ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

STEPHEN V. WILSON, District Judge.

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. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. 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.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable Stephen V. Wilson, 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 By a Person in State Custody" on February 12, 2019. Respondent filed an Answer on April 2, 2019. Petitioner filed a Reply on May 1, 2019.

BACKGROUND

A jury found Petitioner guilty of: (1) corporal injury to a spouse/cohabitant/child's parent (Petitioner's then-girlfriend, LaTonya Henderson) in violation of California Penal Code section 273.5(a) (Count 1); (2) assault by means likely to produce great bodily injury in violation of California Penal Code section 245(a)(4) (Count 2); and (3) simple battery in violation of California Penal Code section 242 (Count 3) (Reporter's Transcript ["R.T."] 326-27; Clerk's Transcript ["C.T."] 173, 175, 177). The jury rejected Petitioner's self-defense theory.

However, with respect to Counts 1 and 2, the jury found not true the allegations that Petitioner personally had caused great bodily injury under circumstances involving domestic violence within the meaning of California Penal Code section 12022.7(e) (R.T. 326; C.T. 175). The jury also found Petitioner not guilty of battery with serious bodily injury, a greater offense than simple battery (R.T. 327; C.T. 177).

After a second trial phase, the jury found true the allegations that Petitioner had suffered prior convictions for arson and for forcible lewd act on a child (R.T. 384; C.T. 193-94, 198-99). The trial court denied Petitioner's motion to strike the prior convictions (R.T. 397; C.T. 247). At sentencing on September 25, 2015, Petitioner received a total prison sentence of thirty years to life (R.T. 487-88; C.T. 148-49).

The California Court of Appeal stayed the sentence on the assault count, struck the prior prison term enhancements, and reversed the battery conviction, but otherwise affirmed (Respondent's Lodgment 9; see People v. Stanford, 2017 WL 1684346 (Cal. App. May 3, 2017)). Petitioner did not file a petition for review in the California Supreme Court (Petition, p. 3).

Prior to sentencing, Petitioner had filed a habeas corpus petition in the San Bernardino Superior Court challenging venue and alleging counsel's ineffectiveness in failing to object to the transfer of the case to a particular courthouse (Respondent's Lodgment 10). The Superior Court denied the petition on November 3, 2014 (Respondent's Lodgment 11).

Petitioner also had filed a habeas corpus petition in the California Court of Appeal on November 25, 2014, raising the venue issue and counsel's alleged ineffectiveness with respect thereto (Respondent's Lodgment 12). The Court of Appeal denied the petition summarily (Respondent's Lodgments 12).

Petitioner filed another habeas corpus petition in the Superior Court on November 8, 2017 (see Petition, Exhibit A, ECF Dkt. No. 1, p. 74). The present record does not contain this petition. The Superior Court denied this petition in a reasoned order on December 26, 2017, ruling both that the petition was successive and that the petition failed on the merits (Petition, Exhibit A, ECF Dkt. No. 1, pp. 74-78). The Superior Court's order reflects that the claims Petitioner alleged in the petition then being adjudicated were essentially the same as those alleged in the present Petition.

Petitioner then filed a another habeas corpus petition in the California Court of Appeal, which that court denied summarily (Respondent's Lodgments 14-16). Finally, Petitioner filed a habeas corpus petition in the California Supreme Court, which that court denied summarily (Respondent's Lodgments 17-21).

SUMMARY OF TRIAL EVIDENCE

I. Prosecution Case

A. Shanon Kendrick

Shanon Kendrick, Petitioner's tenant, testified:

B. Kendrick's 911 Call

The jury heard a recording of Kendrick's 911 call (R.T. 129). In the call, Kendrick said that her landlord was "beating the shit out of his girlfriend" and that the girlfriend was "on the ground screaming" (C.T. 261). Kendrick said "please hurry" (C.T. 261).

Kendrick told the 911 operator "they've been arguing all day" (C.T. 262). Kendrick said the girlfriend was on the ground and Petitioner was trying to kick her (C.T. 262). As the call continued, Kendrick said the girlfriend had gotten up and was walking (C.T. 264). Kendrick then exclaimed "oh shit, oh shit, oh my god" (C.T. 264). As the operator tried to calm Kendrick, Kendrick said "I'm trying, I know, what's going on, oh god, oh my god" (C.T. 264). Kendrick said Petitioner had "just hit her again" and that he "keeps going back" (C.T. 264). When the operator asked "what's going on," Kendrick said "She's waving her hands, I'm having a hard time (Unintelligible) he just hit her, she's on the ground, please hurry she's going to die out there. Oh my god oh my god he's kicking her on the ground, he's kicking her on the ground" (C.T. 265). The operator said, "he's kicking her?" Kendrick responded, "Yeah he's kicking her while she's down. Now he's going um, he's going to the house (Unintelligible) She's laying in the driveway —" (C.T. 265).

C. Jason Norman

Jason Norman, Petitioner's tenant and Kendrick's boyfriend, testified:

D. Deputy Pennington

Deputy Alan Pennington testified:

E. LaTonya Henderson

The prosecution had difficulty locating LaTonya, and obtained an order allowing the admission of her preliminary hearing testimony in lieu of trial testimony (see R.T. 18-29, 145-55). However, LaTonya eventually was located during trial.

LaTonya testified on direct examination:

LaTonya testified on cross-examination:

LaTonya testified on redirect:

II. Defense Case

Petitioner chose not to testify, and the defense did not call any witnesses (R.T. 221). In closing, Petitioner's counsel argued that LaTonya's alleged injuries did not "match" with the accounts of Kendrick and Norman (R.T. 276-81, 287-88). Counsel also argued that LaTonya had been "out of control," drunk and under the influence of methamphetamine at the time of the incident, and that LaTonya assertedly was the aggressor, not the victim (R.T. 278-79, 282-83). Counsel reminded the jury that LaTonya had testified that she attacked and stabbed Petitioner with a piece of fence wire, fell down, and then rose and went after Petitioner again (R.T. 279-82). Counsel said Petitioner had a right to defend himself and had tried to kick the weapon out of the way (R.T. 282-83).

PETITIONER'S CONTENTIONS

Petitioner contends that Petitioner's trial counsel rendered ineffective assistance, by assertedly:

Petitioner alleges that counsel's assertedly cumulative errors entitle Petitioner to federal habeas relief.

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, 565 U.S. 34, 38 (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 ordinarily looks to the last reasoned state court decision, here the Superior Court's decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008).5 Where no reasoned decision exists, "[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." Harrington v. Richter, 562 U.S. at 102; see also Cullen v. Pinholster, 563 U.S. 170, 188 (2011).

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

For the reasons discussed herein, the Petition should be denied and dismissed with prejudice. Whether considered individually or in combination, Petitioner's arguments fail to demonstrate that he was denied the effective assistance of counsel.6

I. Legal Principles Governing Claims of Ineffective Assistance of Counsel

To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) resulting prejudice, i.e., 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, 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; 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. at 104 (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); see also Morris v. California, 966 F.2d 448, 456-57 (9th Cir.), cert. denied, 506 U.S. 831 (1992) (if the reviewing court can conceive of a reasonable explanation for counsel's challenged action or inaction, the court need not determine the actual explanation before denying relief).

Defense counsel has a "duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. "This includes a duty to investigate the defendant's `most important defense,' [citation] and a duty adequately to investigate and introduce into evidence records that demonstrate factual innocence, or that raise sufficient doubt on that question to undermine confidence in the verdict. [citation]." Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir.), amended on other grounds, 253 F.3d 1150 (9th Cir. 2001). "However, `the duty to investigate and prepare a defense is not limitless: it does not necessarily require that every conceivable witness be interviewed.'" Id. (citation omitted). The duty to investigate does not require "defense lawyers to scour the globe on the off chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste." Rompilla v. Beard, 545 U.S. 374, 383 (2005) (citation omitted).

"When the claim at issue is one for ineffective assistance of counsel, moreover, AEDPA review is `doubly deferential,' [citation], because counsel is `strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'" Woods v. Etherton, 136 S.Ct. 1149, 1151 (2016) (citations and internal quotations omitted). "In such circumstances, federal courts are to afford `both the state court and the defense attorney the benefit of the doubt.'" Id. (citation 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, 562 U.S. 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. at 112.

II. Analysis

A. Alleged Failure to Investigate and Elicit Evidence of the Possible Bias of Kendrick and Norman Against Petitioner.

1. Background

Petitioner alleges that, prior to trial, Petitioner's counsel asked Petitioner if he knew of any reason why Kendrick and Norman might lie (Petition, attachment, p. 1). Petitioner allegedly told counsel that: (1) these tenants were in "desperate need of a place to stay" because they reportedly had been forced to leave their prior place of residence for reasons unknown to Petitioner; (2) Petitioner allegedly had warned the tenants "about having/doing things around him such as weapons, drugs, disturbing or illegal activities which could jeopardize his freedom + property";7 (3) Petitioner allegedly had evicted others "because of drugs & disturbances"; (4) Kendrick and Norman allegedly faced eviction for "disturbances" they had caused (but assertedly not for drugs);8 and (5) the "respectful + grateful attitude" Kendrick and Norman allegedly had showed toward Petitioner "changed 180E as a result" (id.).

As indicated above, when cross-examined at trial, Norman did not recall any alleged threat by Petitioner to evict Norman and Kendrick (R.T. 116). In closing argument, the prosecutor summarized the testimony of Kendrick and Norman and asserted that these witnesses "had no stake in this" (R.T. 266). In response, Petitioner's counsel argued that the witnesses did "have something invested," because they lived on the property and "were about to be evicted" (R.T. 277).9

Following the verdict, Petitioner addressed the court, complaining that his attorney had not questioned Kendrick concerning possible bias or motive (R.T. 330-31). Petitioner alleged he had told Kendrick and Norman to "stop attracting police" because Petitioner was on parole (R.T. 331). Petitioner alleged he had told counsel that other tenants supposedly had told Petitioner to evict Kendrick and Norman (R.T. 331). Petitioner alleged he told counsel that LaTonya purportedly had witnessed the tenants' supposedly rude behavior (R.T. 331). The court indicated that, at the proper time, Petitioner would be notified of his appeal rights, "but we're way ahead of that at this stage" (R.T. 332).

Petitioner contends counsel should have investigated the reasons the tenants reportedly had to leave their previous place of residence and the reasons Petitioner's rental supposedly was important to them (Petition, attachment, p. 2). Petitioner asserts that he or LaTonya could have told counsel that the latter reasons "likely" were the affordability of the rent and Petitioner's willingness to accommodate the tenants' two big dogs (id., p. 2 & n. 6). According to Petitioner, evidence that the tenants supposedly had a motive to lie about "the person who had threatened to `put them out on the street'" would have: (1) undermined the prosecution's theory that the argument between Petitioner and LaTonya concerned infidelity; and (2) corroborated Petitioner's theory that he was just trying to keep drugs and drug users off his property and to stop LaTonya from disturbing his tenants (id., p. 3).

The Superior Court rejected this claim, deeming Petitioner's assertions of failure to investigate conclusory and based on "unsubstantiated speculation" (Petition, Exhibits, ECF Dkt. No. 1, p. 77). According to the Superior Court, Petitioner had failed to provide any "declarations or other proffered testimony establishing both the substance of any omitted evidence . . . and its likelihood for exonerating Petitioner" (id.).

2. Discussion

Petitioner's claim fails because Petitioner has not shown a reasonable probability of a different result had counsel investigated and presented evidence of the tenants' "bias," including the tenants' rental history and residence preference. Petitioner faults counsel for failing to investigate the supposed reasons the tenants left their prior residence and the reasons they allegedly were "desperate" to remain Petitioner's tenants. Petitioner speculates that affordable rent and tolerance of the tenants' dogs may have contributed to the tenants' alleged desire to remain at the property. Petitioner's speculation concerning what if any admissible evidence counsel's investigation would have uncovered does not suffice to show Strickland prejudice. See Bible v. Ryan, 571 F.3d 860, 871 (9th Cir. 2009), cert. denied, 559 U.S. 995 (2010) (speculation insufficient to show Strickland prejudice); Cooks v. Spaulding, 660 F.2d 738, 740 (9th Cir. 1981), cert. denied, 455 U.S. 1026 (1982) (same); Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir.), cert. denied, 502 U.S. 902 (1991) (petitioner cannot satisfy Strickland standard by "vague and conclusory allegations that some unspecified and speculative testimony might have established his defense"); see also Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (per curiam) (granting a habeas petition "on the basis of little more than speculation with slight support" is improper).

Even if Petitioner's speculation regarding the tenants' supposedly "desperate" desire to remain Petitioner's tenants were entirely accurate, there is no reasonable probability that evidence of such desire would have produced a different trial result. While Petitioner argues that such evidence would have suggested bias against Petitioner, it is equally if not more likely that any such evidence would have suggested bias in favor of Petitioner, given the tenants' allegedly "desperate" dependence on Petitioner's tolerance of their tenancy. The tenants' posited bias in favor of Petitioner, i.e. their interest in maintaining or reclaiming Petitioner's favor for the sake of their tenancy, obviously would have been counterproductive to Petitioner's defense. Such evidence also might have provided an explanation (unhelpful to the defense) regarding why the tenants' trial testimony was in some respects not as damaging to Petitioner as the tenants' arguably less circumspect pretrial statements.

As to Petitioner's argument that counsel failed to present evidence of Petitioner's alleged threats of eviction, counsel did question Norman at trial regarding this subject matter. Petitioner chose not to testify. Petitioner has failed to show that any other witness could have and would have testified competently that Petitioner had threatened Norman and Kendrick with eviction. See Dows v. Wood, 211 F.3d 480, 486-87 (9th Cir.), cert. denied, 531 U.S. 908 (2000) (denying claim of ineffective assistance where the petitioner failed to prove that a witness would have testified as the petitioner desired). Again, Petitioner's speculation that witnesses would have testified in a particular manner is insufficient. See Bible v. Ryan, 571 F.3d at 871; Cooks v. Spaulding, 660 F.2d at 740; Zettlemoyer v. Fulcomer, 923 F.2d at 298. In any event, given the strength of the incriminating evidence at trial, there is no reasonable probability that the desired "eviction threat" evidence would have altered the trial outcome.

Petitioner's argument that counsel should have introduced evidence of Petitioner's parole conditions also lacks merit. As a matter of strategic choice, Petitioner's counsel kept from the jury any evidence that Petitioner was on parole at the time of the incident (see R.T. 44-45, 72). Counsel reasonably could have determined that it was more advantageous to the defense that the jury not know that Petitioner was on parole (i.e., had a criminal history) than it might have been for the jury to know that Petitioner's parole conditions prevented him from tolerating drug users on the property.

For all of the foregoing reasons, Petitioner is not entitled to federal habeas relief on his claim that counsel allegedly rendered ineffective assistance in failing to investigate and obtain evidence concerning the alleged bias of Kendrick and Norman. See 28 U.S.C. § 2254(a); Frantz v. Hazey, 533 F.3d at 736-37.

B. Alleged Failure to Elicit Evidence that Kendrick and Norman Assertedly May Have Heard LaTonya's Statements to Police

Petitioner contends that the statement in Pennington's report that Pennington contacted LaTonya "at her neighbor's residence" "signaled a possibility that LaTonya may've been interviewed there & that the tenants may've overheard her account to the reporting officer" (Petition, attachment, p. 4). Petitioner also references Pennington's preliminary hearing testimony that, when Pennington interviewed LaTonya, the tenants "were standing right there" (Petition, attachment, p. 4; see C.T. 42).10 Petitioner faults counsel for failing to elicit testimony suggesting that the tenants overheard what LaTonya told Pennington, thus purportedly accounting for "consistency" in the witnesses' testimony (Petition, attachment, pp. 4-5).

Petitioner's claim lacks merit. Counsel reasonably could have determined that attempting to elicit such evidence would have been fruitless. The jury heard Kendrick's 911 call providing a contemporaneous description of the assault. This call, which reported a version of events at least as damaging to Petitioner as Kendrick's later statements, preceded any possible "overhearing" of LaTonya's statement to Pennington. Furthermore, the witnesses' testimonies were not wholly consistent. Jurors readily could have believed that such consistencies as did exist tended to confirm the credibility of the witnesses' version of the incident rather than the converse. Petitioner has not shown a reasonable likelihood of a different outcome from the evidence Petitioner argues counsel should have presented. Accordingly, Petitioner is not entitled to federal habeas relief on this claim. See 28 U.S.C. § 2254(a); Frantz v. Hazey, 533 F.3d at 736-37.

C. Alleged Failure to Investigate and Elicit Evidence to Impeach Statements that Petitioner and LaTonya Assertedly Were Arguing All Day Prior to the Incident

Kendrick told the 911 operator that Petitioner and LaTonya had been arguing all day (C.T. 262). At trial, Norman testified that Petitioner and LaTonya had been arguing early in the day, and were still arguing when Norman returned from a trip to the store (R.T. 103). The police report indicated that a caller reported that Petitioner "had been assaulting the female all day long" (Petition, Exhibits, ECF Dkt. No. 1, p. 100).

Petitioner contends he told defense counsel that he and LaTonya had not been arguing all day and had not been at home most of the day (Petition, attachment, p. 5). Petitioner suggests that counsel could have determined from the police report that Petitioner was wearing a GPS ankle bracelet on the day of the incident, which assertedly could have confirmed Petitioner's whereabouts that day (Petition, attachment, p. 5 & Exhibits, ECF Dkt. No. 1, p. 102). According to Petitioner, the prosecution's evidence that Petitioner and LaTonya allegedly had been arguing "all day" undercut the purported defense theory that Petitioner assertedly did not want drugs or disturbances on his property and that he allegedly was trying to stop LaTonya from causing a disturbance on Petitioner's property (Petition, attachment, p. 6). Petitioner contends counsel erred in failing to investigate the GPS evidence and/or to investigate and elicit from LaTonya testimony that she and Petitioner allegedly were not home most of the day (Petition, attachment, p. 6).

Again, Petitioner's claim of ineffectiveness lacks merit. Petitioner has not shown that counsel would have been able to obtain LaTonya's willingness to testify in the manner suggested by Petitioner. In any event, the evidence was undisputed that Petitioner and LaTonya were arguing prior to the assault. Counsel reasonably could have decided that the duration of their argument(s) was not significantly material as a substantive matter. Counsel also reasonably could have decided that challenging the witnesses' colloquial hyperbole concerning the duration of the argument(s) would not have constituted effective impeachment. Additionally, even if counsel had elicited evidence that Petitioner and LaTonya had not been arguing "all day" (but only during the times immediately preceding and during the assault), there would have been no reasonable probability of a different trial outcome. Such evidence would not have materially undermined the evidence compellingly proving that Petitioner assaulted LaTonya, including the 911 call, the tenants' testimony, LaTonya's statements to Pennington, LaTonya's trial testimony, the evidence of her injuries and the witness bribery letter authored by Petitioner, which persuasively reflected a consciousness of guilt. Furthermore, evidence that Petitioner wore a GPS ankle bracelet would have alerted the jury to the fact that Petitioner previously had been convicted of a crime, a fact counsel reasonably chose to keep from the jury as a matter of trial strategy.

For the foregoing reasons, Petitioner is not entitled to federal habeas relief on this claim. See 28 U.S.C. § 2254(a); Frantz v. Hazey, 533 F.3d at 736-37.

D. Alleged Failure to Impeach Deputy Pennington's Testimony

At trial, Deputy Pennington testified that LaTonya told Pennington that she, Petitioner and Mendez had been drinking in the car prior to the assault (R.T. 211). Petitioner contends that he informed defense counsel that Petitioner had not been drinking, and that Pennington's report allegedly did not contain any statement by LaTonya concerning Petitioner's drinking (Petition, attachment, p. 7). Petitioner faults counsel for failing to impeach Pennington's testimony concerning LaTonya's description of Petitioner's drinking. Petitioner also faults counsel for failing to use Pennington's report to impeach Pennington's testimony that LaTonya told Pennington she had pain in her face and head (Petition, attachment, pp. 10-11).

The Superior Court rejected these claims, commenting that the proposed impeachment "was not about a direct inconsistency but about the absence of information; thus questioning the officer about this issue could have just added emphasis and detail without tainting the officer's credibility" (Petition, Exhibits, ECF Dkt. No. 1, p. 77).

1. Alleged Failure to Impeach Testimony That LaTonya Told Pennington That Petitioner Had Been Drinking

This claim lacks merit for several reasons. First, counsel reasonably could have decided that attempting to impeach Pennington with the police report would not have been effective. Prior to Pennington's testimony, LaTonya testified that she had been in the car with Petitioner and Mendez, and that she had been drinking (R.T. 181, 184, 192-93, 199). At the conclusion of her testimony, the court told her that she was subject to recall and should wait in the hall (R.T. 209). Pennington testified immediately thereafter, stating that LaTonya had told him that she, Mendez and Petitioner had been drinking in the car when Petitioner accused LaTonya of cheating (R.T. 211). Pennington's police report recounted that Joel Mendez had told Pennington that Petitioner was intoxicated while in the car (Petition, Exhibits, ECF Dkt. No. 1, p. 101). At the preliminary hearing, Pennington testified that Mendez said Petitioner had been drinking in the car (C.T. 17). Counsel reasonably could have feared that, if counsel attempted to impeach Pennington with the police report which did not mention LaTonya's statement regarding drinking, the prosecution could recall LaTonya to elicit her testimony that Petitioner had been drinking. Furthermore, as the Superior Court recognized, counsel could have feared that attempting to impeach Pennington by showing the mere absence of information from his report would not have contradicted his testimony and might well have highlighted to the jury the evidence concerning Petitioner's drinking.

In any event, even if counsel had elicited an admission from Pennington that the police report failed to mention LaTonya's statement regarding Petitioner's drinking, the admission would not have given rise to any reasonable probability of a different trial outcome. Hence, Petitioner has failed to demonstrate Strickland prejudice.

2. Alleged Failure to Impeach Pennington's Testimony That LaTonya Said She Had Pain in Her Face and Head After the Assault

Petitioner faults counsel for failing to impeach Pennington's testimony that LaTonya told Pennington that she had pain in her face and head (Petition, attachment, p. 11). The copy of Pennington's report attached to the Petition states that LaTonya had blood coming from an unknown injury inside her mouth and a small knot developing on her left check just below her eye (Petition, Exhibits, ECF Dkt. No. 1, p. 100). The report also states that LaTonya reported severe pain to her left ribs and right hip (id.). The report does not state expressly that LaTonya complained of pain in her face and head.11

The evidence that Petitioner hit LaTonya in the head, and the evidence of LaTonya's injuries to her mouth and beneath her eye, persuasively supported an inference that LaTonya must have suffered pain in her head and face. Counsel reasonably could have determined that attempting to impeach Pennington's testimony concerning LaTonya's alleged report of pain in her face and head would have accomplished nothing. Petitioner has failed to demonstrate counsel's unreasonableness in failing to impeach Pennington in the manner suggested or any prejudice resulting therefrom.

3. Conclusion

For the foregoing reasons, the Superior Court's rejection of Petitioner's claims that counsel erred in failing to impeach Pennington with the police report 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 these claims.

E. Alleged Failure to Fulfill "Promises" Made in Opening Statement

In her opening statement, Petitioner's counsel stated:

R.T. 62-63). Petitioner's counsel then stated that LaTonya's injuries were inconsistent with the reported punching and kicking to which the witnesses would testify, contending that "some things just don't make sense" (R.T. 63).

As indicated above, Kendrick did testify that she saw Petitioner punch LaTonya in the face with a closed fist, but Kendrick did not testify Petitioner punched LaTonya multiple times in the face (R.T. 76-77, 93). In the 911 call, Kendrick had said she saw Petitioner "hit" LaTonya multiple times, but did not say where the "hits" landed (C.T. 265). At trial, Norman said he saw Petitioner punch LaTonya on the shoulder, but denied having told Deputy Pennington that Norman saw Petitioner punch LaTonya in the face approximately three times with a closed fist (R.T. 110, 114). Oddly enough, Petitioner now appears to argue counsel was ineffective for failing to fulfill "promises" that the jury would hear of an assault more violent than the one described by the witnesses during their trial testimony.

The Superior Court rejected this unusual claim on the procedural ground that Petitioner had not provided a transcript of the opening statement (Petition. Exhibits, ECF Dkt. No. 1, pp. 77-78). The Superior Court also stated that "presumably" the trial court had instructed the jury that the attorney's statements were not evidence and that the jury was to decide the case based only on the evidence (id.).12 The Superior Court further stated that informing the jury of presumably unfavorable evidence in opening statement was a "sound strategy that is tactical in nature" (id.).13

In certain circumstances, a criminal defense attorney's failure to present specific favorable evidence promised in opening statement can constitute a Strickland violation. See Saesee v. McDonald, 725 F.3d 1045, 1048-50 (9th Cir. 2013), cert. denied, 571 U.S. 1165 (2014) (citing cases). Petitioner has shown no such violation, however.

At the preliminary hearing, Deputy Pennington testified that LaTonya told him: (1) Petitioner punched her in the face and tackled her to the ground; and (2) after LaTonya got up, Petitioner punched her "an unknown number of times to the face" (C.T. 34-35). Pennington also testified that Norman told Pennington that Norman saw Petitioner punch LaTonya "a few times" in the face (C.T. 39).

At the time of opening statement, Petitioner's counsel could not have known with certainty precisely how any of the potential trial witnesses, particularly the potential prosecution witnesses, later would testify. Counsel then reasonably could have anticipated that prosecution witnesses' trial testimony would be more or less consistent with the preliminary hearing testimony. In any event, conveying to the jury in opening statement counsel's anticipation of what the prosecution would show at trial did not in any sense constitute a "promise" to present any defense evidence to the same effect. Contrary to Petitioner's unusual argument, counsel made no "promise" to present evidence that Petitioner had punched LaTonya in the face multiple times. See Saesee v. McDonald, 725 F.3d at 1050 ("it is essential that a promise be made"). Indeed, it would be an extraordinary occurrence if a criminal defense attorney were to promise in opening statement to present evidence that would incriminate the attorney's client.

In any event, Petitioner has not shown Strickland prejudice. First, the "promised" evidence actually was presented to the jury, in the form of Deputy Pennington's testimony. Second, regardless of discrepancies in the accounts of Norman and Kendrick concerning how many times Petitioner hit or kicked LaTonya or where on her body the blow(s) landed, both witnesses testified that Petitioner hit and kicked LaTonya, and Kendrick's 911 call and Pennington's testimony confirmed the assault. Although LaTonya attempted to give a different version of events at trial, LaTonya nevertheless admitted she had testified at the preliminary hearing that Petitioner had punched and kicked her until she became unconscious, and also admitted that she had told Deputy Pennington that Petitioner had hit her multiple times and kicked her until she lost consciousness. There was overwhelming evidence of the assault, regardless of discrepancies concerning the number of blows or kicks Petitioner administered or where the blows landed. Any attempt by counsel to emphasize evidence that the assault was actually more violent than described by the witnesses at trial would not have aided the defense.

Furthermore, defense counsel's reasonable argument that LaTonya's injuries were inconsistent with the alleged severity of the attack proved partially successful. The jury rejected the great bodily injury enhancement allegations. It is not reasonably likely that, had counsel elicited evidence that Petitioner struck LaTonya even more viciously than the witnesses testified, the trial outcome would have been more favorable to Petitioner.

For the foregoing reasons, Petitioner is not entitled to federal habeas relief on his claim of ineffective assistance of counsel with respect to opening statement. See 28 U.S.C. § 2254(a); Frantz v. Hazey, 533 F.3d at 736-37.

F. Alleged Failure to Present the Theory of "Defense of Property"

1. Background

Petitioner's counsel argued self-defense, based on LaTonya's testimony that she supposedly attacked Petitioner with a piece of fencing or wire. Petitioner now asserts that he had informed counsel he "went after" LaTonya to "stop her from causing a disturbance on his property by trying to put his hand over her mouth & accidentally kicked her as he was trying to kick her weapon away" (Petition, attachment, p. 12). Petitioner argues that, based on this alleged information and LaTonya's trial testimony, counsel should have advanced a theory of "defense of property" rather than self-defense (Petition, attachment, pp. 14-18).

Petitioner contends counsel should have investigated "whether Petitioner had a defense commensurate with the `right to defend real or personal property' under CALCRIM 3476 . . .[,] [t]he pertinent question being whether Petitioner had a reasonable belief that his property was in imminent danger of being harmed by LaTonya" (Petition, attachment, p. 15). According to Petitioner, counsel knew or should have known, from information obtained from Petitioner, the preliminary hearing transcript and the police report, that: (1) Petitioner allegedly was on his own property and LaTonya assertedly was a "visitor"; (2) Petitioner allegedly was on parole and could be violated for "being around drugs or users"; (3) "the situation may've been over LaTonya's `drug use' and not `infidelity'"; (4) LaTonya allegedly had been drinking, "possibly doing meth," and was angry when Petitioner assertedly told her to leave and told her he had someone else; (5) Petitioner purportedly did not "fight" LaTonya, but only "went after her" to stop her from causing a disturbance on his property; (6) LaTonya's injuries allegedly were more consistent with Petitioner's version of events; and (7) Petitioner allegedly repeatedly told defense counsel he had been defending his property (Petition, attachment, p. 14).

Petitioner asserts that, had counsel investigated, counsel would have discovered from Petitioner that: (1) Petitioner allegedly believed that crystal meth users, when angry, were "prone to destruction"; (2) LaTonya allegedly had engaged in prior acts of destruction and assertedly was likely to "take out her anger on [Petitioner's] property"; (3) a 911 "disturbance call" could have resulted in the revocation of Petitioner's parole for "being around alcohol, drugs, users," thus purportedly putting Petitioner's property at risk of foreclosure "or some other adversity"; (4) Petitioner allegedly did not know of his "right as `the property owner to use force'"; and (5) Petitioner's "initial intent" allegedly was to "get LaTonya home & off his property" (Petition, attachment, p. 15). Petitioner contends counsel could have learned from LaTonya that: (1) LaTonya allegedly had exhibited prior acts of violence and destruction toward other persons and properties; and (2) Petitioner allegedly was concerned with keeping his property in good condition (Petition, attachment, p. 15).

The Superior Court rejected this claim on the ground that counsel's choice of defense was within the scope of counsel's discretion (Petition, Exhibits, ECF Dkt. No. 1, p. 77).

2. Analysis

To the extent Petitioner argues that counsel unreasonably decided to pursue a theory of self-defense, such argument lacks merit. LaTonya's version of the incident, i.e., that she purportedly attacked Petitioner with a piece of wire fencing, supposedly cutting Petitioner's arm, and that Petitioner allegedly kicked her "accidentally" while trying to kick away the wire, reasonably supported counsel's decision to argue self-defense. The fact that the defense was unsuccessful does not show counsel's ineffectiveness. See Strickland, 466 U.S. at 689 (cautioning against "examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable"); Siripongs v. Calderon, 133 F.3d 732, 736 (9th Cir.), cert. denied, 525 U.S. 839 (1998) ("the relevant inquiry under Strickland is not what defense counsel could have pursued, but rather whether the choices made by defense counsel were reasonable") (citation omitted).

Petitioner contends counsel instead should have advanced a "defense of property" theory based on CALCRIM 3476, which provides:

As indicated above, "reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste." Rompilla v. Beard, 545 U.S. 374, 383 (2005) (citation omitted). For the reasons discussed below, counsel reasonably could have concluded that further investigation regarding this defense would have been a "waste" and that an attempt to present such a defense would not be successful.

First, even assuming arguendo the truth of Petitioner's allegations concerning LaTonya's asserted drug use and disturbances on the property, counsel reasonably could have concluded that any such alleged behavior by LaTonya was not subjecting the property itself or Petitioner's alleged right therein to any "imminent harm." See generally, People v. Robertson, 34 Cal.4th 156, 167, 17 Cal.Rptr.3d 604, 95 P.3d 872 (2004), overruled on other grounds, People v. Chun, 45 Cal.4th 1172, 91 Cal.Rptr.3d 106, 203 P.3d 425 (2009) (a person may be privileged to use force in defense of "oneself or another or of property" if the force is "reasonable under the circumstances to repel what is honestly and reasonably believed to be a threat of imminent harm") (citations omitted). Second, counsel also reasonably could have determined that punching and kicking LaTonya did not constitute force which any reasonable person in Petitioner's situation could have believed to have been necessary to protect Petitioner's interest in the property from possible harm, whether from foreclosure, dispossession or otherwise. Third, and relatedly, counsel reasonably could have concluded that the trial court would decline to instruct on such a theory.14 Fourth, counsel also reasonably could have decided that presenting a theory of defense of property based on Petitioner's parole conditions would harm Petitioner by disclosing to the jury the fact that Petitioner had a criminal history.

For similar reasons, Petitioner has failed to demonstrate that the omission of a "defense of property" theory prejudiced Petitioner under the Strickland standard. Even if LaTonya's continued presence on the property could have harmed Petitioner's right to possession or title to the property, the harm was not "imminent." Nor could any such harm have justified the severe force Petitioner exerted on LaTonya. There is no reasonable probability the trial court would have instructed the jury on "defense of property" under these circumstances. Moreover, there is no reasonable probability that the jury, even if so instructed, would have returned a verdict more favorable to Petitioner.

For the foregoing reasons, the Superior Court's rejection of this 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 this claim.

G. Alleged Failure to Object to the Wording of the Flight Instruction

The trial court gave California's pattern flight instruction, CALCRIM 372:

(R.T. 241; C.T. 142) (emphasis added.

Petitioner's counsel objected unsuccessfully to the flight instruction on the ground that the evidence assertedly did not support the instruction (R.T. 170). Petitioner claims that counsel also should have objected on the ground that the instruction purportedly implied that the crime "had been committed," thus supposedly lowering the prosecution's burden of proof and undermining the presumption of innocence (Petition, attachment, p. 19). The Superior Court rejected this claim, observing that the claim Petitioner was making had been "rejected years ago," citing People v. Paysinger, 174 Cal.App.4th 26, 30-32, 93 Cal.Rptr.3d 901 (2009) (Petition, Exhibits, ECF Dkt. No. 1, p. 78).

The Superior Court's denial of Petitioner's claim was not unreasonable. In People v. Paysinger, the California Court of Appeal rejected the precise challenge to the instruction presented here, reasoning that the word "if" in the operative clause of the instruction modified the entire phrase, including the words "after the crime was committed." Id. at 30. The Paysinger Court also ruled that it was "highly unlikely that a reasonable juror would have understood the instruction as dictating that `the crime was committed.'" Id. The Paysinger Court also stated that its conclusion was bolstered by other instructions such as the instructions that: (1) the jury must decide the facts; (2) it was up to the jury alone to decide what had happened; (3) a defendant in a criminal case is presumed innocent; (4) the prosecution must prove guilt beyond a reasonable doubt. Id.

In the present case, the trial court gave instructions on the presumption of innocence, the prosecution's burden of proof and the exclusive role of the jury to decide the facts (see R.T. 54-56, 226, 229-30; C.T. 119-20, 124, 127). Therefore, at the time of trial in July of 2014, counsel reasonably could have decided that any challenge to the flight instruction on the ground that the instruction "assumed" or "presumed" the commission of the crime would be doomed to failure. See Herrera v. Phillips, 2013 WL 3789613, at *8 (C.D. Cal. July 16, 2013) (rejecting similar challenge to CALCRIM 372). Counsel cannot be faulted for failing to make a meritless argument. See Gonzalez v. Knowles, 515 F.3d 1006, 1017 (9th Cir. 2008); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996), cert. denied, 519 U.S. 1142 (1997); Shah v. United States, 878 F.2d 1156, 1162 (9th Cir.), cert. denied, 493 U.S. 869 (1989). For the same reasons, Petitioner has not shown Strickland prejudice.

For the foregoing reasons, the Superior Court's rejection of this 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 this claim.

H. Alleged Failure to Present LaTonya's Declaration at Sentencing

Petitioner contends that, after trial, he sent counsel a declaration "to be completed by LaTonya . . . for presentation at sentencing" (Petition, attachment, pp. 21, 22 n.3). According to Petitioner, counsel told Petitioner the declaration "had to be written by LaTonya" (id.).15 Petitioner asserts that counsel thereby prevented Petitioner from presenting "authentic evidence" in the form of LaTonya's testimony concerning the tenants' "possible bias" (id.).

Petitioner attaches to the Petition a purported unsigned declaration of LaTonya, written in what appears to be Petitioner's handwriting. This purported declaration states that: (1) before Petitioner's arrest, Kendrick and Norman allegedly "had a very negative attitude towards [Petitioner] as a result of his putting them up for eviction"; and (2) Joel Mendez allegedly was giving drugs to Kendrick and Norman in exchange for the use of their car (Petition, Ex. D, ECF Dkt. No. 1-1, p. 15).

The Superior Court rejected this claim of ineffective assistance, stating that Petitioner's claim "ignore[d] that the sentencing hearing took place after the jury's verdict (Petition, Ex. A, ECF Dkt. No. 1, p. 77).

Petitioner's claim fails for several reasons. First, as the Superior Court observed, the trial was over. The verdict reflects that the jury credited the evidence that Petitioner had assaulted and injured LaTonya and rejected Petitioner's theory of self-defense, which had been based on LaTonya's testimony that she supposedly was the aggressor. Counsel reasonably could have concluded that the purported declaration Petitioner drafted for LaTonya attempting post hoc to discredit the tenants' trial testimony would have no material effect at sentencing.16

Second, regardless of counsel's alleged failure to present the supposed declaration at sentencing, both LaTonya and Petitioner spoke at sentencing and could have presented the same information as that contained in LaTonya's alleged declaration. At sentencing, LaTonya stated that she had lied about Petitioner so he would go to jail and stated that Petitioner "was kicking the weapon from me when I fell" (R.T. 397-98). LaTonya said that she wished she was in jail because it was her fault due to her drug and drinking problems, that she had "started this whole thing" and that Petitioner did not "deserve this at all" (R.T. 398). However, LaTonya did not mention any purported bias of, or drug use by, Kendrick or Norman.

At sentencing, Petitioner said the "whole thing" [i.e., the assault] concerned his purported discovery that LaTonya allegedly was doing drugs (R.T. 399). Petitioner mentioned assertedly having to evict tenants who were doing drugs (R.T. 399). However, Petitioner did not mention Kendrick or Norman and did not allege that either Kendrick or Norman purportedly was biased against Petitioner (R.T. 399).

Third, there is no reasonable probability that presentation of the purported declaration would have changed the outcome of Petitioner's sentencing. After listening to LaTonya and to Petitioner, the sentencing court found no factors in mitigation (R.T. 485). The court stated that Petitioner had no one to blame but himself for his criminal history and that Petitioner's supposed drug use did not excuse Petitioner's continuous commission of violent offenses (R.T. 485). The court stated that "[n]ot once" had Petitioner taken responsibility for or expressed remorse for his actions (R.T. 485-86). The court said that Petitioner had "just expressed remorse for being found in this predicament which, again, he blames on drugs and he blames on the victim" (R.T. 486). The court said Petitioner "violate[d] other people's rights," "victimize[d] other individuals," and presented "a danger to our community" (R.T. 486). The sentencing court doubtlessly would have viewed the purported declaration as yet another vain attempt by Petitioner to avoid taking responsibility for his criminal actions.

For the foregoing reasons, the Superior Court's rejection of this 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 this claim.

I. Alleged Cumulative Error

"When an attorney has made a series of errors that prevents the proper presentation of a defense, it is appropriate to consider the cumulative impact of the errors in assessing prejudice." Turner v. Duncan, 158 F.3d 449, 457 (9th Cir. 1998). However, for the foregoing reasons, Petitioner has not shown that counsel made any errors preventing the proper presentation of a defense. Accordingly, any claim of cumulative Strickland error necessarily fails. See generally Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011) ("Because we conclude that no error of constitutional magnitude occurred, no cumulative prejudice is possible.") (citation omitted); Delgado v. Muniz, 2019 WL 1590909, at *11 (C.D. Cal. Mar. 12, 2019), adopted, 2019 WL 1585106 (C.D. Cal. Apr. 8, 2019) ("Because Petitioner has not established any ineffective assistance, he cannot show cumulative ineffectiveness."). "What [petitioner's] protest[s] over the cogency of his defense really shows is that not every . . . case can be won by the defense." Hendricks v. Calderon, 70 F.3d 1032, 1042 (9th Cir. 1995), cert. denied, 517 U.S. 1111 (1996).

III. Petitioner Is Not Entitled to an Evidentiary Hearing.

Where a state court adjudicates a petitioner's claims on the merits, "evidence introduced in federal court has no bearing on § 2254(d)(1) review." See Cullen v. Pinholster, 563 U.S. 170, 185 (2011); see also Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 2013), cert. denied, 573 U.S. 981 (2014) (Pinholster's preclusion of a federal evidentiary hearing applies to section 2254(d)(2) claims as well as section 2254(d)(1) claims). Here, the state courts adjudicated almost all of Petitioner's claims on the merits. Moreover, Petitioner has failed to demonstrate that an evidentiary hearing would reveal anything material to any of Petitioner's claims. Therefore, Petitioner is not entitled to an evidentiary hearing.

RECOMMENDATION

For the reasons discussed above, 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.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.