to sever

Petitioner first claims that his attorney's performance with respect to the prosecution's motion to consolidate was deficient. Pet. at 38-46. The Court begins with a brief factual background. The prosecution moved to consolidate two indictments charging twenty-one defendants in total. In one of the indictments, Petitioner was charged with conspiracy to commit various crimes (including murder) in Count One and murder of Rosas in Count Twelve. Resp. Ex. 8, CT 1370-72, 1388-89. Eighteen other defendants were also charged in Count One, and six other defendants were also charged in Count Twelve. Resp. Ex. 8, CT 1370, 1388-89.

Multiple defendants opposed consolidation and filed differing motions to sever. For example, Truejque moved to sever his trial from that of Hernandez and Reveles, Petitioner, and Count Twelve. Pet. Ex. 2 at 9. Arroyo and Serna moved to sever Hernandez and Reveles, and Arroyo also moved to sever Petitioner. Pet. Ex. 3 at 4-5; Pet. Ex. 4 at 12. The prosecution objected to the severance of Petitioner. Important here, Petitioner's counsel filed a motion opposing the severance of Petitioner. Resp. Ex. 8, CT 1104-07. The motion explained that "if [Petitioner] was charged in the indictment with Count 12 only, as are [Hernandez] and [Reveles], justice would best be served and the court discretion would best be exercised by granting the severance." Resp. Ex. 8, CT 1104. However, because Petitioner was also charged in Count One (along with Truejque, Arroyo, and Serna), the motion argued that Petitioner should not be severed. Resp. Ex. 8, CT 1105-07. The court severed the trial of Hernandez and Reveles but otherwise granted the prosecution's motion to consolidate the indictments. Resp. Ex. 8, CT 1110.

Petitioner asserts that opposing severance and supporting consolidation constituted constitutionally deficient performance on the part of his attorney. Although Petitioner identifies good reasons to think that severance may have been warranted, Petitioner's counsel's motion opposing severance also identifies good reasons to support consolidation. On these facts, there is a reasonable basis to conclude that Petitioner's counsel, in conjunction with his client, made an informed tactical decision that did not wholly undermine the proper functioning of the adversarial process.

As Petitioner's counsel's motion opposing severance explains, Petitioner's case was unlike Hernandez's and Reveles's. Those defendants were charged only in Count Twelve, and none of the remaining defendants were charged in that count. Resp. Ex. 8, CT 1104. Although Petitioner was also charged in Count Twelve, he shared an overlapping charge with the remaining defendants—namely, the conspiracy to commit murder and other crimes in Count One. Resp. Ex. 8, CT 1105. Therefore, trying Petitioner together with the other defendants would produce efficiencies well-recognized and favored under federal and state law. See Zafiro v. United States, 506 U.S. 534, 537 (1993) ("There is a preference in the federal system for joint trials of defendants who are indicted together."); People v. Ochoa, 966 P.2d 442, 475 (Cal. 1998) ("Because consolidation ordinarily promotes efficiency, the law prefers it.").

Likewise, Petitioner's counsel could reasonably have believed that trying Petitioner with the remaining defendants would be beneficial. Although the other defendants were charged with capital crimes, Petitioner's counsel could have reasonably believed that any prejudice would be overcome by Petitioner seeming less culpable by comparison. Resp. Ex. 6, RT 17627 ("I felt from a tactical standpoint it would be better for [Petitioner] to be tried with the death penalty defendants since he is the least culpable of all, he would be viewed in a better light by the jury. . . ."); see also People v. Balderas, 711 P.2d 480, 492 (Cal. 1985) ("[N]othing in the prior cases suggests that severance is required whenever capital charges are involved."). Petitioner's counsel also highlighted the downfalls of severance: Petitioner could suffer prejudice from being tried with Hernandez and Reveles, who were charged with fewer crimes that had more tangential ties to the gang, and Petitioner could be subjected to multiple full trials on the murder and conspiracy counts, resulting in a possible violation of Petitioner's due process rights. Resp. Ex. 8, CT 1105-06; Resp. Ex. 18, RT 7. In light of these alternatives, Petitioner's counsel could reasonably conclude that consolidation was the preferable course.

The record also suggests that the decision about whether to oppose severance was fully deliberated between Petitioner and his counsel. As a general matter, Petitioner's counsel testified at a hearing that he had "fully informed [Petitioner] and [had] discussed all of the important decisions with regard to this case." Resp. Ex. 6, RT 17626. More specifically, with regard to the motions for severance, Petitioner's counsel stated that he had considered the positives and negatives to each of the various options. Resp. Ex. 6, RT 17627. As Petitioner's counsel described, opposing severance "was a tactical decision that was made and made with [Petitioner's] knowledge." Resp. Ex. 6, RT 17627; see also Resp. Ex. 6, RT 17627-28 ("With regard to . . . refus[ing] to file motion for severance, I indicated . . . that we opposed that, we opposed the motion for severance."). Indeed, in a filing submitted to the court, Petitioner admitted that he had "agreed not to be severed from th[e] case because [he] was convinced that every defendant made [him] look innocent according to [his attorney]." Resp. Ex. 8, CT 1710. Thus, the record supports that Petitioner and his attorney made an informed decision together about whether to oppose severance. The California Supreme Court could have reasonably determined that Petitioner had failed to establish the performance component of his ineffective assistance claim on the severance issue.

Finally, even if Petitioner had shown deficiency in performance, the California Supreme Court could have reasonably concluded that he had not made the requisite showing of prejudice. Improper joinder does not automatically result in a constitutional violation. United States v. Lane, 474 U.S. 438, 446 n.8 (1986). And there is reason to think that the trial court would not have granted severance even if Petitioner's attorney had not opposed or had affirmatively asked for it. As noted above, California law (as well as federal law) has stated a preference for joint trials. See Ochoa, 966 P.2d at 475; see also Zafiro, 506 U.S. at 537. "The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried." People v. Bean, 760 P.2d 996, 1007 (Cal. 1988). Here, the prosecution made the same arguments as Petitioner's counsel in its oppositions to the various defendants' severance motions. See Resp. at 97. Given that California law starts with a presumption of trying defendants together when they are jointly charged in at least one count, see Cal. Penal Code § 1098; People v. Ortiz, 583 P.2d 113, 116-17 (Cal. 1978), it makes sense that the trial court would sever Hernandez and Reveles (who were charged only in Count Twelve) but not Petitioner (who was charged in Counts One and Twelve). In these circumstances, the California Supreme Court could reasonably conclude that Petitioner had not shown "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 566 U.S. at 694. Accordingly, Petitioner is not entitled to habeas relief on the ground that his attorney provided ineffective assistance of counsel as to the motion to sever.

b. Rosas murder evidence

Petitioner next contends that he received ineffective assistance because his counsel improperly handled certain evidence related to the Rosas murder. Pet. at 46-49. Specifically, Petitioner argues that his counsel should have elicited particular testimony from three witnesses. Pet. at 46-49. Petitioner cites no U.S. Supreme Court authority requiring counsel to present the particular evidence at issue here. Accordingly, the Court analyzes counsel's conduct with respect to each witness under Strickland.

First, Petitioner asserts that his counsel failed to ask certain questions of Mary Rosas, the cousin of target Elias Rosas. Petitioner submits an investigative report by the Santa Clara Office of the District Attorney in which Mary Rosas states that Raul Reveles sent a message to Elias that he planned to kill Elias because he blamed Elias for a narcotics arrest. Pet. Ex. 9 at 2. Petitioner does not submit a sworn declaration from Mary Rosas or other evidence to confirm that Mary Rosas would have testified under oath to the same effect. Moreover, Petitioner's counsel would not have been able to question Mary Rosas about her statement in court: her statement almost certainly constitutes inadmissible hearsay because it merely reflects second-hand knowledge of what others said. See generally People v. Sanchez, 374 P.3d 320, 326 (Cal. 2016). Thus, Petitioner cannot claim that his counsel acted unreasonably in "fail[ing] to question Mary Rosas regarding Raul Reveles[`s] 1990 threats." Pet. at 46.

Second, Petitioner condemns his counsel's failure to question Roland Saldivar about his statement during a police interview. In particular, Petitioner reads Saldivar's statement to assert that "Salazar did not telephone [P]etitioner for any reason the night Elias Rosas was killed as alleged by the prosecution." Pet. at 48. The problem is that Petitioner had admitted to the prosecution, in an interview where Petitioner's attorney was present, that he had received two phone calls from Salazar that night. Resp. Ex. 21, RT 14. Thus, the two stories appeared to be in conflict, and Petitioner's counsel could have reasonably believed that presenting Saldivar's narrative could undermine Petitioner's. Moreover, other facts weakened the import of Saldivar's statement. Although Saldivar stated that he was present with Salazar when Salazar was talking with Chavez on the phone about Rosas and the decision was made to murder Rosas, his statement does not preclude a three-way conversation with Petitioner, especially when Saldivar acknowledged that he was not allowed to hear much. Pet. Ex. 13. Out of the presence of the jury, Saldivar further testified that he could not remember what Salazar said in the phone call. Resp. Ex. 6, RT 16986. Given the low value of eliciting Saldivar's testimony on this point, combined with Petitioner's counsel's knowledge that Petitioner had stated under oath that he had talked to Salazar on the night of the Rosas murder, Petitioner's counsel could have reasonably concluded that it was best not to press Saldivar and risk harmful testimony.

Third, Petitioner claims that his counsel was ineffective in failing to call Reveles, who allegedly made a statement that Petitioner was innocent of the murder of Rosas. Petitioner's counsel addressed this point at a hearing before the trial court. He explained that "[a]ll Albert Reveles said was that as far as he knew, [Petitioner] had nothing to do with the communications between . . . Chavez and Salazar." Resp. Ex. 6, RT 17737. But, as Petitioner's counsel described, that fact did not necessarily prove anything because Reveles was not in a position to know whether Petitioner was involved or not. Resp. Ex. 6, RT 17737. Thus, in Petitioner's counsel's view, "[Reveles] was no help to . . . [Petitioner] as far as [he] could see." Resp. Ex. 6, RT 17737. Petitioner's counsel also indicated that he had discussed the matter with Petitioner. Resp. Ex. 6, RT 17737. Because Petitioner does not specify the basis for his assertion about Reveles or otherwise submit an affidavit from Reveles, it was reasonable to conclude that Petitioner had not shown that his attorney's performance was constitutionally deficient. See Strickland, 466 U.S. at 686.

Accordingly, there was a reasonable basis for the California Supreme Court to deny Petitioner's claim that his attorney improperly handled the identified evidence related to the Rosas murder.

c. Motion to vacate Petitioner's plea agreement

Finally, Petitioner adds further arguments to those made above about why his attorney provided ineffective assistance with regard to the proceedings on the prosecution's motion to vacate Petitioner's plea agreement. Pet. at 49-53. Specifically, Petitioner challenges his counsel's (1) refusal to secure a copy of the polygraph readout and (2) decision not to call two witnesses to testify that Petitioner wished to correct errors in a March 1993 statement to the prosecution. Pet. at 49-53. The Court analyzes these specific challenges in turn.

Based on the record, the California Supreme Court could have reasonably concluded that the decision not to obtain the polygraph readout was reasonable. It is true that "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. Nevertheless, counsel's conduct is measured "from counsel's perspective at the time." Id. at 689. Although Petitioner cites a 1998 declaration from the polygraph operator that he believed that he had contacted Petitioner's counsel and recommended performing a second polygraph examination, Pet. Ex. 10 at 3, it is not clear that that information was before his counsel at the time of the motion to vacate. In fact, Petitioner's counsel stated in an affidavit that the polygraph operator "did not at any time indicate," in his report or otherwise, "that a second examination of [Petitioner] was necessary or called for in order to render an accurate result." Resp. Ex. 23. Indeed, Petitioner's counsel declared that, if he had received such a suggestion, he would have actively pursued a second polygraph to avoid going to trial. Resp. Ex. 21, RT 71-72; Resp. Ex. 23. On this basis, it would have been reasonable for the California Supreme Court to conclude that Petitioner had not shown that his counsel's actions were outside the range of professional competent assistance.

The record also supports a reasonable conclusion that Petitioner's counsel made a sound judgment not to call two persons associated with the prosecution as witnesses during the proceedings on the motion to vacate. Petitioner claims that his attorney should have put on prosecution investigator Williams and Sergeant Quimet to testify that Petitioner had contacted them to correct errors in his statement to the prosecution in March 1993. Pet. at 52-53. However, Petitioner suggests that he wished to give further background facts and clarify discrepancies, not that he wished to recant or fully revise his statement. Pet. at 52-53. Indeed, Petitioner does not provide a declaration from Williams or Quimet that details what Petitioner said to them. In these circumstances, Petitioner's counsel's explanation is eminently reasonable: "I didn't call them because I didn't feel what they could contribute was relevant to whether or not there was a conflict, whether or not there was an effort to deceive the prosecution during the course of the giving of those statements." Resp. Ex. 6, RT 17742. Accordingly, there was a reasonable basis for the California Supreme Court to deny Petitioner's claim that his attorney's conduct in the proceedings on the prosecution's motion to vacate Petitioner's plea agreement fell below an objective standard of reasonableness.

In sum, Petitioner has not shown entitlement to habeas relief on his claim for ineffective assistance of counsel.

14. Right to control defense

Petitioner's fourteenth, and last, claim relates to decisions made by his counsel about what evidence to present in defense at trial. Pet. at 57-72. Specifically, Petitioner states that he wished to present evidence, in the form of his testimony and testimony from other witnesses, that he never received the three-way phone call where he allegedly ordered the hit on Rosas. Pet. at 70. Petitioner contends that his Sixth Amendment right to present a defense was infringed. Pet. at 71. Like with the previous two claims, Petitioner did not present this claim in his direct appeal, but instead in a petition for writ of habeas corpus, which was summarily denied by the California Supreme Court on April 30, 2003. Resp. Ex. 3.

Petitioner cites only one U.S. Supreme Court case in support of his arguments, Faretta v. California, 422 U.S. 806 (1975). That case is inapplicable here. There, the U.S. Supreme Court held that "[t]he Sixth Amendment, when naturally read, . . . implies a right of self-representation." Id. at 821. Thus, in the circumstance where a defendant "clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel," the court "deprived him of his constitutional right to conduct his own defense" by forcing him "to accept against his will a state-appointed public defender." Id. at 835-36. Here, Petitioner does not contend that he wished to represent himself. Instead, he asserts the right to control what witnesses to call, what questions to ask those witnesses, and what defense to assert. Nothing in Faretta clearly establishes that level of control when a defendant is represented. To the contrary, Faretta indicates that "when a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas." Id. at 820. Petitioner does not argue by reference to other U.S. Supreme Court authority that his lawyer was not entitled to make the particular decisions at issue in this case. As the trial court put it, "[i]t's the attorney's job in a case to make tactical decisions and to conduct a defense in a way that the lawyer feels will be beneficial to the client." Resp. Ex. 6, RT 20105.

Certainly, Petitioner's counsel could not make the decision about whether Petitioner should testify. A criminal defendant has the right to testify on his own behalf and retains the right to make the decision whether to testify. Rock v. Arkansas, 483 U.S. 44, 52-53 (1987); Jones v. Barnes, 463 U.S. 745, 751 (1983) (noting that "the accused has the ultimate authority to make certain fundamental decisions regarding the case," including whether to "testify in his or her own behalf"). But the facts definitively show that Petitioner was informed about his right to testify. On July 11, 1997, the trial court held a hearing at the same time that the jury was deliberating to explore Petitioner's grounds for dismissing his attorney. Resp. Ex. 6, RT 20084. At the hearing, Petitioner stated: "I know I have the right to take the stand on my behalf and I know that I have a right not to take the stand." Resp. Ex. 6, RT 20092. His sole objection was that "[he] would have been better off taking the stand like [he] wanted to." Resp. Ex. 6, RT 20092; see also Resp. Ex. 6, RT 20092 ("I think I would have been better to take the stand to defend myself on my behalf."). Petitioner's counsel responded that "[w]e've discussed his testifying from the moment I first interviewed him in the county jail, his right to testify and what the problems were, what the pitfalls were from his testifying." Resp. Ex. 6, RT 20098. At the end of the hearing, the court denied Petitioner's request and stated that "I do not believe that [your attorney] did not adequately explain to you about the right to testify or not to testify. I am satisfied that you knew exactly what right you had with reference to that." Resp. Ex. 6, RT 20104. Petitioner did not otherwise assert that his attorney prevented him from testifying. Accordingly, Petitioner is not entitled to habeas relief on this claim.

CONCLUSION

After a careful review of the record and pertinent law, the Court concludes that the Petition for a Writ of Habeas Corpus is DENIED.

Further, a Certificate of Appealability is DENIED. See Rule 11(a) of the Rules Governing Section 2254 Cases. Petitioner has not made "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Nor has Petitioner demonstrated that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner may not appeal the denial of a Certificate of Appealability but may seek a certificate from the Court of Appeals under Rule 22 of the Federal Rules of Appellate Procedure. See Rule 11(a) of the Rules Governing Section 2254 Cases.

The clerk shall terminate any pending motions, enter judgment in favor of Respondent, and close the file.

SO ORDERED.