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

RONALD S.W. LEW, District Judge.

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

IT IS ORDERED that: (1) Petitioner's request for an evidentiary hearing is denied; and (2) Judgment shall be entered denying and dismissing the Petition with prejudice.

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

LET JUDGMENT BE ENTERED ACCORDINGLY.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

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

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on December 20, 2018. Also on December 20, 2018, Petitioner filed: (1) "Petitioner's 28 U.S.C. § 2254 Memorandum"("Pet. Mem."), accompanied by exhibits ("Pet. Ex."); (2) a "Motion for an Evidentiary Hearing"; and (3) a "Motion for a Stay and Abeyance." This last motion sought a stay of the Petition pursuant to Rhines v. Weber, 544 U.S. 269 (2005) pending the decision of the California Supreme Court on Petitioner's then-pending habeas corpus petition. On February 21, 2019, Respondent filed a "Combined Motion to Dismiss Petition for Writ of Habeas Corpus and Non-Opposition to Stay Request, etc." Therein, Respondent contended that the Petition was subject to dismissal as a "mixed" petition but disclaimed any intent of opposing Petitioner's request for a stay.

On March 1, 2019, Respondent filed a "Notice of Denial of State Supreme Court Petition," accompanied by an attachment showing the California Supreme Court had denied Petitioner's habeas corpus petition on February 27, 2019. On March 1, 2019, the Court issued an order deeming denied as moot Petitioner's "Motion for a Stay and Abeyance" and Respondent's "Combined Motion, etc."

Respondent filed an Answer on June 26, 2019. Petitioner filed a Reply on July 12, 2019.

BACKGROUND

An Amended Information charged Petitioner with: (a) two counts of assault with a deadly weapon on Shetara Price,1 in violation of California Penal Code section 245(a)(1) (Counts 1 and 2); and (b) one count of making criminal threats to Price in violation of California Penal Code section 422(a) (Clerk's Transcript ["C.T."] 50-51). The Amended Information further alleged that Petitioner had suffered three prior convictions qualifying as "strikes" within the meaning of California's Three Strikes Law, California Penal Code sections 667(b)-(i) and 1170.12(a)-(d)2 and also qualifying as serious felony convictions within the meaning of California Penal Code section 667(a)(1) (C.T. 52).

A jury found Petitioner guilty of one count of misdemeanor simple assault in violation of California Penal Code section 240 and one count of making criminal threats in violation of California Penal Code section 422(a), a felony (Reporter's Transcript ["R.T."] 1600-01; C.T. 112, 116, 126). The jury found Petitioner not guilty of the two counts of aggravated assault and also not guilty of one count of the lesser included offense of simple assault (R.T. 1600-01; C.T. 112-13, 115, 126). Petitioner admitted the truth of the prior conviction allegations (R.T. 1804-05; C.T. 132). The court denied Petitioner's motion for a new trial (R.T. 1806-08; C.T. 133).

At a hearing on a motion to strike the prior conviction allegations, the prosecutor described Petitioner's criminal history (R.T. 1816-18). Petitioner's history included convictions for reckless driving, disturbing the peace, driving under the influence, assault with a deadly weapon (including personal use of a firearm), taking a vehicle, kidnapping for robbery and robbery (including personal use of a firearm), as well as multiple parole violations (R.T. 1816-18). The court denied the motion to strike the prior conviction allegations (R.T. 1819-22). The court sentenced Petitioner to a total term of thirty-five years to life (R.T. 1823-26; C.T. 132-34).

The California Court of Appeal affirmed (Respondent's Lodgment 1; see People v. Crawford, 2017 WL 3015845 (Cal. App. July 17, 2017). The California Supreme Court summarily denied Petitioner's petition for review (Respondent's Lodgment 3).

Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court, which that court denied in a reasoned order (Respondent's Lodgments 4, 5). The California Court of Appeal and the California Supreme Court summarily denied subsequent habeas corpus petitions (Respondent's Lodgments 6, 7, 8, 9).

SUMMARY OF TRIAL EVIDENCE

The Court has conducted an independent review of the Reporter's Transcript and has confirmed the accuracy of the following summary of the evidence in People v. Crawford, 2017 WL 3015845 (Cal. App. July 17, 2017). See Nasby v. McDaniel, 853 F.3d 1049, 1052-53 (9th Cir. 2017); see also Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state court decision).3

(Respondent's Lodgment 1, pp. 3-6; see People v. Crawford, 2017 WL 3015845, at *1-2) (footnotes renumbered).

PETITIONER'S CONTENTIONS

Petitioner contends:

1. The evidence allegedly was insufficient to support Petitioner's conviction for making criminal threats;

2. The prosecutor allegedly withheld evidence in asserted violation of Brady v. Maryland, 373 U.S. 83 (1963);

3. The prosecutor allegedly elicited, and failed to correct, assertedly false testimony, purportedly in violation of Napue v. Illinois, 360 U.S. 264, 269 (1959);

4. Four members of Petitioner's jury allegedly were biased, which assertedly denied Petitioner his right to an impartial jury;5

5. Petitioner's counsel allegedly rendered ineffective assistance, by assertedly:6

6. Petitioner's sentence allegedly violated the Eighth Amendment; and

7. The imposition of a Three Strikes sentence based on prior convictions predating the enactment of California's Three Strikes Law allegedly violated the Ex Post Facto Clause.

STANDARD OF REVIEW

Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the 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." 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).

"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 565 U.S. 34, 38 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts . . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.

Under the "unreasonable application" prong of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).

"In order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been `objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 562 U.S. 86, 101 (2011). This is "the only question that matters under § 2254(d)(1)." Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103.

In applying these standards, the Court ordinarily looks to the last reasoned state court decision. See Wilson v. Sellers, 138 S.Ct. 1188 (2018) (endorsing presumption that unexplained decision of state higher court adopted the reasoning of the last reasoned state court decision); see Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 562 U.S. at 102; see also Cullen v. Pinholster, 563 U.S. 170, 188 (2011). Where the state court did not decide a federal constitutional issue of the merits, this Court must consider that issue under a de novo standard of review. See Scott v. Ryan, 686 F.3d 1130, 1133 (9th Cir. 2012), cert. denied, 571 U.S. 850 (2013).

Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).

DISCUSSION7

I. Petitioner's Challenge to the Sufficiency of the Evidence to Support the Criminal Threats Conviction Does Not Merit Federal Habeas Relief.

A. Legal Principles Governing Challenges to the Sufficiency of the Evidence

On habeas corpus, the Court's inquiry into the sufficiency of evidence is limited. Evidence is sufficient unless the charge was "so totally devoid of evidentiary support as to render [Petitioner's] conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment." Fish v. Cardwell, 523 F.2d 976, 978 (9th Cir. 1975), cert. denied, 423 U.S. 1062 (1976) (citations and quotations omitted). A conviction cannot be disturbed unless the Court determines that no "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 317 (1979). A verdict must stand unless it was "so unsupportable as to fall below the threshold of bare rationality." Coleman v. Johnson, 566 U.S. 650, 655 (2012).

Jackson v. Virginia establishes a two-step analysis for a challenge to the sufficiency of the evidence. United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). "First, a reviewing court must consider the evidence in the light most favorable to the prosecution." Id. (citation omitted); see also McDaniel v. Brown, 558 U.S. 120, 133 (2010). At this step, a court "may not usurp the role of the trier of fact by considering how it would have resolved the conflicts, made the inferences, or considered the evidence at trial." United States v. Nevils, 598 F.3d at 1164 (citation omitted). "Rather, when faced with a record of historical facts that supports conflicting inferences a reviewing court must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id. (citations and internal quotations omitted); see also Coleman v. Johnson, 566 U.S. at 655 ("Jackson leaves [the trier of fact] broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that [the trier of fact] draw reasonable inferences from basic facts to ultimate facts") (citation and internal quotations omitted); Cavazos v. Smith, 565 U.S. 1, 2 (2011) ("it is the responsibility of the jury — not the court — to decide what conclusions should be drawn from evidence admitted at trial"). The State need not rebut all reasonable interpretations of the evidence or "rule out every hypothesis except that of guilt beyond a reasonable doubt at the first step of Jackson [v. Virginia]." United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted). Circumstantial evidence and the inferences drawn therefrom can be sufficient to sustain a conviction. Ngo v. Giurbino, 651 F.3d 1112, 1114-15 (9th Cir. 2011).

At the second step, the court "must determine whether this evidence, so viewed, is adequate to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt." United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted; original emphasis). A reviewing court "may not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Id. (citations and internal quotations omitted; original emphasis).

In applying these principles, the federal habeas court looks to state law for the substantive elements of the criminal offense, but the minimum amount of evidence that the Constitution requires to prove the offense "is purely a matter of federal law." Coleman v. Johnson, 566 U.S. at 655. The Court "must consider all of the evidence admitted by the trial court, regardless of whether that evidence was admitted erroneously." McDaniel v. Brown, 558 U.S. at 131 (citation omitted). The Court must conduct an independent review of the record when a habeas petitioner challenges the sufficiency of the evidence. See Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997). The Court has conducted such an independent review.

B. Analysis

To prove a defendant is guilty of criminal threats, the prosecution must demonstrate: "(1) that the defendant willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person, (2) that the defendant made the threat with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out, (3) that the threat — which may be made verbally, in writing, or by means of an electronic communication device — was on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, (4) that the threat actually caused the person threatened to be in sustained fear for his or her own safety or for his or her immediate family's safety, and (5) that the threatened person's fear was `reasonabl[e]' under the circumstances." People v. Toledo, 26 Cal.4th 221, 227-228, 109 Cal.Rptr.2d 315, 26 P.3d 1051 (2001) (citation and internal quotations omitted; original brackets and ellipses); Cal. Penal Code § 422(a).

"Sustained fear" means fear for "a period of time that extends beyond what is momentary, fleeting, or transitory." People v. Solis, 90 Cal.App.4th 1002, 1015-16, 109 Cal.Rptr.2d 464 (2001) (citation and internal quotations omitted);8 see also People v. Allen, 33 Cal.App.4th 1149, 40 Cal.Rptr.2d 7 (1995) (fifteen minutes of fear "more than sufficient to constitute `sustained' fear for purposes of . . . section 422") (footnote omitted); Kyle v. Asuncion, 2018 WL 4622488, at *10 (C.D. Cal. Aug. 10, 2018), adopted, 2018 WL 4637754 (C.D. Sept. 24, 2018) (sustained fear element satisfied where defendant was detained only four minutes after making the threats).

Petitioner contends that the evidence did not suffice to show that Price actually experienced "sustained fear" for her safety (Pet. Mem., pp. 3-17).9 Petitioner points to evidence purporting to show that: (1) Price allegedly was not afraid of Petitioner; (2) Price assertedly did not tell Deputy Shue that Petitioner said he would kill or "187" Price; (3) Price allegedly did not tell Deputy Shue that Petitioner tried to choke Price; (4) Price allegedly gave inconsistent accounts of the assault with the chain and the nature of her injuries; and (5) Price allegedly suffered no injury to her neck (Pet. Mem., pp. 7-11). The Court of Appeal rejected Petitioner's claim and deemed the evidence sufficient (Respondent's Lodgment 1, pp. 11-12; see People v. Crawford, 2017 WL 3015845, at *4 (Cal. App. July 17, 2017)).

The Court of Appeal's rejection of this claim was not unreasonable. The prosecution's evidence included: (1) Crow's testimony that, in Crow's room, Petitioner threw Price on the bed and said he would kill or "murder" Price; (2) Crow's testimony that, during Petitioner's assault on Price on the bed, Price was screaming and kicking and appeared scared; (3) Price's testimony that, in Crow's room, Petitioner slammed Price onto the bed and said "Bitch I take a 187. I'll kill you. I'll kill you."; (4) Price's testimony that, after Price fell to the floor in Crow's room, Petitioner again said he would kill Price; and (5) Price's testimony that she was afraid Petitioner was going to kill her (R.T. 688, 694-95, 903, 948, 980-81, 984-85, 1007-08, 1011-12, 1262, 1272). A reasonable juror crediting this evidence could have found that Price experienced sustained fear as a result of Petitioner's threats. A reasonable jury could have found beyond a reasonable doubt that Petitioner was guilty of criminal threats in violation of section 422(a) of the California Penal Code.

Petitioner points to conflicting evidence and suggests contrary inferences. However, the Court must presume that the jury resolved evidentiary conflicts in favor of the prosecution, and the Court cannot revisit the jury's credibility determinations. See Cavazos v. Smith, 565 U.S. at 7-9 (jury entitled to credit prosecution witnesses' testimony despite conflicting testimony by defense witnesses); McDaniel v. Brown, 558 U.S. at 131-34 (ruling that the lower federal court erroneously relied on inconsistencies in trial testimony to deem evidence legally insufficient; the reviewing federal court must presume that the trier of fact resolved all inconsistencies in favor of the prosecution, and must defer to that resolution); Bruce v. Terhune, 376 F.3d 950, 958 (9th Cir. 2004) (federal habeas court reviewing sufficiency of the evidence could not revisit the jury's resolution of inconsistencies between the victim's testimony and the testimony of other witnesses); United States v. Franklin, 321 F.3d 1231, 1239-40 (9th Cir.), cert. denied, 540 U.S. 858 (2003) (in reviewing the sufficiency of the evidence, a court does not "question a jury's assessment of witnesses' credibility" but rather presumes that the jury resolved conflicting inferences in favor of the prosecution).

For the foregoing reasons, the Court of Appeal's rejection of Petitioner's challenge to the sufficiency of the evidence to support the criminal threats conviction was not contrary to, or an objectively unreasonable application of, any clearly established Federal Law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 (2011). Petitioner is not entitled to federal habeas relief on this claim.

II. Petitioner Is Not Entitled to Federal Habeas Relief on His Brady Claims.

The suppression by the prosecution of evidence favorable to an accused can violate due process "where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963) ("Brady"). The three "essential elements" of a Brady claim are: "The evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; [the] evidence must have been suppressed by the State, either wilfully or inadvertently; and prejudice must have ensued." Banks v. Dretke, 540 U.S. 668, 691 (2004) (citation and internal quotations omitted). Suppressed evidence is material under Brady if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Kyles v. Whitley, 514 U.S. 419, 433 (1995). Speculative allegations of withholding evidence do not suffice to show a Brady violation, however. Martinez v. Ryan, 926 F.3d 1215, 1228-29 (9th Cir. 2015).

Petitioner contends the prosecutor withheld from the defense several items of assertedly exculpatory evidence. First, Petitioner contends that the prosecutor withheld information that the prosecutor purportedly had "interceded in Ms. Price's behalf" to prevent Price from being arrested on bench warrants and taken into custody (Pet. Mem., pp. 27-28). According to Petitioner, the prosecutor and Price made a "deal" on March 25, 2016, in Department X of the Alhambra Superior Court whereby Price's active bench warrants supposedly were quashed in exchange for Price's incriminating testimony against Petitioner (Pet. Mem., p. 29, referencing Pet. Ex. T, pp. 7-12). Petitioner contends the jury was not informed of this alleged "quid pro quo" agreement, thus assertedly preventing the jury from correctly assessing the credibility of Price's trial testimony (Pet. Mem., p. 29). Second, Petitioner contends the prosecution withheld "the full extent" of Price's arrest record (Pet. Ex. T, p. 8). Third, Petitioner contends the prosecution withheld Crow's arrest record and "any offer or deal that was made to Crow in return for her incriminating testimony against Petitioner" (id.). Fourth, Petitioner contends the prosecution withheld evidence that both Price and Crow assertedly were "well known to local law enforcement" due to both women's alleged long term abuse of crystal meth (id.).

The Superior Court rejected Petitioner's Brady claims, observing that Petitioner "provide[d] no factual or evidentiary support whatsoever" in support of these claims and, in particular, "provide[d] no evidence that the prosecutor withheld anything" (Respondent's Lodgment 5, pp. 1-2).

With respect to the purported "deal" with Price, Petitioner relies on the prosecutor's statement, prior to the commencement of jury selection, that Price assertedly had a case pending in Department X involving two bench warrants "which the court and both counsel are aware of because we had this discussion yesterday" (R.T. 1). Counsel and the court discussed whether Price's potential representation by the public defender's office in the Department X case could create a conflict of interest (R.T. 1-3). The court clerk said that Price had not yet been arraigned on either of the Department X cases and currently was unrepresented in those cases (R.T. 3). The court instructed the clerk to inform Department X that the public defender would declare a conflict in the Department X cases and that the court would need to appoint an alternate public defender for Price (R.T. 3). The court then informed Price that she needed to go to Department X (R.T. 4). The court told Price: "[T]echnically you are in bench warrant status right now and could be arrested" (R.T. 4). The court told Price that the judge in Department X would appoint someone from the alternative public defender's office to represent Price in the proceedings in that department (R.T. 5). The prosecutor requested and obtained the court's permission to take Price's files to Department X (R.T. 5).

Petitioner also relies on a letter from his appellate counsel in which, among other things, appellate counsel advised Petitioner that, in Price's "only case in 2015," Price allegedly pled no contest to a charge of possession of methamphetamine and assertedly was sentenced on March 25, 2016, to three years of probation and two days in county jail (Pet. Ex. L).

From the foregoing, Petitioner speculates that the prosecutor made a deal with Price whereby, in return for Price's testimony at Petitioner's trial, the bench warrants for Price would be quashed and Price would not be taken into custody.10 No record evidence supports Petitioner's speculative inferences. The court in Petitioner's case instructed Price to go to Department X so that the court in that department could appoint counsel for Price. The record shows that the prosecutor had permission to take Price's files to Department X. However, nothing in the record indicates that the prosecutor in Petitioner's case was otherwise involved in Price's proceedings in Department X or that any prosecutor had authority to make any "deal" with Price pending the appointment of counsel for Price in Department X. Petitioner has not shown that any "deal" existed between Price and the prosecutor, much less a deal involving the exchange of Price's testimony in Petitioner's case for the prosecutor's assistance in the case(s) in Department X. Hence, Petitioner has failed to demonstrate that the prosecutor violated Brady by failing to disclose any such purported "deal." See Martinez v. Ryan, 926 F.3d at 1228-29 (rejecting claim that prosecution withheld evidence that witness had received benefits for testimony as unsupported by evidence and hence "wholly speculative"); Runningeagle v. Ryan, 686 F.3d 758, 769 (9th Cir. 2012), cert. denied, 569 U.S. 1026 (2013) ("[T]o state a Brady claim, [a petitioner] is required to do more than `merely speculate' [about the existence of evidence].") (citations omitted); Downs v. Hoyt, 232 F.3d 1031, 1037 (9th Cir. 2000), cert. denied, 532 U.S. 999 (2001) (rejecting Brady claim because petitioner's arguments were speculative); Yin v. Sherman, 2017 WL 9287079, at *8 (C.D. Cal. Oct. 4, 2007), adopted, 2018 WL 2094360 (C.D. Cal. May 3, 2018) (rejecting as speculative claim that prosecutor failed to disclose deal made with prosecution witness in exchange for witness' testimony, where petitioner presented no evidence of any such deal); see generally Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (per curiam) (improper to grant a habeas petition "on the basis of little more than speculation with slight support").

Petitioner's other Brady claims are similarly unsupported. There exists no evidence detailing the specific records of Price or Crow, no evidence of any purported "deal" with Crow and no evidence of any supposed "long term" abuse of crystal meth by Price or Crow. Again, Petitioner's speculation does not demonstrate a Brady violation. See Runningeagle v. Ryan, 686 F.3d at 769; United States v. Mincoff, 574 F.3d 1186, 1199-1200 (9th Cir. 2009), cert. denied, 558 U.S. 1116 (2010) ("mere speculation about materials in the government's files" insufficient to show a Brady violation) (citation and internal quotations omitted); United States v. Lopez-Alvarez, 970 F.2d 583, 598 (9th Cir.), cert. denied, 506 U.S. 989 (1992) (rejecting Brady claim where allegation that favorable information existed was "purely speculative").

For the foregoing reasons, the Superior Court's rejection of Petitioner's Brady claims was not contrary to, or an objectively unreasonable application of, any clearly established Federal Law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on these claims.

III. Petitioner's "Napue" Claim Does Not Merit Federal Habeas Relief.

The prosecution's knowing use of perjured testimony to obtain a conviction can violate due process. Napue v. Illinois, 360 U.S. 264, 269 (1959) ("Napue"); see also United States v. Sherlock, 962 F.2d 1349, 1364 (9th Cir. 1989), cert. denied, 506 U.S. 958 (1992). "The due process requirement voids a conviction where the false evidence is `known to be such by representatives of the State.'" Morales v. Woodford, 388 F.3d 1159, 1179 (9th Cir. 2004), cert. denied, 546 U.S. 935 (2005) (quoting Napue, 360 U.S. at 269) (footnote omitted). "The essence of the due process violation is misconduct by the government, not merely perjury by a witness." Morales v. Woodford, 388 F.3d at 1179 (footnote omitted).

To prove a due process violation, Petitioner must show that "(1) the testimony (or evidence) was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (3) . . . the false testimony was material." Hovey v. Ayers, 458 F.3d 892, 916 (9th Cir. 2006) (citation and internal quotations omitted); see also Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en banc). In assessing materiality, the Court must determine whether there is any reasonable likelihood that the allegedly false testimony could have affected the verdict. See Hovey v. Ayers, 458 F.3d at 916 (citation and internal quotations omitted); see also United States v. Agurs, 427 U.S. 97, 103 (1976).

Petitioner contends the prosecutor introduced, and failed to correct, assertedly false testimony by Price (Pet. Mem., pp. 30-32). In attempted support of this contention, Petitioner points to inconsistencies in Price's testimony (id.). The Superior Court rejected this claim, ruling that Petitioner had failed to produce any evidence demonstrating the alleged falsity of Price's testimony (Respondent's Lodgment 5, p. 2). The Superior Court stated that Petitioner essentially challenged Price's credibility, and that the jury was free to accept or reject any or all of Price's testimony as well as her prior inconsistent statements (Respondent's Lodgment 5, p. 2).

Although Price sometimes gave inconsistent testimony, Petitioner has not shown the prosecutor knew that any particular trial testimony was false. See Morales v. Woodford, 388 F.3d at 1179 (rejecting Napue claim where petitioner "set[] out no factual basis for attributing any misconduct, any knowing presentation of perjury, by the government"; in the absence of such a factual basis "there is no basis for granting the writ even if [the witness] did lie"); United States v. Sherlock, 962 F.2d at 1364 (rejecting claim that prosecutor presented perjured testimony where defendants failed to show prosecutor knew testimony was false). "[T]he fact that a witness may have made an earlier inconsistent statement, or that other witnesses have conflicting recollections of events, does not establish that the testimony offered at trial was false." United States v. Croft, 124 F.3d 1109, 1119 (9th Cir. 1997). The question of whether witnesses lied or erred in their perceptions or judgments is properly left to the jury. See United States v. Zuno-Arce, 44 F.3d 1420, 1422-23 (9th Cir.), cert. denied, 516 U.S. 945 (1995), overruled in part on other grounds, Valerio v. Crawford, 306 F.3d 742, 764 (9th Cir. 2002), cert. denied, 538 U.S. 994 (2003); see also United States v. Scheffer, 523 U.S. 303, 313 (1998) ("A fundamental premise of our criminal trial system is that `the jury is the lie detector.'") (original emphasis; quoting United States v. Barnard, 490 F.2d 907, 912 (9th Cir. 1973), cert. denied, 416 U.S. 959 (1974)). Indeed, the jury evidently doubted some of Price's testimony, for the jury acquitted Petitioner of the two aggravated assault counts. Petitioner has not shown that the prosecution knowingly presented, or knowingly failed to correct, any false testimony by Price.

For the foregoing reasons, the Superior Court's rejection of Petitioner's Napue claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal Law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on this claim.

IV. Petitioner's Claim of Alleged Juror Bias Does Not Merit Federal Habeas Relief.

A. Background

Petitioner contends he was denied an impartial jury because Jurors Nos. 62, 65, 69 and 70 purportedly were biased against Petitioner. The Superior Court rejected this claim on the merits, ruling that Petitioner had failed to show a prima facie case for relief (Respondent's Lodgment 5, pp. 2-4). The Superior Court ruled in the alternative that Petitioner had procedurally defaulted this claim (id.). This Court applies the AEDPA standard of review to the Superior Court's ruling on the merits. See Apelt v. Ryan, 878 F.3d 800, 825 (9th Cir. 2017), cert. denied, 139 S.Ct. 2716 (2019) ("[W]hen a state court `double-barrels' its decision — holding that a claim was procedurally barred and denying the claim on its merits — both its procedural default ruling and its merits ruling are entitled to deferential review by federal courts, as intended by AEDPA.").

1. Juror No. 62

Juror No. 62 was a surgeon who lived in San Marino (R.T. 608). Juror No. 62 was a good friend of a former deputy district attorney who practiced criminal law (R.T. 609). Juror No. 62 did not talk with this friend "particularly" about the friend's work, but the two did exchange ideas about cases (R.T. 610). Juror No. 62 also had accompanied deputies from the Temple City sheriff's department on "ride along" patrols because the juror was running for office (R.T. 609-10). Asked whether Juror No. 62 could think of any reason why he could not serve as a juror, Juror No. 62 said: "I don't know how to answer. I could serve, but I don't know." (R.T. 610). Juror No. 62 said: "I'm more particular to the victim. I'm more protected to my patient [sic] as a victim, than for somebody who hit somebody. I probably would lean a little bit in favor of the defense, I guess, but I could serve. I have no problem to serve." (R.T. 610-11). In response to the court's subsequent question whether Juror No. 62 thought he could serve on the case, Juror No. 62 said: "Yeah, yeah, I could." (R.T. 611). Later, a colloquy with Petitioner's counsel occurred:

(R.T. 640-41).

At a sidebar, Juror No. 62 also disclosed that violence had occurred between Juror No. 62 and his wife in the past (R.T. 644). The juror said that, after his mother had passed away in 1992, his wife had a "difficult time" for two years and sometimes slept with a knife under her pillow (R.T. 644). Juror No. 62 said that, during that time, he was the victim of his wife's violence (R.T. 644). Juror No. 62's wife attacked him "quite often" (R.T. 644). Juror No. 62 had not reported any of these attacks to the police, and his wife had received psychiatric treatment for depression (R.T. 644-45). Asked whether there was anything about these incidents that would prevent Juror No. 62 from being a fair juror, Juror No. 62 responded: "I don't think so. I think I'm — I think i still could sit through. I listen to it, but I understand how those violence [sic] come up, and sometimes could be from the other side sometimes could be emotional, but I think I understand a little bit more than anybody else" (R.T. 645).

Juror No. 62 agreed that he could adhere to the presumption of innocence in Petitioner's case, that he would not hold it against Petitioner if Petitioner chose not to testify, and that he would follow the rule that the prosecution was required to prove guilt beyond a reasonable doubt (R.T. 635-39).

2. Juror No. 65

Juror No. 65 was a high school soccer coach without prior jury service (R.T. 615). Asked whether he could think of any reason why he could not serve as a juror, Juror No. 65 said: "I wish I could, but no." (R.T. 616-17).

Juror No. 65 disclosed that he grew up in an area "where there's a lot of gang violence," which he repeatedly saw during junior high school and high school (R.T. 624, 647). Juror No. 65 also said he had seen "different types of violence" while growing up, including domestic violence (R.T. 641, 647). Juror No. 65 had been the victim of assaults and had suffered broken ribs (R.T. 625). He recalled one incident involving a shooting at a high school party which had resulted in a court case, but said he had not been called as a witness and had not been otherwise involved in the case (R.T. 646). Juror No. 65 said those events would not prevent him from being a fair juror (R.T. 625, 647).

Juror No. 65 said he had "formulated opinions about violence in general" and was "opinionated" regarding violence against women because he had two daughters (R.T. 647). However, Juror No. 65 said he would try not to allow that to sway him at Petitioner's trial (R.T. 647-48). Juror No. 65 also said he coached "female soccer" "and so any kind of violence from a male to female does kind of hit home in a certain way, which I don't appreciate, but overall, I would hope that I can be impartial" (R.T. 641).

Juror No. 65 said that he could adhere to the presumption of innocence in Petitioner's case, that he would not hold it against Petitioner if Petitioner chose not to testify, and that he would follow the rule that the prosecution was required to prove guilt beyond a reasonable doubt (R.T. 635-39).

3. Juror No. 69

Juror No. 69 was a retired carpenter without prior jury service (R.T. 621). His son was a Los Angeles police officer (R.T. 621). Asked whether he understood that if he served on the jury he could not discuss the case with his son or anyone else, the juror responded: "Yes, sir, I do." (R.T. 621). The juror said he had "no problem with that" (R.T. 621-22).

Juror No. 69's sister had been killed by her boyfriend eighteen years before in what the juror termed "domestic violence" (R.T. 626). Juror No. 69 had attended all of the proceedings in that case (R.T. 626). However, Juror No. 69 said he did not think the incident involving his sister would prevent him from being a fair juror in Petitioner's case (R.T. 627). Juror No. 69 said that, although his personal loss "would occur" to him, he could put it aside (R.T. 640).

Juror No. 69 said that he did not have a problem with the presumption of innocence, that he would not hold it against Petitioner if Petitioner chose not to testify, and that he would follow the rule that the prosecution was required to prove guilt beyond a reasonable doubt (R.T. 635-38).

Juror No. 70

Juror No. 70 had been the judge's secretary "a while ago" and worked for the district attorney's office in downtown Los Angeles at the time of trial (R.T. 602, 604-05, 622). Juror No. 70 handled civil cases (R.T. 638).11 Juror No. 70's only contact with the prosecutor had occurred when the juror was working in administration and the prosecutor had applied for a position as "Deputy District Attorney I" (R.T. 605). Juror No. 70 recognized the names of two potential witnesses as employees of the District Attorney's Office (R.T. 606). Juror No. 70 said she had met these two individuals at work but was "not really close to them" (R.T. 642). Juror No. 70 said she did not think they would recognize her or remember who she was (R.T. 642). Asked whether she would be more likely to favor the prosecution due to having met the prosecutor and knowing the two witnesses, Juror No. 70 said "No, I'll try to stay fair" (R.T. 642). Juror No. 70 said: "I have to hear the case. I have to hear the whole allegation [sic] and the whole trial to be able to make a determination," and added "knowing them will not influence my decision" (R.T. 642). The two potential witnesses whom Juror No. 70 previously had met never testified at trial.

Juror No. 70's husband previously worked for the Superior Court, but was retired (R.T. 622). Juror No. 70 knew "a lot of people in the legal field" (R.T. 622-23). The judge asked Juror No. 70 whether she could set aside her personal associations with people in the district attorney's office "and so forth" and decide the case "based solely on the facts and the evidence" (R.T. 623). Juror No. 70 responded: "Yes." (R.T. 623). Asked whether Juror No. 70 would be influenced in her decision by the possibility that, if the jury acquitted Petitioner, people in the office would say "I can't believe you acquitted him," Juror No. 70 said: "No, it's not going to affect anything." (R.T. 643).

From 1986 to 1995, Juror No. 70 worked as secretary to the Consul General at the Philippine Consulate (R.T. 627). During this time, the juror was the victim of an assault (R.T. 627). During the assault, Juror No. 70 pulled out her service revolver, but did not shoot (R.T. 627). The incident was reported to the State Department, but did not go to court (R.T. 627). The juror said the incident would not prevent her from being a fair juror (R.T. 628).

Juror No. 70 said that she did not have a problem with the presumption of innocence, that she would not hold it against Petitioner if Petitioner chose not to testify, and that she would follow the rule that the prosecution was required to prove guilt beyond a reasonable doubt (R.T. 635-38).

B. Analysis

The Sixth Amendment guarantees to criminal defendants a fair trial by a panel of impartial jurors. Duncan v. Louisiana, 391 U.S. 145, 149 (1968); Irvin v. Dowd, 366 U.S. 717, 722 (1961); Estrada v. Scribner, 512 F.3d 1227, 1239-40 (9th Cir.), cert. denied, 554 U.S. 925 (2008); U.S. Const. amend. VI. "Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen." Smith v. Phillips, 455 U.S. 209, 217 (1982). "Even if only one juror is unduly biased or prejudiced, the defendant is denied his constitutional right to an impartial jury." Tinsley v. Borg, 895 F.2d 520, 523-24 (9th Cir. 1990), cert. denied, 498 U.S. 1091 (1991) (internal quotation marks omitted). The test for determining whether a juror is biased is whether the juror had such fixed opinions that he or she could not judge impartially the guilt of the defendant. See Davis v. Woodford, 384 F.3d 628, 643 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005).

Petitioner contends the trial court should have dismissed Jurors Nos. 62, 65, 69 and 70 sua sponte for alleged bias. The United States Supreme Court has never held that a trial court has an obligation to dismiss jurors sua sponte for cause. See Galbraith v. Davis, 722 Fed. App'x 391, 391-92 (5th Cir. 2018), cert. denied, 139 S.Ct. 1381 (2019) (citing Washington v. Thaler, 714 F.3d 352, 354-55 (5th Cir.), cert. denied, 571 U.S. 957 (2013)); Cage v. McCaughtry, 305 F.3d 625, 626-27 (7th Cir. 2002); LaFlamma v. Davis, 2019 WL 2075874, at *3 (S.D. Tex. May 10, 2019); Romero v. McDonald, 2013 WL 3864176, at *8 (C.D. Cal. July 18, 2013), remanded on other grounds, 653 Fed. App'x 877 (9th Cir. 2016). In the absence of any decision of the United States Supreme Court clearly supporting Petitioner's claim that the trial court had an obligation to dismiss the jurors sua sponte, the state court's rejection of this claim cannot have contravened "clearly established Federal law, as determined by the Supreme Court of the United States." See Carey v. Musladin, 549 U.S. 70, 77 (2006) ("Given the lack of holdings from this Court [on the issue presented], it cannot be said that the state court "unreasonabl[y] applied clearly established Federal law.") (internal brackets and citation omitted).

Quite apart from the lack of Supreme Court precedent requiring the sua sponte dismissal of jurors for cause, Petitioner has failed to show entitlement to federal habeas relief on his claim of juror bias. Under Ninth Circuit law, where the defense does not ask the trial court to dismiss a juror, the defendant has a "greater burden" than merely demonstrating the bias of the juror. See United States v. Mitchell, 568 F.3d 1147, 1151 (9th Cir. 2009), cert. denied, 559 U.S. 917 (2010). The defendant "must show that the evidence of partiality before the trial court was so indicative of impermissible bias that the court was obliged" to strike the juror sua sponte. Id. Courts have analyzed juror bias under two theories — actual bias and implied bias. See Estrada v. Scribner, 512 F.3d at 1240. Petitioner is not entitled to federal habeas relief under either theory.

Actual bias is "bias in fact," i.e., "the existence of a state of mind that leads to an inference that the person will not act with entire impartiality." United States v. Kechedzian, 902 F.3d 1023, 1027 (9th Cir. 2018) (citations and internal quotations omitted). "Actual bias involves an inability to act impartially or a refusal to weigh the evidence properly." Image Tech. Servs., Inc. v. Eastman Kodak Co., 125 F.3d 1195, 1220 (9th Cir. 1997), cert. denied, 523 U.S. 1094 (1998) (citation omitted). "It is within a trial judge's discretion to disregard a prospective juror's initial responses suggesting bias if the juror later commits to lay aside those feelings and reach a verdict based on the evidence presented and the court's instructions." United States v. Kechedzian, 902 F.3d at 1027 (citation and internal quotations omitted).

Petitioner has not shown that any of the challenged jurors harbored actual bias. Although Juror No. 62 had known a deputy district attorney, had gone on "ride-alongs" and had experienced domestic violence, the juror assured the court that he could serve as a juror (R.T. 610-11). When asked about his statement that he was "more particular" towards a victim, Juror No. 62 said "you have to prove to be a victim" and agreed that, at the time of voir dire, that the only proof the juror had was that Petitioner was innocent (R.T. (640-41). Asked about the long-ago domestic violence by his wife, Juror No. 62 said he thought he "still could sit through" (R.T. 646).

Juror No. 65 assured the court that the incidents of violence that the juror had experienced or witnessed would not prevent him from being a fair juror (R.T. 625, 647). Juror No. 69 said he did not think his sister's killing eighteen years earlier would prevent him from being a fair juror, and Juror No. 69 said he could put his sister's tragedy aside (R.T. 627, 640).

Juror No. 70 assured the court that her prior contact with two witnesses and with persons in the legal field would not influence her decision in Petitioner's case (R.T. 623, 642). She also said the incident when she worked for the Philippine Consulate would not prevent her from being a fair juror (R.T. 628). Petitioner's wholly conclusory allegation that Juror No. 70 purportedly influenced other jurors to find Petitioner guilty so as not to embarrass her employer (see Pet. Mem., p. 35) falls far short of showing actual bias. In actuality, the jury's acquittal of Petitioner on the two aggravated assault counts tends to belie Petitioner's allegation of bias.

In short, the record fails to demonstrate that any of the challenged jurors harbored such actual bias that the court was obliged to dismiss any of the challenged jurors sua sponte. See United States v. Mitchell, 568 F.3d at 1151; Hedlund v. Ryan, 854 F.3d 557, 574 (9th Cir. 2017) (juror who said she believed she could be impartial did not equivocate); Bashor v. Risley, 730 F.2d 1228, 1237 (9th Cir. 1984), cert. denied, 469 U.S. 838 (1984) (juror who said she thought she could be impartial did not equivocate); compare United States v. Kechedzian, 902 F.3d at 1029-31 (in a federal prosecution not subject to the AEDPA standard of review, court found actual bias from juror's equivocal statements "I might be able to put that aside," "I would want to put my personal stuff aside, but I honestly don't know if I could," and "I would try to be fair," when coupled with juror's failure to speak up in response to a group question asking whether jurors would be able to adhere to the presumption of innocence and the prosecution's burden of proof beyond a reasonable doubt).

In contrast to actual bias, implied bias is bias conclusively presumed as a matter of law. Dyer v. Calderon, 151 F.3d 970, 981 (9th Cir.) (en banc), cert. denied, 525 U.S. 1033 (1998). Implied bias is presumed only in "extraordinary cases." Id. "The issue for implied bias is whether an average person in the position of the juror in controversy would be prejudiced." United States v. Gonzalez, 214 F.3d 1109, 1112 (9th Cir. 2000) (citations and emphasis omitted). The Ninth Circuit has presumed bias on "rare occasion[s]" involving "close relationships or the fact that a juror has lied." Hedlund v. Ryan, 854 F.3d at 575 (citations omitted).

Petitioner cannot obtain federal habeas relief on any claim of implied juror bias. "There is no clearly established federal law regarding the issue of implied bias. The Supreme Court has never explicitly adopted or rejected the doctrine of implied bias." Id. (citation omitted); see also Anes v. Jackson, 2018 WL 741696, at *3 (6th Cir. Jan. 4, 2018) (theory of implied juror bias "is not clearly established for AEDPA purposes") (citation omitted). Accordingly, federal habeas relief is unavailable under this theory. See Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) ("it is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court"); Wright v. Van Patten, 552 U.S. 120, 126 (2008) ("Because our cases give no clear answer to the question presented, . . . it cannot be said that the state court unreasonably applied clearly established Federal law") (citation, internal brackets and quotations omitted).

For the foregoing reasons, the Court of Appeal's rejection of Petitioner's juror bias claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal Law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 (2011). Petitioner is not entitled to federal habeas relief on this claim.

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

A. Legal Principles Governing Claims of Ineffective Assistance of Counsel

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

Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford, 384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (quoting Strickland, 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. The court may "neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight. . . ." Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert. denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see Yarborough v. Gentry, 540 U.S. 1, 8 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.") (citations omitted). Petitioner bears the burden to show that "counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, 562 U.S. at 104 (citation and internal quotations omitted); see Strickland, 466 U.S. at 689 (petitioner bears burden to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy") (citation and quotations omitted); see also Morris v. California, 966 F.2d 448, 456-57 (9th Cir.), cert. denied, 506 U.S. 831 (1992) (if the reviewing court can conceive of a reasonable explanation for counsel's challenged action or inaction, the court need not determine the actual explanation before denying relief).

Defense 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. "This includes a duty to investigate the defendant's `most important defense,' [citation] and a duty adequately to investigate and introduce into evidence records that demonstrate factual innocence, or that raise sufficient doubt on that question to undermine confidence in the verdict. [citation]." Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir.), amended on other grounds, 253 F.3d 1150 (9th Cir. 2001). "However, `the duty to investigate and prepare a defense is not limitless: it does not necessarily require that every conceivable witness be interviewed.'" Id. (citation omitted). The duty to investigate does not require "defense lawyers to scour the globe on the off chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste." Rompilla v. Beard, 545 U.S. 374, 383 (2005) (citation omitted).

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

"When the claim at issue is one for ineffective assistance of counsel, moreover, AEDPA review is `doubly deferential,' [citation], because counsel is `strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'" Woods v. Etherton, 136 S.Ct. 1149, 1151 (2016) (citations and internal quotations omitted). "In such circumstances, federal courts are to afford `both the state court and the defense attorney the benefit of the doubt.'" Id. (citation omitted). "[B]ecause the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard." Sexton v. Beaudreaux, 138 S.Ct. 2555, 2560 (2018) (citation and internal quotations omitted).

The Superior Court rejected Petitioner's claims of ineffective assistance, ruling that: (1) "many" of these claims were unsupported by the portions of the trial transcript referenced by Petitioner; and (2) in any event, Petitioner had not shown prejudice (Respondent's Lodgment 5, pp. 3-4).12

B. Alleged Failure to Request Appointment of an Expert on the Long Term Effects of Methamphetamine Abuse

Petitioner contends counsel unreasonably failed to ask the court to appoint a defense expert "on the long term effects of methamphetamine abuse" (Pet. Mem., p. 36; Pet. Ex. T, p. 33).13 Petitioner contends he told counsel that both Price and Crow purportedly abused methamphetamine daily "and that their mental stability was in doubt" (Pet. Ex. T, p. 34). Petitioner also allegedly told counsel that Petitioner personally had observed "paranoia and delusional ideation regarding Ms. Price" (id.).

Petitioner has not identified any expert who would have testified "on the long term effects of methamphetamine abuse." Petitioner has not submitted any expert evidence which would have aided his defense. Petitioner's speculation regarding wished-for expert testimony is insufficient to show a Strickland violation. See Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997) ("Speculation about what an expert would have said is not enough to establish [Strickland] prejudice."); see also Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001) (same); Bragg v. Galaza, 242 F.3d at 1088 (petitioner failed to establish prejudice where he did "nothing more than speculate that, if interviewed," the witness would have given helpful information); Dows v. Wood, 211 F.3d 480, 486-87 (9th Cir.), cert. denied, 531 U.S. 908 (2000) (no ineffective assistance of counsel for failure to call witnesses where petitioner did not identify an actual witness or present an affidavit from an actual witness); United States v. Berry, 814 F.2d 1406, 1409 (9th Cir. 1987) (appellant failed to meet prejudice prong of ineffectiveness claim because he offered no indication of how potential witnesses would have testified or how their testimony might have changed the outcome of the hearing); Heidinger v. Brazelton, 2012 WL 554630, at *17 (N.D. Cal. Feb. 21, 2012) (rejecting speculative habeas claim that counsel "should have called a doctor specializing in methamphetamine abuse" to show victim was the "aggressor" in the assault).

Thus, Petitioner has not shown a reasonable probability of a different outcome had counsel sought expert testimony concerning the alleged long term effects of methamphetamine use. Accordingly, Petitioner has not shown Strickland prejudice. See Strickland, 466 U.S. at 694.

C. Alleged Failure to Investigate and Procure Price's Complete Arrest History

Petitioner faults his counsel for allegedly failing to "investigate and procure Ms. Price's complete arrest history," contending the prosecution "had it in their possession" (Pet. Ex. T, p. 34). However, Petitioner's counsel reasonably could have determined that the court would not admit evidence of Price's alleged arrest history. See People v. Lopez, 129 Cal.App.4th 1508, 1523, 29 Cal.Rptr.3d 586 (2005) ("evidence of mere arrests is inadmissible because it is more prejudicial than probative") (citations omitted). Strickland does not require counsel to undertake a fruitless investigation. See Harrington v. Richter, 562 U.S. at 108 ("[a]n attorney need not pursue an investigation that would be fruitless").

In any event, trial evidence more probative than prior arrests tended to undermine Price's credibility, including her rambling, erratic and sometimes contradictory testimony. The jury also heard the parties' stipulation that Price previously had suffered three burglary convictions as well as convictions for petty theft with a prior and petty theft (R.T. 1519). Further, Price herself mentioned in her testimony that Petitioner knew that Price "had a warrant" (R.T. 1032). Price also told the jury that she, Price, had used "shrooms" and "weed" and had smoked crystal meth on the date of the incident (R.T. 1267, 1270-71, 1276). The jury evidently discounted Price's testimony somewhat, for the jury rejected the aggravated assault counts as to which Price testified. The jury found Petitioner guilty of two counts which were supported by Price's testimony: (1) the simple assault shown on the video; and (2) the criminal threats as to which Crow as well as Price testified. Thus, neither of these counts depended exclusively on the credibility of Price's testimony. Petitioner has failed to demonstrate any reasonable probability of a different result on these counts had the jury learned of Price's alleged "arrest history." Accordingly, Petitioner has not failed to prove Strickland prejudice. See Strickland, 466 U.S. at 694.

D. Alleged Failure to Investigate the Prosecution's Supposed Bargain with Price

Petitioner contends his counsel "failed to investigate what the prosecution demanded of Ms. Price in return for sparing Ms. Price a trip to the county jail for outstanding bench warrant(s)" (Ex. T, p. 35). Petitioner cites to the portion of the Reporter's Transcript, mentioned above in connection with Petitioner's Brady claim, recording that: (1) the court told Price to report to Department X because "technically" Price was "in bench warrant status right now"; and (2) the prosecutor requested and obtained the court's permission to take Price's files to Department X (R.T. 4-5). As indicated above, nothing in the record indicates the prosecutor in Petitioner's case was otherwise involved in Price's proceedings in Department X or had any authority to make a "deal" with Price pending appointment of counsel for Price in Department X. Petitioner's speculation that, had defense counsel "investigated," counsel purportedly would have discovered such a "deal," is insufficient to show counsel's unreasonableness or any resulting prejudice. See Bible v. Ryan, 571 F.3d 860, 871 (9th Cir. 2009), cert. denied, 559 U.S. 995 (2010) (speculation insufficient to show Strickland prejudice); Cooks v. Spaulding, 660 F.2d 738, 740 (9th Cir. 1981), cert. denied, 455 U.S. 1026 (1982) (same); Torres v. Ducart, 2017 WL 2804030, at *20 (C.D. Cal. Jan. 18, 2017), adopted, 2017 WL 2802716, at *20 (C.D. Cal. June 28, 2017) (denying claim alleging that counsel failed to investigate witness' alleged immunity deal as "premised on nothing more than rank speculation").

E. Alleged Failure to Investigate Crow's Arrest Record, Convictions or Pending Cases

Petitioner contends counsel failed to investigate Crow's arrest record, convictions or "possible pending cases" (Pet. Mem., p. 35). Petitioner cites a portion of the Reporter's Transcript in which the attorneys and the court were discussing the use of Price's prior convictions in light of the fact that the public defender's office (but not Petitioner's counsel) previously had represented Price in unrelated criminal proceedings (see R.T. 1201-05). During the course of that conversation, Petitioner's counsel told the court the parties had agreed to stipulate that Price had been convicted of a felony, and added: "As to Ms. Crow and Ms./Kraoeus [sic] didn't intend to ask her about those convictions" (R.T. 1205).

Other than this garbled and ambiguous statement, Petitioner has produced nothing to show that Crow had any arrest record, any prior convictions or any pending cases. Petitioner also has not shown that any such alleged information would have been admissible. See People v. Anderson, 5 Cal. 5th 372, 407, 235 Cal.Rptr.3d 1, 420 P.3d 825 (2018), cert. denied, 139 S.Ct. 1452 (2019) ("a witness may be impeached with any prior felony conviction involving moral turpitude, subject to the trial court's discretion under Evidence Code section 352 to exclude it if it finds its prejudicial effect substantially outweighs its probative value.") (citation omitted); People v. Lopez, 129 Cal. App. 4th at 1523 ("evidence of mere arrests is inadmissible because it is more prejudicial than probative") (citations omitted). Petitioner's speculation that an investigation supposedly would have revealed that Crow had a criminal history which could have been used to impeach Crow is insufficient to show a Strickland violation. See Bible v. Ryan, 571 F.3d 860, 871 (9th Cir. 2009), cert. denied, 559 U.S. 995 (2010) (speculation insufficient to show Strickland prejudice); Cooks v. Spaulding, 660 F.2d 738, 740 (9th Cir. 1981), cert. denied, 455 U.S. 1026 (1982) (same); Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir.), cert. denied, 502 U.S. 902 (1991) (petitioner cannot satisfy Strickland standard by "vague and conclusory allegations that some unspecified and speculative testimony might have established his defense").

F. Failure to Challenge the Four Supposedly Biased Jurors

Petitioner faults counsel for failing to challenge for cause Jurors 62, 65, 69 and 70. For the reasons discussed above, counsel reasonably could have concluded that all of these jurors were unbiased. Counsel does not render ineffective assistance by failing to make a meritless challenge for cause. See Gonzalez v. Knowles, 515 F.3d 1006, 1017 (9th Cir. 2008); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996), cert. denied, 519 U.S. 1142 (1997); Shah v. United States, 878 F.2d 1156, 1162 (9th Cir.), cert. denied, 493 U.S. 869 (1989); see also Sexton v. Beaudreaux, 138 S. Ct. at 2559 ("A fairminded jurist could conclude that counsel's performance was not deficient because counsel reasonably could have determined that the motion to suppress would have failed."). Petitioner has not shown counsel's unreasonableness in this regard or any resulting prejudice.

G. Failure to Object to Price's Testimony That Petitioner Was on Parole at the Time of the Incident

Price was a reluctant14 witness who sometimes gave expansive and conflicting testimony. In denying Petitioner's motion for a new trial, the court accurately described Price as "a difficult witness" (R.T. 1806). Several times during Price's testimony, Price volunteered that Petitioner assertedly was on parole at the time of the incident (R.T. 971-73, 1276). The first time this occurred, Petitioner's counsel moved to strike the testimony (R.T. 971). The court responded: "Yes, well the whole thing" (R.T. 971). After Petitioner's counsel said, "Whatever was nonresponsive," the court said, "Okay. Well, overruled, go ahead." (R.T. 971). Price later made a reference to Petitioner having received "a call from parole" (R.T. 973). Price also referred to Petitioner's parole status during recross-examination by Petitioner's counsel (R.T. 1276). Petitioner faults counsel for failing to object to these statements (Pet. Mem., p. 36, referencing Pet. Ex. T, p. 35).

Petitioner has submitted a letter from appellate counsel in which counsel responded to several of Petitioner's contentions, including the contention that trial counsel purportedly erred in failing to object to Price's statements concerning Petitioner's parole status (Pet. Ex. L). Appellate counsel explained: "Your defense counsel's tactic in not objecting [to Price's statements regarding Petitioner's parole status] was based on a belief that he did not want to give credibility to Ms. Price's statement [sic] or bring further attention to the statements Ms. Price made as being accurate and believed at that point Ms. Price's testimony was so erratic, it was best to leave the jury with questions about whether she had any credibility or was simply `going off.'" (id., p. 2).

Trial counsel's tactical decision not to object to Price's statements concerning Petitioner's parole status or to seek an admonishment or curative instruction for fear of highlighting the statement to the jury was not unreasonable, particularly given the court's response to trial counsel's motion to strike. See Gresser v. Franke, 628 Fed. App'x 960, 963 (9th Cir. 2015) ("whether to object to damaging testimony at the risk of drawing the jury's attention to it is a tactical decision."); Flores v. Montgomery, 2018 WL 1136030, at *14 (C.D. Cal. Jan. 22, 2018), adopted, 20108 WL 1124179 (C.D. Cal. Feb. 28, 2018) (counsel not ineffective for failing to request an admonishment after jury heard evidence of petitioner's prior bad acts in order to "avoid further highlighting" the testimony); see also Isignares v. Secretary, Florida Dep't of Corrections, 755 F.3d 1273, 1284 (11th Cir. 2014) (defense counsel's failure to object to prosecutor's comment could be a reasonable tactical decision to avoid drawing jury's attention to the comment); Vasquez v. Thaler, 505 Fed. App'x 319, 330 (5th Cir.), cert. denied, 571 U.S. 832 (2013) (same); Johnson v. Thurmer, 624 F.3d 786, 792 (7th Cir. 2010) (counsel's failure to object to testimony linking petitioner to uncharged crime "was likely a sound tactical decision, designed not to draw attention" to the testimony); Rogers v. Doom, 477 Fed. App'x 343, 345 (6th Cir. 2010) (counsel reasonably could have decided not to object to victim's testimony that petitioner had spent time in prison so as not to draw attention to the statement); United States v. Meyer, 234 F.3d 319, 325 (7th Cir. 2000), cert. denied, 533 U.S. 915 (2001) (counsel not ineffective for failing to request curative instruction following extraneous testimony of witness; "an instruction directing the jury to disregard the reference always presents the risk that it will unduly highlight the problematic testimony").

Furthermore, it would have been reasonable for counsel to believe that any further objections ultimately would be unsuccessful. Evidence that Price knew of Petitioner's criminal history was relevant to the issues of whether Price suffered "sustained fear" and whether such fear was "reasonable." See People v. Wilson, 186 Cal.App.4th 789, 808, 112 Cal.Rptr.3d 542 (2010) (victim's knowledge of defendant's prior conduct is relevant to show victim actually and reasonably experienced sustained fear as a result of a criminal threat); People v. Garrett, 30 Cal.App.4th 962, 967, 36 Cal.Rptr.2d 33 (1994) (same).

In any event, Petitioner has not shown counsel's failure to object to comments concerning Petitioner's parole status prejudiced Petitioner within the meaning of Strickland. Such objection might well have been overruled. See id. Further, as previously indicated, the verdict suggests that the jury doubted Price's credibility; the jury only found Petitioner guilty of counts as to which there was supporting evidence other than Price's testimony. Petitioner has not shown a reasonable probability of a different result had counsel objected to the challenged statements or sought a curative instruction or admonishment.

H. Failure to Seek a Curative Instruction or Admonishment Following Price's "Numerous Prejudicial Blurts."

Petitioner vaguely alleges that counsel ineffectively failed to seek a curative instruction or jury admonishment following Price's "numerous prejudicial blurts" (Pet. Mem., p. 36, referencing Pet. Ex. T, p. 35). Petitioner does not identify the alleged "blurts" or explain how counsel's purported failure to seek a limiting instruction or jury admonishment with respect to "blurts" prejudiced Petitioner. Such conclusory allegations are insufficient to merit federal habeas relief. See Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (summary disposition of habeas petition appropriate where allegations are vague; "the petition is expected to state facts that point to a real possibility of constitutional error") (citation, internal quotations and brackets omitted); Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995), cert. denied, 517 U.S. 1143 (1996) (conclusory allegations unsupported by a statement of specific facts do not warrant habeas relief); Barahona v. Madden, 2015 WL 9311650, at *7 (C.D. Cal. Sept. 16, 2015), adopted, 2015 WL 9412102 (C.D. Cal. Dec. 22, 2015) (rejecting as conclusory a claim that defense counsel failed to object to "perjury" and "false and misleading testimony" where the petitioner did not identify the challenged testimony or state why the testimony was false and misleading).

I. Failure to Object to the Use of Petitioner's Two 1991 Convictions for Enhancement Purposes

The prosecution charged as "strikes" Petitioner's prior 1980 conviction for aggravated assault with personal use of a firearm and Petitioner's 1991 convictions for robbery and kidnapping for robbery (C.T. 52; see also R.T. 1802, 1816, 1818). As indicated above, Petitioner admitted suffering these prior convictions (R.T. 1804-05; C.T. 132). Petitioner contends counsel ineffectively failed to object to the sentencing court's purported use of both 1991 convictions as strikes, allegedly in violation of People v. Vargas, 59 Cal.4th 635, 637, 174 Cal.Rptr.3d 277, 328 P.3d 1020 (2014) (holding that two prior convictions arising out of a single act against a single victim do not constitute two strikes). The Superior Court did not address this claim expressly, but did address Petitioner's related challenge to his sentence, ruling that Petitioner's Vargas argument was "factually incorrect." The Superior Court reasoned that Petitioner admitted a sufficient number of strike convictions to be sentenced properly under the Three Strikes Law (Respondent's Lodgment 5, p. 3).

Even assuming arguendo counsel's unreasonableness in failing to object to the use of both 1991 convictions as strikes, Petitioner has not shown a reasonable probability of a different result had counsel made such an objection. Even if the court had used only one of the two 1991 convictions as a prior strike, Petitioner's 1980 conviction still counted as a second prior strike, thereby subjecting Petitioner to a Three Strikes sentence of twenty-five years to life. See Cal. Penal Code §§ 667(e)(2)(A)(ii); 1170.12(c)(2)(A)(ii). Hence, Petitioner has not shown Strickland prejudice.

J. Failure to "Question the Trial Court as to Why Petitioner Was Not Sentenced For His Conviction of Criminal Threats"

Contrary to Petitioner's apparent argument (see Ex. T, pp. 30-31), the trial court did sentence Petitioner for the crime of criminal threats, imposing a Three Strikes sentence for the crime. Accordingly, to the extent Petitioner contends that trial counsel ineffectively failed to question the sentencing court regarding why Petitioner supposedly was not sentenced on the criminal threats count, any such claim fails for want of a factual predicate.

Petitioner also appears to claim that counsel should have inquired why the court would not sentence Petitioner to a determinate term on the criminal threats count, a term that supposedly would enable Petitioner to benefit from the provisions of Proposition 57 (see Pet. Ex. T, pp. 30-31). The Superior Court rejected Petitioner's claims of ineffective assistance of counsel without expressly discussing this particular sub-claim (see Respondent's Lodgment 5, pp. 3-4). However, the Superior Court expressly rejected Petitioner's related claim of alleged sentencing error, stating that Proposition 57 did not establish sentencing rules and could not be the basis for a claim of sentencing error (Respondent's Lodgment 5, p. 3).

The pertinent provision of Proposition 57, approved by the electorate on November 8, 2016, provides: "Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense." Cal. Const. Art 1, § 32(a)(1). Petitioner may be asserting that his counsel should have requested that the trial court set a hypothetical base term on the criminal threats count which then theoretically could be used to render Petitioner eligible for parole consideration under Proposition 57.15

Petitioner was sentenced on April 18, 2016 (see R.T. 1811), over five months prior to the passage of Proposition 57. Petitioner's counsel cannot be faulted for failing to anticipate the possible effect of an initiative proposition yet to be enacted. "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. "Strickland does not mandate prescience, only objectively reasonable advice under prevailing professional norms." Sophanthavong v. Palmateer, 378 F.3d 859, 870 (9th Cir. 2004) (citation omitted); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir.), cert. denied, 513 U.S. 1001 (1994) ("Lowry's lawyer cannot be required to anticipate our decision in [a] later case, because his conduct must be evaluated for purposes of the performance standard of Strickland "as of the time of counsel's conduct.") (citation omitted); see also Carter v. Hopkins, 92 F.3d 666, 670 (8th Cir. 1996), cert. denied, 520 U.S. 1107 (1997) ("[C]ounsel need not `anticipate a change in existing law' to render constitutionally effective assistance of counsel.") (citation and internal quotations omitted); Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir.), cert. denied, 510 U.S. 852 (1993) ("The Sixth Amendment does not require counsel to forecast changes or advances in the law, or to press meritless arguments before a court.") (citation omitted). Accordingly, this claim lacks merit.

K. Failure to File a Motion for a New Trial Challenging the Sufficiency of the Evidence.

Petitioner faults trial counsel for failing to file a motion for a new trial challenging the sufficiency of the evidence to support the criminal threats conviction (Pet. Mem., p. 36, referencing Pet. Ex. T; see Pet. Ex. T, pp. 36-37). Counsel did make an oral motion for a new trial on the ground of evidentiary insufficiency, which the court denied (R.T. 1805-08). To the extent Petitioner contends counsel should have made a written motion for a new trial, Petitioner does not allege what the written motion should have contained that counsel's oral motion did not, or show a reasonable probability of a different result had counsel made a written motion rather than an oral motion. Moreover, the trial evidence was sufficient. Accordingly, Petitioner has not shown counsel's unreasonableness or any resulting prejudice.

L. Conclusion

For the foregoing reasons, Petitioner has not shown a Strickland violation with respect to any of his claims of ineffective assistance of trial counsel. Petitioner is not entitled to federal habeas relief on these claims. See Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc); 28 U.S.C. § 2254(a).

VI. Petitioner Is Not Entitled to Federal Habeas Relief on His Eighth Amendment Challenge to His Sentence.

Petitioner contends his Three Strikes sentence of thirty-five years to life constitutes cruel and unusual punishment in violation of the Eighth Amendment (Pet. Mem., pp. 18-24). The Court of Appeal deemed this claim procedurally defaulted for failure to raise the claim on direct appeal, but also rejected the claim on the merits (Respondent's Lodgment 1, pp. 22-26; see People v. Crawford, 2017 WL 3015845, at *8-9 (Cal. App. July 17, 2017)). This Court applies the AEDPA standard of review to the Court of Appeal's decision on the merits. See Apelt v. Ryan, 878 F.3d 800, 825 (9th Cir. 2017), cert. denied, 139 S.Ct. 2716 (2019).

The Eighth Amendment forbids the imposition of "cruel and unusual punishments." United States Constitution, Amend. VIII. In Rummel v. Estelle, 445 U.S. 263, 265-66, 284-85 (1980), the Supreme Court upheld a recidivist sentence of life with the possibility of parole for the crime of obtaining $120.75 by false pretenses, following prior convictions for fraudulent use of a credit card to obtain $80 worth of goods and services and passing a forged check for $28.36. In Solem v. Helm, 463 U.S. 277, 289-90, 296 (1983), the Court struck down a recidivist sentence of life without the possibility of parole for uttering a "no account" check for $100, "one of the most passive felonies a person could commit," where the petitioner had three prior third-degree burglary convictions and convictions for obtaining money by false pretenses, grand larceny and driving while intoxicated. In Harmelin v. Michigan, 501 U.S. 957, (1991) ("Harmelin"), five Justices, although in disagreement regarding the rationale, upheld a sentence of life without the possibility of parole for a first offense of possession of more than 650 grams of cocaine. In a concurring opinion, Justice Kennedy, joined by Justices O'Connor and Souter, opined that a non-capital sentence could violate the Eighth Amendment if it were grossly disproportionate to the crime. Id. at 996-1009. The Ninth Circuit subsequently recognized Justice Kennedy's concurring opinion as the "rule" of Harmelin. See United States v. Bland, 961 F.2d 123, 128-29 (9th Cir.), cert. denied, 506 U.S. 858 (1992).

In 2003, the United States Supreme Court decided two cases involving the constitutionality of sentences imposed under California's Three Strikes Law. In Ewing v. California, 538 U.S. 11 (2003) ("Ewing"), the Court upheld a sentence of twenty-five years to life for felony grand theft consisting of the non-violent theft of three golf clubs, where the defendant's prior offenses included convictions for robbery, theft, grand theft auto, petty theft with a prior, battery, multiple burglaries, possession of drug paraphernalia, appropriation of lost property, unlawful possession of a firearm and trespassing. In Lockyer v. Andrade, 538 U.S. 63 (2003) ("Andrade"), the Court upheld, under the standard of review set forth in 28 U.S.C. § 2254(d), the California Court of Appeal's determination that a total sentence of fifty years to life for two convictions of petty theft with a prior theft-related conviction, arising out of two non-violent incidents in which the petitioner shoplifted videotapes, was not unconstitutional. In Andrade, the petitioner's prior convictions were for theft, residential burglary, transportation of marijuana, and escape. Andrade, 538 U.S. at 66-67.

In Andrade, the United States Supreme Court acknowledged that, "in determining whether a particular sentence for a term of years can violate the Eighth Amendment, we have not established a clear or consistent path for courts to follow." Andrade, 538 U.S. at 72. However, the Court observed that "one governing legal principle emerges as `clearly established' under [28 U.S.C.] § 2254(d)(1): A gross disproportionality principle is applicable to sentences for terms of years." Id.

Thus, "[t]he threshold determination in the eighth amendment proportionality analysis is whether [Petitioner's] sentence was one of the rare cases in which a . . . comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." United States v. Bland, 961 F.2d at 129 (citations and quotations omitted); see Andrade, 538 U.S. at 73 (gross proportionality principle "applicable only in the `exceedingly rare' and `extreme' case"; citations omitted); Harmelin, 501 U.S. at 1001 (1991) (Kennedy, J., concurring) ("The Eighth Amendment does not require strict proportionality between crime and sentence"); see also Cocio v. Bramlett, 872 F.2d 889, 892 (9th Cir. 1989) ("we are required to defer to the power of a state legislature to determine the appropriate punishment for violation of its laws based on principles of federalism, unless we are confronted with a rare case of a grossly disproportionate sentence").

Petitioner's claim fails at this threshold level. The United States Supreme Court has rejected disproportionality challenges to extremely lengthy sentences imposed for crimes far less grave than Petitioner's criminal threats crime. See, e.g., Ewing (25 years to life for the non-violent theft of three golf clubs); Andrade (50 years to life for two non-violent petty thefts); Harmelin (life without the possibility of parole for possession of more than 650 grams of cocaine); Hutto v. Davis, 454 U.S. 370 (1982) (40 years for possession and distribution of marijuana); Rummel v. Estelle, 445 U.S. at 263 (1980) (life with the possibility of parole for obtaining $120.75 by false pretenses). Particularly in light of Petitioner's lengthy criminal history, Petitioner did not receive an unconstitutional sentence. See Jasso v. Hernandez, 2011 WL 1235723, at *2 (S.D. Cal. Apr. 4, 2011) (Three Strikes sentence of thirty-five years to life for criminal threats not unconstitutional).

For the foregoing reasons, the Court of Appeal's rejection of Petitioner's Eighth Amendment challenge to his sentence was not contrary to, or an objectively unreasonable application of, any clearly established Federal Law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 (2011). Petitioner is not entitled to federal habeas relief on this claim.

VII. Petitioner's Ex Post Facto Claim Does Not Merit Federal Habeas Relief.

The Ex Post Facto Clause prohibits the retroactive punishment of acts which could not so be punished at the time the acts were committed. Peugh v. United States, 569 U.S. 530, 529 (2013); Collins v. Youngblood, 497 U.S. 37, 41-46 (1990). The proper inquiry is whether the relevant change in the law "`alters the definition of criminal conduct or increases the penalty by which a crime is punishable.'" Lynce v. Mathis, 519 U.S. 433, 443 (1997) (citation omitted).

Petitioner claims his sentence violated the Ex Post Facto Clause because his 1980 and 1991 prior convictions predated the enactment of the Three Strikes Law (Pet. Mem., pp. 37-38). The Superior Court rejected this claim, observing that California courts had rejected this same argument "on numerous occasions" (Respondent's Lodgment 5, p. 4).

"Enhancement statutes, whether in the nature of criminal history provisions such as those provided in the [federal] Sentencing Guidelines, or recidivist statutes that are commonplace in state criminal laws, do not change the penalty imposed for the earlier conviction." Nichols v. United States, 511 U.S. 738, 747 (1994). The Supreme Court "consistently has sustained repeat-offender laws as penalizing only the last offense committed by the defendant." Id. (citations and internal quotations omitted); see Parke v. Raley, 506 U.S. 20, 27 (1992); Spencer v. Texas, 385 U.S. 554, 560 (1967).

Gryger v. Burke, 334 U.S. 728, 732 (1948).

It is irrelevant that, at the time Petitioner committed the prior crimes, he necessarily was ignorant of the fact that the legislature later would enact a recidivist statute under which Petitioner might receive an increased sentence for any subsequent felony conviction. The Three Strikes Law was "on the books" at the time Petitioner committed the instant offense. Therefore, Petitioner's Ex Post Facto argument is meritless. See Brown v. Mayle, 283 F.3d 1019, 1040 (9th Cir. 2002), vacated on other grounds, 538 U.S. 901 (2003) (rejecting argument that Three Strikes Law violated Ex Post Facto Clause because the law "count[s] as strikes offenses committed prior to Three Strikes' enactment"); Beckwith v. Rackley, 2018 WL 1684338, at *10 (C.D. Cal. Jan. 18, 2018), adopted, 2018 WL 1684299 (C.D. Cal. Apr. 5, 2018) (because the petitioner's instant conviction occurred after enactment of the Three Strikes Law, petitioner's Three Strikes sentence did not violate the Ex Post Facto Clause); see also People v. Brady, 34 Cal.App.4th 65, 71, 40 Cal.Rptr.2d 207 (1995) (use of convictions suffered prior to Three Strikes Law's effective date as strikes did not violate due process or Ex Post Facto Clause; statute gave defendant notice that he would be treated more severely if he committed a new felony); cf. United States v. Kaluna, 192 F.3d 1188, 1199 (9th Cir. 1999), cert. denied, 529 U.S. 1056 (2000) (federal "Three Strikes Law," 18 U.S.C. section 3559(c), did not violate the Ex Post Facto Clause because it was "on the books" at time defendant committed instant offense) (citations and internal quotations omitted).

For the foregoing reasons, the Superior Court's rejection of Petitioner's Ex Post Facto claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal Law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on this claim.

RECOMMENDATION

For the reasons discussed above, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; (2) denying Petitioner's request for an evidentiary hearing; and (3) denying and dismissing the Petition with prejudice.

NOTICE

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

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