REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

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

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus" on December 27, 2013, accompanied by a memorandum ("Pet. Mem."). Respondent filed an Answer on January 30, 2014. Petitioner filed a Traverse on March 7, 2014.

BACKGROUND

A Superior Court jury found Petitioner guilty of the premeditated attempted murders of Jonathan Meda and Aunika Olea in violation of California Penal Code sections 187(a) and 664 (Counts 1 and 2), and two counts of assault with a firearm on Meda and Olea within the meaning of California Penal Code section 245(a) (Counts 3 and 4) (Reporter's Transcript ["R.T."] 595-98; Clerk's Transcript ["C.T."] 224-25, 288-91, 297-305). The jury also found true various firearm enhancements (R.T. 595-99; C.T. 224-25, 288, 290-91, 303-05). However, the jury found not true the allegation that Petitioner caused great bodily injury to Olea (R.T. 596-99; C.T. 302). The court sentenced Petitioner to: (1) life with the possibility of parole plus a consecutive term of twenty-five years to life on Count 1; (2) a consecutive term of life with the possibility of parole plus six years and eight months on Count 2; (3) a term of seventeen years on Count 3; and (4) a consecutive term of two years and four months on count 4 (R.T. 613-14; C.T. 308-09). The court stayed the sentences on Counts 3 and 4 pursuant to California Penal Code section 654 (R.T. 614; C.T. 308-09).

The California Court of Appeal affirmed the judgment (Respondent's Lodgment 6; see People v. Ramsey, 2012 WL 1288569 (Cal. App. Apr. 16, 2012)). Petitioner did not file a petition for review in the California Supreme Court (Petition, fifth page).

Petitioner filed a habeas corpus petition in the Superior Court, which that court denied in a brief order (Respondent's Lodgments 7, 8). Petitioner then filed a habeas corpus petition in the California Court of Appeal, which that court denied summarily (Respondent's Lodgments 9, 10). Petitioner later filed a habeas corpus petition in the California Supreme Court, which that court denied summarily (Respondent's Lodgments 11, 12).

SUMMARY OF TRIAL EVIDENCE

The following summary is taken from the opinion of the California Court of Appeal in People v. Ramsey, 2012 WL 1288569 (Cal. App. Apr. 16, 2012). See Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012), cert. denied, 133 S.Ct. 2766 (2013) (presuming correct statement of facts drawn from state court decision); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).

A. The Prosecution's Case.

B. The Defense Case.

(Respondent's Lodgment 6, pp. 3-5; see People v. Ramsey, 2012 WL 1288569, at * 1-2).

SUMMARY OF PETITIONER'S CONTENTIONS

Petitioner contends:

1. The trial court allegedly violated Due Process by permitting the introduction of assertedly tainted eyewitness identification testimony;

2. The trial court allegedly violated Due Process by permitting the prosecutor to conduct a "mini trial" involving the prior conviction of Petitioner's alibi witness (Petitioner's mother);

3. Petitioner's trial counsel allegedly rendered ineffective assistance, by assertedly: (1) failing to request a jury instruction that evidence of provocation could reduce the attempted murder charge to attempted voluntary manslaughter; (2) failing to request the appointment of an eyewitness identification expert; (3) failing to move to suppress the assertedly suggestive identifications; (4) failing to impeach prosecution witnesses adequately; and (5) failing to object to the "mini trial" involving the prior conviction of Petitioner's mother;

4. The trial court allegedly violated the Constitution by imposing sentence both on the attempted murder convictions and the convictions for assault with a firearm;

5. Petitioner's appellate counsel allegedly rendered ineffective assistance, by assertedly: (1) failing to argue, in a reply brief, that the State "conceded" the claim of instructional error; and (2) failing to raise on appeal all of the other claims alleged in the Petition.

6. Cumulative error allegedly denied Petitioner a fair trial.

STANDARD OF REVIEW

A federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).

"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 132 S.Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts . . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.

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

"In order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been `objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 131 S.Ct. 770, 786 (2011). "This is "the only question that matters under § 2254(d)(1)." Id. at 786 (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. at 786-87 ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement."); see also White v. Woodall, U.S., 2014 WL 1612424, at *4-5 (April 23, 2014).

In applying these standards, the Court looks to the last reasoned state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011) (citation, quotations and brackets omitted). If the state court did not decide a federal constitutional issue on the merits, this Court must consider that issue under a de novo standard of review. See Scott v. Ryan, 686 F.3d 1130, 1133 (9th Cir. 2012), cert. denied, 134 S.Ct. 120 (2013).

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

DISCUSSION2

I. Petitioner's Challenge to the Admission of Eyewitness Identification Testimony Lacks Merit.

Petitioner contends the identifications of Petitioner as the shooter were unreliable because the identifications allegedly resulted from suggestive procedures (Pet. Mem., pp. 45-50). This claim lacks merit.

Evidence derived from a suggestive pretrial identification procedure may be inadmissible if the challenged procedure was so "impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." See Simmons v. United States, 390 U.S. 377, 384 (1968); see also Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Neil v. Biggers, 409 U.S. 188, 198 (1972); People v. Gordon, 50 Cal.3d 1223, 1242-43, 270 Cal.Rptr. 451, 792 P.2d 251 (1990), cert. denied, 499 U.S. 913 (1991), overruled on other grounds, People v. Edwards, 54 Cal.3d 787, 835, 1 Cal.Rptr.2d 696, 819 P.2d 436 (1991), cert. denied, 506 U.S. 841 (1992). However, an identification following a suggestive identification procedure does not violate Due Process if the identification is reliable under the totality of the circumstances. See Manson v. Brathwaite, 432 U.S. at 111-14 (setting forth factors to be considered in determining reliability of suggestive identification); United States v. Dring, 930 F.2d 687, 693 (9th Cir. 1991), cert. denied, 506 U.S. 836 (1992); People v. Ochoa, 19 Cal.4th 353, 412, 79 Cal.Rptr.2d 408, 966 P.2d 442 (1998), cert. denied, 528 U.S. 862 (1999). The ultimate issue is whether the identification procedure was so "impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. at 384.

In the present case, Deputy Little testified that, after the shooting, Meda came to the police station and was asked to identify the driver out of a "six-pack" photo array (R.T. 304-05). Meda assertedly identified Ouimette's photo as that of the driver (R.T. 305-07). Little testified that he, Little, placed the initials "JM" to mark Meda's identification, and said that Meda did not sign the document (R.T. 305-06). Little allegedly showed Meda another photo "six-pack" containing Petitioner's photograph, but Meda assertedly was unable to make an identification (R.T. 86-87, 341-44, 349). Meda identified Petitioner as the shooter at trial, however, testifying that Meda knew Petitioner from school and there had been tension between the two (R.T. 45-46, 50-51).

Petitioner contends Deputy Little placed Meda's initials "on the photo of his [Little's] choice to have Petitioner be picked out as the person he [Little] wanted to be convicted, and if this was not the case, at least to taint the process" (Pet. Mem., p. 46). Petitioner's contention is meritless. Meda did not identify Petitioner from the photo six-pack. Little's placing of "JM" on a six-pack which produced no identification of Petitioner plainly did not taint Meda's in-court identification of Petitioner. Nor has Petitioner shown that Meda's mere viewing of Petitioner's photo in the six-pack tainted Meda's subsequent in-court identification of Petitioner. Additionally, the fact that Meda testified under a grant of use immunity (see R.T. 19-20) does not show that Meda's in-court identification of Petitioner was the product of any suggestive procedure.

Witnesses Alvarado and Olea, unlike Meda, did identify Petitioner as the shooter in pretrial photo lineups, after having received form admonitions (R.T. 145-48, 342-43). Petitioner does not argue, and the record does not show, that the procedures which produced these identifications were suggestive.

Rather, Petitioner appears to argue that Meda's in-court identification of Petitioner as the shooter was unreliable because Meda did not identify Petitioner prior to trial. Petitioner also appears to argue that the pretrial identifications Alvarado and Olea made of Petitioner were unreliable because these witnesses did not identify Petitioner at trial (Pet. Mem., pp. 46-47). Petitioner argues that the witnesses gave inconsistent testimony and were untruthful (id.). Petitioner further posits that Ouimette identified Petitioner out of animosity and as part of an alleged deal with the prosecutor (id., p. 47).

These arguments may concern the credibility of the witnesses generally, but do not concern the supposed suggestiveness of any identification procedure. The jury heard all of the evidence concerning the inconsistencies regarding the witnesses' identifications, and Petitioner's counsel vigorously challenged the reliability of the identifications (see R.T. 538-44). The jury nevertheless chose to credit the identifications and convict Petitioner. No constitutional error thereby occurred. See King v. Runnels, 303 Fed. App'x 472, 473 (9th Cir. 2008), cert. denied, 556 U.S. 1240 (2009) ("The reliability of the identification was called into question during cross-examination and it was the province of the jury to attach weight to the identification testimony.") (citation omitted); see also Watkins v. Sowders, 449 U.S. 341, 347 (1981) ("the proper evaluation [of identification evidence] under the instructions of the trial judge is the very task our system must assume juries can perform").3

To the extent Petitioner argues that the court should have held a separate hearing to determine the admissibility of the identifications, any such argument lacks merit. See Watkins v. Sowders, 449 U.S. at 349 (Constitution does not require court to hold hearing to determine admissibility of identification evidence); United States v. Dixon, 201 F.3d 1223, 1229 (9th Cir. 2000) (no constitutional right to any particular method of lessening the alleged suggestiveness of an in-court identification; "as long as the witness has an independent recollection that is wholly untainted by police misconduct, an in-court identification is admissible") (citation omitted).

For the foregoing reasons, Petitioner is not entitled to habeas relief on this claim.

II. The Alleged "Mini Trial" Concerning the Prior Conviction of Petitioner's Mother Did Not Violate the Constitution.

A. Background

The Court adopts the California Court of Appeal's below-reprinted summary of the factual and procedural background of this claim. See Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009).

(Respondent's Lodgment 6, pp. 6-8; see People v. Ramsey, 2012 WL 1288569 at *2-3).

Petitioner contends the trial court violated Due Process by allowing the prosecutor to conduct a "mini trial" regarding the mother's prior conviction, contending that the cross-examination was overlong and prejudicial and that Dennington's rebuttal testimony was excessively long and "had nothing to do" with the prior conviction (Pet. Mem., pp. 35-43). The Court of Appeal ruled that the impeachment evidence was "extremely probative" because Petitioner's mother was a "key" defense alibi witness, and evidence that she previously had lied to police to protect a family member from prosecution was "directly probative of a tendency to give [Petitioner] a false alibi" (Respondent's Lodgment 6, p. 10; see People v. Ramsey, 2012 WL 1288569 at *4). The Court of Appeal also rejected Petitioner's argument that the impeachment was overlong, observing that once Petitioner's mother denied lying to police in the earlier incident the prosecutor had to spend additional time on cross-examination and call Deputy Dennington to contradict her (Respondent's Lodgment 6, p. 10; see People v. Ramsey, 2012 WL 1288569, at *4). The Court of Appeal ruled that 31 transcript pages out of a total of three days of testimony was not excessive (Respondent's Lodgment 6, p. 10; see People v. Ramsey, 2012 WL 1288569, at *4).

B. Discussion

To the extent Petitioner claims the admission of the challenged evidence violated California Evidence Code section 352 or other state law, Petitioner fails to state a claim for federal habeas relief. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws or treaties of the United States. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Habeas relief is not available for an alleged error in the interpretation or application of state law. Id. at 67-68; Little v. Crawford, 449 F.3d 1075, 1082 (9th Cir. 2006), cert. denied, 551 U.S. 1118 (2007) ("the Supreme Court has long settled that the Fourteenth Amendment does not assure immunity from [state court] judicial error"; citations omitted).

"`The admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process.'" Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (quoting Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir.), cert. denied, 516 U.S. 1017 (1995)); Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991) (proper analysis on federal habeas review is "whether the admission of the evidence so fatally infected the proceedings as to render them fundamentally unfair"). "The Supreme Court has made very few rulings regarding the admission of evidence as a violation of due process." Holley v. Yarborough, 568 F.3d at 1101. "Although the Court has been clear that a writ should issue when constitutional errors have rendered the trial fundamentally unfair [citation], it has not yet made a clear ruling that admission of irrelevant or overly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Id.; see also Spencer v. California, 512 Fed. App'x 682, 685 (9th Cir.), cert. denied, 134 S.Ct. 108 (2013) (challenge to admission of evidence failed "[a]s there is no Supreme Court authority which has clearly established that the admission of evidence can violate due process") (citation omitted). In the absence of such "clearly established Federal law as determined by the United States Supreme Court," the AEDPA standard of review dooms Petitioner's challenge to the supposedly prejudicial "mini trial." See 28 U.S.C. § 2254(d); Moses v. Payne, 555 F.3d 742, 758-59 (9th Cir. 2009) (habeas relief unavailable where the Supreme Court had articulated no "controlling legal standard" on the issue).

Furthermore, and quite apart from the standard of review, Petitioner's challenge fails because the "mini trial" did not violate Due Process. The admission of evidence can violate Due Process "only when there are no permissible inferences the jury may draw from the evidence." Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir. 1998) (original emphasis; citation and internal quotations omitted); see also Estelle v. McGuire, 502 U.S. at 70 (because challenged evidence was "relevant to an issue in the case," its admission did not violate due process). Here, evidence that Petitioner's alibi witness previously hid a gun to try to protect a family member from criminal prosecution and also lied about the matter in and out of court was relevant to the witness' credibility.5 See Woods v. Swarthout, 2014 WL 988988, at *15-16 (N.D. Cal. Mar. 5, 2014) (use of prior conviction to impeach "key" defense witness not unconstitutional). Because the challenged evidence was relevant, its admission did not violate the Constitution.

For the foregoing reasons, the Court of Appeal's rejection of this claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S.Ct. 770, 786-87 (2011). Petitioner is not entitled to habeas relief on this claim.

III. Petitioner's Claims of Ineffective Assistance of Trial Counsel Do Not Merit Habeas Relief.

A. Governing Legal Standards

To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 697 (1984) ("Strickland"). A reasonable probability of a different result "is a probability sufficient to undermine confidence in the outcome." Id. at 694. The court may reject the claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697; see Gentry v. Sinclair, 705 F.3d 884, 889 (9th Cir.), cert. denied, 134 S.Ct. 102 (2013) ("[f]ailure to meet either [Strickland] prong is fatal to a claim"); Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) ("Failure to satisfy either prong of the Strickland test obviates the need to consider the other.") (citation omitted).

Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford, 384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (quoting Strickland, 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. The court may "neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight. . . ." Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert. denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see Yarborough v. Gentry, 540 U.S. 1, 8 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.") (citations omitted). Petitioner bears the burden to show that "counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, 131 S. Ct. at 787 (citation and internal quotations omitted); see Strickland, 466 U.S. at 689 (petitioner bears burden to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy") (citation and quotations omitted).

"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently." Harrington v. Richter, 131 S. Ct. at 791-92 (citations omitted). Rather, the issue is whether, in the absence of counsel's alleged error, it is "`reasonably likely'" that the result would have been different. Id. at 792 (quoting Strickland, 466 U.S. at 696). "The likelihood of a different result must be substantial, not just conceivable." Id.

B. Discussion

1. Failure to Request a Provocation Instruction

In California, "the existence of provocation which is not adequate to reduce the class of the offense from murder to manslaughter may nevertheless raise a reasonable doubt that the defendant formed the intent to kill upon, and carried it out after, deliberation and premeditation — an inquiry relevant to determining whether the offense is premeditated murder in the first degree, or unpremeditated murder in the second degree." People v. Carasi, 44 Cal.4th 1263, 1306, 82 Cal.Rptr.3d 265, 190 P.3d 616 (2008), cert. denied, 556 U.S. 1209 (2009) (citations, internal quotations and brackets omitted). Petitioner faults trial counsel for failing to request a provocation instruction, CALCRIM 522.6 According to Petitioner, the absence of this instruction prevented the jury from understanding that "provocation could have negated Petitioner's ability to premeditate and deliberate before shooting the gun" (Pet. Mem., p. 18).

Petitioner raised this claim in his Superior Court habeas corpus petition (see Respondent's Lodgment 7, "Attachment," pp. 14-23B). The Superior Court denied the claim on the ground that the claim had been made and rejected in a "prior appeal" (Respondent's Lodgment 8, third page). Although this claim apparently had been advanced in Petitioner's initial opening brief on appeal (see Petition, Ex. A), Petitioner subsequently filed an amended opening brief which omitted this claim, and the Court of Appeal did not address the claim (see Respondent's Lodgments 3, 6).7 Because it appears that no state court addressed this claim on the merits, this federal Court will review the matter de novo. See Scott v. Ryan, 686 F.3d 1130, 1133 (9th Cir. 2012), cert. denied, 134 S.Ct. 120 (2013).

Petitioner's counsel advanced defenses of alibi and allegedly false identification. Counsel did not request instructions on lesser offenses such as attempted manslaughter, preferring the tactic of an "all or nothing" defense (see R.T. 590). Petitioner does not appear to argue that counsel's decision to advance the defenses of mistaken identification and alibi was unreasonable. Any such argument would fail. Given the conflicting evidence concerning the identifications of Petitioner, counsel reasonably decided to challenge the reliability of the identifications. Counsel's decision to call Petitioner's mother as an alibi witness also was not objectively unreasonable, although the mother's testimony probably did not play out as well as counsel had hoped. The chosen defenses of mistaken identification and alibi were inconsistent with a provocation instruction. Furthermore, in light of the evidence that Meda was attempting to drive away when the shooter commenced firing at the back of Meda's truck, counsel reasonably could have rejected a provocation defense in favor of the defenses counsel chose to present. Counsel had no obligation to request an instruction which could undermine counsel's theories of the case or cast undue emphasis on an inconsistent defense. See Matylinsky v. Budge, 577 F.3d at 1092-93 (where petitioner failed to show counsel's choice of intoxication defense to murder charge was unreasonable, counsel's failure to request instructions on manslaughter and provocation not unreasonable); Villafuerte v. Stewart, 111 F.3d 616, 630 (9th Cir. 1997), cert. denied, 522 U.S. 1079 (1998) (counsel not ineffective for failing to develop intoxication defense, where counsel's theory of the case was that petitioner was not the killer); Harris v. Vasquez, 949 F.2d 1497, 1525 (9th Cir. 1990), cert. denied, 502 U.S. 910 (1992) (counsel not ineffective for failing to present a psychiatric defense theory that would conflict with alibi defense); Butcher v. Martinez, 758 F.2d 373, 377 (9th Cir. 1985) (counsel not unreasonable for failing to request voluntary manslaughter instruction inconsistent with proffered alibi defense); Eppard v. Janda, 2013 WL 1401216, at *12 (C.D. Cal. Mar. 4, 2013), adopted, 2013 WL 1397276 (C.D. Cal. Apr. 1, 2013) (counsel not ineffective for failing to request a provocation instruction, which would have been inconsistent with reasonably chosen defense of self-defense).8

Furthermore, Petitioner has not shown a reasonable likelihood of a different result had counsel requested a provocation instruction. As Petitioner acknowledges (see Pet. Mem., pp. 16-17), the trial court instructed the jury on the elements of premeditation and deliberation, telling the jury:

(R.T. 579-80; C.T. 260) (emphasis added).

This instruction adequately conveyed to the jury the concept that, if the shooting was the result of an allegedly impulsive decision (whether in response to asserted provocation or some other stimulus), the jury should find that the attempted murder was not deliberate or premeditated. Cf. Henderson v. Kibbe, 431 U.S. 145, 155-57 (1977) (habeas relief for an omitted instruction not warranted when the "jurors would have responded to [the omitted instruction] consistently with their determination of the issues that were comprehensively explained" in the remaining instructions). Despite the instruction, the jury found Petitioner guilty of wilful, deliberate and premeditated attempted murder. Petitioner has not shown a reasonable probability that the desired provocation instruction would have led to a more favorable verdict, and hence Plaintiff has failed to prove Strickland prejudice. See Harrington v. Richter, 131 S. Ct. at 792 ("The likelihood of a different result must be substantial, not just conceivable."); Strickland, 466 U.S. at 694. Petitioner is not entitled to habeas relief on this claim.

2. Failure to Request Appointment of an Eyewitness Identification Expert

Petitioner faults his counsel for failing to obtain an eyewitness identification expert, contending that an expert could have explained the factors to be considered in evaluating eyewitness testimony (Pet. Mem., p. 29). The Superior Court rejected this claim, ruling that Petitioner had not alleged facts or presented evidence establishing a prima facie case for relief (Respondent's Lodgment 8, third page).

In general, an attorney's decision not to call a witness constitutes a matter of trial tactics which this Court should not second-guess. United States v. Harden, 846 F.2d 1229, 1232 (9th Cir.), cert. denied, 488 U.S. 910 (1988); see also Greiner v. Wells, 417 F.3d 305, 323 (2d Cir. 2005), cert. denied, 546 U.S. 1184 (2006) ("Courts applying Strickland are especially deferential to defense attorneys' decisions concerning which witnesses to put before the jury. The decision not to call a particular witness is typically a question of trial strategy that reviewing courts are ill-suited to second-guess.") (citation, internal quotations and brackets omitted); Williams v. Carter, 76 F.3d 199, 200 (8th Cir. 1996) ("The decision whether to call witnesses is normally a judgment by counsel which the courts do not second-guess.") (citation omitted); Murray v. Maggio, 736 F.2d 279, 282 (5th Cir. 1994) (counsel's decision not to call a particular witness generally is "within the realm of trial strategy").

Furthermore, eyewitness identification expert testimony "is strongly disfavored by most courts." United States v. Labansat, 94 F.3d 527, 530 (9th Cir. 1996), cert. denied, 519 U.S. 1140 (1997) (citation and internal quotations omitted). "Any weaknesses in eyewitness identification testimony can ordinarily be revealed by counsel's careful cross-examination of the eyewitness." Id. (citation and internal quotations omitted); see also Howard v. Clark, 608 F.3d 563, 574 (9th Cir. 2010) ("we adhere to the position that skillful cross examination of eyewitnesses, coupled with appeals to the experience and common sense of jurors, will sufficiently alert jurors to specific conditions that render a particular eyewitness identification unreliable") (citations and internal quotations omitted); People v. Lewis, 39 Cal.4th 970, 47 Cal.Rptr.3d 467, 140 P.3d 775 (2006), cert. denied, 550 U.S. 920 (2007) ("Expert testimony on the psychological factors affecting eyewitness identification is often unnecessary.").

Petitioner's counsel thoroughly cross-examined the witnesses who identified Petitioner regarding their identifications and their opportunities to observe Petitioner. Counsel elicited Meda's concession that at the hospital Meda was unable to pick anyone out of the police photo lineup (R.T. 102). Counsel elicited Olea's testimony that she told an officer that someone other than Petitioner had the gun, and that she had been unable to identify anyone in a photo lineup conducted by a defense investigator (R.T. 209). Counsel elicited Officer Little's testimony that, in Meda's police interview, Meda denied knowing the shooter (R.T. 325). Counsel elicited Officer Mullins' testimony that Meda was unable to identify the shooter from a photo lineup (R.T. 347-48). In closing, counsel argued strongly that the witnesses were mistaken in their identifications (see R.T. 538-44). Counsel pointed out Meda's failure to identify Petitioner to police as the shooter, Meda's allegedly shifting descriptions of the shooter's shirt and Olea's alleged focus on the gun and inability to identify anyone in one of the photo lineups (see id.). Counsel suggested that Ouimette or Alvarado influenced Olea's identification of Petitioner (see id.). Counsel also argued the vagueness of the witnesses' descriptions of the shooter and the alleged unreliability of the cross-racial identifications (R.T. 541-42).

Additionally, the trial court gave the standard California jury instruction, CALCRIM 315, regarding the factors to consider in evaluating eyewitness identification testimony (R.T. 573-75; C.T. 249-50). The stated factors include: (1) how well the witness could see the perpetrator; (2) the circumstances affecting the witness' ability to observe, such as lighting, weather conditions, obstructions, distance and duration of observation; (3) how closely the witness was paying attention; (4) whether the witness was under stress at the time of the observation; (5) how much time passed between the event and the identification; (6) the witness' certainty at the time of the identification; (7) whether the witness and the defendant were of different races; and (8) any other circumstances affecting the witness' ability to make an accurate identification (R.T. 573-75; C.T. 249-50). This instruction sufficiently guided the jurors in evaluating the eyewitness testimony. See United States v. Hicks, 103 F.3d 837, 847 (9th Cir. 1996), cert. denied, 520 U.S. 1193 (1997), overruled on other grounds, United States v. W.R. Grace, 526 F.3d 499 (9th Cir. 2008) (en banc) (expert testimony on eyewitness identification may not be required where the trial court determines that cross-examination or a comprehensive jury instruction would effectively convey the same information to the trier of fact).9

Under these circumstances, the jury was sufficiently able to assess the reliability of the identifications without testimony from an eyewitness identification expert; any failure to call an eyewitness identification expert was neither unreasonable nor prejudicial. See United States v. Wiley, 545 Fed. App'x 598, 599 (9th Cir. 2013) (failure to call eyewitness expert not prejudicial, where sole eyewitness had seen defendant several times before, co-conspirator identified defendant from surveillance footage, defense counsel cross-examined eyewitness, and court gave comprehensive instructions on eyewitness testimony); Howard v. Clark, 608 F.3d at 574 (failure to call eyewitness expert not prejudicial, where counsel cross-examined witnesses extensively and jury received instructions on the "potential shortcomings" of eyewitness testimony) (citation omitted); United States v. Labansat, 94 F.3d at 530 (counsel's failure to call eyewitness identification expert not ineffective or prejudicial, where counsel could have explored asserted unreliability of delayed identifications through cross-examination and closing argument, and other evidence linked defendant to crime); Ramirez v. Paramo, 2013 WL 6240432, at *6 (C.D. Cal. Nov. 30, 2013) (counsel's failure to call eyewitness identification expert not prejudicial, where attorney cross-examined eyewitness and court gave CALCRIM 315); Alvarez v. Almager, 2007 WL 2330297, at *5 (S.D. Cal. Aug. 10, 2007) (counsel's failure to call eyewitness identification expert not prejudicial, where jury was instructed how to consider and weigh eyewitness testimony); Brown v. Terhune, 158 F.Supp.2d 1050, 1071 (N.D. Cal. 2001), aff'd, 59 Fed. App'x 190 (9th Cir. 2003) (counsel not ineffective in failing to call eyewitness identification expert, where counsel cross-examined witnesses concerning identifications and emphasized alleged problems with identifications in closing). In sum, Petitioner is not entitled to habeas relief on this claim.10

3. Failure to Move to Suppress Allegedly Suggestive Identifications

Petitioner contends that counsel ineffectively failed to move to suppress the eyewitness identifications, which Petitioner asserts were "full of contradictions, fabrications and lies" (Pet. Mem., p. 25).11 This claim lacks merit.

As indicated above, evidence derived from a suggestive pretrial identification procedure may be inadmissible if the challenged procedure was so "impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." See Simmons v. United States, 390 U.S. 377, 384 (1968); see also Manson v. Brathwaite, 432 U.S. at 114; Neil v. Biggers, 409 U.S. at 198; People v. Gordon, 50 Cal.3d 1223, 1242-43, 270 Cal.Rptr. 451, 792 P.2d 251 (1990), cert. denied, 499 U.S. 913 (1991), overruled on other grounds, People v. Edwards, 54 Cal.3d 787, 835, 1 Cal.Rptr.2d 696, 819 P.2d 436 (1991), cert. denied, 506 U.S. 841 (1992). Petitioner does not identify any supposedly suggestive procedure. Rather, Petitioner appears to contend that counsel should have challenged the identifications as simply unreliable. A challenge to the admissibility of the identifications would have been futile. Moreover, counsel did challenge the reliability of the identifications, both in cross-examination and in closing argument. The fact that the jury chose to believe the eyewitnesses despite alleged contradictions and inconsistencies in their testimony does not show that counsel was ineffective. Petitioner has failed to show that counsel's action or inaction was either unreasonable or prejudicial.

4. Alleged Failure to Impeach Prosecution Witnesses Adequately

Petitioner contends trial counsel was aware of the "perjuries" committed by the prosecution's witnesses and of those witnesses' "contradictions and lies during the Police photo line up and the trial testimony" (Pet. Mem., p. 25). Petitioner asserts that his counsel allegedly knew Meda purportedly lied by denying having hit anyone with a bat, yet counsel allegedly failed to impeach the prosecution's witnesses (id.).

The record contradicts Petitioner's assertions. As indicated above, Petitioner's counsel cross-examined the prosecution's witnesses concerning the identifications. On direct examination, Meda testified that he took the bat from Waldrip, started swinging it and hit Waldrip (R.T. 40-41). Meda admitted that initially he did not tell police that he hit Waldrip, but that ultimately Meda did disclose this information (R.T. 75-79). Counsel cross-examined Meda concerning the bat, eliciting Meda's testimony that during Meda's first police interview Meda did not say he struck anyone with the bat, but later admitted doing so after a detective professed disbelief (R.T. 103). Petitioner does not suggest what other questioning counsel should have undertaken to impeach Meda or any other witness further. Petitioner's conclusory speculation that some sort of unidentified impeachment would have made a difference in the outcome of his case does not warrant habeas relief. See Powell v. California, 408 Fed. App'x 96, 98 (9th Cir.), cert. denied, 131 S.Ct. 3075 (9th Cir. 2011) (conclusory allegations insufficient to show Strickland violation); Bible v. Ryan, 571 F.3d at 871 (speculation insufficient to show Strickland prejudice); Cooks v. Spaulding, 660 F.2d 738, 740 (9th Cir. 1981), cert. denied, 455 U.S. 1026 (1982) (speculation insufficient to show Strickland violation); see also Zettlemoyer v. Fulcomer, 923 F.2d at 298.

5. Failure to Object to the Purported "Mini Trial" Concerning the Prior Conviction of Petitioner's Mother

Petitioner contends counsel should have objected to the "mini trial" during which the prosecutor cross-examined Petitioner's mother regarding her prior conviction and called a rebuttal witness, Deputy Dennington, to impeach the mother's testimony. As indicated above, the judge eventually cut short the prosecutor's cross-examination of the mother under Evidence Code section 352.

As Petitioner concedes (Pet. Mem., pp. 36, 42), evidence that his mother lied to police and lied on the stand concerning the events leading to her conviction was highly relevant to her credibility. Petitioner does not state at what earlier point in the proceeding counsel supposedly should have objected. Rather, Petitioner contends that the impeachment purportedly led jurors to believe the mother was a "hard nose criminal," a "cut-throat, ruffian and cold hearted criminal" and "on the level of a terrorist bomber" (Pet. Mem., pp. 41, 44).

Petitioner grossly exaggerates the nature of the impeachment. The impeachment did not cast his mother as a terrorist, but merely suggested that she was willing to give untruthful testimony in the defense of a family member. Petitioner alleges that he suffered prejudice because the prosecutor "sought to Maliciously . . . destroy Anthona Clifton's credibility in the eyes of the jurors" (Pet. Mem., p. 35). The impeachment may have succeeded in convincing the jury to disbelieve Petitioner's mother, but the potential for this type of "prejudice" inheres in any impeachment evidence. Counsel's failure to prevent this type of "prejudice" did not render ineffective counsel's representation of Petitioner. See Harrington v. Richter, 131 S.Ct. 770, 792 (2011); Strickland, 466 U.S. at 694.

IV. Petitioner's Challenge to His Sentence Does Not Merit Habeas Relief.

Petitioner contends the sentencing court allegedly violated the Constitution by imposing sentence on both the attempted murder convictions and the convictions for assault with a firearm. The Court of Appeal rejected Petitioner's challenge to his sentence (Respondent's Lodgment 6, pp. 14-15; see People v. Ramsey, 2012 WL 1288569 at *5-6).

To the extent Petitioner contends his sentence violated state law, Petitioner is not entitled to habeas relief. Again, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Matters relating to sentencing and serving of a sentence generally are governed by state law and do not raise a federal constitutional question. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994), cert. denied, 514 U.S. 1026 (1995) ("The decision whether to impose sentences concurrently or consecutively is a matter of state criminal procedure and is not within the purview of federal habeas corpus.") (citation omitted); Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) (rejecting as not cognizable petitioner's contention the California court violated section 654 by imposing two consecutive terms for rape in concert based on petitioner's single act of standing guard while others raped the victim); see also Wilson v. Corcoran, 131 S.Ct. 13, 16 (2010) (per curiam) ("[I]t is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts.") (original emphasis).

Under narrow circumstances, however, the misapplication of state sentencing law may violate due process. See Richmond v. Lewis, 506 U.S. 40, 50 (1992). "[T]he federal, constitutional question is whether [the error] is so arbitrary or capricious as to constitute an independent due process" violation. Id. (internal quotation and citation omitted); see also Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) ("Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief."). Petitioner has shown no such fundamental unfairness.

California Penal Code section 654(a) provides, in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of punishment, but in no case shall the act or omission be punished under more than one provision." Section 654 forbids the imposition of multiple punishments for offenses committed during a single course of conduct and incident to a single objective. See People v. Perez, 23 Cal.3d 545, 551, 153 Cal.Rptr. 40, 591 P.2d 63 (1979). Under California law, a defendant may be convicted of multiple crimes arising out of an indivisible course of conduct, but may not be sentenced separately for each such offense. See People v. Pearson, 42 Cal.3d 351, 359-60, 228 Cal.Rptr. 509, 721 P.2d 595 (1986); People v. Duff, 50 Cal.4th 787, 796, 114 Cal.Rptr.3d 233, 237 P.3d 558 (2010) ("rather than dismissing charges or imposing concurrent sentences, when a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence but to stay the execution of the duplicative sentence. . . .") (citations omitted; original emphasis); People v. Austin, 23 Cal.App.4th 1596, 1614, 28 Cal.Rptr.2d 885 (1994), disapproved on other grounds, People v. Palmer, 24 Cal.4th 856, 861, 867, 103 Cal.Rptr.2d 13, 15 P.3d 234, cert. denied, 532 U.S. 1055 (2001) (where Penal Code section 654 prevents punishment for multiple offenses arising out of an indivisible course of conduct, proper judgment is to "impose sentence on the greater crime and stay the sentence on the lesser, such stay to become permanent when service of sentence for the greater offense is completed"). The sentencing court followed this procedure in Petitioner's case. Therefore, the court did not misapply state law, much less violate Due Process.

Petitioner's Double Jeopardy claim fails as well. "The Fifth Amendment's prohibition on double jeopardy protects against being punished twice for a single criminal offense." United States v. Brooks, 610 F.3d 1186, 1194 (9th Cir. 2010) (citation and internal quotations omitted). Under the Double Jeopardy Clause, "`where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.'" United States v. Del Toro-Barboza, 673 F.3d 1136, 1148 (9th Cir.), cert. denied, 133 S.Ct. 586 (2012) and 133 S.Ct. 588 (2012) (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)). "Consistent with Blockburger, the California courts look to the `statutory elements' to determine whether `the greater offense include[s] all of the statutory elements of the lesser offense,' which would make `the latter . . . necessarily included in the former.'" Smith v. Hedgpeth, 706 F.3d 1099, 1102 (9th Cir.), cert. denied, 133 S.Ct. 1831 (2013) (citations and internal quotations omitted).

Additionally, "[e]ven if the two counts are multiplicitous, where `a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the "same" conduct under Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.'" Id. (citations omitted); see Missouri v. Hunter, 459 U.S. 359, 366 (1983) ("With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.").

Under California law, a defendant may not be convicted both of a greater and a lesser included offense. People v. Milward, 52 Cal.4th 580, 585, 129 Cal.Rptr.3d 145, 257 P.3d 748 (2011). Assault with a firearm is not a lesser included offense of attempted murder, however. See People v. Parks, 118 Cal.App.4th 1, 6, 12 Cal.Rptr.3d 635 (2004); Funk v. Uribe, 2011 WL 2939146, at *13 (C.D. Cal. Feb. 16, 2011), adopted, 2011 WL 2939145 (C.D. Cal. July 20, 2011); Cal. Penal Code §§ 187, 664, 245(a).12

Petitioner contends that, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny, assault with a firearm is a lesser included offense of attempted murder when the murder charge is accompanied by a firearm enhancement. The Court of Appeal rejected this claim, ruling that, under California law, a court may not consider enhancement allegations for purposes of the rule prohibiting multiple convictions based on necessarily included offenses (Respondent's Lodgment 6, pp. 14-15; see People v. Ramsey, 2012 WL 1288569 at *5-6). In so ruling, the Court of Appeal cited People v. Izaguirre, 42 Cal.4th 126, 64 Cal.Rptr.3d 148, 164 P.3d 578 (2007), cert. denied, 552 U.S. 1152 (2008), which held that Apprendi does not require the court to consider enhancement allegations for purposes of the rule prohibiting multiple convictions based on necessarily included offenses (id.).

Recently, the Ninth Circuit Court of Appeals ruled that no clearly established Supreme Court law requires a state court to consider a sentencing enhancement as an element of the offense for purposes of the Double Jeopardy Clause. See Smith v. Hedgpeth, 706 F.3d at 1106 (rejecting California petitioner's argument that his conviction for assault with a deadly weapon coupled with a great bodily injury enhancement was a lesser included offense of infliction of corporal injury upon a spouse coupled with a deadly weapon enhancement). Therefore, the Court of Appeal's rejection of this claim was neither contrary to, nor an unreasonable application of, any clearly established Supreme Court law. See 28 U.S.C. § 2254(d). For the foregoing reasons, Petitioner's challenge to his sentence does not merit habeas relief.13

V. Petitioner's Claim of Ineffective Assistance of Appellate Counsel Does Not Merit Habeas Relief.

The standards set forth in Strickland govern claims of ineffective assistance of appellate counsel. See Smith v. Robbins, 528 U.S. 259, 285-86 (2000); Bailey v. Newland, 263 F.3d 1022, 1028 (9th Cir. 2001), cert. denied, 535 U.S. 995 (2002). Appellate counsel has no constitutional obligation to raise all non-frivolous issues on appeal. Pollard v. White, 119 F.3d 1430, 1435 (9th Cir. 1997). "A hallmark of effective appellate counsel is the ability to weed out claims that have no likelihood of success, instead of throwing in a kitchen sink full of arguments with the hope that some argument will persuade the court." Id.

As previously indicated, Petitioner's appellate counsel filed an opening brief on appeal which subsequently was amended. In the initial opening brief, counsel argued, inter alia, that Petitioner's trial counsel allegedly was ineffective for failing to request a provocation instruction (see Petition, Ex. A). Petitioner argues that, because the State's brief allegedly did not respond to this argument, the State "conceded" the issue (see Pet. Mem., p. 52). According to Petitioner, appellate counsel's reply brief ineffectively failed to point out this purported "concession" (see Pet. Mem., pp. 52-53, 55).

Petitioner's argument plainly lacks merit. As previously indicated, the amended opening brief superseded the initial opening brief. In responding to Petitioner's amended opening brief rather than to the superseded initial opening brief, the State "conceded" nothing. As discussed above, Petitioner's trial counsel was not ineffective for failing to request a provocation instruction. Therefore, Petitioner's appellate counsel was not ineffective for failing to argue otherwise.

Petitioner also contends appellate counsel rendered ineffective assistance by failing to raise on appeal Petitioner's other claims (Pet. Mem., p. 52).14 Strickland does not require appellate counsel to raise a meritless argument on appeal. See Moormann v. Ryan, 628 F.3d 1102, 1109 (9th Cir. 2010), cert. denied, 132 S.Ct. 346 (2011) (counsel is not required to raise a meritless issue on appeal). For the reasons discussed above, Petitioner's other claims lack merit. Petitioner has not shown that appellate counsel's failure to raise Petitioner's other claims on appeal was either unreasonable or prejudicial. See Moormann v. Ryan, 628 F.3d at 1109 (where petitioner failed to show trial counsel's alleged ineffectiveness prejudiced petitioner, appellate counsel's failure to argue trial counsel's alleged ineffectiveness on appeal "was neither deficient representation nor prejudicial"); Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001) (appellate counsel's failure to raise an issue on direct appeal cannot constitute ineffective assistance when "the appeal would not have provided grounds for reversal.") (citation omitted); Featherstone v. Estelle, 948 F.2d 1497, 1507 (9th Cir. 1991) (where trial counsel's performance did not fall below the Strickland standard, "petitioner was not prejudiced by appellate counsel's decision not to raise issues that had no merit") (footnote omitted). Therefore, Petitioner is not entitled to habeas relief on this claim.

VI. Petitioner's Claim of Cumulative Error Does Not Merit Habeas Relief.

"While the combined effect of multiple errors may violate due process even when no single error amounts to a constitutional violation or requires reversal, habeas relief is warranted only where the errors infect a trial with unfairness." Payton v. Cullen, 658 F.3d 890, 896-97 (9th Cir. 2011), cert. denied, 133 S.Ct. 426 (2012). Habeas relief on a theory of cumulative error is appropriate when there is a "`unique symmetry' of otherwise harmless errors, such that they amplify each other in relation to a key contested issue in the case." Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011), cert. denied, 133 S.Ct. 424 (2012) (citation omitted). Here, no such symmetry of otherwise harmless errors exists. The claimed errors either were not errors or were not prejudicial, or both. Petitioner is not entitled to habeas relief on his claim of alleged cumulative error.

RECOMMENDATION

For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.

Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.

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

LET JUDGMENT BE ENTERED ACCORDINGLY.

Pursuant to the Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge,

IT IS ADJUDGED that the Petition is denied and dismissed with prejudice.