FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

MICHAEL J. SENG, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent, M. Martel, warden of Mule Creek State Prison, is represented by Carlos A. Martinez, of the Office of the California Attorney General.

I. PROCEDURAL BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Fresno, following his conviction by jury trial on May 20, 2005, for committing a forcible lewd act on a child under the age of fourteen and felony annoying or molesting a child. (1st Am. Pet., ECF No. 10, at 1.) The trial court also found true allegations that Petitioner had suffered prior serious felony convictions which qualified as "strikes" under California's "Three Strikes" law. (1st Am. Pet.) On June 30, 2005, Petitioner was sentenced to serve a term of sixty-seven (67) years to life in state prison. (Lod. Doc. 1, Clerk's Tr. at 450-53.)

On January 31, 2007, the California Court of Appeal affirmed the judgment. (Answer, Ex. A.) And on April 11, 2007, the California Supreme Court denied Petitioner's Petition for Review. (Lodged Doc. 5.)

On March 6, 2008, Petitioner filed a habeas petition in the Fresno County Superior Court, which the court denied on April 7, 2008. (Lodged Doc. 6.) On May 9, 2008, Petitioner filed a habeas petition in the California Court of Appeal, which that court denied on November 21, 2008. (Lodged. Doc. 7.) Finally, on February 2, 2009, Petitioner filed a habeas petition in the California Supreme Court, and that court denied on July 8, 2009. (Lodged Doc. 8.)

On August 26, 2009, Petitioner filed the instant federal habeas petition. (Pet.) Petitioner filed a first amended petition, the operative petition in this matter, on September 16, 2009. (1st Am. Pet., ECF No. 10.)

Petitioner raises twenty (20) grounds for relief, listed as follows:1

(i) Claim I: Petitioner's right to due process was violated by allowing the prosecutor to introduce evidence of prior acts.

(ii) Claim II: Petitioner's due process was violated by jury instructions that permitted the jury to find Petitioner guilty by proof less than beyond a reasonable doubt.

(iii) Claim III: Ineffective assistance of counsel for failing to object to inadmissible hearsay evidence.

(iv) Claim IV: Ineffective assistance of counsel in forcing Petitioner to testify at trial.

(v) Claim 1: Ineffective assistance of counsel for failing to conduct a reasonable investigation.

(vi) Claim 2: Ineffective assistance of counsel based on counsel's conflict of interest.

(vii) Claim 3: Ineffective assistance of counsel for failing to obtain witnesses critical to the defense.

(viii) Claim 4: Ineffective assistance of counsel under United States v. Cronic, 466 U.S. 648 (1984).

(ix) Claim 5: Ineffective assistance of appellate counsel.

(x) Claim 6: Illegal search and seizure.

(xi) Claim 7: Outrageous government conduct.

(xii) Claim 8: Failure of the prosecution to disclose favorable evidence under Brady v. Maryland, 373 U.S. 83 (1963).

(xiii) Claim 9: Prosecutorial misconduct.

(xiv) Claim 10: Prosecutorial misrepresentation.

(xv) Claim 11: Prosecutor's use of perjured testimony.

(xvi) Claim 12: Judicial bias.

(xvii) Claim 13: Restricted cross-examination.

(xviii) Claim 14: Restriction of defense evidence.

(xix) Claim 15: Lack of proof beyond a reasonable doubt.

(xx) Claim 16: Use of false evidence.

Respondent filed an answer to the first amended petition on August 10, 2010, and Petitioner filed a traverse on November 29, 2010. (Answer & Traverse, ECF Nos. 24, 30.)

II. FACTUAL BACKGROUND2

(Answer, Ex. A, at 2-6.)

III. DISCUSSION

A. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 fn.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. In addition, the conviction challenged arises out of the Fresno County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2241(d); 2254(a). Accordingly, the Court has jurisdiction over the action.

B. Legal Standard of Review

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). The instant petition was filed after the enactment of the AEDPA; thus, it is governed by its provisions.

Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. at 375 n. 7 (2000). Federal habeas corpus relief is available for any claim decided on the merits in state court proceedings if the state court's adjudication of the claim:

28 U.S.C. § 2254(d).

1. Contrary to or an Unreasonable Application of Federal Law

A state court decision is "contrary to" federal law if it "applies a rule that contradicts governing law set forth in [Supreme Court] cases" or "confronts a set of facts that are materially indistinguishable from" a Supreme Court case, yet reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005) citing Williams, 529 U.S. at 405-06. "AEDPA does not require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied. . . . The statue recognizes . . . that even a general standard may be applied in an unreasonable manner" Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (citations and quotation marks omitted). The "clearly established Federal law" requirement "does not demand more than a `principle' or `general standard.'" Musladin v. Lamarque, 555 F.3d 830, 839 (2009). For a state decision to be an unreasonable application of clearly established federal law under § 2254(d)(1), the Supreme Court's prior decisions must provide a governing legal principle (or principles) to the issue before the state court. Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003). A state court decision will involve an "unreasonable application of" federal law only if it is "objectively unreasonable." Id. at 75-76, quoting Williams, 529 U.S. at 409-10; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). In Harrington v. Richter, the Court further stresses that "an unreasonable application of federal law is different from an incorrect application of federal law." 131 S.Ct. 770, 785 (2011), (citing Williams, 529 U.S. at 410) (emphasis in original). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Id. at 786 (citing Yarborough v. Alvarado, 541 U.S. 653, 664 (2004)). Further, "[t]he more general the rule, the more leeway courts have in reading outcomes in case-by-case determinations." Id.; Renico v. Lett, 130 S.Ct. 1855, 1864 (2010). "It is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court." Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419 (2009), quoted by Richter, 131 S. Ct. at 786.

2. Review of State Decisions

"Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the claim rest on the same grounds." See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). This is referred to as the "look through" presumption. Id. at 804; Plascencia v. Alameida, 467 F.3d 1190, 1198 (9th Cir. 2006). Determining whether a state court's decision resulted from an unreasonable legal or factual conclusion, "does not require that there be an opinion from the state court explaining the state court's reasoning." Harrington, 131 S. Ct. at 784-85. "Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Id. ("This Court now holds and reconfirms that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been `adjudicated on the merits.'").

Harrington instructs that whether the state court decision is reasoned and explained, or merely a summary denial, the approach to evaluating unreasonableness under § 2254(d) is the same: "Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; 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." Id. at 786. Thus, "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. at 75). AEDPA "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents." Id. To put it yet another way:

Id. at 786-87. The Court then explains the rationale for this rule, i.e., "that state courts are the principal forum for asserting constitutional challenges to state convictions." Id. at 787. It follows from this consideration that § 2254(d) "complements the exhaustion requirement and the doctrine of procedural bar to ensure that state proceedings are the central process, not just a preliminary step for later federal habeas proceedings." Id. (citing Wainwright v. Sykes, 433 U.S. 72, 90 (1977).

3. Prejudicial Impact of Constitutional Error

The prejudicial impact of any constitutional error is assessed by asking whether the error had "a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness). Some constitutional errors, however, do not require that the petitioner demonstrate prejudice. See Arizona v. Fulminante, 499 U.S. 279, 310 (1991); United States v. Cronic, 466 U.S. 648, 659 (1984). Furthermore, where a habeas petition governed by AEDPA alleges ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), the Strickland prejudice standard is applied and courts do not engage in a separate analysis applying the Brecht standard. Avila v. Galaza, 297 F.3d 911, 918, n. 7 (2002); Musalin v. Lamarque, 555 F.3d at 834.

IV. REVIEW OF PETITION

A. Claim I — Wrongful Admission of Propensity Evidence

Petitioner claims the trial court committed prejudicial error and violated his due process rights by permitting the prosecutor to introduce evidence of prior acts involving Katie C. pursuant to California Evidence Code § 1108. (1st Am. Pet. at 4, 7.)

This claim was presented on direct appeal to the California Court of Appeal where it was rejected in a reasoned decision. (See Answer, Ex. 1.) Petitioner then raised the claim to the California Supreme Court. (Lodged Doc. 5.) The California Supreme Court denied the claim without comment. (Id.) When the California Supreme Court's opinion is summary in nature, the Court must "look through" that decision to a court below that has issued a reasoned opinion. Ylst v. Nunnemaker, 501 U.S. 797, 804-05 (1991). In this case, the appellate court analyzed and rejected the claim as follows:

(Answer, Ex. A, at 4-7.)

As stated above, Petitioner claims the admission of evidence of prior acts of domestic violence violated his due process rights. Petitioner is only entitled to relief if he shows that in upholding the introduction of the propensity evidence the California Court of Appeal contradicted or unreasonably applied clearly established federal law, as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d). In Estelle v. McGuire, 502 U.S. 62, 75 n. 5 (1991), the Supreme Court expressly refused to determine whether the introduction of prior crimes evidence to show propensity to commit a crime would violate the Due Process Clause. Id. ("Because we need not reach the issue, we express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of `prior crimes' evidence to show propensity to commit a charged crime."); see also Alberni v. McDaniel, 458 F.3d 860, 866 (9th Cir. 2006) ("Estelle expressly left this issue an `open question'"). Because the Supreme Court has specifically declined to address whether the introduction of propensity evidence violates due process, Petitioner lacks the clearly established federal law necessary to support his claims. Id.; see also Mejia v. Garcia, 534 F.3d 1036, 1046-47 (9th Cir. 2008) (relying on Estelle and Alberni and concluding that the introduction of propensity evidence under California Evidence Code § 1108 does not provide a basis for federal habeas relief, even where the propensity evidence relates to an uncharged crime); Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (The Supreme Court "has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ."). Accordingly, Petitioner is not entitled to relief with regard to this claim.

B. Claim II — Instructional Error

Petitioner next contends that the trial court "committed reversible error by instructing the jury on prior acts evidence pursuant to CALJIC No. 2.50.01, which permitted the jury to find ... [him] guilty by proof less than beyond a reasonable doubt." (1st Am. Pet. at 7.)

This claim was presented on direct appeal to the California Court of Appeal where it was rejected in a reasoned decision. (See Answer, Ex. 1.) Petitioner then raised the claim to the California Supreme Court. (Lodged Doc. 5.) The appellate court analyzed and rejected the claim as follows:

(Answer, Ex. A, at 7-8.)

The Due Process Clause of the Fourteenth Amendment requires the prosecution to prove every element charged in a criminal offense beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364 (1970). If the jury is not properly instructed that a defendant is presumed innocent until proven guilty beyond a reasonable doubt, the defendant has been deprived of due process. See Middleton v. McNeil, 541 U.S. 433, 437 (2004); Taylor v. Kentucky, 436 U.S. 478, 485-86 (1978). Any jury instruction that "reduce[s] the level of proof necessary for the Government to carry its burden . . . is plainly inconsistent with the constitutionally rooted presumption of innocence." Cool v. United States, 409 U.S. 100, 104 (1972).

Although the Constitution does not require jury instructions to contain any specific language, the instructions must convey both that a defendant is presumed innocent until proven guilty and that he may only be convicted upon a showing of proof beyond a reasonable doubt. See Victor v. Nebraska, 511 U.S. 1, 5 (1994). "[T]he essential connection to a `beyond a reasonable doubt' factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury's findings." Sullivan v. Louisiana, 508 U.S. 275, 279-81 (1993) (emphasis in original). Where such an error exists, it is considered structural and thus is not subject to harmless error review. See id. at 280-82; but see Byrd v. Lewis, 566 F.3d 855, 865-66 (9th Cir. 2009) (recognizing that after Hedgpeth v. Pulido, 555 U.S. 57 (2008), harmless error analysis applies to instructions that impermissibly lower the burden of proof if there is an alternative way for the jury to find the defendant guilty without relying on the unconstitutional instruction). However, if a jury instruction is deemed "ambiguous," it will violate due process only when a reasonable likelihood exists that the jury has applied the challenged instruction in a manner that violates the Constitution. Estelle, 502 U.S. at 72. Any challenged instruction must be considered in light of the full set of jury instructions and the trial record as a whole. See Cupp v. Naughten, 414 U.S. 141 (1973).

In Gibson v. Ortiz, 387 F.3d 812 (9th Cir. 2004)3, the Ninth Circuit had the opportunity to address the constitutionality of the former versions of the instructions given at Petitioner's trial. The Ninth Circuit determined that the instructions allowed the defendant in Gibson to be convicted by a preponderance of the evidence, rather than by beyond a reasonable doubt. Gibson, 387 F.3d at 822. In Gibson the court concluded the previous versions of the instructions, which allowed the jury to consider the evidence of past sexual misconduct if the prosecution proved them by a preponderance of the evidence, were not harmonized with the reasonable doubt standard to be convicted of the charged crime. Id. at 822-23 ("Because the trial court offered no explanation harmonizing the two burdens of proof discussed in the jury instructions, Gibson's jury was presented with two routes of conviction, one by a constitutionally sufficient standard and one by a constitutionally deficient one.").

In the instant case, the jury was instructed with an updated version of the instruction designed to comport with Gibson. See People v. Falsetta, 21 Cal.4th 903 (1999); People v. Reliford, 29 Cal.4th 1007 (2003). Added to the challenged instruction was the following statement:

The state court rejected Petitioner's claim. The court pointed out that the instruction given to Petitioner's jury materially tracks the 2002 version of CALJIC 2.50.01 instruction, in that both specify that the jury may not convict on the charged offense except on a finding of guilt beyond a reasonable doubt. Thus, according to the state court, Petitioner's claim was foreclosed by the decision of the California Supreme Court in People v. Reliford, which held that the 2002 version does not unconstitutionally lower the burden of proof.

The Ninth Circuit has recently ruled that a state court applying the analysis from the California Supreme Court's Reliford decision to uphold use of the 2002 version of CALJIC No. 2.50.01 does not act contrary to federal law. Schultz v. Tilton, 659 F.3d 941, 943-45 (9th Cir. 2011) (distinguishing Gibson, which found constitutional infirmity in use of prior version of CALJIC 2.50.01).

Accordingly the instruction does misstate the prosecution's burden of proof, and habeas relief is not warranted with respect to this claim.

C. Claims III and IV — Ineffective Assistance of Counsel

Petitioner asserts that he was denied effective assistance of counsel based on trial counsel's failure to object to inadmissible hearsay evidence, and forcing Petitioner to testify at trial.

1. Legal Standard for Ineffective Assistance of Counsel

The law governing ineffective assistance of counsel claims is clearly established for the purposes of the AEDPA deference standard set forth in 28 U.S.C. § 2254(d). Canales v. Roe, 151 F.3d 1226, 1229 (9th Cir. 1998). In a petition for writ of habeas corpus alleging ineffective assistance of counsel, the Court must consider two factors. Strickland v. Washington, 466 U.S. 668 (1984); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). First, the petitioner must show that counsel's performance was deficient, requiring a showing that counsel made errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The petitioner must show that counsel's representation fell below an objective standard of reasonableness, and must identify counsel's alleged acts or omissions that were not the result of reasonable professional judgment considering the circumstances. Id. at 688; United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995). Judicial scrutiny of counsel's performance is highly deferential. A court indulges a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 687; see also, Harrington v. Richter, 131 S.Ct. 770 (2011).

Second, the petitioner must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result ... would have been different," Strickland, 466 U.S. at 694. Petitioner must show that counsel's errors were so egregious as to deprive defendant of a fair trial, one whose result is reliable. Id. at 687. The Court must evaluate whether the entire trial was fundamentally unfair or unreliable because of counsel's ineffectiveness. Id.; Quintero-Barraza, 78 F.3d at 1348; United States v. Palomba, 31 F.3d 1456, 1461 (9th Cir. 1994).

A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the petitioner as a result of the alleged deficiencies. Strickland, 466 U.S. at 697. Since the defendant must affirmatively prove prejudice, any deficiency that does not result in prejudice must necessarily fail. However, there are certain instances which are legally presumed to result in prejudice, e.g., where there has been an actual or constructive denial of the assistance of counsel or where the State has interfered with counsel's assistance. Id. at 692; United States v. Cronic, 466 U.S., at 659, and n.25 (1984).

As the Supreme Court reaffirmed recently in Harrington v. Richter, meeting the standard for ineffective assistance of counsel in federal habeas is extremely difficult:

Harrington v. Richter, 131 S. Ct. at 785-86.

"It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 786. "As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings." 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 786-87.

Accordingly, even if Petitioner presents a strong case of ineffective assistance of counsel, this Court may only grant relief if no fairminded jurist could agree on the correctness of the state court decision.

2. Claim III — Failure to Object to Hearsay Testimony

As stated above, Petitioner claims that trial counsel was ineffective for failing to object to inadmissible hearsay evidence at trial.

a. Relevant State Court Decision

This claim was presented on direct appeal to the California Court of Appeal where it was rejected in a reasoned decision. (See Answer, Ex. 1.) The appellate court analyzed and rejected the claim as follows:

(Answer, Ex. A, at 8-12.)

Petitioner then filed a petition for review which was denied by the California Supreme Court. The California Supreme Court is therefore presumed to have denied the claim for the same reasons stated by the superior court. Ylst, 501 U.S. at 803.

b. Analysis

Petitioner's first claim of ineffective assistance of counsel is that counsel failed to object to at least seven instances of inadmissible hearsay at trial. Regardless of inadmissible hearsay, the prosecution presented significant admissible evidence of Petitioner's guilt. At trial, Katie testified as to Petitioner's inappropriate touching of her in the Mammoth Lakes area in 1992. (Rept'rs. Tr. ("RT") at 1514-1561.) Kayla then testified as to inappropriate touching and conduct when taken to a lake by Petitioner. (RT1562-1623.) Next, L.J. also testified as to Petitioner touching his private parts to his back and bottom while accompanying Petitioner on overnight trucking trips. (RT 1693-94.) The evidence presented by the prosecution based on the direct testimony of the witnesses strongly pointed towards Petitioner's guilt.

As described in the state court opinion, Petitioner challenges trial counsel's failure to object to hearsay statements regarding: 1) Kayla testifying that Victoria told Kayla that Phillips touched her, 2) Annette, Kayla's mother, testifying that Kayla told her that Kayla attempted suicide in light of the events with Petitioner, 3) three separate statements by Fresno Police Detective R. Holquinn, a defense witness, who testified that Victoria told him that Petitioner inappropriately touched her and gave her alcohol while at the river, 4) statements from Holquinn that Kayla told him she saw Petitioner grab Victoria, put her on his lap, and grind her butt against Petitioner's groin, 5) statements from Holquinn that Kayla told him that Petitioner had similarly rubbed or pressed his groin against the buttocks of another seven- or eight-year old girl named Misty; 6) testimony from Jody O'Neil who testified that Victoria said Kayla told her that Petitioner touched Kayla on the leg and she did not like it, and 7) statements from Fresno Police Detective K. Kobashi who testified that L.J.'s school teacher reported that L.J.'s personality had changed and he had become withdrawn after the incident.

The state court reviewed the above instances of alleged ineffective assistance of counsel for allowing hearsay statements under relevant state law. Under California law, "where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions." People v. Jones, 29 Cal.4th 1229, 1254 (2003). Therefore the state court determined there were conceivable reasons to allow the hearsay statements and denied the claim. The Court need not determine if, just because there were conceivable reasons for not objecting, that counsel's representation did not fall below an objective standard of reasonableness. Harrington, 131 S. Ct. at 787-88 ("The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.") Instead the Court may first determine if Petitioner demonstrated a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id.

In Petitioner's case, three of the victims presented by the prosecution provided testimony evidence of Petitioner's criminal conduct. The victims' testimony provided substantial evidence of Petitioner's guilt. Additionally, another victim, Victoria, did not testify. However Kayla testified that she observed Petitioner hold Victoria down and move her side to side on his lap. (RT 1572.) Much of the hearsay evidence that was allowed was to support claims of Petitioner's conduct against Victoria. Even if those statements were properly objected to and not admitted, Kayla's admissible testimony would have provided strong support in itself of Petitioner's conduct towards Victoria. In addition, hearsay statements were made by Kayla's mother that Kayla's suicide attempt was predicated by her emotional response to the events. However, the state court found that the statement was mitigated when Kayla's mother admitted that she did not know if Petitioner's conduct was the cause of the suicide attempt. (Answer, Ex. A, at 8-12.)

In light of the strong testimony of Katie, Kayla, and L.J., Petitioner has not made a sufficient showing of prejudice that in light of the admission of the hearsay statements, there was a reasonable probably that the result of the proceeding would be different. It is not reasonable to believe that a jury, even if not presented the hearsay statements would made a different decision. The state court's rejection of the claim was neither contrary to nor an unreasonable application of Strickland. See Harrington, 131 S. Ct. at 785-86. Petitioner's claim of ineffective assistance of counsel is without merit.

3. Claim IV — Counsel's Advise that Petitioner Testify

Petitioner claims that his attorney was ineffective based on his assertions that Petitioner "had to testify" to tell the jury "his side of the case and because he couldn't subpoena witnesses" who lived too far away. (1st. Am. Pet. at 8.) Petitioner does not provide further reasoning as to why defense counsel's strategy to have Petitioner testify in his defense was harmful and caused him undue prejudice at trial.

a. Exhaustion and Procedural Default

Respondent asserts that Petitioner did not present this claim to the California Supreme Court and therefore is not exhausted. Habeas petitioners who wish to challenge either their state court conviction or the length of their confinement in state prison, must first exhaust state judicial remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust state judicial remedies, a California state prisoner must present the California Supreme Court with a fair opportunity to rule on the merits of every issue raised in his or her federal habeas petition. 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34; see also Duncan v. Henry, 513 U.S. 364, 365 (1995). If the claim was not presented to the state's highest court on direct appeal, state collateral remedies must be exhausted. Reiger v. Christensen, 789 F.2d 1425, 1427 (9th Cir. 1986).

However, even where a claim has not been presented to the state's highest court if a petitioner no longer has state court remedies available to him, he has satisfied the technical requirements of exhaustion. Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007) (en banc) ("The Supreme Court has noted that a habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer `available' to him."), quoting Coleman v. Thompson, 501 U.S. 722, 732 (1991); Cassett v. Stewart, 406 F.3d 614, 621 n.5 (9th Cir. 2005); see also 28 U.S.C. § 2254(c) ("An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.") In such a situation the claim would likely be procedurally defaulted in this Court. Coleman, 501 U.S. at 735 n.1 (holding that a procedural default arises when a petitioner has "failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred").

Here, Petitioner raises a claim of ineffective assistance of counsel based on trial counsel's recommendation that Petitioner testify in his defense. As described in the discussion of claim III above, Petitioner raised, on direct appeal, claims of ineffective assistance of counsel based on the failure of counsel to object to hearsay testimony. The fact that Petitioner presented other claims of ineffective assistance of counsel does not exhaust other ineffective assistance of counsel claims. Moormann v. Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005) ("This does not mean, however, that a petitioner who presented any ineffective assistance of counsel claim below can later add unrelated alleged instances of counsel's ineffectiveness to his claim. Rather, this rule allows a petitioner who presented a particular claim, for example that counsel was ineffective in presenting humanizing testimony at sentencing, to develop additional facts supporting that particular claim.") (citations omitted). Petitioner has not presented the instant ineffective assistance of counsel claim to the California Supreme Court.

However, based on California's rule barring untimely petitions for post-conviction relief, which the United States Supreme Court has found to be clearly established and consistently applied, Petitioner has satisfied the technical requirement for exhaustion because he no longer has state court remedies available with respect to his ineffective assistance of counsel claim. See Walker v. Martin, 131 S.Ct. 1120, 1125-31 (2011) (holding that California's timeliness requirement providing that a prisoner must seek habeas relief without "substantial delay" as "measured from the time the petitioner or counsel knew, or should reasonably have known, of the information offered in support of the claim and the legal basis for the claim," is clearly established and consistently applied), citing In re Robbins, 18 Cal.4th 770, 805n(1998) (holding that a habeas claim "that is substantially delayed" will not be considered unless "the petitioner can demonstrate `good cause' for the delay.") The United States Supreme Court has stated that federal habeas courts should not treat California's timeliness rules as differing significantly from other states which consider petitions untimely after unexplained delays of thirty or sixty days. Evans v. Chavis, 546 U.S. 189, 199-201 (2006), citing Carey v. Saffold, 536 U.S. 214, 219 (2002).

Based on Petitioner's unexplained and continuing delay in presenting the claim, it appears that he has no available state court remedies remaining for the claims, which arose during his trial and appellate proceedings, and he has therefore met the technical requirements of exhaustion as to these claims. Smith, 510 F.3d at 1139; Coleman, 501 U.S. at 735 n.1. Accordingly, Respondent's claim that the instant claim is not exhausted is without merit.

b. Relief From Procedural Default

Even though the claim is technically exhausted, the fact that it is technically exhausted implies that it is procedurally defaulted. Over four years have passed since Petitioner filed his direct appeal and the conviction became final. As a result of Petitioner's failure to present his allegations to the state court, his Sixth Amendment ineffective assistance of counsel claim is procedurally defaulted in this Court. See Coleman, 501 U.S. 722, 735 n.1 (1991) (holding that a procedural default arises when "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred."); see id. at 729-30 (a procedural default arises from a violation of a state procedural rule which is independent of federal law, and which is clearly established and consistently applied.); see Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003) ("We conclude that because the California untimeliness rule is not interwoven with federal law, it is an independent state procedural ground."); see also Walker, 131 S.Ct. at 1125-31(holding that California's timeliness requirement providing that a prisoner must seek habeas relief without "substantial delay" as "measured from the time the petitioner or counsel knew, or should reasonably have known, of the information offered in support of the claim and the legal basis for the claim," is clearly established and consistently applied). This Court may still reach the merits of the claim if Petitioner can demonstrate cause for his failure to timely present his claim to the state courts and prejudice arising from the default, or if he can demonstrate that a fundamental miscarriage of justice would result from the Court not reaching the merits of the defaulted claim. Coleman, 501 U.S. at 750.

(1) Cause and Prejudice

The cause prong can be satisfied if Petitioner demonstrates some "objective factor" that precluded him from raising his claims in state court, such as interference by state officials or constitutionally ineffective counsel. McCleskey v. Zant, 499 U.S. 467, 493-94 (1991). In Edwards v. Carpenter, 529 U.S. 446 (2000), the Supreme Court stated:

Edwards, 529 U.S. at 451-52.

Petitioner alleges that his appointed counsel rendered constitutionally ineffective assistance by recommending that Petitioner testify in his own defense. Petitioner has not explained any deficiency on the part of appellate counsel to present the claim to the state courts. In addition, as set forth below in addressing the merits of Petitioner's claim, Petitioner has failed to demonstrate that a federal constitutional violation arose as a result counsel's recommendation that Petitioner testify. Because Petitioner has not provided a sufficient basis for cause, and none is apparent in the record, the Court finds that Petitioner has not established cause to excuse the procedural default. McCleskey, 499 U.S. at 493-94; Edwards, 529 U.S. at 451-52.

Even if he had shown good cause, Petitioner would still be required to demonstrate prejudice. As discussed below, he is unable to do so.

In order to establish prejudice to overcome a procedural default, Petitioner must show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." See United States v. Frady, 456 U.S. 152, 170 (1982) (discussing prejudice where defendant failed to object to jury instructions in proceeding under 28 U.S.C. § 2255); Schneider v. McDaniel, 674 F.3d 1144, 1153 (9th Cir. 2012). "Prejudice [to excuse a procedural default] is actual harm resulting from the alleged error." Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998).

Petitioner cannot demonstrate prejudice sufficient to excuse the default because he cannot establish either deficient performance or prejudice under Strickland for the reasons discussed below. The Court finds that counsel's recommendation that Petitioner testify did not infect the trial with error of constitutional dimension. Thus, Petitioner cannot establish "actual harm resulting from the alleged error" sufficient to excuse the default. Vickers, 144 F.3d at 617; Frady, 456 U.S. at 170.

(2) Fundamental Miscarriage of Justice

As noted, Petitioner also can avoid a procedural default if he can demonstrate that a fundamental miscarriage of justice would result from the default. The United States Supreme Court has limited the "miscarriage of justice" exception to petitioners who can show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995). "In order to pass through Schlup's gateway, and have an otherwise barred constitutional claim heard on the merits, a petitioner must show that, in light of all the evidence, including evidence not introduced at trial, `it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" Majoy v. Roe, 296 F.3d 770, 775-76 (9th Cir. 2002), quoting Schlup, 513 U.S. at 327. In applying this standard, "A petitioner need not show that he is `actually innocent' of the crime he was convicted of committing; instead, he must show that `"a court cannot have confidence in the outcome of the trial.'" Majoy, 296 F.3d at 776, quoting Carriger v. Stewart, 132 F.3d 463, 478 (9th Cir. 1987) (en banc), quoting Schlup, 513 U.S. at 316.

Here, Petitioner refutes the factual assertions of the victims, but has not presented any credible evidence to undermine the factual assertions that form the basis of his convictions. Without presenting reliable, credible evidence of his innocence, Petitioner has not made a sufficient showing of actual innocence to serve as an equitable exception to procedural default. Schlup, 513 U.S. at 324 ("To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.") Petitioner has not shown that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt had counsel not recommended Petitioner to testify, or that the Court cannot have confidence in the outcome of the trial due to the errors of counsel. Id. at 314-15.

c. Merits of Petitioner's Claim

Even if Petitioner had established a right to relief from his procedural default and were allowed to proceed to the merits of this claim, he is not entitled to relief. Petitioner has not shown that counsel's recommendation for Petitioner to testify on his behalf was ineffective assistance of counsel. A tactical decision exercised by counsel deserves deference when counsel makes an informed decision based on strategic trial considerations and the decision appears reasonable under the circumstances. See Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). On the other hand, "it cannot be permissible trial strategy, regardless of the merits or otherwise, for counsel to override the ultimate decision of a defendant to testify contrary to his advice." United States v. Mullins, 315 F.3d 449, 453 (9th Cir. 2002). This is so because "a defendant in a criminal case has the right to take the witness stand and testify in his or her own defense." Rock v. Arkansas, 483 U.S. 44, 49 (1987). The defendant may, however, waive this right, either explicitly or implicitly. See United States v. Pino-Noriega, 189 F.3d 1089, 1094 (9th Cir. 1999). Such a waiver may be inferred from a defendant's failure to testify at trial or to notify the trial court of his desire to testify. See id. at 1094-1095. "Although the ultimate decision whether to testify rests with the defendant, he is presumed to assent to his attorney's tactical decision not to testify," but he "can reject his attorney's tactical decision by insisting on testifying, speaking to the court, or discharging his lawyer." United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993).

Petitioner has failed to demonstrate that counsel rendered prejudicially ineffective assistance by advising him to testify on his own behalf. Counsel made a decision to advise Petitioner to testify. Petitioner has not described how the decision was injurious to his defense or otherwise shown it not to be a reasonable tactical choice. While Petitioner may now wish, with the benefit of hindsight, that he had not testified at trial, it does not mean that counsel's performance fell below fell below an objective standard of reasonableness. Because there is a reasonable argument that counsel was not ineffective, Petitioner is not entitled to federal habeas corpus relief on this claim.

4. Claims 1-16: Procedural Default

Respondent asserts that the claims set forth in Petitioner's state habeas petitions are subject to procedural default. Petitioner brought sixteen claims in his state petition. In the last reasoned decision, the Fresno County Superior Court denied all of the claims based on a state procedural bar. Ylst, 501 U.S. at 803. The court addressed Petitioner's claims as follows:

(Lodged Doc. 6, Order.)

The case of In re Clark, 5 Cal.4th 750, 765-66 (1993) cited In re Dixon, 41 Cal.2d 756, 759 (1953) for the proposition that "the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction." This is known as the "Dixon rule." Fields v. Calderon, 125 F.3d 757, 762 (9th Cir. 1997); In re Dixon, 41 Cal.2d at 759.

a. Application to Claims of Ineffective Assistance of Counsel

First, Respondent correctly acknowledges that the Dixon rule should not apply to claims of ineffective assistance of counsel which are more appropriately raised on habeas corpus. The California Supreme Court has "`repeatedly emphasized that a claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding.'" People v. Jones, 30 Cal.4th 1084, 1105 (2003) (quoting People v. Mendoza Tello, 15 Cal.4th 264, 266-67, 62 Cal.Rptr.2d 437, 933 P.2d 1134 (1997)). In fact, the court has specified that the Dixon rule should not be applied to a claim of ineffective assistance of trial counsel, even if the claim is based solely upon the appellate record. In re Robbins, 18 Cal.4th 770, 815 n.34 (1998). In light of Robbins, the Court concludes that the superior court's citation of In re Clark was not an adequate basis for denying Petitioner's ineffective assistance of counsel clam. See Arenas v. Adams, 2011 U.S. Dist. LEXIS 152921 (C.D. Cal. Nov. 30, 2011) (holding that a claim of ineffective assistance of counsel was not barred by the state court's citation of the Dixon rule). Accordingly, the Court concludes that Petitioner's claims one through six, based on ineffective assistance of counsel are not procedurally defaulted.

b. Applicable Law

Respondent argues that Petitioner's claims seven through sixteen are procedurally barred. A state court's refusal to hear the merits of a claim because of the petitioner's failure to follow a state procedural rule is considered a denial of relief on an independent and adequate state ground. See Harris v. Reed, 489 U.S. 255, 260-61 (1989). The state rule for these purposes is only "adequate" if it is "firmly established and regularly followed." Ford v. Georgia, 498 U.S. 411, 424 (1991); see also Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003) ("[t]o be deemed adequate, the state law ground for decision must be well-established and consistently applied."). The state rule must also be "independent" in that it is not "interwoven with the federal law." Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000) (citing Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)). Furthermore, procedural default can only block a claim in federal court if the state court, "clearly and expressly states that its judgment rests on a state procedural bar." Harris, 489 U.S. at 263. This means that the state court must have specifically stated that it was denying relief on a procedural ground. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Acosta-Huerta v. Estelle, 7 F.3d 139, 142 (9th Cir. 1993).

Nevertheless, even if the state rule is independent and adequate, the claim may be reviewed by the federal court if the petitioner can show: (1) cause for the default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider the claims will result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750.

Here, the state court cited In re Clark to apply the Dixon rule to deny the claims in the petition.4 Dixon states that:

41 Cal. 2d at 759. Thus, pursuant to Dixon, a California court will not review the merits of a claim in a state habeas proceeding if it could have been raised in a timely appeal but was not.

c. Analysis

(1) Is the Dixon Rule an Adequate State Ground?

The Supreme Court explained that "a discretionary rule can serve as an adequate ground to bar federal habeas review," and that a rule may be adequate "even if the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not others." Beard v. Kindler, 130 S.Ct. 612, 618 (2009); see also Martin, 131 S. Ct. at 1128-29. As the Supreme Court recently observed in Martin, 131 S. Ct. at 1130, "[d]iscretion enables a court to home in on case-specific considerations and to avoid the harsh results that sometimes attend consistent application of an unyielding rule." Such discretion is applicable to the Dixon rule because a state court may find that special circumstances excuse a petitioner's failure to raise a ground on appeal. See, e.g., Fleeman v. Castro, 2009 U.S. Dist. LEXIS 1278, 2009 WL 33241, at *7 (E.D. Cal. Jan. 6, 2009) (the Dixon rule is "discretionary in that it admits of the possibility of exceptions for `special circumstances constituting an excuse' for failure to raise a claim by way of direct appeal and when such circumstances are found, the California Supreme Court may entertain the claim"); Jones v. Ayers, 2008 U.S. Dist. LEXIS 26772, 2008 WL 906302, at *28 (E.D. Cal. Mar. 31, 2008) (finding the Dixon rule to be discretionary because, as set forth in Park, 202 F.3d at 1152, the California Supreme Court explained in Harris that exceptions are applicable to the Dixon rule that admit the possibility that the California Supreme Court may entertain a claim not raised on direct appeal). Accordingly, the Court may look to the Supreme Court's recent decision in Martin for guidance in evaluating the adequacy of the state courts' application of the Dixon rule. See, e.g., Lee v. Mitchell, 2012 U.S. Dist. LEXIS 83503 (C.D. Cal. May 1, 2012); Jensen v. Hernandez, 2012 U.S. Dist. LEXIS 45673, 2012 WL 1130599, at *11-12 (E.D. Cal. Mar. 30, 2012) (citing Martin in considering, in part, a Dixon bar); Peyton v. Lopez, 2012 U.S. Dist. LEXIS 50350, 2012 WL 1203484, at *7 (C.D. Cal. Feb. 22, 2012) (same).

Second, to be "adequate," the procedural rule in question must be "firmly established and regularly followed." Martin, 131 S.Ct. at 1127 (citing Kindler, 130 S.Ct. at 618). "In determining the adequacy of the procedural bar, state cases applying the procedural bar after the time of the petitioner's default are irrelevant." Bennett v. Mueller, 364 F.Supp.2d 1160, 1167 (C.D. Cal. 2005). Here, Petitioner has not presented evidence regarding the regular application of the procedural bar either before or after filing his petition.

The United States Supreme Court has made it clear that a state procedural rule can serve as an adequate bar to federal habeas review "even if the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not others." Kindler, 130 S. Ct. at 618; see also Martin, 131 S. Ct. at 1128, 1129 ("We see no reason to reject California's time bar simply because a court may opt to bypass the [untimeliness] assessment and summarily dismiss a petition on the merits, if that is the easier path."). Moreover, as Judge Kozinski recently noted, there is no "existing Ninth Circuit precedent holding that the Dixon rule is inadequate." Cree v. Sisto, 2011 U.S. Dist. LEXIS 3648, 2011 WL 66253, at *2 (E.D. Cal. Jan 7, 2011) (Kozinski, J., sitting by designation).

The Court finds that the evidence reflects that the Dixon rule was well established and regularly followed in the time leading up to Petitioner's default.

(2) Is the Dixon Rule an Independent State Ground?

Prior to 1998, the Dixon rule was determined to not be independent of federal law. See Park, 202 F.3d at 1152-53. In Park, the Ninth Circuit reasoned that application of the Dixon rule necessarily was interwoven with federal law because there was a fundamental constitutional error exception to the Dixon rule under state law. See id. at 1152-53. However, in In re Robbins, 18 Cal.4th 770 (1998), the California Supreme Court held "that henceforth California courts would no longer determine whether an error alleged in a state petition constituted a federal constitutional violation." See Bennett, 322 F.3d at 581. In Bennett, the Ninth Circuit held, "we respect the California Supreme Court's sovereign right to interpret its state constitution independent of federal law" and, as a result found California untimeliness rule was independent. See id. at 581-83. Thus, under these particular circumstances, the California Supreme Court's invocation of Dixon in October 2008 after Robbins was decided would also be an independent state ground. See id. at 582-83; see also Park, 202 F.3d at 1153 n. 4 (9th Cir. 2000). See Cree v. Sisto, Civ. No. 08-487, 2011 U.S. Dist. LEXIS 3648, 2011 WL 66253, at *2 (E.D. Cal. Jan 7, 2011) (Kozinski, J., sitting by designation); see also Rhodes v. Uribe, 2012 U.S. Dist. LEXIS 36921, 2012 WL 928434, at *4 (C.D. Cal. Feb. 10, 2012) (finding that the Dixon rule was independent and adequate); Cantrell v. Evans, 2010 U.S. Dist. LEXIS 35955, 2010 WL 1170063, at *13-14 (E.D. Cal. Mar. 23, 2010) (same) (McKeown, J., sitting by designation); Lee v. Mitchell, 2012 U.S. Dist. LEXIS 83503 (C.D. Cal. May 1, 2012) (same).

(3) Relief from Procedural Default

As the Dixon rule is an independent and adequate state ground, Petitioner's claims seven through sixteen are deemed procedurally defaulted unless Petitioner can show cause for the default and actual prejudice as a result of the alleged violation of federal law or that failure to consider the claims will result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750. Petitioner makes no argument to overcome this procedural default. Accordingly, Petitioner's claims seven through sixteen are denied as procedurally defaulted.

5. Claim 1 — Ineffective Assistance: Failure to Investigate

Petitioner claims that trial counsel was ineffective for failing to investigate in preparation for trial. (1st Am. Pet. at 25.) Specifically, Petitioner asserts that despite telling counsel that witnesses were not telling the truth and providing counsel a list of witnesses, counsel failed to interview relevant witnesses. (Id. at 31-32.)

Counsel has a general duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Strickland, 466 U.S. at 691; Avila v. Galaza, 297 F.3d 911, 924 (9th Cir. 2002); Hendricks v. Calderon, 70 F.3d 1032, 1035 (9th Cir. 1995) (counsel is required to conduct a reasonable investigation enabling him to make informed decisions). Where an attorney has consciously decided not to conduct further investigation because of reasonable tactical evaluations, counsel's performance is not constitutionally deficient. Leavitt v. Arave, 646 F.3d 605, 609 (9th Cir. Idaho 2011); see also Cullen v. Pinholster, 131 S.Ct. 1388, 1406-07 (2011). And "[a] decision not to investigate thus `must be directly assessed for reasonableness in all the circumstances.'" Wiggins v. Smith, 539 U.S. 510, 533 (2003) (quoting Strickland, 466 U.S. at 691); Babbitt, 151 F.3d at 1173-74. The reasonableness of counsel's conduct must be examined "as of the time of counsel's conduct." Strickland, 466 U.S. at 690.

Petitioner's complaints were addressed in his January 10, 2005 Marsden hearing. (See Pet., Ex. C.) First, with regard to the 1992 incident, trial counsel, Mr. Boyce, explained that he and his investigator went to Bodfish and talked to the children whom Petitioner claimed were allegedly present during the incident and counsel concluded that they were "worthless" to the defense. (Id. at 321-22.) Second, as to Victoria, trial counsel confirmed that he and his investigator had repeatedly talked to all of the children except for Victoria because neither the defense nor the prosecution could find her despite their best efforts. (Id. at 320, 324-25; see also Pet., Ex. E, at 605-09 (discussion of counsel's difficulties in locating Victoria); Lodged Doc. 3, at 605-09, 1504-05 (confirmation that the prosecution and defense were actively looking for Victoria).) Third, as to Petitioner's employer, counsel determined that he did not have to track down and exhaust the entire list of truckers at Petitioner's company because his investigations indicated that matters in dispute did in fact happen. (Pet. Ex. C, at 323.)

In general, counsel was frustrated during discovery as after performing discovery and questioning defendant regarding critical facts, defendant was uncooperative. For example, counsel explained at the Marsden hearing that he was getting the "runaround" by his client:

(Pet. Ex. C, at 322-23.)

At the conclusion of the lengthy hearing, the court found:

(Id. at 336.)

The state court's determination that counsel conducted a reasonable investigation and was providing Petitioner good representation appears reasonable in light of the testimony of counsel and Petitioner at the Marsden hearing. Here there is no opinion from the state court regarding the present claim. However, determining whether a state court's decision resulted from an unreasonable legal or factual conclusion, "does not require that there be an opinion from the state court explaining the state court's reasoning." Harrington, 131 S. Ct. at 784-85. "Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Id. Here, the state court's decision to deny Petitioner's claim of ineffective assistance of counsel was reasonable. Petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result ... would have been different." Strickland, 466 U.S. at 694. While Petitioner believes that counsel did not perform a thorough enough investigation, trial counsel did interview many witnesses and described why he thought that is was not worthwhile to interview others. It is not reasonable to believe that had counsel continued to do further discovery, he could have presented the jury with facts that would result in a different decision. The state court's rejection of the claim was neither contrary to nor an unreasonable application of Strickland. See Harrington, 131 S. Ct. at 785-86. Petitioner's claim of ineffective assistance of counsel is without merit.

6. Claim 2 — Ineffective Assistance: Conflict of Interest

Next, Petitioner contends that his trial attorney had a conflict of interest based on: 1) his dislike of Petitioner; 2) counsel "worked for the Alternative Defense Office which is part of Barker and Associates" and these organizations previously represented witnesses who were members of Kayla's family; and 3) counsel said he liked the victim L.J. (1st. Am. Pet. at 33.)

"In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). The mere possibility of a conflict, however, is insufficient. Id.; Mickens v. Taylor, 535 U.S. 162, 173 (2002). The Ninth Circuit has found that the Sixth Amendment is not violated "when a defendant is represented by a lawyer free of actual conflicts of interest, but with whom the defendant refuses to cooperate because of dislike or distrust. Plumlee v. Masto, 512 F.3d 1204, 1211 (9th Cir. 2008). In the absence of any record evidence as to the existence of an actual conflict of interest, a district court is correct to reject a claim of conflict. Morris v. California, 966 F.2d 448, 456 (9th Cir. 1992).

Here, Petitioner merely complains that his trial attorney, did not "like" him, was associated with attorneys who had represented members of Kayla's family, and said he liked L.J. Counsel had no obligation to like his client; he just has to provide effective representation that is free of an actual conflict that adversely affects his performance. The superior court expressly found at the Marsden hearing that counsel was providing "very good representation." (Pet., Ex. C at 326.) Furthermore, Petitioner has failed to prove, through a factual showing on the record, that any alleged conflict adversely affected counsel's performance. Petitioner contends that there was a conflict based on the Alternative Defense Office where counsel worked also representing members of Kayla's family, but has not described what testimony the witnesses would have provided had counsel presented them at trial as they were not direct witnesses to the crime. Finally, as to L.J., counsel explained:

(Pet., Ex. C at 224-25.) It appears, even though Counsel described L.J. as a "good kid," he interviewed L.J. several times, and was provided consistent testimony regarding Petitioner's conduct. The Court does not observe that actual conflict of interest adversely affected counsel's performance. Counsel performed significant investigation, and Petitioner has not shown that his investigation was hindered or affected by a direct conflict of interest. The state court's rejection of the claim was neither contrary to nor an unreasonable application of Federal law. Petitioner's claim of ineffective assistance of counsel based on conflict of interest is without merit.

7. Claim 3 — Ineffective Assistance: Failure to Call Witnesses

Petitioner contends that "trial counsel was ineffective in calling and subpoenaing witnesses critical to the defense and expert witnesses." (1st Am. Pet. at 25, 24-37.) Petitioner presents several arguments regarding counsel's failure to: 1) use police reports, 2) subpoena witnesses from the 1992 incident, 3) investigate that Petitioner was physically unable to reach behind him and rub Kayla, 4) show that all of Petitioner's neighbors knew he was a sex offender, 5) establish that the victims' families were on probation or parole, 6) use Kayla's mother's letters, 7) use information that Kayla's mother was arrested for refusing to have Kayla talk to the prosecutor, 8) show that Kayla's sister was also arrested, and 9) show that Petitioner had reported L.J.'s family. (Id.)

As described above, counsel was reasonably diligent in conducting an investigation to determine how best to present a defense. In presenting the defense, despite Petitioner's disagreement regarding the strategy used, counsel made strategic decisions within the "wide range of professionally competent assistance." Strickland, 466 U.S. at 688, 690. "There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." Id. at 689. After thoroughly investigating the case, counsel made reasonable decisions as to which evidence and witnesses to use in his defense. These decisions resulted in Petitioner being acquitted of count I and the jury being deadlocked on counts IV, V and VI. (See Lod. Doc. 1, at 305, 311.) Petitioner's "disagreement with counsel's tactical decisions does not provide the basis for declaring that the representation was constitutionally deficient." Raley v. Ylst, 470 F.3d 792, 799 (9th Cir. 2006). The state court's rejection of the claim was neither contrary to nor an unreasonable application of Strickland. See Harrington, 131 S. Ct. at 785-86. Petitioner's claim of ineffective assistance of counsel is without merit.

8. Claim 4 — Ineffective Assistance: Chronic Standard

Petitioner appears to argue that the presumed prejudice standard set forth in United States v. Cronic, 466 U.S. 648 (1984) should apply because counsel "helped convict" Petitioner and failed to defend him as discussed in Petitioner's other claims of ineffective assistance of counsel. (1st Am. Pet. at 26, 38-39.) Petitioner's claim is without merit.

The Supreme Court has identified three situations in which prejudice may be presumed:

Bell v. Cone, 535 U.S. 685, 695-96 (2002).

Here, none of the three situations described by the Supreme Court apply to the instant case. First, Petitioner was plainly afforded counsel. Second, counsel did not entirely fail to subject the prosecution to meaningful adversarial testing. Indeed, he cross-examined each of the prosecution witnesses. (See Lodged Doc. 3, at 1521, 1548, 1555, 1575, 1621, 1635, 1648, 1666, 1710, 1786, 1826.) Thereafter, he presented the testimony of twelve witnesses. (Lodged Doc. 3, at 1838, 1851, 1860, 1866, 1924, 1965, 1997, —, 2027, 2038, 2040, 2046, 2062, 2115.) Third, the instant case does not at all resemble the circumstances set forth in Powell v. Alabama, 287 U.S. 45 (1932). Extraordinary circumstances do not exist that would call into question trial counsel's conduct. The state court's rejection of the claim was neither contrary to nor an unreasonable application of federal law. Petitioner's claim of ineffective assistance of counsel is without merit.

9. Claim 5 — Ineffective Assistance: Appellate Counsel

Petitioner's fifth claim of ineffective assistance of counsel is that appellate counsel was ineffective for failing to raise claims regarding the effectiveness of trial counsel. (1st Am. Pet. At 26, 40.) Instead, appellate counsel focused on Petitioner's lack of intent to aid or abet in the commission of the crime.

Where the challenge is to the effective assistance of appellate counsel, the Strickland standard apply in the same manner as claims of ineffective assistance of trial counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000). Moreover, in Smith, the United States Supreme Court indicated that an appellate attorney filing a merits brief need not and should not raise every non-frivolous claim. Smith v. Robbins, 528 U.S. at 288. Rather, an attorney may select from among them in order to maximize the likelihood of success on appeal. Id. To establish ineffectiveness of appellate counsel, the petitioner must demonstrate that "a particular nonfrivolous issue was clearly stronger than issues that counsel did present." Id. This is so because appellate counsel has no constitutional obligation to raise every non-frivolous issue "but rather may select from among them in order to maximize the likelihood of success on appeal." Id.; Jones v. Barnes, 463 U.S. 745, 751 (1983). Indeed, the Supreme Court recognized that "since time beyond memory" experienced advocates "have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Jones, 463 U.S. at 751-52; Pollard v. White, 119 F.3d 1430, 1435 (9th Cir. 1997) (a "hallmark of effective appellate counsel" is to avoid "throwing in a kitchen sink full of arguments with the hope that some argument will persuade the court.").

Counsel need not appeal every possible question of law at the risk of being found to be ineffective. Gustave v. United States, 627 F.2d 901, 906 (9th Cir. 1980). The exercise of judgment in framing issues on appeal makes it "difficult to demonstrate that [appellate] counsel was incompetent under Strickland for omitting a particular argument." Smith, 528 U.S. at 288. In this case, appellate counsel made a reasonable tactical decision to raise the three claims he asserted on appeal. Further appellate counsel did raise a claim of ineffective assistance of counsel for failing to object to hearsay statements. Appellate counsel had no obligation to raise every issue regarding trial counsel's conduct that Petitioner now asserts.

Based on the foregoing, the Court finds that Petitioner has failed to show either deficient performance or prejudice. Accordingly, the Court finds that the state court's rejection of Petitioner's claim was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court. Thus, habeas relief is not warranted on this claim.

V. RECOMMENDATION

Accordingly, it is hereby recommended that the petition for a writ of habeas corpus be DENIED with prejudice. It is further recommended that the Clerk of Court be directed to enter judgment.

This Findings and Recommendation is submitted to the assigned District Judge, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with the Findings and Recommendation, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." Any reply to the objections shall be served and filed within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.