REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
SUZANNE H. SEGAL, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable David O. Carter, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
I.
INTRODUCTION
Effective September 16, 2015,1 Joshua Burton ("Petitioner") filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition") raising six grounds for habeas corpus relief. (Dkt. No. 1). Petitioner also filed a Motion requesting the Court stay the Petition and hold it in abeyance while he exhausted Grounds One through Three and Six of the Petition. (Dkt. No. 3). On April 20, 2016, the Court granted Petitioner's motion for stay and abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (2005). (Dkt. No. 9).
After the California Supreme Court denied Petitioner's state habeas corpus petition, Petitioner filed a First Amended Petition for Writ of Habeas Corpus ("FAP") in this Court effective April 11, 2018.2 (Dkt. No. 26). Thereafter, on May 24, 2018, the Court lifted the stay of proceedings in this matter. (Dkt. No. 30).
On August 22, 2018, Respondent filed a Motion to Dismiss Grounds One through Three of the FAP ("Motion") with an accompanying Memorandum of Points and Authorities ("Mot. Mem."), arguing that these grounds are procedurally defaulted. (Dkt. No. 38). Respondent also lodged various documents with the Court. (Dkt. No. 39). On November 6, 2018, the Court denied the Motion without prejudice and required Respondent to file an Answer to the FAP. (Dkt. No. 42).
On January 7, 2019, Respondent filed an Answer to the FAP with an accompanying Memorandum of Points and Authorities ("Ans. Mem."). (Dkt. No. 46). Respondent also lodged relevant portions of the record from Petitioner's state court proceedings, including a two-volume copy of the Clerk's Transcript ("CT") and a seven-volume copy of the Reporter's Transcript ("RT"). (Dkt. No. 47). On February 19, 2019, Petitioner filed a Reply with an accompanying Memorandum of Points and Authorities ("Reply Mem."). (Dkt. No. 51). For the reasons discussed below, it is recommended that the First Amended Petition be DENIED and this action be DISMISSED with prejudice.
II.
PRIOR PROCEEDINGS
On November 9, 2011, a Los Angeles County Superior Court jury found Petitioner guilty of one count of first degree murder in violation of California Penal Code ("P.C.") § 187(a) (count 1), one count of second degree murder in violation of P.C. § 187(a) (count 2), one count of first degree burglary in violation of P.C. § 459 (count 3), and one count of first degree robbery in violation of P.C. § 211 (count 4), and also found various sentence enhancements and a multiple murder special circumstance to be true. (CT 550-54, 564-66; RT 2740-44, 2747-49). On January 20, 2012, Petitioner was sentenced to, among other things, two consecutive sentences of life imprisonment without the possibility of parole on counts 1 and 2.3 (CT 575-78; RT 3329-31).
Petitioner appealed his convictions and sentence to the California Court of Appeal (2d App. Dist., Div. 3), which, in an unpublished opinion filed April 14, 2014, affirmed Petitioner's convictions but remanded the matter to the Superior Court for resentencing on counts 2-4. (Lodgments 2-3, 6, 19). Petitioner thereafter filed a petition for review in the California Supreme Court, which denied the petition on July 16, 2014. (Lodgments 7, 9).
Effective September 1, 2015, Petitioner filed a habeas corpus petition in Los Angeles County Superior Court, which denied the petition in a reasoned decision filed December 1, 2015. (Lodgments 10-11).
On June 20, 2016, the trial court issued an order correcting Petitioner's sentence on counts 2-4, which, among other things, reduced Petitioner's sentence on count two from life without the possibility of parole to life with the possibility of parole. (Lodgments 12-13).
Effective July 13, 2017, Petitioner filed a habeas corpus petition in the California Court of Appeal, which denied the petition on November 14, 2017. (Lodgments 14-15). Effective December 12, 2017, Petitioner filed a habeas corpus petition in the California Supreme Court, which denied the petition on March 21, 2018.4 (Lodgments 16, 18).
III.
FACTUAL BACKGROUND
The following facts, taken from the California Court of Appeal's written decision on direct review, have not been rebutted with clear and convincing evidence and must, therefore, be presumed correct.5 28 U.S.C. § 2254(e)(1); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009).
1. Prosecution evidence.
On December 24, 2007, Los Angeles Police Detective Stephanie Rosa responded to a homicide call at 6733 11th Avenue in Los Angeles. Upon arrival, Rosa and her partner entered apartment number 6 and found Shelton Summerall dead on the living room floor, and Monica Youngblood dead in the bedroom. There were two .45-caliber cartridge casings in the living room and one in the bedroom. The autopsies showed Summerall had sustained three fatal gunshot wounds, two to the head and one to the chest, and Youngblood had sustained a single fatal gunshot wound to the head.
On January 10, 2008, Detective Rosa met with A.A.,[6] who lived in the same apartment complex as Summerall. On the night of the killings, A.A. saw [Petitioner and co-defendant Anthony Mitchell] knocking on Summerall's door at about midnight. [Petitioner] went into Summerall's apartment, followed by Mitchell five minutes later. About 10 minutes after that, A.A. heard gunshots. A.A. later saw [Petitioner and Mitchell] leave Summerall's apartment through a back window.
B.B. testified Summerall was an old friend who occasionally hired him to do chores around the apartment. B.B. had been inside Summerall's bedroom and observed his five or six watches. B.B. particularly liked "a purple watch with diamonds inside." Summerall kept money in a shoebox in his bedroom. B.B. knew Summerall made his living selling crack cocaine.
On the night of the shootings, B.B. was visiting his friend C.C. who lived in the same apartment complex as Summerall. When B.B. and C.C. walked into the building late that night, they saw [Petitioner and Mitchell] standing outside. [Petitioner] asked C.C. if he and B.B. "want[ed] to work." After C.C. declined this invitation, he and B.B. went into C.C.'s apartment. Shortly thereafter, B.B. saw [Petitioner and Mitchell] knocking on Summerall's door. He then heard five gunshots and later saw Mitchell carrying Summerall's shoebox in a clear bag. A few days later, B.B. saw Mitchell wearing Summerall's watch. According to B.B., [Petitioner] bought a brand new Cadillac after the killings.
D.D., a Rolling 60's gang member who was a close friend of Summerall's, testified that a few days before the killings he witnessed a discussion between [Petitioner, Mitchell] and a high-ranking gang member named Scooby. Asked if Scooby was a "shot-caller," D.D. testified, "You could say he was" because he had "authority over anybody." Scooby told [Petitioner and Mitchell] Summerall "shouldn't be selling drugs like he is because nobody could make money." Scooby also said, "Something's got to be done," which meant Summerall had to be killed. D.D. left and called Summerall to warn him that Scooby was out to get him. The next time D.D. saw Mitchell, after the killings, Mitchell tried to sell him Summerall's diamond watch. D.D. also saw Mitchell driving a brand-new Impala.
The prosecution's gang expert testified the Rolling 60's are the largest gang in Los Angeles with 1,200 documented members, 600 of whom are active. Because of its size, there are various cliques within the gang and tensions can arise between them. [Petitioner and Mitchell] were self-admitted members of the Rolling 60's who belonged to the Brynhurst clique, the same clique to which D.D. belonged. Summerall was also a Rolling 60's member, but he belonged to the Front 60's clique. Scooby was from still another clique called the Avenues. The gang expert was acquainted with Summerall, who was always well-dressed, owned various cars including a brand new Corvette, and carried around thousands of dollars in cash. Asked to assume Summerall had been dealing drugs from his apartment, which was in territory controlled by another clique of the same gang, the expert opined the killings had been committed for the benefit of the Rolling 60's gang because members of the other cliques would have felt disrespected and threatened by the fact Summerall had been depriving them of drug profits. In addition, the young gang members doing the killing would gain status for having successfully carried out the orders of a senior gang member.
The gang expert was asked the following hypothetical question: "[A]ssume there's two Rolling 60s from a particular clique that go commit a violent crime against a member of a rival clique or a clique within Rolling 60s that is sometimes rival with them. We have only one shooter during the course of that violent crime. What is the role of the non shooter, assuming they're working together?" The expert replied, "The non shooter . . . is there for help in case things go sideways . . . [and] to make sure there's no witnesses or police within that area when the crime is committed." Asked what might be the consequences for an innocent bystander who happened to witness this violent crime, the expert answered: "that person [is] getting killed, because they don't want any witnesses being present, because they don't want that to be leaked to the police[.]" Asked a hypothetical question based on the particular facts of this case, the expert opined that killing the potential eyewitness would have been done for the gang's benefit: "They kill [the intended target], and then they kill the witness because, obviously, that witness was a threat to them because they [sic] saw their faces or saw the crime when it happened, so they want nobody to be able to testify against them or report them to [the] police."
2. Defense evidence.
Dyran Culpepper testified he lived in the apartment next door to Summerall, and [Petitioner] lived with his girlfriend in the same building. On the night of the killings, Culpepper was in front of the building when he heard gunshots. Walking over to see if anyone had been injured, Culpepper saw [Petitioner] peeking out of his apartment door. Culpepper knocked on Summerall's door, but left when no one answered. The next day he went into the apartment and found Summerall's body.
Shambrea Butler is the mother of [Petitioner's] child. She lived with [Petitioner] in an upper-floor apartment in the same complex as Summerall. On the night of the killings, she and [Petitioner] were watching television when they heard gunshots. They went downstairs together and saw Culpepper walking into the building. Culpepper asked if [Petitioner] had heard anything. After a minute, Butler and [Petitioner] went back upstairs. Butler testified [Petitioner] did not purchase a new Cadillac. Butler's mother had an old model white Cadillac which [Petitioner] drove on occasion.
Quiondra Blockman is the mother of Mitchell's child. On the night of the killings, Mitchell was with Blockman at a party from 1:00 p.m. until 11:00 p.m. After getting home, they washed and fed the baby and then went to sleep. The baby awoke every few hours after that and Mitchell would get up to feed and tend to him. Mitchell was there all night and did not leave the apartment until the next afternoon.
A defense gang expert testified shot-callers do not have authority over members from other cliques. A gang member's reputation would not be enhanced by killing a fellow gang member; indeed, it could hurt his standing in the gang. It was doubtful a gang member would allow a rival clique member or the friend of a targeted individual to be present during a discussion about murdering someone.
(Lodgment 6 at 2-5 (footnote added)).
IV.
PETITIONER'S CLAIMS
The FAP raises six grounds for federal habeas relief. In Grounds One through Three, Petitioner contends the prosecutor committed misconduct by knowingly introducing the perjured testimony of Bobby Huey (Ground One) and Anthony Hull (Ground Three) as well as by vouching for Huey's credibility (Ground Two). (FAP at 10-11). In Ground Four, Petitioner alleges he received ineffective assistance when defense counsel failed to investigate Huey's statements. (Id. at 11). In Ground Five, Petitioner asserts he received ineffective assistance when defense counsel failed to request the jury be instructed with CALCRIM 417. (Id.). In Ground Six, Petitioner complains he was denied due process of law when the trial court failed to sua sponte instruct the jury with CALCRIM 358. (Id. at 12).
V.
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "bars relitigation of any claim `adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98 (2011). Under AEDPA's deferential standard, a federal court may grant habeas relief only if the state court adjudication was contrary to or an unreasonable application of clearly established federal law, as determined by the Supreme Court, or was based upon an unreasonable determination of the facts. Id. at 100 (citing 28 U.S.C. § 2254(d)). "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[.]" Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations and internal quotation marks omitted).
Petitioner raised Grounds One through Four in his habeas corpus petition to the California Supreme Court, and Grounds Five and Six in his petition for review to the California Supreme Court, and the California Supreme Court denied these petitions without comment or citation to authority. (Lodgments 7, 9, 16, 18). The Court "looks through" the California Supreme Court's silent denial to the last reasoned decision, which is presumed to be the basis for the California Supreme Court's decision. Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018); Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). That presumption has not been rebutted here. Therefore, the Court will consider the Los Angeles County Superior Court's denial of Grounds One through Three on habeas review, and the California Court of Appeal's opinion denying Ground Six on direct review. Berghuis v. Thompkins, 560 U.S. 370, 380 (2010).
However, because no state court has provided a reasoned decision addressing the merits of Ground Four,7 the Court must conduct an independent review of the record to determine whether the state court's ultimate decision to deny this claim was contrary to, or an unreasonable application of, clearly established federal law. Murray v. Schriro, 745 F.3d 984, 996-97 (9th Cir. 2014); Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013). "Crucially, this is not a de novo review of the constitutional question." Walker, 709 F.3d at 939; Kyzar v. Ryan, 780 F.3d 940, 949 (9th Cir. 2015). Rather, where, as in the present case, there is no reasoned decision analyzing Petitioner's constitutional claims, the court "must determine what arguments or theories . . . could have supported[] the state court's decision" and "then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Richter, 562 U.S. at 102; Sexton v. Beaudreaux, 138 S.Ct. 2555, 2558 (2018) (per curiam).
Finally, the Court will review Ground Five de novo.8 See Thompkins, 560 U.S. at 390 ("Courts can . . . deny writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear whether AEDPA deference applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review").
VI.
DISCUSSION
A. Grounds One Through Three Are Procedurally Defaulted
Federal courts "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." Coleman v. Thompson, 501 U.S. 722, 729 (1991); Walker v. Martin, 562 U.S. 307, 315 (2011). The procedural default doctrine, which is a specific application of the general adequate and independent state grounds doctrine, Fields v. Calderon, 125 F.3d 757, 761-62 (9th Cir. 1997), "bar[s] federal habeas [review] when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." Coleman, 501 U.S. at 729-30; Hanson v. Mahoney, 433 F.3d 1107, 1113 (9th Cir. 2006). To constitute a procedural bar, the state's rule had to be independent and adequate at the time Petitioner purportedly failed to comply with it. Fields, 125 F.3d at 760. A state procedural rule is considered an independent bar if it is not interwoven with federal law or dependent upon a federal constitutional ruling. Ake v. Oklahoma, 470 U.S. 68, 75 (1985); Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). A state procedural rule constitutes an adequate bar to federal court review if it was "firmly established and regularly followed" at the time the state court applied it. Ford v. Georgia, 498 U.S. 411, 423-24 (1991); King v. Lamarque, 464 F.3d 963, 965 (9th Cir. 2006).
Procedural default is an affirmative defense, Gray v. Netherland, 518 U.S. 152, 165-66 (1996); Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005), "and the state has the burden of showing that the default constitutes an adequate and independent ground." Insyxiengmay, 403 F.3d at 665-66; Bennett v. Mueller, 322 F.3d 573, 585 (9th Cir. 2003). However, "[o]nce the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner." Bennett, 322 F.3d at 586; King, 464 F.3d at 966-67. "The petitioner `may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule.'" King, 464 F.3d at 967 (quoting Bennett, 322 F.3d at 586). "Once a petitioner has demonstrated the inadequacy of a rule, the state bears the ultimate burden of proving the rule bars federal review." Collier v. Bayer, 408 F.3d 1279, 1284 (9th Cir. 2005); King, 464 F.3d at 967.
Here, Respondent raises the affirmative defense that Grounds One through Three are procedurally defaulted. (Ans. Mem. at 7, 15-16; Mot. Mem. at 4-10). In addressing whether Petitioner has procedurally defaulted these claims, the court looks to the decision of the last state court to which Petitioner presented these claims to determine if the state court decision rested on an "independent and adequate state ground." Coleman, 501 U.S. at 730; see also Nitschke v. Belleque, 680 F.3d 1105, 1109 (9th Cir. 2012) (Under "the doctrine of procedural default, . . . a federal court is barred from hearing the claims of a state prisoner in a habeas corpus proceeding when the decision of the last state court to which the prisoner presented his federal claims rested on an `independent and adequate state ground.'" (citation omitted)). However, as previously noted, "[w]here 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." Nunnemaker, 501 U.S. at 803. Here, the last two state courts to address Grounds One through Three were the California Supreme Court and California Court of Appeal, which both denied habeas corpus petitions without comment or citation to authority. (Lodgments 14-16, 18). Before that, Petitioner raised Grounds One through Three in his habeas corpus petition to the Los Angeles County Superior Court, which denied these claims on the merits and because they "could have been raised on appeal" and "habeas relief is not appropriate for issues . . . that could have been raised on appeal but were not."9 (Lodgment 11 at 5-6 (citing In re Dixon, 41 Cal.2d 756 (1953) and In re Dean, 12 Cal.App.3d 264, 267 (1970)).10 The Superior Court's Dixon citation qualifies as an adequate and independent state law ground. Johnson v. Lee, 136 S.Ct. 1802, 1804-06 (2016) (per curiam); Bennett, 322 F.3d at 582-83; Roybal v. Davis, 148 F.Supp.3d 958, 987 (S.D. Cal. 2015); Protsman v. Pliler, 318 F.Supp.2d 1004, 1007-08 (S.D. Cal. 2004).11
Because Respondent has adequately pled the affirmative defense of procedural bar, the burden now shifts to Petitioner to place the affirmative defense in issue. King, 464 F.3d at 966-67; Bennett, 322 F.3d at 586. "In most circumstances, the best method for petitioners to place the defense in issue is to assert `specific factual allegations that demonstrate the inadequacy of the state procedure' by citing relevant cases." King, 464 F.3d at 967 (quoting Bennett, 322 F.3d at 586). Petitioner has not done this. Thus, Petitioner has not met his burden and he has procedurally defaulted Grounds One through Three. Cunningham v. Wong, 704 F.3d 1143, 1155 (9th Cir. 2013).
When a habeas petitioner "has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750; Medley v. Runnels, 506 F.3d 857, 869 (9th Cir. 2007) (en banc). "Cause for a procedural default exists where something external to the petitioner, something that cannot fairly be attributed to him, . . . impeded his efforts to comply with the State's procedural rule." Maples v. Thomas, 565 U.S. 266, 280 (2012) (citation, internal quotation marks and brackets omitted; italics in original); Coleman, 501 U.S. at 753. "A habeas petitioner demonstrates prejudice by establishing that the constitutional errors `worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Schneider v. McDaniel, 674 F.3d 1144, 1153 (9th Cir. 2012) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)); Sexton v. Cozner, 679 F.3d 1150, 1158 (9th Cir. 2012). Petitioner has the burden of proving both cause and prejudice. Bousley v. United States, 523 U.S. 614, 622 (1998); Coleman, 501 U.S. at 750.
In opposing Respondent's Motion to Dismiss, Petitioner argues his cause for not raising Grounds One through Three on direct appeal is that he received ineffective assistance from his appellate counsel, who refused to present the claims because he did not believe the claims were viable. (Dkt. No. 41 at 4, 6; see also Reply Mem. at 9, 23-24). An "attorney's errors during an appeal on direct review may provide cause to excuse a procedural default[.]" Martinez v. Ryan, 566 U.S. 1, 11 (2012); see also Coleman, 501 U.S. at 753-54 ("Attorney error that constitutes ineffective assistance of counsel is cause"). However, where, as here, the cause asserted for the default is ineffective assistance of counsel, the ineffective assistance claims must be exhausted in state court. Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000); Murray v. Carrier, 477 U.S. 478, 488-89 (1986); Arrendondo v. Neven, 763 F.3d 1122, 1140 (9th Cir. 2014); see also Cockett v. Ray, 333 F.3d 938, 943 (9th Cir. 2003) ("To constitute cause for procedural default of a federal habeas claim, the constitutional claim of ineffective assistance of counsel must first have been presented to the state courts as an independent claim."). Petitioner has not raised his ineffective assistance of appellate counsel claims in state court, and because he "failed to raise an ineffective assistance of appellate counsel claim on [Grounds One through Three], . . . he cannot show cause to excuse his default[]." Cook v. Schriro, 538 F.3d 1000, 1029 (9th Cir. 2008); Carrier, 477 U.S. at 488-89; Arrendondo, 763 F.3d at 1140; Cockett, 333 F.3d at 943.
In his Opposition to Respondent's Motion to Dismiss, Petitioner invoked the fundamental miscarriage of justice exception. (Dkt. No. 41 at 5-6, 8). To qualify for the "fundamental miscarriage of justice" exception to the procedural default rule, Petitioner must "show that `a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" Schlup v. Delo, 513 U.S. 298, 327 (1995) (quoting Carrier, 477 U.S. at 496); Wood v. Ryan, 693 F.3d 1104, 1117 (9th Cir. 2012). "To be credible, such a claim requires [P]etitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial[,]" and "show that it is more likely than not that no reasonable juror would have found [P]etitioner guilty beyond a reasonable doubt." Schlup, 513 U.S. at 324, 327; House v. Bell, 547 U.S. 518, 537 (2006). Petitioner's new evidence, which is discussed below in relation to the merits of Grounds One to Three, does not meet these requirements. Cook, 538 F.3d at 1028; see also Casey v. Moore, 386 F.3d 896, 921 n.27 (9th Cir. 2004) ("[T]he fundamental miscarriage of justice exception applies only when a constitutional violation probably has resulted in the conviction of one actually innocent of a crime and petitioner supplements his constitutional claim with a colorable showing of factual innocence, which [petitioner] has not done."). Therefore, Petitioner has procedurally defaulted Grounds One through Three.12
B. Petitioner Is Not Entitled To Relief On His Prosecutorial Misconduct Claims
Prosecutorial misconduct rises to the level of a constitutional violation only where it "`so infected 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)); see also Smith v. Phillips, 455 U.S. 209, 219 (1982) ("[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor."). Determining whether a due process violation occurred requires an examination of the entirety of the proceedings so the prosecutor's conduct may be placed in its proper context. Boyde v. California, 494 U.S. 370, 384-85 (1990); Greer v. Miller, 483 U.S. 756, 765-66 (1987). Moreover, "[p]rosecutorial misconduct which rises to the level of a due process violation may provide the grounds for granting a habeas petition only if that misconduct. . . `had substantial and injurious effect or influence in determining the jury's verdict.'" Shaw v. Terhune, 380 F.3d 473, 478 (9th Cir. 2004) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)).
Petitioner raises prosecutorial misconduct claims in Grounds One through Three, alleging the prosecutor committed misconduct by knowingly introducing the perjured testimony of Bobby Huey (Ground One) and Anthony Hull (Ground Three) as well as by vouching for Huey's credibility (Ground Two). (FAP at 10-11).
1. Perjured Testimony
a. Background
Prosecution witness Bobby Huey testified, inter alia, that several days before the murders, he heard a gang member known as Scooby, who was a shot caller in the Rolling 60's gang,13 tell Petitioner and Mitchell that Summerall "shouldn't be selling drugs like he is because nobody could make money" and that "[s]omething's go to be done[,]" which Huey explained meant kill Summerall. (RT 950-54). Huey stated that beside himself there were five other people present when this conversation occurred, including an individual known as Boss Hog. (RT 951-52, 1031).
Huey also testified that on December 24, 2007, he and another gang member named Asian Boy went to Summerall's apartment at about 5:30 a.m. and knocked on the door twice, but nobody answered and although "the door kind of cracked open[,]" he did not go inside. (RT 944-45, 1005-08). Instead, Huey went to a donut shop where, shortly after 5:30 a.m., another gang member called him and told him that Summerall was dead. (RT 944, 947, 988, 1006-08, 1051-52). Huey then went to Summerall's apartment where he saw the police, the coroner and lots of people outside the apartment. (RT 954, 1007-08, 1052).
Anthony Hull testified that he went over to his friend Sean's house on the night of the murders, and Sean lived across from Summerall in the same apartment complex. (RT 1295-97, 1311-14). Hull stated that it was late when he went to Sean's apartment, and he saw Petitioner and Mitchell standing outside. (RT 1312). Petitioner asked Sean if he and Hull wanted to work, and Sean said no.14 (RT 1312-13). While inside Sean's apartment, Hull heard a knock on a door, looked out the window and saw Petitioner and Mitchell knocking on Summerall's door. (RT 1314-15, 1326, 1508-09, 1523-27, 1567). Hull went back to playing games, then heard gunshots and got down on the ground. (RT 1314-17, 1516-17, 1520-22, 1527-28, 1567). Hull later saw Petitioner and Mitchell leaving Summerall's apartment. (RT 1315, 1317-18, 1326, 1523, 1526, 1530-33). Hull then left Sean's apartment and went home. (RT 1319, 1529, 1549-50).
b. Superior Court's Opinion
In addition to findings Grounds One through Three to be procedurally defaulted, as discussed above, the Superior Court also rejected these claims on the merits.15 (Lodgment 11 at 4-6). For Grounds One and Three, the Superior Court stated:
[Petitioner's] contention that the prosecutor "knowingly introduced perjured testimony" is meritless. The jury was instructed on how to consider inconsistencies in a witness's testimony — inconsistencies within the witness's trial testimony as well as inconsistencies with earlier statements and testimony. Defense counsel can highlight inconsistencies in cross-examination and argue in closing that jurors should not credit that witness. Whether to believe a witness and what weight to give to his or her testimony is up to the jury.
(Lodgment 11 at 4-5).
c. Analysis
A "`conviction obtained by the [prosecutor's] knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.'" Kyles v. Whitley, 514 U.S. 419, 433 n.7 (1995) (citation omitted); see also Giglio v. United States, 405 U.S. 150, 153 (1972) ("[D]eliberate deception of a court and jurors by the presentation of known false evidence is incompatible with `rudimentary demands of justice.'"); Miller v. Pate, 386 U.S. 1, 7 (1967) ("[T]he Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence."); Napue v. Illinois, 360 U.S. 264, 269 (1959) ("[I]t is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment[.]"). "In addition, the state violates a criminal defendant's right to due process of law when, although not soliciting false evidence, it allows false evidence to go uncorrected when it appears." Hayes v. Brown, 399 F.3d 972, 978 (9th Cir. 2005) (en banc); Napue, 360 U.S. at 269; "To prevail on a [false evidence] claim, `the petitioner must show that (1) the testimony (or evidence) was actually false, (2) the prosecution knew or should have known that the testimony [or evidence] was actually false, and (3) that the false testimony [or evidence] was material.'" Hein v. Sullivan, 601 F.3d 897, 908 (9th Cir. 2010); Napue, 360 U.S. at 269.
In Ground One, Petitioner complains Huey's testimony was perjured because: (1) he identified Boss Hog as attending the meeting in which Scooby allegedly told Petitioner and Mitchell to kill Summerall, but Boss Hog was in jail at that time; and (2) Huey stated he learned of Summerall's death at around 5:30 in the morning after another gang member called him, but Summerall's body was not discovered until 3:30 in the afternoon. (FAP at 10). In Ground Three, Petitioner alleges Hull perjured himself because at the preliminary hearing when Hull said he saw the victim on the night of the murders, he incorrectly described what the victim was wearing. In addition, at the preliminary hearing, Hull stated he saw Petitioner and Mitchell go into Summerall's home, but at trial Hull testified he did not see the victim on the night of the murders and did not see Petitioner and Mitchell go into Summerall's home. (Id. at 11). Petitioner's contentions are without merit.
Petitioner claims Huey lied about the meeting between Scooby, Petitioner, Mitchell, and Boss Hog because Boss Hog is Raymeon Davis and Davis was incarcerated when the meeting Huey described allegedly occurred.16 (Reply Mem. at 7-8, 34). However, the prosecution's gang expert, Los Angeles Police Officer Gilbert Gaxiola, testified there are multiple "Boss Hogs" in the Rolling 60's gang, and Petitioner has not presented or cited any admissible evidence that Davis is the Boss Hog about whom Huey testified.17 (RT 1804-05). Thus, Petitioner has not provided any persuasive evidentiary support for his allegation that the Boss Hog identified by Huey was incarcerated at the relevant time, and he has not shown that Huey lied about Boss Hog's presence at the meeting or that the prosecutor was aware of, or should have been aware of, the purported falsehood.18 Therefore, this argument provides no basis for habeas corpus relief. See Sanders v. Cullen, 873 F.3d 778, 801 (9th Cir. 2017) (affirming denial of alleged false testimony claim when petitioner "did not support the claim that [the witness] lied or that the prosecution knew his testimony was false"), cert. denied, 2019 WL 113251 (Jan. 7, 2019); Dows v. Wood, 211 F.3d 480, 486-87 (9th Cir. 2000) (factually unsupported argument provides no basis for federal habeas relief).
Huey's testimony that he returned to Summerall's apartment and saw the police, the coroner and other people outside the apartment at around 5:30 a.m. on December 24, 2007 is inconsistent with other testimony, including the testimony of Los Angeles Police Officer Ryan Secor that he and his partner were the first police officers to arrive on scene when they arrived at Summerall's apartment at 4:50 p.m. on December 24, 2007.19 (RT 2177-80). However, although there is evidence rebutting Huey's testimony about the time he returned to Summerall's apartment, Petitioner "has provided no evidence that [Huey] knew his testimony was inaccurate at the time he presented it, rather than [Huey's] recollection merely being mistaken, inaccurate or rebuttable." Henry v. Ryan, 720 F.3d 1073, 1084 (9th Cir. 2013) (emphasis in original); see also United States v. Renzi, 769 F.3d 731, 752 (9th Cir. 2014) ("Mere inconsistencies or honestly mistaken witness recollections generally do not satisfy the falsehood requirement.").20
Finally, while Hull's trial testimony differed in some respects from his preliminary hearing testimony,21 Petitioner "points to nothing in the record that shows the intentional use of perjured testimony. Certainly [Hull] made inconsistent statements, but that is not enough for a Napue violation."22 United States v. Bingham, 653 F.3d 983, 995 (9th Cir. 2011); see also United States v. Williams, 547 F.3d 1187, 1202 n.13 (9th Cir. 2008) ("Although there were inconsistencies in Penate's testimony, there was no evidence that the government knowingly presented false testimony." (citation omitted)); United States v. Croft, 124 F.3d 1109, 1119 (9th Cir. 1997) ("The fact that a witness may have made an earlier inconsistent statement . . . does not establish that the testimony offered at trial was false."); United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993) (no prosecutorial misconduct when, "[a]t most, the prosecutor presented contradictory testimony"). Therefore, Ground Three is meritless since Petitioner has "failed to show that [Hull's] testimony was `actually false' or that the government knowingly presented false testimony." United States v. Houston, 648 F.3d 806, 814 (9th Cir. 2011); see also Allen v. Woodford, 395 F.3d 979, 995 (9th Cir. 2004) (rejecting perjured testimony claim when the petitioner "fail[ed] to establish either that [the witness'] testimony was false or that the State had any reason to believe it was false.").
Accordingly, the Superior Court's rejection of Grounds One and Three was not contrary to, or an unreasonable application of, clearly established federal law.
2. Vouching
In Ground Two, Petitioner contends the prosecutor committed misconduct by vouching for Bobby Huey's credibility by referring to Huey as an expert witness, referencing Huey's plea bargain, and stating that all Huey's statements are truthful. (FAP at 10-11; Reply Mem. at 16-24 & Exh. B).
a. Background23
During the prosecutor's initial closing argument, he stated:
But we do not just have these two individuals, we have another witness. A unique witness, someone who is inside the gang, someone who would have more expertise than any police officer, any college professor about the Rolling 60s, and that's Bobby Huey. [¶] He's Little Cutty from Rolling 60s. This is a 20-year career 60s gangster. His nickname says it all. . . . He was everywhere and nowhere. Nobody saw him, but he saw everybody. Someone uniquely situated, a shadowy figure. Perhaps an ominous figure on the street, but in here in the courtroom, an expert. Someone inside the gang who knows everything.
(RT 2481-82).
In rebuttal, the prosecutor argued:
Counsel for both defendants spent a great deal of time trying [to] impugn the integrity of three separate witnesses, but not once did they use the word liar and I'll tell you why they didn't use the word liar, because they'd look silly if they did, and I can give you absolute proof that they're not lying.
[Petitioner's counsel] touched upon it but he didn't quite go there because he knew, he knew that if he did, it would bolster the witnesses' credibility.
In January of 2008, Stanquenice makes her first statement about Mr. Mitchell and [Petitioner]. She says it was them, these two defendants that went into that apartment that night. That statement was not made public.
Mid 2008, Bobby Huey makes his statement to the investigators and to Detective Heiztman. That statement was not made public, where he implicates the defendants as the killers of Munchie, as the conspirators in the murder of Shelton [Summerall].
* * *
. . . Anthony Hull made his statement, also not made public. [¶] The common thread in three people, three people who, from the evidence, we know are not really familiar with one another. Bobby knew Stanquenice just from the neighborhood. Anthony didn't hang out with Stanquenice. Bobby and Anthony didn't know each other. None are aware that each has made a statement about this case and the substance of that statement.
Remember Bobby Huey, he is in a predicament. If he's caught in a lie, then he's in a lot of trouble. And what's most important about Bobby Huey's statements? He doesn't know what law enforcement knows at the time he makes these statements[.] [H]e doesn't know that Stanquenice has made a statement[;] he does not know about Anthony. And if they're saying something different, if those two eyewitnesses are saying something different than Bobby Huey, then Bobby Huey is in a lot of trouble with the Feds. [¶] It would be easy to catch him in a lie. Instead, he says something that is identical to the other witnesses[.] [H]e mirrors Anthony Hull[.] [B]oth see the watch. The defendant is wearing the victim's watch. [¶] Three separate people, three separate times, all unaware of each other and they [all] name [Petitioner] and [Mitchell] as the perpetrators of this crime. [¶] How is that possible, how is it even remotely possible unless it is true? Unless they are telling the truth?
(RT 2719-21). Shortly thereafter, the prosecutor argued:
But what's most important is Bobby Huey is on the hook, because if he lies, then the deal is off. No promises were made to him. Any leniency was contingent, as you saw in the plea agreement, on the truth. . . .
* * *
The defense fears Bobby Huey[.] [T]hey have to attack each and every thing he says because they know that he's telling the truth and when his statement is truthful, and all the statements are truthful, then it buries their clients.
(RT 2722-23).
b. Superior Court's Opinion
The Superior Court rejected this claim, stating:
Nor does [Petitioner's] contention that the prosecutor vouched for the gang member witness have merit. Generally speaking, vouching is when the prosecutor tells the jury that he personally knows a witness and can vouch for that witness's credibility, or otherwise suggests his own personal knowledge of facts outside the record. By contrast, "[p]rosecutorial assurances based on the record about apparent honesty or reliability of witnesses are not improper `vouching.'" Prosecutors routinely argue to the jury in closing that their witnesses are credible and are telling the truth, and the jurors should believe them. That is not vouching.
(Lodgment 11 at 5 (citations omitted)).
c. Analysis
A prosecutor may not "vouch" for a witness's credibility or state a belief in the guilt of the accused or his personal opinion of the evidence. United States v. Young, 470 U.S. 1, 17-19 (1985); United States v. Dorsey, 677 F.3d 944, 953 (9th Cir. 2012). "Improper vouching occurs when the prosecutor places the prestige of the government behind the witness by providing personal assurances of the witness's veracity. Improper vouching also occurs where the prosecutor suggests that the testimony of government witnesses is supported by information outside that presented to the jury." United States v. Stinson, 647 F.3d 1196, 1212 (9th Cir. 2011) (citation and internal quotation marks omitted).
The prosecutor's reference to Huey's knowledge and "expertise" regarding the Rolling 60's gang was not improper vouching. The prosecutor's statement did not provide any personal assurance as to Huey's veracity or suggest Huey's testimony was supported by outside information. Instead, it was based on the evidence and reasonable inferences drawn from it.24 See United States v. Inzunza, 638 F.3d 1006, 1024 (9th Cir. 2009) (government was entitled to argue inferences based on witness's statements, and to do so did not constitute vouching); Menendez v. Terhune, 422 F.3d 1012, 1037 (9th Cir. 2005) ("The prosecutor may argue reasonable inferences from the evidence presented, which is precisely what he did here."); United States v. Younger, 398 F.3d 1179, 1190 (9th Cir. 2005) ("`It is not misconduct for the prosecutor to argue reasonable inferences based on the record.'" (quoting United States v. Cabrera, 201 F.3d 1243, 1250 (9th Cir. 2000))); United States v. Matthews, 240 F.3d 806, 819 (9th Cir. 2000) ("[I]t was not improper to refer to the fingerprint examiner as `this guy who does this for a living.' This fact was in evidence, and the government could properly refer to it in closing."), affirmed in relevant part on rehearing en banc, United States v. Matthews, 278 F.3d 880, 884 (9th Cir. 2002) (en banc) ("We adopt as our own the portions of the panel opinion affirming Matthews's conviction."); United States v. Patel, 762 F.2d 784, 795 (9th Cir. 1985) ("When a prosecutor's remarks . . . constitute reasonable inferences from the evidence, no prosecutorial misconduct can be demonstrated.").
Nor did the prosecutor's rebuttal statements constitute improper vouching. During their closing arguments, Petitioner's and Mitchell's attorneys attacked Huey's credibility, suggesting, among other things, that Huey concocted his testimony to "play the system" and get a much lower sentence on the federal drug charges that Huey was facing. (See RT 2501-03, 2506, 2511-19, 2533, 2549-50, 2558, 2561-65, 2701-07, 2716-17). The prosecutor was allowed to respond to defense counsels' arguments, see United States v. Wilkes, 662 F.3d 524, 540 (9th Cir. 2011) ("[P]rosecutors are permitted to respond to defense counsel's attempts to impeach the credibility of government witnesses."), and he did so. The prosecutor's reference to "absolute proof" was not a personal assurance of Huey's veracity or based on outside information. Instead, it was made while highlighting the evidence the prosecutor believed supported the credibility of Huey and other witnesses. See id. ("The prosecutor's argument that its witnesses told the truth . . . was not vouching but was `simply an inference from evidence in the record.'" (citation omitted)); United States v. Nash, 115 F.3d 1431, 1439 (9th Cir. 1997) (no vouching when prosecutor's statements "were simply inferences from evidence in the record" and "were not references to extra-record facts or personal guarantees of the witnesses' veracity").
Similarly, under the circumstances of this case, in which the truthfulness provision of Huey's federal plea bargain was first addressed during the defense cross-examination of Huey and when defense counsel attacked Huey's credibility during close argument by arguing, inter alia, that Huey was "gaming the system" and telling "whopper[s]" to get a reduced federal prison sentence (see, e.g., RT 1014, 2511-19, 2558, 2563-65, 2701-05),25 the prosecutor's reference during rebuttal argument to the truthfulness provision in Bobby Huey's federal plea bargain did not constitute improper vouching. See Dorsey, 677 F.3d at 953 ("[R]eferring to a plea agreement's mandate to be truthful does not constitute vouching for a witness if such references are `made in response to an attack on the witness's credibility because of his plea bargain[.]'" (citations omitted)); United States v. Monroe, 943 F.2d 1007, 1013 (9th Cir. 1991) (A "reference to the `truthful testimony' provisions of a witness's agreement with the government does not constitute vouching if it is made in response to an attack on the witness's credibility because of his plea bargain."); United States v. Shaw, 829 F.2d 714, 716 (9th Cir. 1987) ("[R]eferences to requirements of truthfulness in plea bargains do not constitute vouching when the references are responses to attacks on the witness' credibility because of his plea bargain.").
Finally, when read in context, the prosecutor's statement during rebuttal that "all [Huey's] statements are truthful" did not constitute impermissible vouching. The prosecutor did not imply that the government had personal knowledge of or was assuring the veracity of Huey's testimony. Nor did the prosecutor state his personal beliefs. Rather, the prosecutor's argument — which responded to defense attacks that Huey lacked credibility because he was telling "whoppers" and "gaming the system" — was based on reasonable inferences in the record and was not vouching. See Wilkes, 662 F.3d at 540 ("The prosecutor's argument that its witnesses told the truth, rather than Wilkes, was not vouching but was `simply an inference from evidence in the record.' In direct response to defense counsel's express statements to the jury that government witnesses were lying, the prosecutor here merely argued that its witnesses were telling the truth; `an argument the prosecutor had to make in order to convict [Wilkes].' That argument did not imply that the government had personal knowledge of or was assuring the veracity of its witnesses, and did not reflect the prosecutor's personal beliefs." (citations omitted)); Necoechea, 986 F.2d at 1279 (the prosecutor did not vouch for a witness when "[t]he prosecutor merely argued that [the witness] was telling the truth, an argument the prosecutor had to make in order to convict Necoechea. These statements do not imply that the government is assuring [the witness's] veracity, and do not reflect the prosecutor's personal beliefs.").
Even if one or more of the prosecutorial statements Petitioner identified could be considered improper, Petitioner is still not entitled to habeas corpus relief because, given the evidence against him and the trial court's jury instructions, such statements did not have a substantial and injurious effect or influence in determining the jury's verdict.26 Brecht, 507 U.S. at 623; Davis v. Woodford, 384 F.3d 628, 644 (9th Cir. 2004).
Accordingly, the state court's rejection of Ground Two was neither contrary to, nor an unreasonable application of, clearly established federal law.
C. Petitioner Is Not Entitled To Relief On His Ineffective Assistance of Counsel Claims
"The Sixth Amendment guarantees criminal defendants the effective assistance of counsel." Yarborough v. Gentry, 540 U.S. 1, 4 (2003) (per curiam); see also Missouri v. Frye, 566 U.S. 134, 138 (2012) ("The right to counsel is the right to effective assistance of counsel."). To succeed on an ineffective assistance of trial counsel claim, Petitioner must demonstrate both that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). "`To establish deficient performance, a person challenging a conviction must show that `counsel's representation fell below an objective standard of reasonableness.'" Richter, 562 U.S. at 104 (citation omitted); Premo v. Moore, 562 U.S. 115, 121 (2011). Prejudice "focuses on the question whether counsel's deficient performance renders the results of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372 (1993); Williams v. Taylor, 529 U.S. 362, 393 n.17 (2000). That is, Petitioner must establish there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different[,]" Strickland, 466 U.S. at 694, and "[t]he likelihood of a different result must be substantial, not just conceivable." Richter, 562 U.S. at 112; Pinholster, 563 U.S. at 189. Petitioner bears the burden of establishing both components. Williams, 529 U.S. at 390-91; Strickland, 466 U.S. at 687. However, the Court need not determine whether counsel's performance was deficient before examining the prejudice the alleged deficiencies caused Petitioner. See Smith v. Robbins, 528 U.S. 259, 286 n.14 (2000) ("`If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.'" (quoting Strickland, 466 U.S. at 697)).
1. Failure to Investigate
Defense counsel has a "duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691; Wiggins v. Smith, 539 U.S. 510, 521 (2003); see also Cox v. Ayers, 613 F.3d 883, 893 (9th Cir. 2010) ("Counsel's investigation must, at a minimum, permit informed decisions about how best to represent the client."). This includes a duty to investigate the prosecution's case and to follow up on any exculpatory evidence. Kimmelman v. Morrison, 477 U.S. 365, 384-85 (1986); Duncan v. Ornoski, 528 F.3d 1222, 1234-35 (9th Cir. 2008); see also Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001) (defense counsel's duties include "a duty to investigate the defendant's `most important defense,' and a duty adequately to investigate and introduce into evidence records that demonstrate factual innocence, or that raise sufficient doubt on that question to undermine confidence in the verdict" (citations omitted)), amended by, 253 F.3d 1150 (9th Cir. 2001). However, "`the duty to investigate and prepare a defense is not limitless,' and . . . `it does not necessarily require that every conceivable witness be interviewed or that counsel must pursue every path until it bears fruit or until all conceivable hope withers.'" Hamilton v. Ayers, 583 F.3d 1100, 1129 (9th Cir. 2009) (citation omitted); Stankewitz v. Woodford, 365 F.3d 706, 719 (9th Cir. 2004).
In Ground Four, Petitioner contends he received ineffective assistance when defense counsel failed to investigate Huey's statement about Boss Hog being present when Scooby told Petitioner and Mitchell that something had to be done about Summerall. (FAP at 11). Petitioner asserts that an investigation would have demonstrated that Boss Hog could not have been present because he was in jail when this conversation allegedly occurred. (Id.).
However, as discussed above, Petitioner has not provided any persuasive evidentiary support for his allegation that Boss Hog was incarcerated at the relevant time, or shown that the Boss Hog Petitioner is referring to is the same individual Huey testified about, and his "conclusory suggestion[] that his trial . . . counsel provided ineffective assistance fall[s] far short of stating a valid claim of constitutional violation." Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995); see also Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011) (A "cursory and vague claim cannot support habeas relief."); Sandgathe v. Maass, 314 F.3d 371, 379 (9th Cir. 2002) (affirming denial of ineffective assistance of counsel claim when petitioner presented no evidence in support of claim); United States v. Taylor, 802 F.2d 1108, 1119 (9th Cir. 1986) ("Because Pinto presents only vague and speculative assertions that his trial counsel lacked professional competence, he has failed to meet the burden set forth in Strickland."). Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law.
2. Failure to Request a Jury Instruction
In Ground Five, Petitioner asserts he received ineffective assistance when his defense counsel did not request the jury be instructed with CALCRIM 417, and this error requires reversal of Petitioner's second-degree murder conviction. (FAP at 11).
a. Background
In addressing whether the trial court erred in failing to sua sponte instruct the jury with CALCRIM 417, the California Court of Appeal set forth the background underlying Ground Five:
At a jury instruction conference, the prosecutor asked the trial court to give CALCRIM No. 416 (evidence of uncharged conspiracy), which states in pertinent part: "The People have presented evidence of a conspiracy. A member of a conspiracy is criminally responsible for the acts or statements of any other member of the conspiracy done to help accomplish the goal of the conspiracy." The prosecutor argued this instruction was warranted because the evidence showed Scooby had ordered Summerall's killing and both [Petitioner and Mitchell] entered Summerall's apartment, but "we don't know who the shooter is, if they both were or not."
When the trial court asked if the prosecutor also wanted CALCRIM No. 417 (liability for coconspirators' acts based on principle of natural and probable consequences) the following colloquy occurred:
"[The prosecutor]: I'm not asking for natural and probable consequences because I think the object of the conspiracy was murder. I don't think there was a target crime and then it just became a murder through circumstances during the course of a robbery or whatnot.
"The Court: Or to beat him up.
"[The prosecutor]: That type of thing. [¶] It was clearly — the intent, based on the evidence, was to go in there and kill him. [¶] So I think [CALCRIM No.] 417 when we say a member of a conspiracy—
"The Court: I think we don't need it then because [CALCRIM No.] 416, the second sentence says a member is criminally responsible for acts of other members. [¶]. . . I [don't] think we need [CALCRIM No.] 417 for just that reason."
The trial court later noted: "People are requesting [CALCRIM No.] 416, which I'm giving over vigorous defense objection." The trial court did not give CALCRIM No. 417, which would have told the jury: "A member of a conspiracy is criminally responsible for the crimes that he or she conspires to commit, no matter which member of the conspiracy commits the crime. [¶] A member of a conspiracy is also criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy. This rule applies even if the act was not intended as part of the original plan. . . . [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence."
(Lodgment 6 at 6-7 (italics omitted); see also RT 2408-12, 2420).
b. California Court of Appeal's Opinion
As noted, the California Court of Appeal did not address Petitioner's ineffective assistance of counsel claim. However, it did conclude that the trial court erred in failing to sua sponte give CALCRIM 417, but the error was harmless:
In the case at bar, the jury was never informed of [the natural and probable consequences doctrine]. However, the error was harmless because all of the trial evidence indicated the only motive for killing Youngblood was to eliminate a witness to Summerall's assassination, and that killing a potential witness was a natural and probable consequence of the conspiracy to kill Summerall. The forensic evidence indicated Youngblood had been killed execution-style; she was found lying in a crouched or kneeling position in a corner of the bedroom, and her only injury was a single gunshot wound which entered near the top of her head and had a downward trajectory toward the base of her skull. . . . [T]he gang expert testified an innocent bystander such as Youngblood would likely be killed in order to eliminate a potential eyewitness. [¶] Hence, we conclude the trial court's error in not giving CALCRIM No. 417 was harmless because it is "clear beyond a reasonable doubt that a rational jury would have found the defendant[s] guilty absent the error."
(Lodgment 6 at 10-11 (citation omitted)).
c. Analysis
Petitioner's ineffective assistance of counsel claim is without merit. Petitioner complains that defense counsel should have requested CALCRIM 417 (Liability for Co-conspirators' Acts) when the trial court indicated that it was inclined to give CALCRIM 416 (Evidence of Uncharged Conspiracy). (FAP at 11). However, at the time the issue arose, defense counsel objected that conspiracy instructions were inappropriate, and the trial court rejected the defense objects, concluding that it would give CALCRIM 416 but that CALCRIM 417 was unnecessary.27 (RT 2406-11). Because the trial court had already ruled that CALCRIM 417 was unnecessary, Petitioner has not shown how defense counsel was ineffective in failing to specifically request the instruction. See Strickland, 466 U.S. at 690 ("[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct."); Flournoy v. Small, 681 F.3d 1000, 1006 (9th Cir. 2012) ("The failure to make an objection that would have been overruled was not deficient performance."); Rupe v. Wood, 93 F.3d 1434, 1444-45 (9th Cir. 1996) ("[T]he failure to take a futile action can never be deficient performance.").
Moreover, for the reasons the California Court of Appeal explained, Petitioner cannot demonstrate he was prejudiced by defense counsel's failure to request CALCRIM 417. See Thompkins, 560 U.S. at 390-91 (rejecting ineffective assistance of counsel claim based on failure to request jury instruction when "[t]he record establishes that it was not reasonably likely that the instruction would have made any difference in light of all the other evidence of guilt."); Boyer v. Chappell, 793 F.3d 1092, 1108 (9th Cir. 2015) (any possible error in failing to request jury instructions was harmless given the evidence presented at trial). Accordingly, even applying de novo review, Petitioner is not entitled to habeas corpus relief on Ground Five. Thompkins, 560 U.S. at 390-91.
D. Petitioner Is Not Entitled To Relief On His Jury Instruction Claim
In Ground Six, Petitioner contends that in light of Hull's statement that Petitioner asked Hull and Sean to act as lookouts, Petitioner was denied due process of law when the trial court failed to sua sponte instruct the jury with CALCRIM 358 (FAP at 12), which "instructs the jury to `[c]onsider with caution' any unrecorded statement made by the defendant tending to show his or her guilt." People v. Diaz, 60 Cal.4th 1176, 1183 (2015) (citation omitted).
1. California Court of Appeal's Opinion
The California Court of Appeal held that the trial court erred in failing to sua sponte instruct the jury with CALCRIM 358,28 but concluded such error was harmless:
[W]e conclude the trial court's error in failing to give the cautionary instruction was harmless. [Petitioner's] alibi defense effectively operated as a denial that he had said anything at all to [Hull]. Whatever conflict existed in the evidence, therefore, stemmed solely from [Hull]'s somewhat inconsistent versions of what [Petitioner] said to him. And as to that, the Attorney General notes "the trial court instructed the jury with CALCRIM 226 on its responsibility to assess the credibility of witnesses, thus any inconsistency in [Hull's] testimony was necessarily resolved by the jury." The record shows the trial court told the jury it "must judge the credibility or believability of the witnesses" by considering such factors as "[h]ow well was the witness able to remember and describe what happened?", "what was the witness's behavior while testifying?" "[d]id the witness make a statement in the past that is consistent or inconsistent with his or her testimony?" The jury was also instructed: "Do not automatically reject testimony just because of inconsistencies or conflicts, consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember." [¶] In these circumstances, we conclude the trial court's error in failing to give the cautionary instruction was harmless.
(Lodgment 6 at 13).29
2. Analysis
Instructional error warrants federal habeas relief only if the "`instruction by itself so infected the entire trial that the resulting conviction violates due process[.]'" Waddington v. Sarausad, 555 U.S. 179, 191 (2009) (citation and internal quotation marks omitted); Middleton v. McNeil, 541 U.S. 433, 437 (2004) (per curiam). The instruction must be more than merely erroneous. Instead, Petitioner must show there was a "reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution." McNeil, 541 U.S. at 437 (citations and internal quotation marks omitted); Sarausad, 555 U.S. at 190-91; see also Cupp v. Naughten, 414 U.S. 141, 146 (1973) ("Before a federal court may overturn a conviction resulting from a state trial in which [an allegedly faulty] instruction was used, it must be established not merely that the instruction is undesirable, erroneous or even `universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment."). Further, "[i]t is well established that the 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." Estelle v. McGuire, 502 U.S. 62, 72 (1991) (citation omitted); Sarausad, 555 U.S. at 191. Where the alleged error is the failure to give an instruction, the burden on the Petitioner is "`especially heavy.'" Sarausad, 555 U.S. at 191 (quoting Henderson v. Kibbe, 431 U.S. 145, 155 (1977)). Moreover, if a constitutional error occurred, federal habeas relief remains unwarranted unless the error caused prejudice, i.e., unless it had a substantial and injurious effect or influence in determining the jury's verdict. Hedgpeth v. Pulido, 555 U.S. 57, 61-62 (2008) (per curiam); Brecht, 507 U.S. at 623.
Petitioner has not met his "especially heavy" burden to demonstrate that the failure to sua sponte instruct the jury with CALCRIM 358 deprived him of due process of law. Sarausad, 555 U.S. at 191; Kibbe, 431 U.S. at 155. "The significance of the omission of [CALCRIM 358] may be evaluated by comparison with the instructions that were given." Kibbe, 431 U.S. at 156. Here, the trial court instructed the jury with CALCRIM 220, which sets forth the presumption of innocence and that the prosecution had to prove each defendant guilty beyond a reasonable doubt.30 (CT 536; RT 2432-33). Petitioner's jury also received extensive instruction on how to properly assess witness testimony, including with: CALCRIM 200, which informs the jury that it "must decide what the facts are" and "must follow the law" as the court explains it; CALCRIM 226, which lists the factors relevant to assessing witness credibility; CALCRIM 301, which requires the jury "carefully review all the evidence" before concluding that "the testimony of one witness proves a fact"; CALCRIM 302, which provides that in assessing a conflict in the evidence, "[w]hat is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point"; CALCRIM 315, which addresses factors relevant to assessing eyewitness testimony; CALCRIM 316, which addresses witnesses who have been convicted of felonies; CALCRIM 318, which discusses pre-trial witness statements; CALCRIM 331, which sets forth factors to consider in assessing "the testimony of a person with a developmental disability or a cognitive impairment"; CALCRIM 332, discussing expert witness testimony; CALCRIM 333, setting forth how to consider the opinions of witnesses who were not experts; and CALCRIM 337, stating that "[t]he fact that a witness is in custody does not by itself make a witness more or less believable." (CT 535, 537-40; RT 2429, 2436-39, 2441-47). These instructions were more than sufficient to apprise the jury about how to properly assess witness testimony, and the omission of CALCRIM 358 did not deprive Petitioner of due process of law. See Elmore v. Foss, 2018 WL 6591065, *16 (E.D. Cal. 2018) (failure to sua sponte instruct with CALCRIM 358 did not deprive the petitioner of due process of law when trial court instructed the jury with CALCRIM 200, 226, 301, 316 and 318); Gonzalez v. Montgomery, 2018 WL 3218854, *12 (C.D. Cal.) (failure to sua sponte instruct with CALCRIM 358 did not violate due process when the jury was instructed with CALCRIM 200, 226, 301, 315 and 318), report and recommendation accepted by, 2018 WL 3219629 (C.D. Cal. 2018). For the same reasons, any possible error did not have a substantial and injurious effect or influence in determining the jury's verdict.31 Brecht, 507 U.S. at 623; see also Pulido v. Chrones, 629 F.3d 1007, 1020 (9th Cir. 2010) (applying Brecht and concluding that "[b]ecause Pulido did not suffer any actual prejudice, he is not entitled to habeas relief").
Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law.32
VII.
CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that the District Court issue an Order: (1) accepting this Report and Recommendation, (2) denying the Petition for Writ of Habeas Corpus, and (3) directing that Judgment be entered dismissing this action with prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
