FINDINGS AND RECOMMENDATIONS

ALLISON CLAIRE, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The action proceeds on the petition filed December 23, 2011, ECF No. 1, which challenges petitioner's 2007 conviction for manufacturing methamphetamine. Respondent has answered, ECF No. 15, and petitioner has filed a traverse, ECF No. 21.

BACKGROUND

Petitioner and co-defendant Desmond Cominos were charged in Sacramento County Superior Court with manufacturing methamphetamine in the trailer park where both men lived. Cominos pled guilty immediately before jury selection. He did not testify at petitioner's trial.

Trial

Prosecution case

Barbara and Michael Flores were the on-site managers of a RV park at the Sherman Lake Resort in Rio Vista. Desmond Cominos lived in his Pace Arrow motor home at the park. Cominos introduced petitioner to the Floreses as his friend. Beginning several months prior to May 2006, the Floreses rented a spot to petitioner that was diagonally across the street from Cominos's Pace Arrow. Petitioner lived there in a Winnebago that he purchased from the Floreses. Defendant also had a brown pickup that he drove daily, and two other vehicles.

Barbara Flores watched the comings and goings at the Sherman Lake Resort very closely, and made nightly rounds of the park. She testified that when petitioner first moved in, a friend of his named Cindy stayed with him for a while. After Cindy left, petitioner was the only resident of the Winnebago. On occasion, petitioner would be absent for two to four days at a time. During those times Barbara never observed activity or lights on in his motor home, which was kept padlocked from the outside. Petitioner never mentioned that anyone else was living in his Winnebago, or sought the Floreses' help in evicting anyone. Barbara kept track of who was staying at the park, and checked the ID of anyone who stayed with a park resident for more than a couple of days. Petitioner sometimes had overnight guests, but no one after Cindy stayed for long.

Defendant's across-the-street neighbor, Deanna Beville, saw petitioner and Cominos together at the Sherman Lake Resort 6 to 12 times. They would talk and go inside one another's motor homes. Petitioner's girlfriend lived with him in the Winnebago at first, but after she left Beville never saw anyone other than petitioner living there.

At about 2:45 a.m. on May 14, 2006, police officers served a search warrant on petitioner's Winnebago and his vehicles. When they knocked on the front door of the motor home and received no response, they forced open the door. When they entered, Detective Nicholas Gartner saw a hot plate that was plugged in and turned on, glassware, plastic tubing, Red Devil lye, a bottle of Heet, powdered red phosphorus, and hydrogen peroxide. He also smelled strong chemical odors which he associated with methamphetamine manufacturing. Nobody was inside the Winnebago, but petitioner's brown pickup was parked right outside the front door. The smell of chemicals was so strong that Detective Shawn Spencer had to leave the Winnebago within 30 seconds of entry.

Detective Gartner left the Winnebago and began walking down a dirt road. He saw petitioner coming out of the Pace Arrow motor home that was diagonally across the street from the Winnebago. When Gartner shouted to petitioner to stop, and identified himself as a police officer with a search warrant, petitioner ran in the opposite direction. Gartner, Spencer and another officer gave chase. Petitioner ran toward the rear of the Pace Arrow and climbed over a fence. He ended up hiding underneath the very Pace Arrow that he had run from. Petitioner was apprehended and searched. The key to the Winnebago was found in his pants pocket.

While near the Pace Arrow, the detectives smelled a strong chemical odor similar to that inside the Winnebago. They knocked at the door and announced their presence. When they received no reply, they entered. Inside were items consistent with methamphetamine manufacturing, including Red Devil lye, a bottle of Heet, and bottles of hydrogen peroxide. There was also an ounce of methamphetamine in a plastic storage container and possibly 2 two more ounces that were sitting on two coffee filters on the floor of the shower stall. Cominos was in the back of the Pace Arrow. Later, the detectives determined Cominos was living there.

In the back of petitioner's brown pickup truck the detectives found a garbage bag containing over 50 empty blister packs of pseudoephedrine tabs, stained green latex gloves similar to a box of gloves found in the Winnebago, used tubing, used bottles of iodine tincture, two empty containers of Heet, a bottle of hydrogen peroxide, and a black balloon containing suspected phosphate gas attached to tubing. These chemicals and supplies are used in methamphetamine manufacturing.

The jury heard extensive testimony about the process by which methamphetamine is manufactured using the chemicals and materials found in the Winnebago, Pace Arrow, and petitioner's pickup truck.

The jury also heard evidence of a prior incident, offered for a limited purpose.1 On January 17, 2006, Concord Police Officer Daniel Golinveaux saw petitioner and two men talking next to petitioner's brown pickup outside a convenience store. The officer observed a hand-to-hand transaction between petitioner and one of the men that looked like a narcotics exchange. Petitioner then drove off in his pickup with the other man. Officer Golinveaux followed petitioner and pulled him over for expired vehicle registration. There was a very strong chemical odor coming from the pickup and from petitioner. Later, during a jail search, a baggie of suspected methamphetamine fell from petitioner's groin area when he removed his pants and underwear. Plastic garbage bags in the bed of his pickup contained items consistent with methamphetamine manufacturing, including bottles of Heet, hydrogen peroxide, Red Devil lye, plastic tubing, and the packaging from cold medicine containing pseudoephedrine. Receipts taken from the truck and from petitioner's person documented purchases of pseudoephedrine at numerous different drugstores.

Defense Case

Petitioner's close friend Robin Roan lived in Martinez. Between December 2005 and March 2006, she visited petitioner at his home in Vallejo approximately five times per month. From April 2006 to May 2006, she visited him at a home in Martinez four or five times. Once in February or March 2006, Roan accompanied petitioner to the Sherman Lake Resort in his brown pickup. He parked his truck in front of a sign marked "office," returned five to seven minutes later, and the two then drove away. Toward the end of April 2006, Roan gave defendant a legal self-help book on the rights and responsibilities of landlords.

Outcome

On September 15, 2006, the jury found petitioner guilty of manufacturing methamphetamine. The trial court subsequently found that petitioner had two prior "strike" convictions. On March 6, 2007, petitioner was sentence to 25 years to life pursuant to California's "Three Strikes" statute.

Post-conviction Proceedings

Petitioner timely appealed, and the California Court of Appeal for the Third Appellate District affirmed the conviction in an unpublished opinion filed April 29, 2009. Lodged Doc. 5. Petitioner's timely petition for review was denied by the California Supreme Court on August 12, 2009. Lodged Doc. 7.

Petitioner filed state petitions for writs of habeas corpus both before and after the conclusion of direct review. On December 7, 2006, following the jury's verdict but before sentencing, petitioner filed a habeas petition in the superior court that was denied on January 7, 2007. Lodged Docs. 8, 9. He filed an amended petition in the same court on January 10, 2007, that was denied on January 24, 2007. Lodged Docs. 10, 11. Both petitions were denied on grounds that the claims were not cognizable in habeas as they could still be raised in the pending criminal case. Lodged Docs. 9, 11.

Following the conclusion of appellate review, petitioner filed a habeas petition in the superior court on May 5, 2010. Lodged Doc. 12. That petition was denied in a reasoned order on June 15, 2010. Lodged Doc. 13. On August 6, 2020, petitioner filed a habeas petition in the California Court of Appeal for the Third Appellate District, Lodged Doc. 14, which denied relief without comment on August 26, 2010, Lodged Doc. 15. On October 7, 2010, petitioner filed a habeas petition in the California Supreme Court. Lodged Doc. 16. That petition was denied without comment on June 22, 2011. Lodged Doc. 17.

The federal petition was filed on December 23, 2011, and presents ten grounds for relief. In his traverse, petitioner acknowledges that his eighth claim is unexhausted and states that this claim is withdrawn. ECF No. 21 at 16.2

STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA

28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides in relevant part as follows:

The statute applies whenever the state court has denied a federal claim on its merits, whether or not the state court explained its reasons. Harrington v. Richter, 131 S.Ct. 770, 785 (2011). State court rejection of a federal claim will be presumed to have been on the merits absent any indication or state-law procedural principles to the contrary. Id. at 784-785 (citing Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis)). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785.

The phrase "clearly established Federal law" in § 2254(d)(1) refers to the "governing legal principle or principles" previously articulated by the Supreme Court. Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Clearly established federal law also includes "the legal principles and standards flowing from precedent." Bradley v. Duncan, 315 F.3d 1091, 1101 (9th Cir. 2002) (quoting Taylor v. Withrow, 288 F.3d 846, 852 (6th Cir. 2002)). Only Supreme Court precedent may constitute "clearly established Federal law," but circuit law has persuasive value regarding what law is "clearly established" and what constitutes "unreasonable application" of that law. Duchaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000); Robinson v. Ignacio, 360 F.3d 1044, 1057 (9th Cir. 2004).

A state court decision is "contrary to" clearly established federal law if the decision "contradicts the governing law set forth in [the Supreme Court's] cases." Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision "unreasonably applies" federal law "if the state court identifies the correct rule from [the Supreme Court's] cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407-08. It is not enough that the state court was incorrect in the view of the federal habeas court; the state court decision must be objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003).

Review under § 2254(d) is limited to the record that was before the state court. Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). The question at this stage is whether the state court reasonably applied clearly established federal law to the facts before it. Id. In other words, the focus of the § 2254(d) inquiry is "on what a state court knew and did." Id. at 1399. Where the state court's adjudication is set forth in a reasoned opinion, §2254(d)(1) review is confined to "the state court's actual reasoning" and "actual analysis." Frantz v. Hazey, 533 F.3d 724, 738 (9th Cir. 2008) (en banc). A different rule applies where the state court rejects claims summarily, without a reasoned opinion. In Richter, supra, the Supreme Court held that when a state court denies a claim on the merits but without a reasoned opinion, the federal habeas court must determine what arguments or theories may have supported the state court's decision, and subject those arguments or theories to § 2254(d) scrutiny. Richter, 131 S. Ct. at 786.

Under California law, a summary denial of a claim "on the merits" means that the California Supreme Court assumed the truth of all factual allegations asserted in support of the claim, and nonetheless concluded that those facts did not state a claim entitling the petitioner to relief. People v. Duvall, 9 Cal.4th 464, 474 (1995); People v. Romero, 8 Cal.4th 728, 737 (1994). In other words, summary denial on the merits indicates a determination that the petitioner has failed to state a prima facie case. Duvall, 9 Cal. 4th at 475; Pinholster, 131 S. Ct. at 1402 n.12 (citing In re Clark, 5 Cal.4th 750, 770 (1993)). When a state court denies a claim for failing to state a prima facie case, the absence of a prima facie case is the determination that must be reviewed for reasonableness under § 2254(d). Nunes, 350 F.3d at 1054-55.

Relief is also available under AEDPA where the state court predicated its adjudication of a claim on an unreasonable factual determination. Miller-El v. Dretke, 545 U.S. 231, 240 (2005); Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir.), cert. denied, 543 U.S. 1038 (2004). The statute explicitly limits this inquiry to the evidence that was before the state court. 28 U.S.C. § 2254(d)(2).

To prevail in federal habeas proceedings, a petitioner must establish the applicability of one of the § 2254(d) exceptions and also must also affirmatively establish the constitutional invalidity of his custody under pre-AEDPA standards. Frantz v. Hazey, 533 F.3d 724 (9th Cir. 2008) (en banc). There is no single prescribed order in which these two inquiries must be conducted. Id. at 736-37. The AEDPA does not require the federal habeas court to adopt any one methodology. Lockyer v. Andrade, 538 U.S. 63, 71 (2003).

DISCUSSION

I. Claim One: Exclusion Of And/Or Failure To Obtain And Present Witness Testimony

A. Petitioner's Allegations

Petitioner sought to present a third party culpability defense. He maintained prior to trial, as he does here, that a woman named Stacey and her boyfriend Moe had been staying at his Winnebago and were responsible for the methamphetamine manufacturing. He claims that he had tried to evict Stacey and Moe, and was cleaning up after them when he was arrested. Petitioner provided counsel with the names of individuals who could corroborate his story about Stacey and Moe, and help locate them. One of those individuals was petitioner's co-defendant, Cominos, who pled guilty to methamphetamine manufacturing prior to petitioner's trial.

After Cominos's plea but before his sentencing hearing, the court held an Evidence Code section 402 hearing where Cominos was called to testify. 3 RT 732-34.3 Cominos was asked three questions: (1) whether he knew petitioner; (2) whether he ever resided at the Sherman Lake Resort; and (3) whether he knew anyone named Stacey or Moe. In response to each question, Cominos asserted his Fifth Amendment right against self-incrimination. The court declared him unavailable as a witness. 3 RT 734. Petitioner alleges that his right to compulsory process was violated by the trial court's exclusion of Cominos's testimony on grounds of Fifth Amendment privilege. He alleges further that trial counsel provided ineffective assistance by failing to request immunity for Cominos and/or a continuance of the trial.

Gary Darst was an acquaintance of petitioner's who told a defense investigator that he was "personally aware" that Stacey was staying at petitioner's trailer, that he knew this "from [petitioner]," and that petitioner spent most of his time in Pittsburg, Benicia and Concord (rather than at Sherman Lake Resort). 3 RT 823. The defense subpoenaed Darst to testify. When he failed to appear on September 6, 2006, the court issued a $100,000 bench warrant. 1 RT 285-86. On September 14, the court declared Darst unavailable. 3 RT 840. Although the court found that defense counsel had shown due diligence in attempting to secure Darst's appearance,4 it denied a defense motion to admit Darst's statement to the investigator. 3 RT 842-43. Petitioner alleges that exclusion of the hearsay statement violated his compulsory process rights. He alleges further that the trial court abused its discretion in denying the defense request for a continuance to locate Darst. 3 RT 844.

Kelly Daniels lived in the Sherman Lake Resort trailer park. According to petitioner, Daniels had interacted with Stacey there. A defense investigator tried to serve Daniels with a subpoena but Daniels refused to accept it, so the investigator left it on the door. 3 RT 746-49 (under seal). Daniels never appeared at trial. Petitioner alleges that trial counsel provided ineffective assistance in failing to locate Daniels and present his testimony, and that the trial court violated petitioner's compulsory process rights by failing to compel his appearance.

B. The Clearly Established Federal Law

The Constitution guarantees criminal defendants the right to present witnesses, and to compel their attendance if necessary. Chambers v. Mississippi, 410 U.S. 284, 302 (1973); Washington v. Texas, 388 U.S. 14, 19 (1967). The Compulsory Process Clause is one source of the more general right of a criminal defendant to present a complete defense. Crane v. Kentucky, 476 U.S. 683, 690 (1986). A defendant's right to present witnesses may be limited to accommodate other legitimate interests in the criminal trial process. Chambers, 410 U.S. at 295.

Trial courts enjoy broad discretion in ruling on continuance requests. Morris v. Slappy, 461 U.S. 1, 11-12 (1983). Only "an unreasoning and arbitrary `insistence upon expeditiousness in the face of a justifiable request for delay'" violates a defendant's constitutional rights. Id. (quoting Ungar v. Sarafite, 376 U.S. 575, 589-90 (1964)).

To establish a constitutional violation based on the ineffective assistance of counsel, a petitioner must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 692, 694 (1984). Prejudice means that the error actually had an adverse effect on the defense. There must be a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 693-94.

C. The State Court's Ruling

Like all of petitioner's claims with the exception of Claim Ten, this claim was raised on direct appeal. Because the California Supreme Court denied review without comment, this court "looks through" the denial to the opinion of the California Court of Appeal. See Ylst v. Nunnemaker, 501 U.S. 797 (1991). As the last reasoned state court decision on the merits, the opinion on appeal is the state court adjudication that must be reviewed for reasonableness under 28 U.S.C. § 2254(d). Ortiz v. Yates, 704 F.3d 1026, 1034 (9th Cir. 2012).

The appellate court ruled as follows regarding petitioner's contentions involving co-defendant Cominos:

Lodged Doc. 5 at 8-11.

The appellate court ruled as follows regarding petitioner's contentions involving potential witness Gary Darst:

Lodged Doc. 5 at 12-15

The appellate court ruled as follows regarding petitioner's contentions involving potential witness Kelly Daniels:

Lodged Doc. 5 at 16-18.

D. Procedural Default

Respondent contends that part of this claim regarding Cominos is procedurally barred, because the state court denied it for failure to preserve the issue. As a general rule, a federal habeas court "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir.1996) (citing Coleman v. Thompson, 501 U.S. 722, 729 (1991)), cert. denied, 520 U.S. 1204 (1997).

A petitioner can overcome a procedural default by demonstrating cause and prejudice. Coleman v. Thompson, 501 U.S. 722, 753 (1991). Here, petitioner asserts ineffective assistance of counsel as cause for any default. Ineffective assistance of counsel ("IAC") can, if pleaded and proved, establish cause. Murray v. Carrier, 477 U.S. 478, 488 (1986); Edwards v. Carpenter, 529 U.S. 446, 451 (2000). Both to overcome default and to support relief on his IAC claims, petitioner must establish that counsel performed unreasonably and that he was prejudiced by the defective performance. See Strickland v. Washington, 466 U.S. 668, 692, 694 (1984). This inquiry necessarily requires analysis of the underlying issue regarding Cominos's failure to testify.

A federal court may bypass consideration of a procedural bar issue in the interests of judicial economy, where the asserted default presents complicated questions and the other issues are resolvable against the petitioner. Lambrix v. Singletary, 520 U.S. 518, 522-25 (1997); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002). Here, because the merits of the defaulted issues must be evaluated in any case, and because the default issue would be difficult and excessively time-consuming to address,5 the undersigned exercises discretion to bypass the procedural default issue and proceed to the merits.

E. Objective Reasonableness Under § 2254(d)

1. Desmond Cominos

The state court did not unreasonably apply the controlling federal law. Petitioner's right to present witnesses does not trump the witness's right to invoke the Fifth Amendment privilege against self-incrimination. See United States v. Trejo-Zambrano, 582 F.2d 460, 464 (9th Cir.) (right to compulsory process does not include right to compel witness to waive Fifth Amendment privilege), cert. denied, 439 U.S. 1005 (1978). A trial court's refusal to require a witness to testify after invoking the privilege does not necessarily violate the Compulsory Process Clause, and the state court's rejection of such a claim does not run afoul of any clearly established Supreme Court precedent. See Arredondo v. Ortiz, 365 F.3d 778, 779, 782-83 (9th Cir.) (rejecting similar claim), cert. denied, 543 U.S. 892 (2004).

As the Arredondo court explained, the Supreme Court has recognized that a defendant's right to present witnesses may be limited to accommodate other legitimate interests in the criminal trial process. Id. at 783 (citing Chambers, 410 U.S. at 295). One such interest is the interest in protecting the constitutional rights of witnesses. The Supreme Court has specifically emphasized the need to liberally construe the Fifth Amendment privilege. Id. (citing Hoffman v. United States, 341 U.S. 479, 487 (1951)). Petitioner's claim, like that in Arrendondo, accordingly fails.6

No clearly established federal law mandates a judicial grant of immunity for a witness who would otherwise refuse to incriminate himself. See Allen v. Woodford, 395 F.3d 979, 996 (9th Cir.), cert. denied, 546 U.S. 858 (2005) (such a rule would be Teague-barred "new rule"). Accordingly, the state courts' rejection of petitioner's legal theory in this regard cannot have been objectively unreasonable. See Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam) (if there is no Supreme Court precedent that controls a legal issue raised by a habeas petitioner in state court, the state court's decision cannot be contrary to, or an unreasonable application of, clearly established federal law).

Because there was no legal basis to compel Cominos's testimony, counsel cannot have performed unreasonably in failing to do so. And as the state court noted, petitioner did not show that Cominos would have presented clearly exculpatory evidence if he had testified under a grant of immunity.7 Accordingly, petitioner established neither deficient performance nor prejudice under Strickland, and the state court's rejection of the IAC claim was not unreasonable. To the extent that petitioner argued counsel was ineffective for failing to seek a continuance of his trial until Cominos's own conviction was final, the appellate court found it unlikely that such a request would have been granted. That conclusion, based on California law, is unreviewable here and defeats petitioner's claim.

2. Gary Darst

Where a trial court does not affirmatively bar a defendant from presenting a witness, but rather fails to provide a witness for the defense, the Compulsory Process Clause is not violated. See Alcala v. Woodford, 334 F.3d 862, 880-81 (9th Cir. 2003) (reversing finding that petitioner's rights were violated by trial court's failure to appoint an independent expert). Here petitioner served Darst with a subpoena, and the trial court subsequently issued a bench warrant. It was not objectively unreasonable of the state appellate court to conclude that petitioner's right to compulsory process was satisfied by issuance of the bench warrant.

It was also not unreasonable for the state court to reject petitioner's claim that his rights were violated by the exclusion of Darst's hearsay statement. The state court distinguished Chambers v. Mississippi and Green v. Georgia, and held that petitioner had made no showing that Darst's statements were trustworthy. The state court was correct that petitioner's claim of trustworthiness was unsupported.8 The state court was also correct to distinguish Chambers and Green on the constitutional issue, because those precedents involved unconstitutional restrictions on jury consideration of statements against penal interest. See Chambers, 410 U.S. at 302; Green v. Georgia, 442 U.S. 95, 97 (1979). Darst's statements to the investigator did not implicate his own penal interests, so Chambers and Green are inapposite. The state court therefore did not unreasonably apply them.

Finally, the appellate court found that the trial court had not abused its discretion by refusing a continuance to locate Darst. The record here does not come close to presenting "an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay." See Morris, 461 U.S. at 11-12. Accordingly, the state court's ruling does not unreasonably apply federal constitutional principles.

3. Kelly Daniels

The state court did not unreasonably reject petitioner's Strickland claim based on the failure to locate and produce Daniels at trial. The appellate court found that the trial record, on which petitioner relied, did not include sufficient facts to support either the deficient performance or prejudice prongs of ineffective assistance.9 That conclusion was entirely correct. Petitioner has never supplemented his claim in habeas with extra-record evidence to demonstrate that Daniels could have been located or would have provided exculpatory evidence. Under any standard of review, this claim fails.

The appellate court also rejected as unsupported petitioner's claim that the trial court erred in failing to issue a bench warrant for Daniels. Even if this court applies a de novo standard of review, on grounds that the state court did not reach the federal constitutional issue,10 there is no basis for federal habeas relief. The Compulsory Process Clause does not require the court to sua sponte issue process or locate and produce defense witnesses. See Alcala v. Woodford, 334 F.3d at 880-81. Petitioner is not entitled to relief on this claim.

II. Claim Two: Restriction Of Robyn Roan's Testimony

A. Petitioner's Allegations

Petitioner's friend Robin Roan testified in support of the defense theory that people other than petitioner had been staying in his Winnebago and were responsible for the methamphetamine manufacturing operation. At an Evidence Code section 402 hearing, 3 RT 763-815, Roan testified that she became aware that defendant was having problems with Stacy and Moe staying at his motor home. She did not know Moe or Stacy, and learned that Stacy was living in the motor home because defendant and a person named Sherry Gomes told her so. Based on this lack of personal knowledge, the court excluded Roan's testimony about Stacy and Moe.11 3 RT 812-13.

On recross-examination during trial, Roan testified she was convicted of petty theft with a prior in June 2003 and then volunteered that the conviction was "right before [she] went into the program." 3 RT 863. During redirect examination, defense counsel asked Roan "what program is that," but Roan did not answer because the court sustained the prosecutor's relevancy objection. 3 RT 864.

Petitioner contends that his right to present a defense was unconstitutionally impaired by these limitations on Roan's testimony.

B. The Clearly Established Federal Law

The Constitution guarantees to criminal defendants the right to present a defense. Chambers v. Mississippi, 410 U.S. 284 (1973); Crane v. Kentucky, 476 U.S. 683, 690 (1986). This includes the right to present reliable evidence that another person committed the charged crime. Holmes v. South Carolina, 547 U.S. 319 (2006). State rules establishing standards for the admissibility of third-party culpability evidence are constitutionally permissible as long as they are rationally related to the legitimate purpose of excluding evidence that has only a weak logical connection to the central issues at trial. Id. at 326-30.

C. The State Court' Ruling

The opinion of the California Court of Appeal is the state court decision subject to AEDPA review. See Ortiz v. Yates, 704 F.3d at 1034. The appellate court affirmed the trial court's ruling at the Evidence Code section 402 hearing:

Lodged Doc. 5 at 19.

The Court of Appeal also held that the trial court properly excluded Roan's testimony about entering a program:

Lodged Doc. 5 at19-20.

D. Procedural Default

Respondent contends that this claim is procedurally barred. For the same reasons explained previously regarding Claim One, the court exercises discretion to bypass the default issue and proceed to the merits. See Lambrix v. Singletary, 520 U.S. at 522-25; Franklin v. Johnson, 290 F.3d at 1232.

E. Objective Reasonableness Under § 2254(d)

The appellate court did not explicitly address the merits of the constitutional claim that the trial court's limitations on Roan's testimony violated petitioner's right to present a defense. Whether this issue is reviewed under § 2254(d) as an unexplained rejection of the constitutional claim, see Richter, 131 S.Ct. at 786, or de novo as a claim unadjudicated on the merits by the state court, see Cone v. Bell, 556 U.S. 449, 472 (2009), the result is the same.

Exclusion of Roan's testimony about Stacy and Moe cannot have impaired petitioner's right to present a defense because Roan was not a percipient witness to Stacy and Moe's alleged use of petitioner's trailer to cook methamphetamine. The trial court quite properly excluded the testimony for lack of personal knowledge; the proffered testimony also failed to qualify under California law as admissible third party culpability evidence. Under California law, a criminal defendant has a right to present evidence of third party culpability if that evidence is capable of raising a reasonable doubt regarding his own guilt. See Spivey v. Rocha, 194 F.3d 971, 978 (9th Cir. 1999) (citing People v. Hall, 41 Cal.3d 826, 833 (1986)), cert. denied, 531 U.S. 995 (2000). In order for evidence pointing to another suspect to be admissible, however, "there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." Hall, 41 Cal. 3d at 833. Motive or opportunity alone is not enough. Spivey, 194 F.3d at 978 (citing Hall, 41 Cal. 3d at 833). There is no constitutional violation in the application of these standards unless they are applied arbitrarily or in a manner disproportionate to the reliability purposes they are designed to serve. See Holmes, 547 U.S. at 326-27. Because petitioner presented no evidence linking Stacey and Moe to the actual perpetration of the crime, Roan's testimony was not admissible. Because exclusion of Roan's testimony served legitimate reliability goals in light of her lack of personal knowledge, it did not impair petitioner's constitutional rights.

The exclusion of Roan's explanation about her "program" was also properly upheld on appeal and did not impair petitioner's right to present a defense. Petitioner did not make a record in the trial court of what Roan would have said, nor did he expand the claim in habeas with an affidavit. Even assuming that Roan's answer would have negated any adverse credibility inference generated by her prior conviction, it cannot conceivably have affected the verdict. See Brecht v. Abrahamson, 507 U.S. 619 (1993) (to support habeas relief, constitutional error must have had substantial and injurious effect on jury's verdict). Roan's testimony was far too slender a reed on which to stake a third party culpability defense in any case, and the trial court's rulings did not render the trial fundamentally unfair. See Estelle v. McGuire, 502 U.S. 62 (1991) (evidentiary errors violate due process only where they render the trial fundamentally unfair).

Overall, Claim Two fails because the U.S. Supreme Court has not established a controlling legal standard for evaluating a claim that exclusion of defense evidence violated the right to present a complete defense. See Brown v. Horell, 644 F.3d 969, 983 (9th Cir.), cert. denied, 132 S.Ct. 593 (2011). In the absence of such authority, § 2254(d) bars relief. Id.

III. Claim Three: Prosecutor's Misstatement in Closing Argument

A. Petitioner's Allegations

Following co-defendant Cominos's assertion of the Fifth Amendment privilege, the prosecutor requested an order from the court reminding counsel that "neither party can comment on the unavailability of a witness that they know. . . has been deemed. . . unavailable to testify." 3 RT 735. During rebuttal closing argument, the prosecutor commented as follows on the defense failure to call witnesses:

4 RT 945.

Petitioner alleges that the prosecutor's reference to unavailable witnesses consisted misconduct.

B. The Clearly Established Federal Law

A prosecutor's improper statements violate the constitution only where they "so infect[] the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (internal quotation marks omitted)). It is not enough that the remarks were "undesirable or even universally condemned." Darden, 477 U.S. at 181. Fundamental fairness must be assessed in context of the trial as a whole, including the weight of the evidence, the defense opportunity to respond, and the instructions given to the jury. Id. at 181-82.

C. The State Court's Ruling

The opinion of the California Court of Appeal is the state court decision subject to AEDPA review. See Ortiz v. Yates, 704 F.3d at 1034. The appellate court ruled as follows:

Lodged Doc. 5 at 21.

D. Objective Reasonableness Under § 2254(d)

The court of appeal reasonably evaluated this claim. The prosecutor did not ask the jury, either directly or by implication, to draw an adverse inference from petitioner's failure to present exculpatory testimony from any of the specific individuals who had been declared unavailable. Instead, he pointed to petitioner's general failure to produce any witnesses to support his theory that someone else had been living in his trailer and using it to cook meth. Although the prosecutor was aware that petitioner had made unsuccessful efforts to produce three such (putative) witnesses, he was not therefore precluded from commenting on the almost total absence of proof to support the defense theory. A reasonable juror would likely have wondered why the defense presented no testimony from other trailer park residents regarding Stacey and Moe's alleged use of the Winnebago, and would most likely have interpreted the prosecutor's comment as highlighting this evidentiary vacuum rather than challenging petitioner's failure to put Cominos on the stand for that purpose.12 Moreover, the jury was specifically instructed that "[n]either side is required to call all witnesses who may have information about the case. . ." 2 CT 373.13 In light of this instruction, there is little chance that the jury would have been drawn an improper inference on the basis of the prosecutor's comment. In light of the record as a whole, the court of appeal's decision does not constitute an unreasonable adjudication of the fundamental fairness issue that establishes the constitutional bottom line.

IV. Claim Four: Impairment Of Right To Present Third-Party Liability Defense

A. Petitioner's Allegations

Petitioner alleges (1) that his right to present a defense was violated by the trial court's modification and placement of a defense pinpoint instruction, and (2) that he was denied meaningful appellate review of this matter by the failure to transcribe jury instructions. The background facts are as follows.

The parties entered into the following stipulation on the record: "[T]he court reporter need not transcribe the jury instructions as I read them. I will come back to each of you once I have concluded reading them if you believe I made an error at any point in my reading." 3 RT 871. Thereafter, the court read the instructions to the jury without transcription, and the parties agreed that the court "read the[] instructions substantially as written" without omitting anything. 4 RT 949.

However, in response to a note from the jury during deliberations, the court realized it had forgotten to instruct pursuant to CALCRIM Nos. 400 and 401 regarding aiding and abetting. The parties had previously agreed these instructions were appropriate. The court said it intended to give those instructions now. 4 RT 956. Over defense objection that any error in failing to give the instruction was "waived" by the parties' agreement that the instructions as read by the court were correct, the court instructed the jury pursuant to CALCRIM Nos. 400 and 401. 4 RT 957, 959-61. The court told the jury it had inadvertently omitted these instructions earlier and the jury should assume the court would have read them had it remembered. Id. at 961.

The facts related to the defense pinpoint instruction are as follows. Defense counsel requested the following instruction on third party liability:

3 RT 838-39; 2 CT 381-8314 (italics added).

The court refused to give the entire pinpoint instruction and agreed to give only the italicized portion. It explained that the proposed pinpoint instruction "contain[ed] a substantial amount of verbiage." The court explained that the omitted portion of the proposed instruction "wasn't given because it's already provided in the instructions that are being given as part of the form instructions." 3 RT 867-68.

As to the sequence of instructions, the court read CALCRIM No. 373 regarding other perpetrators, then read CALCRIM No. 375 regarding evidence of defendant's uncharged offenses, which included the italicized portion of the pinpoint instruction at the beginning of its last paragraph. 2 CT 375-76.

B. The Clearly Established Federal Law

The constitutional right to present a defense includes the right to present reliable evidence that another person committed the charged crime. Holmes v. South Carolina, 547 U.S. 319 (2006).

Erroneous jury instructions do not support federal habeas relief unless the infirm instruction so infected the entire trial that the resulting conviction violates due process. Estelle v. McGuire, 502 U.S. 62, 72 (1991) (citing Cupp v. Naughten, 414 U.S. 141, 147 (1973)). See also Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) ("`[I]t must be established not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some [constitutional right]'"). The challenged instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record overall. Estelle, 502 U.S. at 72. Moreover, relief is only available if there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. Id. at 72-73.

C. The State Court's Ruling

The opinion of the California Court of Appeal is the state court decision subject to AEDPA review. See Ortiz v. Yates, 704 F.3d at 1034. The appellate court ruled as follows regarding the failure to transcribe jury instructions:

Lodged Doc. 5 at 23-24.

Regarding the modification and placement of the defense pinpoint instruction, the court ruled as follows:

Lodged Doc. 5 at 25-27.

D. Procedural Default

Respondent contends that this claim is procedurally barred. For the same reasons explained previously regarding Claim One, the court exercises discretion to bypass the default issue and proceed to the merits. See Lambrix v. Singletary, 520 U.S. at 522-25; Franklin v. Johnson, 290 F.3d at 1232.

E. Objective Reasonableness Under § 2254(d)

The state court did not unreasonably apply federal law in resolving this claim. For the reasons explained by the appellate court, the jury instructions as a whole did not "so infect[] the entire trial that the resulting conviction violates due process." See Estelle, 502 U.S. at 72. Moreover, as the state court correctly noted, the record does not support any inference that the jury may have applied the challenged instruction in a way that violates the Constitution. See id. at 72-73. The jury was instructed correctly on the prosecution's burden of proof and on the theory of the defense. 2 CT 365-66, 369, 373, 376-77, 381. Neither the substance nor the order of the instructions raises any constitutional concerns.

No clearly established federal law is implicated by the trial court's failure to transcribe the reading of the instructions to the jury. Certainly the better practice is to transcribe the instructions in order to avoid any doubt about the accuracy of the court's reading. However, the record presented on appeal included the printed instructions that the court read and the transcript of what occurred when the court realized it had omitted two instructions. See 2 CT 363-81 (instructions given); 4 RT 956-61. This record permitted adequate review of all petitioner's appellate issues. The U.S. Supreme Court has never identified a violation of the constitutional right to appellate review on even remotely analogous facts, so relief is unavailable in federal habeas. See Wright v. Van Patten, 552 U.S. at 125-26.

Even if this claim is reviewed de novo, on grounds the state court relied exclusively on state law principles and did not reach the merits of the constitutional issue,15 petitioner is not entitled to relief. For the reasons noted, the jury instructions did not compromise the fairness of the trial.

V. Claim Five: Failure to Instruct Jury Regarding Transitory Possession

A. Petitioner's Allegations

Petitioner contends that the trial court violated his rights by failing to sua sponte instruct on the defense of transitory possession. Petitioner alleges further that his counsel was ineffective for failing to request the instruction.

B. The Clearly Established Federal Law

Erroneous jury instructions do not support federal habeas relief unless the infirm instruction so infected the entire trial that the resulting conviction violates due process. Estelle v. McGuire, 502 U.S. 62, 72 (1991) (citing Cupp v. Naughten, 414 U.S. 141, 147 (1973)). See also Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) ("`[I]t must be established not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some [constitutional right]'").

To establish a constitutional violation based on the ineffective assistance of counsel, a petitioner must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 692, 694 (1984). Prejudice means that the error actually had an adverse effect on the defense. There must be a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 693-94.

C. The State Court's Ruling

The opinion of the California Court of Appeal is the state court decision subject to AEDPA review. See Ortiz v. Yates, 704 F.3d at 1034. The appellate court ruled as follows:

Lodged Doc. 5 at 27.

D. Objective Reasonableness Under § 2254(d)

The state court disposed of this claim on state law grounds. It's holding that the facts did not support the transitory possession instruction is unreviewable here. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (state court's ruling on state law issue binding on federal habeas court). Where jury instructions are correct under state law, there can be no due process violation. Spivey v. Rocha, 194 F.3d at 976. There is no basis here for a finding that the trial was rendered fundamentally unfair by the court's failure to instruct on a factually unsupported defense. And because the instruction was not appropriate under California law on the facts of the case, counsel cannot have been ineffective for failing to request it. Petitioner is not entitled to relief on this claim under any standard of review.

VI. Claim Six: Prosecutorial Discovery Of Petitioner's Correspondence

A. Petitioner's Allegations

Before the start of trial, the court addressed a discovery dispute regarding two letters written by petitioner which had been in Cominos's possession. The first was an undated 28-page letter that was in an envelope marked "legal mail" and addressed to petitioner's attorney. It contained petitioner's notes about the case. The letter never made it to counsel because it was returned to petitioner for insufficient postage. Petitioner then gave the letter and envelope to Cominos. Cominos in turn gave the letter to his attorney, who then gave it to petitioner's attorney. The second letter, which was not addressed to anyone, was dated August 24, 2006 and was given to Cominos by petitioner. 1 RT 180.16

The court ordered both letters produced to the prosecutor, finding that defendant had waived the attorney-client privilege as to the first letter. 1 RT 184. Petitioner alleges that his rights to due process and a fair trial were violated. He alleges further that his trial lawyer provided ineffective representation by failing to seek writ review of the trial court's ruling.

B. The Clearly Established Federal Law

The attorney-client privilege is a creature of state law, and is not grounded in the Constitution. See Maness v. Meyers, 419 U.S. 449, 461 n. 8 (1975) (distinguishing Fifth Amendment privilege against self-incrimination, made applicable to the states by the Fourteenth Amendment, from state-law privileges including the attorney-client privilege).

To establish a constitutional violation based on the ineffective assistance of counsel, a petitioner must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 692, 694 (1984). Prejudice means that the error actually had an adverse effect on the defense. There must be a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 693-94.

C. The State Court's Ruling

The opinion of the California Court of Appeal is the state court decision subject to AEDPA review. See Ortiz v. Yates, 704 F.3d at 1034. The appellate court ruled as follows:

Lodged Doc. 5 at 28-31.

D. Procedural Default

Respondent contends that part of this claim is procedurally barred. For the same reasons explained previously regarding Claim One, the court exercises discretion to bypass the default issue and proceed to the merits. See Lambrix v. Singletary, 520 U.S. at 522-25; Franklin v. Johnson, 290 F.3d at 1232.

E. Objective Reasonableness Under § 2254(d)

Petitioner is not entitled to habeas relief because the Supreme Court has not clearly established a constitutionally-protected attorney-client privilege. Beckler v. Superior Court, 568 F.2d 661, 663 n.3 (9th Cir. 1978) (citing Maness v. Meyers, 419 U.S. 449, 466 n. 15 (1975)). In the absence of such authority, the state court cannot have unreasonably applied federal law. See Wright v. Van Patten, 552 U.S. at 125-26. Even if the violation of privilege claim is reviewed de novo, the absence of any constitutional basis precludes relief. See 28 U.S.C. § 2254(a). Furthermore, because the letters were not used against petitioner at trial, their disclosure cannot have affected the verdict or compromised the fundamental fairness of the trial in violation of due process.17

The state court of appeal did not unreasonably apply Strickland. This court may not revisit the state court's conclusion that the attorney-client privilege had been waived under California law. See Evans v. Raines, 800 F.2d 884, 887 n. 4 (9th Cir. 1986) (because attorney-client relationship is created and controlled by state law, waiver of privilege in state proceedings is a state law question); see also Bradshaw v. Richey, 546 U.S. at 76 (state court holdings on state law questions are binding on federal habeas court). Given the court of appeal's ultimate conclusion that the trial court did not err in ordering discovery of the letters, it would have been futile for trial counsel to seek writ review. Accordingly, there was no deficient performance or resulting prejudice.

VII. Claim Seven: Cumulative Error

A. Petitioner's Allegations

Petitioner contends that the cumulative effect of the errors presented in claims One through Six deprived him of due process and a fair trial.

B. The Clearly Established Federal Law

The combined effect of multiple trial court errors violates due process when it renders the resulting criminal trial fundamentally unfair. Chambers v. Mississippi, 410 U.S. 284, 298, 302-03 (1973). The cumulative effect of multiple errors can violated due process even when no single error rises to the level of a constitutional violation. Id. at 290 n.3.

C. The State Court's Ruling

The opinion of the California Court of Appeal is the state court decision subject to AEDPA review. See Ortiz v. Yates, 704 F.3d at 1034. The appellate court ruled as follows:

Lodged Doc. 5 at 31.

D. Objective Reasonableness Under § 2254(d)

The state court's ruling on cumulative error was not unreasonable. By definition, cumulative error requires the existence of error. See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002). For the reasons already explained, the state court reasonably found no error. There is accordingly nothing to cumulate. Id. Moreover, the alleged errors here do not implicate fundamental fairness, either separately or together. Relief is therefore unavailable. See Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011) (petitioner not entitled to relief for cumulative error where trial imperfections do not infect trial with unfairness in violation of due process), cert. denied, 133 S.Ct. 424 (2012).

VIII. Claim Eight: Withdrawn

Petitioner has voluntarily withdrawn his eighth ground for relief, which challenged the trial judge's exercise of sentencing discretion. Petitioner concedes this claim is unexhausted. ECF No. 21 (Traverse) at 16.

IX. Claim Nine: Instructional Error Regarding Aiding and Abetting

A. Petitioner's Allegations

A few hours into deliberations, the jury sent the court a note requesting the following: (1) "define `knowingly participated in the beginning or intermediate process' & does the purchasing and disposing of components involved (pills, chemicals, etc) is that considered participating"; (2) "What is consider[ed] `beginning' of the process?" 2 CT 390.18

This note led the court to realize it had forgotten to give CALCRIM Nos. 400 and 401 on aiding and abetting, which the parties had previously agreed should be given. Defense counsel objected that the error in failing to give the instructions was "waive[d]" because both parties agreed (right after the court had read the instructions) that the court had instructed the jury correctly and that the instructions, if given now, would be "unduly highlight[ed]" for the jury. 4 RT 957. The court overruled defense counsel's objection. Id.

The court then called the jury into the courtroom and, before answering the jury's question, provided the following previously omitted instructions:

4 RT 960-61.

The court then told the jury it should assume these instructions would have been read that morning had the court not forgotten them. The jury was instructed not to give the previously-omitted instructions "any undue significance." 4 RT 961.

With respect to the jury's note, the court next stated as follows:

4 RT 961.

The jury then resumed deliberations. The verdict was returned shortly thereafter.

Petitioner contends that (1) there was insufficient evidence to support giving the instructions; (2) the instructions were deficient because they omitted language addressing mere presence at the crime scene; and (3) the court erred in failing to answer the jury's written question. Petitioner also alleges that trial counsel provided ineffective assistance by (1) initially agreeing that the instructions were appropriate; (2) failing to object to the omission of mere presence language; and (3) failing to insist on a full and accurate answer to the jury's written question.

B. The Clearly Established Federal Law

Erroneous jury instructions do not support federal habeas relief unless the infirm instruction so infected the entire trial that the resulting conviction violates due process. Estelle v. McGuire, 502 U.S. 62, 72 (1991) (citing Cupp v. Naughten, 414 U.S. 141, 147 (1973)). See also Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) ("`[I]t must be established not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some [constitutional right]'"). The challenged instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record overall. Estelle, 502 U.S. at 72. Moreover, relief is only available if there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. Id. at 72-73.

To establish a constitutional violation based on the ineffective assistance of counsel, a petitioner must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 692, 694 (1984). Prejudice means that the error actually had an adverse effect on the defense. There must be a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 693-94.

C. The State Court's Ruling

The opinion of the California Court of Appeal is the state court decision subject to AEDPA review. See Ortiz v. Yates, 704 F.3d at 1034. The appellate court ruled as follows:

Lodged Doc. 5 at 36-39.

D. Objective Reasonableness Under § 2254(d)

The state court's disposition of this claim did not involve the unreasonable application of federal law, and the facts do not support habeas relief even under de novo review. The sufficiency of the evidence to support the aiding and abetting instruction, the omission of "mere presence" language, and the trial court's response to the jury's note, are all matters of state law. The appellate court's determination of those questions is binding on this court. See Bradshaw v. Richey, 546 U.S. at 76. Because the instructions were correct under California law, there can be no due process violation. Spivey v. Rocha, 194 F.3d at 976.

Review of the record as a whole reveals no fundamental unfairness. The jury was properly instructed on the prosecutor's burden of proof, the required standard of proof, and possible third party liability as grounds for reasonable doubt. The evidence was more than sufficient to support a conclusion that petitioner was primarily (if arguably not exclusively) responsible for the Winnebago meth lab. Accordingly, instructions on aiding and abetting liability cannot have been unconstitutionally applied.

The state court's resolution of the related Strickland claim was not unreasonable. Because the jury was properly instructed, counsel cannot have performed unreasonably or prejudicially in relation to this issue. For all these reasons, petitioner is not entitled to relief on Claim Nine.

X. Claim Ten: Ineffective Assistance of Counsel and Prosecutorial Misconduct

A. Ineffective Assistance of Counsel

1. Petitioner's Allegations

Petitioner contends that this trial attorney provided ineffective assistance of counsel by "failing to prepare for trial; failing to defend against harmful and prejudicial facts not in evidence; failing to defend against prosecution expert testimony; failing to object and defend against prosecutorial misconduct; failing to investigate all possible defenses including the defense of transitory possession for the purposes of disposal of methamphetamine manufacturing chemicals; stipulating to the Evidence Code § 1101(b) evidence thereby forfeiting any defense against it and effectively waiving Petitioner's 4th, 5th, 6th and 14th Amendment rights." ECF No. 1 at 11-12.19

2. The Clearly Established Federal Law

To establish a constitutional violation based on the ineffective assistance of counsel, a petitioner must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 692, 694 (1984). Prejudice means that the error actually had an adverse effect on the defense. There must be a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 693-94.

3. The State Court's Ruling

This claim was presented to the California Supreme Court in a habeas petition that was denied without comment or citation. Lodged Docs. 16, 17. No lower state court issued a reasoned opinion. Accordingly, this court asks whether it was objectively unreasonable for the state court to conclude that there was no prima facie case of a constitutional violation. See Pinholster, 131 S. Ct. at 1402; Nunes, 350 F.3d at 1054-55.

4. Objective Reasonableness Under § 2254(d)

Petitioner's allegations of ineffective assistance, in this court and in the California Supreme Court, are entirely conclusory and unsupported by any extra-record facts or identifiable references to the record. Petitioner does not specify what additional preparation for trial was required, what further investigation would have revealed, or how counsel could have prevented the various alleged errors of which he complains. On this record, it was not unreasonable of the state court to conclude that petitioner had failed to present a prima facie case of ineffective assistance of counsel. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (stating that "[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief."); Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997) ("Speculation about what [a witness] could have said is not enough to establish prejudice."); Hendricks v. Calderon, 70 F.3d 1032, 1042 (1995) ("Absent an account of what beneficial evidence investigation into any of these issues would have turned up, [petitioner] cannot meet the prejudice prong of the Strickland test.").

After the jury's verdict and prior to the bench trial on petitioner's prior convictions, trial counsel Matthew Scoble, then a Sacramento County Assistant Public Defender, was replaced by attorney Shon Northam.20 At a subsequent motion for a new trial on grounds of ineffective assistance, Mr. Scoble testified regarding his extensive but unsuccessful efforts to locate Stacey and Moe, or any witnesses (including Gary Darst, Kelly Daniels and Sherry Gomes, among others) who could corroborate Stacey's residence in the Winnebago and/or responsibility for the meth operation. 4 RT 1094-1109. Petitioner testified. 4 RT 1113-1129. The trial court also considered the transcripts of the previous Marsden hearings.21 4 RT 1110. The court ruled as follows:

4 RT 1164.

In light of the record before the trial court, including the Marsden proceedings (which the undersigned has reviewed22), these findings were not unreasonable. In state habeas, petitioner proffered no additional information that would have warranted reopening the issue. Even under a de novo standard of review in this court, the claim would fail for want of a prima facie case. Accordingly, petitioner is not entitled to federal habeas relief on this claim.

B. Prosecutorial Misconduct

1. Petitioner's Allegations

Petitioner contends that the prosecutor "provided misconduct throughout the trial by eliciting testimony to facts not in evidence; arguing facts not in evidence before the jury; deceiving the court and the jury; misstating testimony; and mischaracterizing evidence." ECF No. 1 at 12.

2. The Clearly Established Federal Law

Prosecutorial misconduct does not, per se, violate a petitioner's constitutional rights. See Darden v. Wainwright, 477 U.S. 168, 181 (1986). Rather, claims of prosecutorial misconduct are reviewed in light of the record as a whole, to determine whether the prosecutor's actions so infected the trial with unfairness as to make the resulting conviction a denial of due process. Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Relief is limited to cases in which the petitioner can establish that prosecutorial misconduct resulted in actual prejudice. Darden, 477 U.S. at 181-83.

3. The State Court's Ruling

This claim was denied by the California Supreme Court without comment or citation, and no lower state court issued a reasoned opinion. Accordingly, this court asks whether it was objectively unreasonable for the state court to conclude that there was no prima facie case of a constitutional violation. See Pinholster, 131 S. Ct. at 1402; Nunes, 350 F.3d at 1054-55.

4. Objective Reasonableness Under § 2254(d)

Petitioner's allegations of prosecutorial misconduct, in this court and in the California Supreme Court, are entirely conclusory and unsupported by citations to the record. Petitioner does not specify what facts not in evidence were elicited or argued, how the court and jury were deceived, or how evidence was mischaracterized. On this record, summary denial for failure to state a prima facie case is not unreasonable. See James, 24 F.3d at 26. Even under a de novo standard of review in this court, the claim would fail for want of supporting facts.

CONCLUSION

For all the reasons explained above, the state courts' denial of petitioner's claims was not objectively unreasonable within the meaning of 28 U.S.C. § 2254(d). Moreover, as to any claims arguably subject to de novo review, the record demonstrates that petitioner's constitutional rights were not violated. Accordingly, IT IS RECOMMENDED that the petition for writ of habeas corpus be denied.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).