REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: PETTITION FOR WRIT OF HABEAS CORPUS

[ECF Nos. 1, 2]

MITCHELL D. DEMBIN, Magistrate Judge.

This Report and Recommendation is submitted to United States District Judge Gonzalo P. Curiel pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c) of the United States District Court for the Southern District of California.

After reviewing the operative Petition for Writ of Habeas Corpus (ECF No. 1), Memorandum of Points and Authorities in Support of the Petition for Writ of Habeas Corpus (ECF No. 2), Respondent's Answer and Memorandum of Points and Authorities in support thereof ("Answer") (ECF No. 7-1), Petitioner's Traverse (ECF No. 9-1), and pertinent state court lodgments, the Court RECOMMENDS the Petition be DENIED for the reasons stated below.

I. PROCEDURAL HISTORY

A. Federal Proceedings

On August 15, 2018, Julie Harper ("Petitioner"), a state prisoner represented by her attorney, filed the Memorandum of Points and Authorities in Support of the Petition for Writ of Habeas Corpus. (ECF No. 2). Petitioner sets forth three claims: (1) improper denial of Batson motions; (2) improper jury instruction; and (3) ineffective assistance of counsel. (ECF No. 2). On November 20, 2018, Respondent Answered. (ECF No. 7-1). On December 31, 2018, Petitioner filed a Traverse. (ECF No. 9-1).

B. State Proceedings

On October 8, 2015, the jury found Petitioner guilty of second degree murder pursuant to Cal. Penal Code § 187(a) ("Penal Code"). (ECF No. 8-2 at 197).1 More specifically, the jury found that she personally and intentionally used and discharged a firearm, within the meaning of Penal Code §§ 12022.53(d) and 12022.5(a). (Id.). On January 15, 2016, the court sentenced Petitioner to state prison for 40 years to life, including 15 years to life for second degree murder and 25 years to life for personally discharging a firearm causing death. (ECF No. 8-3 at 31-32).

On January 15, 2016, Petitioner filed an appeal in the California Fourth District Court of Appeal raising the same three claims raised in this Petition as well as two other claims. (ECF No. 1 at 13-14). The two other claims asserted that: (1) the trial court erred by failing to instruct the jury that voluntary manslaughter can be based on imperfect self-defense because the Petitioner used excessive force; and (2) the trial court improperly qualified the prosecution's expert on domestic partner abuse. (ECF No. 1 at 14-15). On January 5, 2018, the appellate court rejected Petitioner's contentions and affirmed the judgment, but remanded the matter to the trial court to conduct a new sentencing hearing. (ECF No. 1 at 15).

Then, Petitioner filed a petition in the California Supreme Court for review of the same three claims raised here. (ECF No. 2 at 9). On April 18, 2018, the California Supreme Court denied the petition without providing any reasoning or citations. (ECF No. 1 at 56).

II. STATEMENT OF FACTS

"[A] determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). Petitioner has the "burden of rebutting the presumption of correctness by clear and convincing evidence." Id.; see Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) (stating that federal courts are required to "give great deference to the state court's factual findings.")). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803-06 (1991). Federal courts review the last reasoned decision from the state courts. Id. at 805-06. Accordingly, the following facts are taken from the appellate court's opinion:

III. STANDARD OF REVIEW

"The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)." Harrington v. Richter, 562 U.S. 86, 97 (2011). Under § 2254(d), federal habeas relief for a claim adjudicated on the merits in state court is granted if the state court adjudication of the claim either: "(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). "The petitioner carries the burden of proof." Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

In other words, "if the state court denies the claim on the merits, the claim is barred in federal court unless one of the exceptions to § 2254(d) set out in §§ 2544(d)(1) and (2) applies." Richter, 562 U.S. at 103. "This is a `difficult to meet' and `highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt[.]'" Pinholster, 563 U.S. at 181; White v. Woodall, 134 S.Ct. 1697, 1702 (2014).

The state court's decision is "contrary to" clearly established federal law if it either "`applies a rule that contradicts the governing law set forth in [Supreme Court] cases' or `confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [Supreme Court] precedent.'" Holley v. Yarborough, 568 F.3d 1091, 1098 (9th Cir. 2009) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (O'Connor, J., concurring)).

The state court's decision is "an unreasonable application" of clearly established federal law "if `the state court identifies the correct governing legal principle' but applies the principle unreasonably to the prisoner's factual situation." Holley, 568 F.3d at 1098 (quoting Williams, 529 U.S. at 413). "The `unreasonable application' clause requires the state decision to be more than incorrect or erroneous. The state court's application of clearly established law must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Relief under § 2254(d)(1)'s "unreasonable-application clause" is available "if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no `fairminded disagreement' on the question." Woodall, 134 S.Ct. at 1706-07 (quoting Richter, 562 U.S. at 103).

"`[C]learly established Federal law' for purposes of § 2254(d)(1) includes only `the holdings, as opposed to the dicta, of [the Supreme] Court's decisions.'" Woodall, 134 S.Ct. at 1702 (quoting Howes v. Fields, 565 U.S. 499, 505 (2012)). "In other words, `clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer, 538 U.S. at 71-72. "Circuit precedent may not serve to create established federal law on an issue the Supreme Court has not yet addressed." Holley, 568 F.3d at 1097. As such, "[i]f there is no Supreme Court precedent that controls a legal issue raised by a petitioner in state court, the state court's decision cannot be contrary to, or an unreasonable application of, clearly-established federal law." Stevenson v. Lewis, 384 F.3d 1069, 1071 (9th Cir. 2004).

Federal courts review the last reasoned decision from the state courts. See Ylst v. Nunnemaker, 501 U.S. 797, 804-06 (1991); Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). In deciding a state prisoner's habeas petition, a federal court is not called upon to decide whether it agrees with the state court's determination; rather, the court applies an extraordinarily deferential review, inquiring only whether the state court's decision was objectively unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 6 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004).

DISCUSSION

A. Claim One: Improper Denial of Batson Motions

Petitioner contends that the trial court improperly denied her Batson motions and the appellate court improperly upheld the trial court's rulings. (ECF No. 9-1 at 1). Petitioner's Batson motions alleged that the prosecutor exercised gender-based peremptory challenges against four male jurors. (ECF No. 9-1 at 1).

1. State Court Opinion

Petitioner raised claim one in her petition for review to the state appellate and supreme courts. (ECF No. 2 at 9). The appellate court denied Petitioner's claim on the merits and the California Supreme Court denied the petition without comment or citation to authority. (ECF No. 1 at 33, 56). Accordingly, this Court must "look through" to the state appellate court's opinion denying the claim as a basis for authority. Ylst. 501 U.S. at 805-06. That court wrote:

A. Relevant Background

B. Legal Standard

C. Analysis

(ECF No. 1 at 23-33 (Internal footnotes omitted)).

2. Summary of Arguments

Petitioner contends that the appellate court's ruling unreasonably applies controlling case law to the Batson challenges. (ECF No. 2 at 17). Petitioner contends that the record fails to support the appellate court's reasons for upholding the challenge to all four jurors. (ECF No. 2 at 25-31). Furthermore, Petitioner contends that the circumstantial evidence for all four jurors proves that the strike was motivated in substantial part by discriminatory intent. (ECF No. 2 at 39).

Respondent argues Petitioner cannot show that the state court's decision was contrary to Batson, unreasonably applied Batson, or relied on unreasonable determinations of fact. (ECF No. 7-1 at 14). Respondent argues the court properly found that the prosecutor articulated legitimate non-discriminatory explanations for excusing each challenged male prospective juror. (ECF No. 7-1 at 20). Further, Respondent argues there was more than enough evidence supporting the state court's denial of this claim. (ECF No. 7-1 at 31).

3. Legal Standard

The Equal Protection Clause forbids the prosecutor from dismissing potential jurors based solely on their gender. Batson v. Kentucky, 476 U.S. 79, 89 (1986); see J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127, 129 (1994) (extending Batson to challenges based on gender). Batson challenges are evaluated under a three-part test. Johnson v. California, 545 U.S. 162, 168 (2005). The test looks for: (1) the defendant to show an inference of discriminatory purpose; (2) the prosecutor to give neutral justifications; and (3) the trial court to decide if there was purposeful discrimination in dismissing jurors. Id. (internal citations and footnotes omitted).

To satisfy the first step, the defendant must show that the prosecution used its peremptory challenges to exclude members of a cognizable community group from the jury. Batson, 476 U.S. at 96. The trial court should consider all relevant circumstances to decide whether the defendant made the requisite showing. Id. at 96-97. Evidence of a numerical disparity is relevant to determining whether there was a discriminatory purpose. Miller-El v. Dretke, 545 U.S. 231, 241 (2005). When the defendant establishes a prima facia case the burden of proof shifts to the plaintiff to give a gender-neutral explanation. Purkett v. Elem, 514 U.S. 765, 767 (1995).

"At [the second] step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed [gender] neutral." Id. at 768. The explanation "need not rise to the level of justifying exercise of a challenge for cause." Batson, 476 U.S. at 97. However, a prosecutor cannot rebut the defendant's prima facie case "by stating merely that he challenged jurors ... on the assumption ... that they would be partial to the defendant because of their [gender]." Id. Nor can a prosecutor rebut the prima facie case by denying a discriminatory motive or affirming good faith. Id. at 98. After the prosecution gives a gender-neutral explanation for the strike the trial court will determine whether the defendant established purposeful discrimination. See Johnson, 545 U.S. at 168.

On the third step, the court considers several factors to determine if the prosecutor has offered a non-discriminatory, gender-neutral explanation for the challenge or if it was a pretext for purposeful discrimination. United States v. Alanis, 335 F.3d 965, 969 (9th Cir. 2003). One factor is the percentage of challenges to jury members of a cognizable community group. United States v. Alvarez-Ulloa, 784 F.3d 558, 565 (9th Cir. 2015). Another factor is whether an unexcused juror and excused minority juror have the same qualities. Foster v. Chatman, 136 S.Ct. 1737, 1754 (2016). A third potential factor is whether the prosecutor (or the prosecutor's office) has a pattern of engaging in discriminatory practices in jury selection. Miller-El, 545 U.S. at 263.

4. Analysis

The state courts reasonably applied each step of the Batson test. The facts show that the Petitioner raised her first Batson motion after the prosecutor used his first four peremptory challenges against men. (ECF No. 1 at 23). Although the trial court determined the prima facia case was not met, the prosecutor chose to present his reasons for excluding the male jurors. (ECF No. 1 at 24). After the Petitioner's second Batson motion, the trial court reasonably found there was a prima facia case of gender-based exclusion because the composition of the jury was four men and eight women. (ECF No. 1 at 24); see, e.g., Miller-El, 545 U.S. at 241 (finding defendant established prima facia case of systematic exclusion where there was evidence of numerical disparity).

Likewise, step two of the Batson test was applied correctly. The state court properly noted that the prosecutor used six of his seven challenges on men and ordered the prosecutor to show cause. (ECF No. 2 at 15). The trial court found that the prosecutor gave a gender-neutral explanation and discriminatory intent was not inherent in the prosecutor's explanation. (ECF No. 8-7 at 66). The Petitioner specifically challenged the denial of the motion for four male jurors including J.Z., W.B., S.E., and M.S. (ECF No. 9 at 5).

The prosecutor's explanation that he dismissed J.Z. because he quarreled with the prosecutor on the concept of circumstantial evidence is facially valid and gender-neutral. (ECF No. 1 at 24). The prosecutor dismissed W.B. because he appeared to be a larger individual with signs of alcoholism or drug use, was disheveled in appearance and sweating profusely, had rotting teeth, and had worn the same pants for several days in a row. (ECF No. 1 at 24-25). These reasons are facially valid and gender-neutral. The prosecutor's explanation that he dismissed S.E. because he was a professor of psychology and might not accept the expert witness's testimony is facially valid and gender-neutral. (ECF No. 1 at 24). Finally, the prosecutor's explanation that he dismissed M.S. because M.S.'s "quarrel" with the defense raised concern about M.S. "being so technical" is facially valid and gender-neutral. (ECF No. 1 at 25-26). Therefore, the state court did not unreasonably apply case law by finding that each of the justifications for striking the four male jurors were gender-neutral and facially valid. (ECF No. 1 at 33).

Finally, step three of the Batson test was applied correctly. The state court properly identified that the disparity between the male and female jurors was four men to eight women. (ECF No. 2 at 13-14). Moreover, the previous courts properly analyzed the similarities in the male jurors that were dismissed and female jurors that were not.

When the prosecutor explained that he dismissed W.B. because of his "sloppy" and "dirty" appearance, the trial court noted that it was "extremely hot" in the courtroom and other people were also sweating and wearing causal clothes. (ECF No. 7 at 24). The appellate court reasonably agreed with the trial court that the prosecutor's other reasons for dismissing W.B., namely his weight and former job as a postal worker, were gender-neutral and not pretextual. (ECF No. 1 at 29-30). More importantly, the state court diligently combed through the facts surrounding W.B.'s dismissal to determine that the reasons given were not pre-textual. Batson, 476 U.S. at 93 ("[A] court must undertake `a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.'"). Even though the trial judge did not agree with the prosecutor's contention that the juror's appearance was displeasing, the prosecutor's appearance-based explanation may be sincere and does not have to be rejected. Thaler v. Haynes, 559 U.S. 43, 48 (2010) (holding there is no bright lined rule against using an unfavored appearance as a reason for preemption where the prosecutor's disfavor of a juror's demeanor conflicted with the judge's opinion or recollection of the juror's demeanor). Therefore, the state court reasonably found that the prosecutor's appearance-based dismissal of W.B. was proper.

Likewise, the state court properly compared S.E., a male juror who was dismissed for his background in psychology, with a female juror who studied psychology. (ECF No. 1 at 31). It was not unreasonable for the state courts to find that S.E.'s experience in psychology was unlike the female juror who was not dismissed. (ECF No. 1 at 31). S.E. was a professor of psychology and the female juror did not complete a degree in psychology or work in the field. (ECF No. 1 at 31). Courts have held that a juror may properly be dismissed because of his educational background and experience in psychology. People v. Clark, 52 Cal.4th 856, 907 (2011); People v. Gutierrez, 28 Cal.4th 1083, 1124-25 (2002); People v. Landry, 49 Cal.App.4th 785, 790-91 (1996). Therefore, the state court properly found that the prosecutor's justifications were not pretextual. (ECF No. 1 at 31).

As for M.S. and J.Z, the state courts reasonably upheld their dismissal. Petitioner argues that the appellate court improperly allowed Respondent to add to its justifications for dismissing M.S. when it noted the Attorney General's expansion of his argument. (ECF No. 9 at 9). However, unlike Miller-El this was not a substitute argument. Miller-El, 545 U.S. at 252. Here, the appellate court did not act unreasonably because it relied on the prosecutor's argument at trial — and not the Attorney General's expansion — as the basis of the decision that the prosecutor's justifications for dismissing M.S. was not pretextual. (ECF No. 1 at 29). The appellate court did not "think up any rational basis" or "substitute a reason," it merely noted that there was an expansion of the argument. Miller-El, 545 U.S. 252.

The justifications for dismissing M.S. and J.Z. were similar. The prosecutor explained he dismissed M.S. for "quarreling" with the defense counsel on the rule of law. (ECF No. 1 at 26). The prosecutor similarly explained that he dismissed J.Z. because he "quarreled" with the prosecutor on the rule of law. (ECF No. 1 at 32). The trial courts first hand observations are of great importance in these situations. Cook v. Lamarque, 593 F.3d 810, 819 (9th Cir. 2010). The trial court was able to observe the juror's demeanor, tone, and facial expression. Under those observations, it is legitimate, not unreasonable, for the trial court to find that a prosecutor has a sincere concern with the juror's ability to follow the law. Cook, 593 F.3d at 819-820.

The state court objectively and reasonably concluded that the trial court did not err in upholding the dismissal of the four male jurors after a Batson challenge based on gender discrimination. This Court reaches the same conclusion and recommends finding the state court's determination is not unreasonable or contrary to federal law. Accordingly, this Court RECOMMENDS Claim One be DENIED.

B. Claim Two: Error in Jury Instruction on Involuntary Manslaughter

Petitioner contends the trial court unreasonably instructed the jury that they could not convict Petitioner of involuntary manslaughter unless they first found her not guilty of voluntary manslaughter. (ECF No. 2 at 39). Petitioner argues the trial court's instruction infringed on her right to a meaningful opportunity to present a complete defense, and reduced the prosecutor's burden of proving malice. (ECF No. 2 at 39).

1. State Court Opinion

Petitioner presented this claim to the state appellate and supreme courts on direct review. (ECF No. 1 at 2). The appellate court rejected Petitioner's contention that the trial court's jury instruction on involuntary manslaughter was harmful and denied the claim on its merits. (ECF No. 1 at 40-41). This Court again "looks through" to the state appellate court's opinion denying the claim. Ylst. 501 U.S. at 805-06. That court wrote:

A. Relevant Background

B. Homicide Principals

C. Analysis

(ECF No. 1 at 33-41).

2. Summary of Arguments

Petitioner argues that the appellate court misapplied the harmless error analysis when it held that the jury would have found Petitioner guilty of second degree murder even if the erroneous jury instruction had not been given. (ECF No. 2 at 41). Petitioner asserts that the correct analysis should consider the extent to which the jury instruction prevented the jury from deliberating whether the crime was involuntary manslaughter rather than second degree murder. (ECF No. 2 at 41).

Respondent concedes that the jury was not properly instructed on involuntary manslaughter but argues that the error was harmless. (ECF No. 7-1 at 35). Respondent argues that after the jury expressly found the Petitioner acted with malice it was not possible to find the Petitioner committed an involuntary manslaughter which requires the jury to find the Petitioner acted with a subjective good-faith belief that her actions posed no risk to human life. (ECF No. 1 at 40). Respondent further argues that the evidence showing the Petitioner acted with malice was so strong that the jury would not have reached a different conclusion even if the instruction on involuntary manslaughter was more clear. (ECF No. 7-1 at 36-37).

3. Legal Standard

"Normally jury instructions in State trials are matters of State law." Williams v. Calderon, 52 F.3d 1465, 1480-81 (9th Cir. 1995). Habeas relief is available only when a petitioner demonstrates that "[an] ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72 (1991). A challenged instruction must be evaluated in the context of other instructions and the trial record, not in artificial isolation. Estelle, 502 U.S. at 72.

Errors in jury instructions involving "omissions or incorrect descriptions of elements are considered trial errors" and are subject to a harmless error analysis. Lara v. Ryan, 455 F.3d 1080, 1086 (9th Cir. 2006). In habeas cases involving instructional error, a habeas petitioner is generally not entitled to habeas relief unless such error had a "substantial and injurious effect or influence in determining the jury's verdict." See Brecht v. Abrahamson ("Brecht"), 507 U.S. 619, 637-38 (1993).

4. Analysis

Here, Petitioner fails to meet her heavy burden to show that the erroneous instructions violated her right to due process. First, to the extent Petitioner's claim is predicated upon the trial court's failure to give a lesser included offense instruction, such a claim is not cognizable on federal habeas review and should be denied on that basis. Arana v. Davis, No. 16-cv-05655-WHO (PR), 2018 U.S. Dist. LEXIS 26024, at 10 (N.D. Cal. Feb. 16, 2018).

Second, even if Petitioner's claim is reviewable based upon a potential denial of due process, it lacks merit. In California, involuntary manslaughter — a lesser included offense of murder — is an unlawful killing without malice in the commission of either: (1) an unlawful act, not amounting to felony; or (2) a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. Penal Code § 192(b). By contrast, "[s]econd degree murder is defined as the unlawful killing of a human being with malice aforethought, but without the additional elements — i.e., willfulness, premeditation, and deliberation — that would support a conviction of first degree murder." People v. Nieto Benitez, 4 Cal.4th 91, 102 (1992) (citations omitted); Penal Code §§ 187(a), 189. As the appellate court noted, "the jury's decision to convict [Petitioner] of second degree murder by finding she acted with either express or implied intent foreclosed the possibility that [Petitioner] might have been found guilty of involuntary manslaughter." (ECF No. 1 at 39-40). The jury had the opportunity to decide that Petitioner acted without malice, but declined to do so.

Therefore, this Court agrees with the appellate court's conclusion that there is no reasonable likelihood that the jury would have reached a different verdict absent the error. Accordingly, this Court RECOMMENDS Claim Two be DENIED.

C. Claim Three: Ineffective Assistance of Counsel

Petitioner argues that defense counsel provided ineffective assistance of counsel when he failed to object to the prosecutor's argument that accidental discharge of a firearm amounted to implied malice. (ECF No. 2 at 51). Petitioner further argues that there was no tactical reason for the defense counsel's repeated failures to object. (ECF No. 9-1 at 25-26).

1. State Court Opinion

Petitioner presented this claim to the state appellate and supreme courts on direct review. (ECF No. 1 at 2). The appellate court rejected Petitioner's contention that the defense counsel provided ineffective assistance of counsel. (ECF No. 1 at 45). This Court again "looks through" to the appellate court's opinion denying the claim. Ylst. 501 U.S. at 805-06. That court wrote:

A. Relevant Background

B. Legal Standards

C. Analysis

(ECF No. 1 at 41-45).

2. Summary of Arguments

Petitioner contends that during closing arguments the prosecutor repeatedly argued second degree murder with implied malice can be based on accidentally discharging a firearm. (ECF No. 2 at 47). Petitioner contends that the prosecutor's argument was improper, and the defense counsel acted improperly when he repeatedly failed to object. (ECF No. 2 at 47-48). Petitioner further argues that there are several cases supporting her assertion that implied malice may be found when there is a conscious disregard for life and that accidental discharge of a firearm does not require a conscious disregard for life. (ECF No. 2 at 48). Finally, Petitioner argues that the defense counsel's failure to object was unreasonable and stifled the heart of her defense by prejudicing the jury. (ECF No. 9-1 at 25-28).

Respondent maintains that the prosecutor's main argument was that the Petitioner's act was intentional. (ECF No. 7-1 at 37). However, Respondent argues that even if the jury found that the Petitioner accidently pulled the trigger, it is not unreasonable to say that the Petitioner could still be guilty of second degree murder because she brandished a firearm with a conscious disregard for human life. (ECF No. 7-1 at 39-40). Furthermore, Respondent argues that the defense counsel's lack of objection was reasonable because the record indicates the choice was tactical. (ECF No. 7-1 at 38-39). The defense counsel addressed the prosecutor's examples for involuntary manslaughter in his closing statement. (ECF 8-27 at 122-23). Moreover, Respondent contends that the failure to object was not prejudicial because the jury was thoroughly instructed on the applicable law separate from the prosecutor's arguments. (ECF No. 7-1 at 41). Finally, the court instructed the jury that nothing the attorneys said during summation was evidence, and could not be used as a basis for their verdict. (ECF No. 8-2 at 155).

3. Legal Standard

The Sixth Amendment provides that the defendant has a right to counsel. Strickland v. Washington (Strickland), 466 U.S. 668, 685 (1984). The clearly established United States Supreme Court law governing ineffective assistance of counsel claims is set forth in Strickland. See Williams v. Taylor, 529 U.S. 362, 391 (2000).

The defendant's claim of ineffective assistance of counsel due to a failure to object has two prongs. Strickland, 466 U.S. at 687. The defendant must show: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense. Id. The first prong requires the defendant to show "that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment." Id. The test is whether the attorney performed as a reasonable attorney pursuant to prevailing professional norms. Id. at 688. "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689. Moreover, the counsel's actions must be evaluated from the counsel's perspective at the time, not in hindsight. Id. There is a strong presumption that the counsel rendered adequate assistance. Id. at 690.

The second prong requires the defendant to show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. The counsel's error must be prejudicial to the defense for the court to find that there was ineffective assistance. Id. at 692. Ultimately, the defendant must show that there is a reasonable probability that absent counsel's errors the outcome would have been different. Id. at 694.

Ineffective assistance of counsel is a mixed question of law and fact. Id. at 698. "The principles governing ineffectiveness claims should apply in federal collateral proceedings as they do on direct appeal or in motions for a new trial." Id. at 697. No special standards apply for ineffectiveness claims made in habeas proceedings. Id. at 698.

4. Analysis

Here, we agree with the state court that Petitioner does not meet the first prong. (ECF No. 7-1 at 38-39). It is common for lawyers to refrain from objecting during closing arguments. United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993). "[A]bsent egregious misstatements, the failure to object during closing argument and opening statement is within the "wide range" of permissible professional legal conduct." Id. at 1281; Roybal v. Davis, 148 F.Supp.3d 958, 1095 (S.D. Cal. 2015) (finding egregious misstatement may lie where the prosecutor uses biblical law to support his case instead of the laws of the state). In the present case, the record shows that the prosecutor informed the jury of the prevalent law on second degree murder and involuntary manslaughter. (ECF No. 8-27 at 62-70). Furthermore, the prosecutor primarily argued that the Petitioner had the intent to kill under an express malice theory. (ECF No. 8-27 at 65-67). Although the prosecutor gave examples of when accidental shootings may constitute implied malice, it was reasonable for the defense counsel to withhold an objection because the prosecutor properly explained malice. See Penal Code § 188; People v. Thomas, 53 Cal.4th 771, 814 (2012). Thus, it is reasonable by professional standards for the defense counsel to withhold an objection during closing arguments when the prosecutor correctly stated the law.

The second component of Strickland is also not met because Petitioner does not affirmatively prove prejudice. Petitioner argues that the jury rejected the theory of involuntary manslaughter after hearing the prosecutor's improper explanation of involuntary manslaughter. (ECF No. 9-1 at 28). However, as explained before, the record shows that the prosecutor's main argument was that the jury should find the Petitioner acted with express malice. (ECF No. 8-27 at 65-67). Then the prosecutor briefly discussed how an accidental shooting may still constitute second degree murder if there is a conscious disregard for human life when a killing occurs. (ECF No. 8-27 at 67-70). This is a correct explanation of the law and the Petitioner does not show that an objection to those comments would have changed the case. See People v. Patterson, 49 Cal.3d 615, 626 (1989). Furthermore, there is no reasonable likelihood that the proceeding would have come out differently because the evidence shows that the Petitioner acted with a conscious disregard for a human life when she pointed a loaded gun at her husband. (ECF No. 1 at 45).

Accordingly, the two Strickland prongs are not met because the defense counsel acted reasonably in light of prevailing professional norms and Petitioner failed to show prejudice. The state court's adjudication did not result in a decision contrary to federal law and did not unreasonably apply federal law. See 28 U.S.C § 2254(d); Early, 537 U.S. at 8. Accordingly, the Court RECOMMENDS Claim Three be DENIED.

For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the District Judge issue an Order: (1) approving and adopting this Report and Recommendation, and (2) directing that Judgment be entered DENYING the Petition.

IT IS HEREBY ORDERED that no later than May 3, 2019, any party to this action may file written objections with this Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."

IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than May 13, 2019. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998).

IT IS SO ORDERED.