REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Philip S. Gutierrez, 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.

RELEVANT PROCEEDINGS

Petitioner, represented by counsel, filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on December 11, 2012. The case was assigned to United States Magistrate Judge Ralph Zarefsky.

On March 27, 2013, Respondent filed a "Motion to Dismiss Petition, etc.," contending that certain of Petitioner's claims and portions of claims were unexhausted. On April 25, 2013, Petitioner filed an opposition to the Motion to Dismiss and a motion for a stay. On June 18, 2013, Respondent filed an opposition to the motion for a stay in which Respondent did not oppose a stay pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir.), cert. denied, 548 U.S. 1042 (2003), overruled on other grounds, Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007). On September 17, 2013, Magistrate Judge Zarefsky granted the unopposed portion of the motion for a stay pursuant to Kelly v. Small and granted Petitioner leave to file a First Amended Petition omitting Petitioner's unexhausted claims.

On October 16, 2013, Petitioner filed a First Amended Petition. On May 22, 2014, Petitioner filed a Second Amended Petition containing seven claims for relief, accompanied by a Memorandum ("Pet. Mem.").

On August 15, 2014, Respondent filed a motion to dismiss Claims Two, Four, Six and portions of Claims Three and Seven of the Second Amended Petition as untimely. Petitioner filed an opposition to the motion to dismiss on December 18, 2014.

On March 25, 2015, Magistrate Judge Zarefsky issued a Report and Recommendation recommending dismissal of Grounds Two, Four and Seven and portions of Ground Three as untimely. Petitioner and Respondent both filed objections to the Report and Recommendation.

On May 7, 2015, because of Magistrate Judge Zarefsky's retirement, the case was transferred to the undersigned Magistrate Judge.

On June 19, 2015, the Court issued an "Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge," accepting and adopting in part the March 25, 2015 recommendation, but making certain additional findings and conclusions. The Court thereby dismissed: (1) Claim Two; (2) the newly exhausted subclaims contained in Claim Three except for Petitioner's claims of ineffective assistance of counsel with respect to prosecutorial misconduct alleged in the original Petition; (3) Claim Four; (4) Claim Six; and (5) Claim Seven to the extent the alleged cumulative error was based on newly exhausted claims not raised in the original Petition.

Respondent filed an Answer to the remaining claims on September 21, 2015. Petitioner filed a Traverse on October 6, 2015.

BACKGROUND

A jury found Petitioner guilty of the first degree murder of Los Angeles Airport Police Officer Tommy Scott (Reporter's Transcript ["R.T."] 1523; Clerk's Transcript ["C.T."] 441-45; 449-51). The jury found not true the allegations that the murder was willful, deliberate and premeditated first degree murder and that Petitioner intentionally killed Scott while Scott was engaged in the performance of his duties and with knowledge that Scott was performing his duties (R.T. 1523-25; C.T. 441-42). However, the jury did find true the allegations that the murder was committed during a carjacking and that Petitioner used a deadly and dangerous weapon, a police car, in the commission of the murder (R.T. 1524-25; C.T. 441-42). The jury also found Petitioner guilty of the carjackings of Officer Scott and Craig Lazar and the attempted carjacking of Christine Koesler (R.T. 1525-28; C.T. 443-45). In a bifurcated proceeding, the jury found that Petitioner was sane at the time of the offenses (R.T. 2513; C.T. 522-24). Petitioner received a sentence of life without the possibility of parole (R.T. 2559-62; C.T. 548-55).1

The California Court of Appeal affirmed the judgment in a reasoned decision (Respondent's Lodgment 14; see People v. Sadowski, 2011 WL 2125039 (Cal. App. May 31, 2011). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 16).

Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court, which that court denied on August 30, 2013 (Second Amended Petition, ECF Dkt. 30, pp. 88-161, 163-65).

Petitioner filed a habeas corpus petition in the California Court of Appeal, which that court denied on March 3, 2014 (Second Amended Petition, ECF Dkt. 30, pp. 166-250).

Petitioner filed a petition for review of the Court of Appeal's denial of habeas relief in the California Supreme Court (Second Amended Petition, ECF Dkt. 30, pp. 251-338). The California Supreme Court denied the petition for review summarily on May 15, 2014 (Second Amended Petition, ECF Dkt. 40, p. 339).

SUMMARY OF TRIAL EVIDENCE

The following summary is taken from the opinion of the California Court of Appeal in People v. Sadowski, 2011 WL 2125039 (Cal. App. May 31, 2011). 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 court decision).

[Guilt Phase]

[Sanity Phase]

(Respondent's Lodgment 23, pp. 2-3, 14-16; see People v. Sadowski, 2011 WL 2125039, at *1-2, 9-10).

PETITIONER'S CONTENTIONS

1. The "overwhelming presence" of police officers in the courtroom during Petitioner's trial allegedly violated Petitioner's right to a fair trial; an officer allegedly held a door open for a juror and touched a juror as if to escort her; an officer allegedly glared at Petitioner's sister; officers allegedly talked within earshot of jurors, stared at the jury and stood as the jury entered (Ground One);

2. The prosecutor allegedly committed misconduct by assertedly: (a) appealing for sympathy; (b) misstating the law and facts; (c) vouching for the credibility of the prosecutor's contention that Petitioner was not insane by referring to her "own long walks"; and (d) disparaging defense counsel; Petitioner's trial and appellate counsel allegedly rendered ineffective assistance to the extent counsel did not object to the alleged prosecutorial misconduct at trial or raise these claims on appeal (Ground Three);

3. The evidence allegedly did not support the jury's finding that Petitioner was sane at the time of the offenses (Ground Five); and

4. The cumulative effect of the alleged errors asserted in Claims One and Three allegedly violated the Constitution (Ground Seven).

STANDARD OF REVIEW

Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).

"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 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, 562 U.S. 86, 101 (2011). This is "the only question that matters under § 2254(d)(1)." Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103.

In applying these standards, the Court 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, 563 U.S. 170, 188 (2011) (citation, quotations and brackets omitted).

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).

DISCUSSION

I. Petitioner's Claims Concerning the Presence and Alleged Actions of Uniformed Police Officers at Trial Do Not Merit Habeas Relief.

A. Background

In a pretrial proceeding, Petitioner's counsel observed that uniformed police officers had been coming to the proceedings and counsel asked that the officers not come in uniform (R.T. 63). Counsel argued that the presence of uniformed officers could deny Petitioner due process by allegedly sending a message to jurors "that someone's watching them" and by not contributing to "an atmosphere of impartiality" (R.T. 63). The trial court asked Petitioner's counsel to provide authority for the proposition that a court could order police officers not to wear their uniforms in court (R.T. 64). The prosecutor said she had told an airport police liaison officer that the courtroom was a public courtroom and that officers who wished to attend could wear a uniform or civilian clothing to court (R.T. 64). The court said it assumed the matter would not become an issue until trial commenced with opening statements (R.T. 64).

During jury selection, Petitioner's counsel again raised the issue of uniformed officers in the courtroom (R.T. 146). Counsel said having "two full rows of police officers in uniform" allegedly gave the impression that there were "authority figures in court who [were] very interested in the case and obviously want to have a particular verdict in the case. . . ." (R.T. 146-47). Counsel argued that the alleged juror intimidation would deny Petitioner due process (R.T. 147). The court did not make any ruling at that time (R.T. 148-50).

During trial, and out of the presence of the jury, Petitioner's counsel told the court that counsel had seen an officer hold the door for jurors, adding, "I don't see a problem with that" (R.T. 1185). Counsel went on to state that the officer had "touched the juror who walks with a cane, like gently escorting her" (R.T. 1185). Counsel asked that the officer be told not to have that type of contact with a juror (R.T. 1185). The court said: "That would be preferable. I'm sure it's just a matter of good manners, but not appropriate." (R.T. 1185). Petitioner's counsel did not request a hearing. A detective said he would talk to the officer (R.T. 1186).

Following the verdict, Petitioner's counsel filed a motion for a new trial asserting, inter alia, that the court had erred in permitting uniformed officers to watch the trial (C.T. 530). Counsel did not then argue that officers purportedly had touched or stared at jurors, stood when jurors entered the courtroom or conversed with each other in earshot of jurors, or that an officer purportedly had "glared" at Petitioner's sister (R.T. 2530; C.T. 530). At the hearing on the motion, Petitioner's counsel contended that the presence of uniformed officers in the courtroom "gave an aura of, there's a legal enforcement that really wants a particular verdict," and that the officers' presence "may have swayed the proceedings in this case" (R.T. 2520). The court acknowledged that at the beginning and end of the case, during the arguments and opening statements, there had been a number of uniformed officers in the courtroom (R.T. 2526). The court denied the motion, stating: "I don't believe their presence was in any way oppressive or in any way intimidating, and I also believe that police officers have a right to attend court proceedings in uniform if they're on duty" (R.T. 2526).

The California Court of Appeal upheld the trial court's ruling. The Court of Appeal stated that, although the record showed that officers sat in the courtroom audience "at least at some parts of the trial," the record did not show the number of officers present at any given point, or show that a "roomful of uniformed and armed policemen" had been present throughout the trial or at any part of the trial (Respondent's Lodgment 14, pp. 6-7; see People v. Sadowski, 2011 WL 2125039, at *4). The Court of Appeal concluded that the record did not suggest that an "air of authority" from the presence of uniformed police officers had overshadowed Petitioner's trial, or that the presence of uniformed officers had affected the outcome of Petitioner's trial (Respondent's Lodgment 14, p. 7; see People v. Sadowski, 2011 WL 2125039, at *4).

B. Analysis

In Carey v. Musladin, 549 U.S. 70 (2006), members of a murder victim's family sat in the front row of the spectators' gallery during trial wearing buttons bearing the victim's photograph. Id. at 72. The Ninth Circuit held that the California Court of Appeal's ruling that the practice did not violate the Constitution was an unreasonable application of clearly established Supreme Court law. See Musladin v. Lamarque, 427 F.3d 653, 656 (9th Cir. 2005), rev'd, 549 U.S. 70 (2006). The United States Supreme Court reversed. The Supreme Court held that its prior decisions in Holbrook v. Flynn, 475 U.S. 560 (1986), and Estelle v. Willliams, 425 U.S. 501 (1976), did not supply the relevant "clearly established law" because those cases involved government-sponsored courtroom practices: a requirement that the defendant stand trial in prison garb in Estelle v. Williams, and the seating of uniformed troopers directly behind the defendant as a security measure in Holbrook v. Flynn. Carey v. Musladin, 549 U.S. at 75-76. The Supreme Court in Carey v. Musladin deemed it an "open question" whether the effect of non-state-sponsored spectator conduct in a criminal courtroom could violate the Constitution, noting the divergent treatment of the issue in the state and lower federal courts. Carey v. Musladin, 549 U.S. at 76. Because no Supreme Court holding required the California Court of Appeal to apply Holbrook v. Flynn and Estelle v. Williams to the wearing of buttons by courtroom spectators, the Supreme Court held that habeas relief was unavailable under the AEDPA standard of review. Carey v. Musladin, 549 U.S. at 76-77.

In the present case, the officers were present in the courtroom of their own accord, as spectators, not as a result of any state-sponsored mandate. Accordingly, in the absence of any clearly established Supreme Court law deeming unconstitutional the presence of uniformed officers as courtroom spectators, this Court cannot deem unreasonable the California court's rejection of Petitioner's claim that the officers' presence rendered Petitioner's trial unfair. See Johnson v. Sisto, 327 Fed. App'x 19, 20 (9th Cir. 2009), cert. denied, 558 U.S. 1123 (2010) (in prosecution for shooting of a California Highway Patrol officer, presence in the courtroom gallery of a "substantial number of uniformed and armed California Highway Patrol officers" at trial did not merit habeas relief; "there is no clearly established Supreme Court law on the subject of nondisruptive "spectator conduct," citing Carey v. Musladin); Street v. Knipp, 2013 WL 5718718 (N.D. Cal. Oct. 21, 2013) (presence of 20-25 uniformed officers in courtroom gallery did not warrant habeas relief because there was no "clearly established Federal law" holding that conduct by courtroom spectators deprives a defendant of a fair trial; citing Carey v. Musladin).2

Petitioner also alleges that particular actions by the spectator officers purportedly prejudiced Petitioner because some of the officers allegedly interacted with jurors in various ways, such as assertedly talking within earshot of jurors, staring at the jury, glaring at Petitioner's sister and standing as the jury entered, and one officer allegedly touched a juror as if to escort her.

"Any unauthorized communication between a juror and a witness or interested party is presumptively prejudicial, but the government may overcome the presumption by making a strong contrary showing." Caliendo v. Warden of California Men's Colony, 365 F.3d 691, 694 (9th Cir.), cert. denied, 543 U.S. 927 (2004). The Supreme Court has recognized that "it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote." United States v. Olano, 507 U.S. 725, 738 (1993) (quoting Smith v. Phillips, 455 U.S. 209, 217 (1982)). "Certain chance contacts between witnesses and jury members — while passing in the hall or crowded together in an elevator — may be inevitable." Caliendo v. Warden of California Men's Colony, 365 F.3d at 696 (citation omitted). "[I]f an unauthorized communication with a juror is de minimis, the defendant must show that the communication could have influenced the verdict before the burden of proof shifts to the prosecution . . . [and] must offer sufficient evidence to trigger the presumption of prejudice." Id. (citations and internal quotations omitted). "A communication is possibly prejudicial, not de minimis, if it raises a risk of influencing the verdict." Id. at 697. The Court may consider factors including the content of the communication, the length and nature of the contact, the identity and role of the parties involved, and evidence of actual impact on the jury. Id.

Here, given the circumstances of the crime, jurors reasonably could have expected the audience to include police officers. See Smith v. Farley, 59 F.3d 659, 664 (7th Cir. 1995), cert. denied, 516 U.S. 1123 (1996) ("if you kill a policeman and are put on trial for the crime, you must expect the courtroom audience to include policemen"). The record does not disclose the length of time officers purportedly conversed with each other within earshot of jurors, the subject of any such supposed conversations, or the content of any other alleged communications with jurors. There is no evidence that any of the officers assertedly involved in the alleged contacts testified at trial. The actions allegedly imputed to the spectator officers constitute only de minimus contacts insufficient to show prejudice. See Lee v. Marshall, 42 F.3d 1296, 1298-99 (9th Cir. 1994) (two police officers, one of whom was the investigating officer in the case, entered the jury room during deliberations without the court's permission to set up a VCR to replay a witness's testimony; one officer engaged in brief conversation with a juror concerning repairs to the machine; contacts held not prejudicial); Helmick v. Cupp, 437 F.2d 321, 322-23 (9th Cir.), cert. denied, 404 U.S. 835 (1971) (three arresting sheriff's deputies, one of them a prosecution witness, drove the jurors to the scene of the crime after being designated by the trial court as bailiffs for that purpose; contacts held not prejudicial); United States v. Greer, 2013 WL 4537294, at *4-5 (C.D. Cal. Aug. 27, 2013) (alternate juror's brief exchanges with mother of co-defendant at lunch and by an elevator were de minimus "spontaneous and friendly" comments only tangentially related to the court proceedings). Not only were the alleged contacts minimal, the jury's determination that Petitioner did not commit wilful, deliberate and premeditated murder tends to refute any suggestion that the alleged contacts rendered the jurors unable to follow their instructions and reach a verdict based on the evidence.

In sum, the state court's rejection of Petitioner's claim concerning the presence and alleged actions of uniformed police officers was not contrary to, or an unreasonable application of, any clearly established Federal law, as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 (2011).3 Petitioner is not entitled to federal habeas relief on Ground One of the Second Amended Petition.

II. Petitioner Is Not Entitled to Habeas Relief on His Claims Of Alleged Prosecutorial Misconduct and Related Alleged Ineffective Assistance of Counsel.4

A. The Prosecutorial Misconduct Claims Are Procedurally Defaulted.

Under California's contemporaneous objection rule, a failure to object to prosecutorial misconduct bars review where a timely objection and admonition would have cured the harm. See People v. Arias, 13 Cal.4th 92, 51 Cal.Rptr.2d 770, 813, 913 P.2d 980 (1996), cert. denied, 520 U.S. 1251 (1997). The Court of Appeal ruled that Petitioner had forfeited his claims that the prosecutor assertedly had made remarks in closing argument disparaging defense counsel and misstating the facts because Petitioner's counsel had failed to object to those remarks contemporaneously (Respondent's Lodgment 14, pp. 8-10).5

A federal court may be barred from reviewing the merits of a habeas petitioner's claim when the petitioner has violated a state law procedural rule. Coleman v. Thompson, 501 U.S. 722, 729 (1991). "For the procedural default rule to apply, however, the application of the state procedural rule must provide `an adequate and independent state law basis' on which the state court can deny relief." Park v. California, 202 F.3d 1146, 1151 (9th Cir.), cert. denied, 531 U.S. 918 (2000) (citation omitted). If the court finds an independent and adequate state procedural ground, "federal habeas review is barred unless the prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice." Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir. 1993); see Coleman v. Thompson, 501 U.S. at 750; Park v. California, 202 F.3d at 1150.

In Bennett v. Mueller, 322 F.3d 573, 581-83 (9th Cir.), cert. denied, 540 U.S. 938 (2003), the Ninth endorsed the following burden-shifting scheme for procedural default:

(Id. at 586.)

Here, Respondent has met his burden to plead California's contemporaneous objection rule as an adequate and independent state ground to deny habeas relief. Petitioner does not (and could not) deny the independence or adequacy of California's contemporary objection rule. See Fairbank v. Ayers, 650 F.3d 1243, 1256-57 (9th Cir. 2011), cert. denied, 132 S.Ct. 1757 (2012) (California's contemporaneous objection rule is an independent and adequate state procedural rule barring federal habeas review of claim of prosecutorial misconduct). Rather, in conclusory fashion, Petitioner suggests that a failure to consider his claims purportedly would result in a "fundamental miscarriage of justice" (see Traverse, pp. 2, 6).

The "fundamental miscarriage of justice" exception requires a showing of actual innocence. See Johnson v. Knowles, 541 F.3d 933, 937-38 (9th Cir. 2008). cert. denied, 556 U.S. 1211 (2009). In order to show actual innocence, a petitioner must "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." Schlup v. Delo, 513 U.S. 298 (1995); see also Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000). A petitioner must demonstrate that "in light of new evidence, `it is more likely than not that no reasonable juror would have found [the] petitioner guilty beyond a reasonable doubt.'" House v. Bell, 547 U.S. 518, 536-37 (2006) (quoting Schlup v. Delo, 513 U.S. at 327). Here, Petitioner has failed to submit any new reliable evidence not presented at trial that supposedly shows his actual innocence. Petitioner's conclusory allegations are insufficient. See Sweet v. Delo, 125 F.3d 1144, 1152 n.9 (8th Cir. 1997), cert. denied, 523 U.S. 1010 (1998) (conclusory allegations of actual innocence insufficient to excuse procedural default); Cabrera v. Yates, 2010 WL 890141, at *8 (S.D. Cal. Mar. 5, 2010), aff'd, 426 Fed. App'x 535 (2011) (same). Therefore, Petitioner's claims of prosecutorial misconduct as to which no contemporaneous objection was made are procedurally defaulted.

B. In Any Event, None of Petitioner's Claims of Prosecutorial Misconduct Succeed on the Merits.

Prosecutorial misconduct merits habeas relief only where the misconduct "`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) ("Darden") (citation and internal quotations omitted); Bonin v. Calderon, 59 F.3d 815, 843 (9th Cir. 1995), cert. denied, 516 U.S. 1051 (1996) ("To constitute a due process violation, the prosecutorial misconduct must be so severe as to result in the denial of [the petitioner's] right to a fair trial.").

"In fashioning closing arguments, prosecutors are allowed reasonably wide latitude and are free to argue reasonable inferences from the evidence." United States v. McChristian, 47 F.3d 1499, 1507 (9th Cir. 1995) (citation omitted). "The arguments of counsel are generally accorded less weight by the jury than the court's instructions and must be judged in the context of the entire argument and the instructions." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 898 (9th Cir. 1996) (citing Boyde v. California, 494 U.S. 370, 384-85 (1990)); see also Waddington v. Sarausad, 555 U.S. at 195 (same).

In Parker v. Matthews, 132 S.Ct. 2148 (2012) ("Parker"), the United States Supreme Court ruled that the prosecutorial misconduct alleged therein did not warrant habeas relief under the AEDPA standard of review. The Court of Appeals for the Sixth Circuit had granted habeas relief on a claim that the prosecutor committed misconduct in closing argument by suggesting that the petitioner had colluded with his lawyer and a witness to manufacture an "extreme emotional disturbance" defense. Applying the AEDPA standard of review, the United States Supreme Court reversed. The Supreme Court observed that, even if the comments directed the jury's attention to inappropriate considerations, the petitioner had not shown that the comments were "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 2155 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). The Supreme Court noted that in Darden the Court had upheld a closing argument "considerably more inflammatory" than the one at issue in Parker,6 and that "particularly because the Darden standard is a very general one, leaving courts more leeway in reaching outcomes in case-by-case determinations," the Sixth Circuit's decision was unwarranted. Parker, 132 S. Ct. at 2155 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

1. Alleged Appeal to Sympathy

During the prosecutor's guilt phase closing argument, the prosecutor said: "Don't let this defendant rob Officer Scott of the sympathy that each and every one of you would have for him" (R.T. 1418). The court sustained a defense objection to this statement, and stated that "sympathy is not an issue in this case" (R.T. 1418). Later, while instructing the jury, the court stated that the jury "must not be influenced by sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling" (R.T. 199, 1329; C.T. 413).

Petitioner sought a new trial based on, inter alia, alleged prosecutorial misconduct (C.T. 525-34). The trial court denied the motion (see C.T. 548).

The Court of Appeal ruled that, although the prosecutor should not have invoked sympathy for the victim, there was no reasonable probability that the result at the guilt phase would have been more favorable to Petitioner without the "lone, passing utterance of the word `sympathy'" (Respondent's Lodgment 14, p. 11; see People v. Sadowski, 2011 WL 2125039, at *7). The Court of Appeal observed that the trial court had sustained defense counsel's objection with a statement that sympathy was not an issue, and also had instructed the jurors that they were to decide the case on the facts alone and were not to allow bias, sympathy, prejudice or public opinion to influence their decision (Respondent's Lodgment 14, pp. 11-12; see People v. Sadowski, 2011 WL 2125039, at *7).

The Court of Appeal's resolution of this claim was not unreasonable. The jury is presumed to have followed the trial court's instructions not to allow sympathy to influence its decision. See Weeks v. Angelone, 528 U.S. 225, 226 (2000). Furthermore, the evidence of Petitioner's guilt was substantial. Petitioner essentially admitted that he intended to take Officer Scott's police car. Moreover, the fact that the jury found not true the allegation that Petitioner committed wilful, deliberate and premeditated murder and the allegation that Petitioner committed the murder knowing Officer Scott was acting in the performance of his duties militates against any conclusion that the jury was influenced by the prosecutor's reference to sympathy for the victim. See United States v. Koon, 34 F.3d 1416, 1446 (9th Cir. 1994), rev'd in part on other grounds, 518 U.S. 81 (1996) (prosecutorial misconduct in closing harmless, where remarks were isolated comments, court instructed jurors to rely only on evidence at trial, substantial evidence supported finding of guilt and verdicts acquitting two defendants showed jury was able to "weigh the evidence without prejudice").

2. Alleged Misstatements of the Law

Petitioner claims the prosecutor allegedly misstated the law during the sanity phase closing argument by telling the jury that: (1) the sanity instruction stated the jury should consider whether Petitioner could distinguish moral right from moral wrong from the perspective of "a reasonable person with reasonable moral standards"; and (2) there was a previous jury instruction stating that if there were two reasonable interpretations of the evidence, jurors must adopt the interpretation against the party with the burden of proof (R.T. 2492, 2496). The trial court sustained defense objections to both of these statements (R.T. 2492, 2496). With respect to the first statement, the court told the jury, "you have been instructed in the law that applies to this case and the term reasonable is not in the instruction so you can ignore the argument of counsel in that regard and follow my instructions" (R.T. 2492). With respect to the second statement, the court said, "I'm sorry counsel, that instruction doesn't apply to this portion of the case," to which the prosecutor responded, "[s]trike that." (R.T. 2496).

The trial court denied Petitioner's motion for a new trial based on these alleged misstatements of law by the prosecutor (R.T. 2526-27). The Court of Appeal ruled that the trial court did not abuse its discretion by denying a new trial, in light of the immediate objection, the court's statement that the instruction to which the prosecutor had alluded did not apply at the sanity phase and the prosecutor's statement "strike that" (Respondent's Lodgment 14, pp. 12-13; see People v. Sadowski, 2011 WL 2125039, at *7).

The Court of Appeal's decision was not unreasonable. Immediately following the challenged statements the court corrected the prosecutor. Furthermore, the court instructed the jury: "If anything concerning the law is said by the attorneys in their arguments or at any other time during the course of the trial conflicts with my instructions on the law, you must follow my instructions" (R.T. 1328). Again, the jury is presumed to have followed its instructions. See Weeks v. Angelone, 528 U.S. at 226.

3. Alleged Misstatements of Facts

Petitioner contends the prosecutor made a number of factual misstatements in closing argument during the sanity phase, concerning such things as Petitioner's prior hospitalizations, Dr. Zetin's diagnoses and care of Petitioner, Dr. Zetin's opinion that Petitioner was in remission, the reasons Petitioner's counsel did not call Dr. Zetin to testify, the nature of bipolar disorder, whether any witness testified that Petitioner's religious statements were "crazy," whether anyone had consulted with Dr. Zetin, the testimony of a witness who saw Petitioner in the middle of the street, whether all of the witnesses testified that Petitioner knew what he was doing, whether any jury members had believed Petitioner had harbored intent to kill, and whether Petitioner had or did not have an airline ticket for flight on April 29, 2005 (Pet. Mem., pp. 50-58). All of these statements were permissible comments on the evidence. See United States v. McChristian, 47 F.3d at 1507 (a prosecutor is permitted to argue reasonable inferences from the evidence).

In one of the challenged statements, however, the prosecutor referred to her own personal experience. In her closing, Petitioner's counsel argued:

(R.T. 2435).7

In response, the prosecutor said:

(R.T. 2471).

The prosecutor's own personal experience in walking was not in evidence. In context, however, the prosecutor's argument constituted an invited response to defense counsel's argument that it was "insane" to believe Petitioner had walked to the airport to save money. See United States v. Nobari, 574 F.3d 1065, 1079 (9th Cir. 2009), cert. denied, 562 U.S. 1066 (2010) (prosecutor's comments not improper where they were an "invited response" to defense closing arguments). Furthermore, it is not likely that jurors would have understood the prosecutor's reference to her personal experience in walking as anything more than an appeal to the common knowledge that sane people sometimes walk long distances.

In any event, even if some of the prosecutor's statements were unsupported by the evidence, the court instructed the jury that the statements of counsel were not evidence and that the jury was to determine the facts from the evidence presented and not from any other source (R.T. 198, 200, 1327; C.T. 413).8 Again, the jury is presumed to have followed its instructions. See Weeks v. Angelone, 528 U.S. at 226; see also United States v. Toro-Barboza, 673 F.3d 1136, 1153 (9th Cir.), cert. denied, 133 S.Ct. 586 (2012) and 133 S.Ct. 588 (2012) (prosecutor's false statement did not render trial fundamentally unfair, where court instructed jury that counsel's statements were not evidence). The challenged remarks did not render Petitioner's trial fundamentally unfair.

4. Alleged Vouching

"The prosecutor's vouching for the credibility of witnesses and expressing his personal opinion concerning the guilt of the accused pose two dangers: such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence." United States v. Young, 470 U.S. 1, 18 (1985). "Improper vouching typically occurs in two situations: (1) the prosecutor places the prestige of the government behind a witness by expressing his or her personal belief in the veracity of the witness, or (2) the prosecutor indicates that information not presented to the jury supports the witness's testimony." United States v. Brooks, 508 F.3d 1205, 1209 (9th Cir. 2007) (citation and internal quotations omitted).

Petitioner contends the prosecutor improperly vouched for her witnesses and injected her personal opinions into argument by making the following comments:

(R.T. 2470).

(R.T. 2474-75).

(R.T. 2478).9

(R.T. 2480).10

(R.T. 2490).

(R.T. 2495).11

Although the prosecutor used the first person in making the challenged arguments, those arguments, whether viewed singularly or collectively, did not constitute prejudicial misconduct.

The prosecutor's statements that she was "shocked" "troubled" or "surprised" by defense evidence or arguments arguably were improper. See United States v. Matthews, 240 F.3d 806, 819 (9th Cir. 2000) (prosecutor's statement that he was "shocked" at fingerprint expert's testimony "problematic"); United States v. Kerr, 981 F.2d 1050, 1053 (9th Cir. 1996) ("A prosecutor has no business telling the jury his individual impressions of the evidence."). However, none of the statements referred to facts or inferences unsupported by the evidence. Furthermore the "shocked" and "troubled" comments, while allegedly expressing the prosecutor's personal opinion, were made in response to defense counsel's arguments. See United States v. Nobari, 574 F.3d 1065, 1079 (9th Cir. 2009), cert. denied, 562 U.S. 1066 (2010) (prosecutions comments not improper where they were an "invited response" to defense closing arguments).

Similarly, the prosecutor's statement that she (and the jury) did not hear a particular explanation defense counsel claimed Petitioner had given in a recorded interview was clearly an invited response to defense counsel's argument. See United States v. Nobari, 574 F.3d at 1079. The statement that the prosecutor thought all of the jurors saw that Dr. Rothberg was not well prepared was a proper comment on the evidence.

The statements concerning the prosecutor's presentation of evidence concerning Dr. Zetin's notes and evaluations were made in the context of arguing that the prosecutor did not bear the burden of proof at the sanity phase12 and that the defense had chosen not to present this evidence because the evidence was adverse to the defense. "Criticism of defense theories and tactics is a proper subject of closing argument." United States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1996) (citation omitted).

The statements that the prosecutor did not need to "apologize" for paying Dr. Hirsch expert fees and hiring Dr. Hirsch in order to present evidence to the jury were not improper. The prosecutor did not vouch for the credibility of Dr. Hirsch's opinions. The prosecutor was responding to defense counsel's argument that Dr. Hirsch had received $24,000 for his services and that he was "one of the highest paid experts in this case" (see R.T. 2443-44).13

Moreover, the jury's verdict tends to show that the jury was not influenced by any alleged prosecutorial misconduct. The jury rejected the charge of premeditated first degree murder and found not true the allegation that Officer Scott was acting in the performance of his duties and that Petitioner knew that Scott was doing so. Also, as indicated above, the court instructed the jury that counsel's statements were not evidence and that the jury was to determine the facts from the evidence presented and not from any other source (R.T. 198, 200, 1327; C.T. 413). As previously indicated, the jury is presumed to have followed its instructions. See Weeks v. Angelone, 528 U.S. 225, 226 (2000); see also United States v. Toro-Barboza, 673 F.3d 1136, 1153 (9th Cir.), cert. denied, 133 S.Ct. 586 (2012) and 133 S.Ct. 588 (2012) (prosecutor's false statement concerning evidence did not render trial fundamentally unfair, where court instructed jury that counsel's statements were not evidence). In sum, the prosecutor's alleged misstatements of law did not render Petitioner's trial fundamentally unfair.

5. Alleged Disparagement of Defense Counsel

Petitioner also challenges the following comments the prosecutor made during closing argument in the sanity phase:

(R.T. 2471.)

The challenged remarks "merely attacked the strength of the defense on the merits, not the integrity of defense counsel." United States v. Nobari, 574 F.3d at 1079 (accusing defense counsel of misstating the facts and the law and using a "red herring" argument as a "tactic to divert [the jury's] attention away from the truth" not misconduct);14 see Cunningham v. Wong, 704 F.3d 1143, 1159 (9th Cir.), cert. denied, 134 S.Ct. 169 (2013) (defense counsel not ineffective in failing to object to prosecutor's comments that defense counsel's job was "to create straw men" and "put up smoke, red herrings"; prosecutor may argue reasonable inferences based on the evidence, including "whether one of the two sides is lying") (citation and internal quotations omitted); United States v. Toro-Barboza, 673 F.3d at 1150-52 (remarks that defense wanted to "make this into a game" and "tried to slip in some stuff" in closing argument "a reasonable response to the argument that had just been made by defense counsel"; exhortation not to allow defense counsel to "pull the Wizard of Oz trick" did not render trial unfair); Williams v. Borg, 139 F.3d 737, 744-45 (9th Cir.), cert. denied, 525 U.S. 937 (1998) (no misconduct where prosecutor referred to defense closing argument as "trash"): see also Parker, 132 S. Ct. at 2154-55 (prosecutor's statement that petitioner's defense was "a defense of last resort" and petitioner's "only way out" not misconduct); United States v. Blanco, 327 Fed. App'x 139, 146-47 (11th Cir.), cert. denied, 558 U.S. 1002 (2009) (arguing defense counsel was desperate for having invoked Adolph Hitler in closing not improper); United States v. Vásquez-Botet, 532 F.3d 37, 57-58 (1st Cir. 2008) (expressing reluctance to find prosecutor's argument that defense lawyers were "desperate" categorically constituted misconduct; remark was "simply not that egregious" and did not deny defendant a fair trial).

6. Conclusion

For the foregoing reasons, Petitioner is not entitled to federal habeas relief on his claims of prosecutorial misconduct.

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

1. 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, 562 U.S. 86, 104 (2011) (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).

A state court's decision rejecting a Strickland claim is entitled to "a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Harrington v. Richter, 562 U.S. at 101. "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. at 105.

"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." Id. at 111 (citations omitted). Rather, the issue is whether, in the absence of counsel's alleged error, it is "`reasonably likely'" that the result would have been different. Id. (quoting Strickland, 466 U.S. at 696). "The likelihood of a different result must be substantial, not just conceivable." Id.

2. Analysis

Petitioner contends his trial counsel ineffectively failed to object to the alleged instances of prosecutorial misconduct discussed above (Pet. Mem., pp. 63-64). As mentioned previously, counsel did object to the "sympathy" comment and also pointed out the alleged misstatements of law. With respect to the prosecutor's comments to which Petitioner's counsel did not object, the Court of Appeal, applying the Strickland standards, rejected Petitioner's claim that counsel was ineffective for failing to object (Respondent's Lodgment 23, pp. 9-10; see People v. Sadowski, 2011 WL 2125039, at *6). The Court of Appeal stated that the record failed to demonstrate that there could have been no justifiable, tactical reason to forego an objection to the "desperate" comment, or that, if an objection had been made, that it might have resulted in a different outcome in the sanity phase of the trial (Respondent's Lodgment 23, p. 9; see People v. Sadowski, 2011 WL 2125039, at *6). The Court of Appeal explained that the "desperate" comment "exposed the jurors to little more than a "colloquially-phrased comment that the defense position in the case should be viewed as weak" (Respondent's Lodgment 23, pp. 9-10; see People v. Sadowski, 2011 WL 2125039, at *6). With respect to the alleged factual misstatements, the Court of Appeal indicated that, because defense counsel's "theme" in rebuttal was to argue to the jury that all of the things the prosecutor said "were not right" (see R.T. 2499), the record suggested a reasonable tactical reason for counsel's failure to object, i.e., to "let the prosecutor build a case based upon misstatements, and then to attack those misstatements in rebuttal" (Respondent's Lodgment 23, p. 10; see People v. Sadowski, 2011 WL 2125039, at *6). The Court of Appeal determined that the record showed defense counsel "believed it would be better to highlight that the prosecution needed to make misstatements to buttress its case, rather than make serial objections to every misstatement as it arose" (Respondent's Lodgment 23, p. 10; see People v. Sadowski, 2011 WL 2125039, at *6).

With respect to the "desperate" comment, Petitioner's counsel reasonably could have determined that objecting would only highlight the comment. See Cunningham v. Wong, 704 F.3d at 1159 (not unreasonable for defense counsel to refrain from objecting to prosecutor's comments likening defense counsel to "straw men" whose job was to "put up smoke, red herrings"; failure to object was "a reasonable strategic decision"); United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993) ("Because many lawyers refrain from objecting during opening statement and closing argument, absent egregious misstatements, the failure to object during closing argument and opening statement is within the `wide range' of permissible professional legal conduct.") (citation omitted). Furthermore, as the Court of Appeal reasonably determined, counsel's failure to object to the "desperate" comment did not prejudice Petitioner. It is not reasonably probable that the jury would have construed the comment as anything other than a comment on the weaknesses of the defense case, and the verdict showed the jury followed its instructions to base its decision on the evidence.

With respect to the alleged factual misstatements, as the Court of Appeal ruled, the tactic of allowing the prosecutor to make the challenged comments so as to position defense counsel to attack the comments in rebuttal was not unreasonable. Furthermore, Petitioner has not shown that counsel's failure to object prejudiced Petitioner under the Strickland standard. As previously mentioned, most of the comments were permissible comments on the evidence (the one exception being the "walking" comment, which was an invited reply to defense counsel's argument), and Petitioner has not shown that the trial court would have sustained any objection had one been made. Furthermore, the court instructed the jury that the comments of counsel were not evidence, and the jury's verdict shows the jury followed its instructions. In these circumstances, Petitioner has not shown counsel's unreasonableness or any resulting prejudice.

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

D. Petitioner's Related 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); see also Moormann v. Ryan, 628 F.3d 1102, 1109 (9th Cir. 2010), cert. denied, 132 S.Ct. 346 (2011) (appellate counsel is not required to raise a meritless issue on appeal). "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." Pollard v. White, 119 F.3d at 1435.

Petitioner's appellate counsel did raise on appeal the claim that trial counsel ineffectively had failed to object to some of the alleged prosecutorial misconduct in closing (see Respondent's Lodgment 20, pp. 100-03). Petitioner contends appellate counsel ineffectively "overlooked several instances of prosecutorial misconduct" and failed to raise on appeal "additional issues about improper vouching and disparagement of defense counsel" (Pet. Mem., pp. 45, 63-64). However, to the extent appellate counsel failed to challenge some of the alleged prosecutorial misconduct, for the reasons stated above, Petitioner has not shown that the alleged failures were unreasonable or prejudicial.

III. Petitioner's Challenge to the Sufficiency of the Evidence to Support the Jury's Sanity Finding Does Not Merit Habeas Relief.

A. Standards Governing Challenge to Sufficiency of the Evidence

On habeas corpus, the Court's inquiry into the sufficiency of evidence is limited. Evidence is sufficient unless the charge was "so totally devoid of evidentiary support as to render [Petitioner's] conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment." Fish v. Cardwell, 523 F.2d 976, 978 (9th Cir. 1975), cert. denied, 423 U.S. 1062 (1976) (citations and quotations omitted). A conviction cannot be disturbed unless the Court determines that no "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 317 (1979). A verdict must stand unless it was "so unsupportable as to fall below the threshold of bare rationality." Coleman v. Johnson, 132 S.Ct. 2060, 2065 (2012).

Jackson v. Virginia establishes a two-step analysis for a challenge to the sufficiency of the evidence. United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). "First, a reviewing court must consider the evidence in the light most favorable to the prosecution." Id. (citation omitted); see also McDaniel v. Brown, 558 U.S. 120, 133 (2010).15 At this step, a court "may not usurp the role of the trier of fact by considering how it would have resolved the conflicts, made the inferences, or considered the evidence at trial." United States v. Nevils, 598 F.3d at 1164 (citation omitted). "Rather, when faced with a record of historical facts that supports conflicting inferences a reviewing court must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id. (citations and internal quotations omitted); see also Coleman v. Johnson, 132 S. Ct. at 2064 ("Jackson leaves [the trier of fact] broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that [the trier of fact] draw reasonable inferences from basic facts to ultimate facts") (citation and internal quotations omitted); Cavazos v. Smith, 132 S.Ct. 2, 4 (2011) ("it is the responsibility of the jury — not the court — to decide what conclusions should be drawn from evidence admitted at trial"). The State need not rebut all reasonable interpretations of the evidence or "rule out every hypothesis except that of guilt beyond a reasonable doubt at the first step of Jackson [v. Virginia]." United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted). Circumstantial evidence and the inferences drawn therefrom can be sufficient to sustain a conviction. Ngo v. Giurbino, 651 F.3d 1112, 1114-15 (9th Cir. 2011).

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

In applying these principles, a court looks to state law for the substantive elements of the criminal offense, but the minimum amount of evidence that the Constitution requires to prove the offense "is purely a matter of federal law." Coleman v. Johnson, 132 S. Ct. at 2064.

B. Analysis

Petitioner contends the "overwhelming evidence" showed Petitioner was insane at the time of the carjackings and murder (Pet. Mem., p. 74). The Court of Appeal deemed the evidence sufficient to support the jury's sanity finding. The Court of Appeal stated that the sanity phase "boiled down to the jury's election between the testimony of opposing mental health experts," and that the testimony of Dr. Hirsch, Petitioner's statements to paramedics and police after the crimes and the evidence that Petitioner's treating therapist generally considered Petitioner to be functional during the time frame closely associated with the murder amply supported the jury's finding of sanity (Respondent's Lodgment 14, pp. 14-16; see People v. Sadowski, 2011 WL 2125039, at *8-10).16

As discussed below, Petitioner's sufficiency claim fails for at least two reasons. First, no clearly established Supreme Court law authorizes Petitioner's claim. Second, and in any event, the evidence sufficed to support the jury's sanity finding.

Under California law, insanity is not an element of an offense, but rather an affirmative defense to a criminal charge. See People v. Hernandez, 22 Cal.4th 512, 522, 93 Cal.Rptr.2d 509, 994 P.2d 354 (2000). At the sanity phase, there is a rebuttable presumption that the defendant was sane at the time the crime was committed. See Cal. Evid. Code § 522; In re Dennis, 51 Cal.2d 666, 673, 335 P.2d 657 (1959). The defendant bears the burden to prove insanity by a preponderance of the evidence. Cal. Penal Code § 25(b).

The United States Supreme Court has never recognized a constitutional right to present a sanity defense. See Medina v. California, 505 U.S. 437, 449 (1992) ("we have not said that the Constitution requires the States to recognize the insanity defense") (citation omitted). The Supreme Court has not authorized a constitutional challenge to the sufficiency of the evidence to negate an affirmative defense such as insanity. See Hawkins v. Horel, 572 Fed. App'x 480, 480-81 (9th Cir.), cert. denied, 135 S.Ct. 303 (2014) ("Hawkins has not identified any case where the Supreme Court addressed challenges to the sufficiency of the evidence regarding sanity when a defendant bears the burden of proving insanity as an affirmative defense by a preponderance of the evidence. Therefore, he has not shown that there is a state or federal right to have the State prove sanity where it is not an element of the crime."); Maria v. Grounds, 2015 WL 4608086, at *4 (C.D. Cal. Mar. 27, 2015), adopted, 2015 WL 4608304 (C.D. Cal. July 30, 2015) ("Numerous judges in this district have concluded that there is no clearly established decision from the Supreme Court extending the Jackson/sufficiency-of-the-evidence analysis under the Due Process Clause to an insanity defense claim."); Pop v. Yarborough, 354 F.Supp.2d 1132, 1138 (C.D. Cal. 2005) ("it does not appear that Petitioner's claim relating to his insanity defense is even cognizable under habeas because sanity was not an element of the offenses for which he was convicted") (citations omitted); Gonzalez v. Harrison, 2011 WL 7429400, at *6 (C.D. Cal. June 6, 2011), adopted, 2012 WL 630442 (C.D. Cal. Feb. 27, 2012) ("The Supreme Court has not addressed challenges to the sufficiency of the evidence where, as here, a criminal defendant bears the burden of proving the affirmative defense of insanity by a preponderance of the evidence."); see also Gall v. Parker, 231 F.3d 265, 307 (6th Cir. 2000), cert. denied, 533 U.S. 941 (2011) (claim that evidence was insufficient to show sanity not cognizable on federal habeas where sanity was not an element of the crime). A challenge to the sufficiency of the evidence to show sanity constitutes only a state law claim not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) ("it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts") (original emphasis). In the absence of any clearly established Supreme Court law authorizing Petitioner's sufficiency challenge, Petitioner cannot obtain federal habeas relief. See 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); Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir.), cert. denied, 555 U.S. 871 (2008) (where Supreme Court "expressly left [the] issue an `open question,'" habeas relief unavailable); 28 U.S.C. § 2254(d).

Second, and in any event, the Court of Appeal's rejection of this claim was not unreasonable. To prove insanity, a defendant must show that "he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense." People v. Hernandez, 22 Cal. 4th at 51; Cal. Penal Code § 25(b). The word "wrong" encompasses both legal wrong and moral wrong. See People v. Coddington, 23 Cal.4th 529, 608, 97 Cal.Rptr.2d 528, 2 P.3d 1081 (2000), cert. denied, 531 U.S. 1195 (2001), overruled on other grounds, Price v. Superior Court, 25 Cal.4th 1046, 1069 n.13, 108 Cal.Rptr.2d 409, 25 P.3d 618 (2001), cert. denied, 534 U.S. 1045 (2001). Thus, a defendant incapable of distinguishing moral right from wrong is insane, even though he may understand the act is unlawful. See id. "Moral obligation in the context of the insanity defense means generally accepted moral standards and not those standards peculiar to the accused." Id. (citation and internal quotations omitted). Petitioner's jury was so instructed (R.T. 2418-19; C.T. 515).

In support of his sufficiency challenge, Petitioner relies on the testimony of Doctors Plotkin and Rothberg favorable to the defense (Pet. Mem., pp. 77-78). Petitioner also points to evidence showing the alleged progress of Petitioner's mental illness, Petitioner's alleged prior suicide attempts and hospitalizations, the loss of Petitioner's job and marriage, Petitioner's "strange" emails, Petitioner's homelessness and alleged inability to work, Petitioner's appearance and alleged habit of talking to himself or imaginary friends, Petitioner's alleged statements concerning Satan and Olga, and Petitioner's allegedly delusional statements concerning why he supposedly wanted to die (id., pp. 78-80).

Nevertheless, a rational juror could have concluded that, at the time of the incident, Petitioner knew what he did was morally and legally wrong, based on evidence including the following:

1. Petitioner's statements to paramedics immediately after the incident, including statements that Petitioner: (a) was "sorry"; (b) knew he "did wrong"; and (c) knew he had "fucked up real bad";

2. Petitioner's statement, on the way to the hospital, that he "deserve[d] to die";

3. Petitioner's statements to officers on the ride from the hospital to the jail, including statements that Petitioner said: (a) Petitioner was a "bad boy" and had "done bad things"; (b) Petitioner "deserve[d] to die for what [Petitioner had] done"; and (c) Petitioner needed an attorney to "save [Petitioner's] life and avoid the electric chair or the gas chamber";

4. Petitioner's statements during a jail interview the night of the incident, including statements that Petitioner: (a) was disrespectful to Officer Scott; (b) became angry because Scott did not leave Petitioner alone; (c) "did a bad thing"; (d) was "stealing" the police car; (e) pushed Scott and took his car; (f) pushed Scott because Petitioner "wanted him to go away" and "didn't care"; and (g) "knew it was wrong" to drag the officer; and

5. Petitioner's statements in a subsequent interview that: (a) after Officer Scott stopped to talk to Petitioner and Petitioner gave the officer identification, Petitioner then decided to "throw caution to the wind" and take the police car; and (b) Petitioner had made a mistake and was very sorry;

6. Evidence that Petitioner's psychiatrist, Dr. Zetin, recorded that: (a) on February 17, 2005, Petitioner was improved but lacked motivation to return to work, and "should have been off disability and in vocational rehab long ago"; (b) on March 15, 2005, Petitioner's bipolar condition was in remission and Petitioner was "ready for rehab, beginning job search"; and (c) on April 10, 2005, Petitioner's bipolar condition was in remission, and Petitioner was taking his medication and was "recovered"; and

7. Dr. Hirsch's testimony that: (a) Petitioner's extensive history of foreign travel showed Petitioner was capable of functioning despite his diagnosis; (b) Petitioner's purchase of a plane ticket and attempt to advance his departure date showed Petitioner was able to function (R.T. 2107-08); (c) Petitioner's purported lack of memory of the incident was "a case of malingering through denial of knowledge, denial of memory"; (d) Petitioner knew what he was doing when he pushed Officer Scott, took the police car and struggled with the officer as the officer attempted to gain control of the car, and knew that what Petitioner was doing was legally and morally wrong (R.T. 640, 654-55, 1740, 1742-45, 1749, 2101-02, 2107-08, 2156, 2159-61; C.T. 248-50, 255, 267, 342-46,365, 487-89).

Although Petitioner points to contrary evidence and inferences, under the Jackson v. Virginia standard, this Court must presume that the jury resolved evidentiary conflicts in favor of the prosecution, and cannot revisit the jury's credibility determinations. See Cavazos v. Smith, 132 S.Ct. 2, 6-7 (2011) (jury entitled to credit prosecution experts' testimony despite conflicting testimony by defense experts); McDaniel v. Brown, 538 U.S. 120, 131-34 (2010) (ruling that the lower federal court erroneously relied on inconsistencies in trial testimony to deem evidence legally insufficient; the reviewing federal court must presume that the trier of fact resolved all inconsistencies in favor of the prosecution, and must defer to that resolution); United States v. Franklin, 321 F.3d 1231, 1239-40 (9th Cir.), cert. denied, 540 U.S. 858 (2003) (in reviewing the sufficiency of the evidence, a court does not "question a jury's assessment of witnesses' credibility" but rather presumes that the jury resolved conflicting inferences in favor of the prosecution).

Accordingly, the state court's rejection of Petitioner's challenge to the sufficiency of the evidence to support the sanity finding was not contrary to, or an unreasonable application of, any clearly established Federal law, as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 (2011). Petitioner is not entitled to federal habeas relief on Ground Five of the Second Amended Petition.

IV. 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. Accordingly, the state court's rejection of Petitioner's cumulative error claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal Law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on Ground Seven of the Second Amended Petition.

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 Second Amended Petition with prejudice.