ORDER AND FINDINGS AND RECOMMENDATIONS

ALLISON CLAIRE, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. This case proceeds on the original petition, ECF No. 1. Respondent has answered, ECF No. 15, and petitioner has filed a traverse. ECF No. 18. For the reasons set forth below, the undersigned recommends that the petition be denied without an evidentiary hearing.

I. Procedural Background

On March 16, 2006, petitioner was convicted by a jury in Solano County Superior Court of three counts of committing a lewd act upon a child under the age of 14, one count of aggravated sexual assault of a child, and indecent exposure. I CT 252-257 (verdict forms). The two victims were petitioner's son and daughter. Petitioner was sentenced to thirty years to life. II CT 361-3641 (Abstract of Judgment); VIII RT 1721-1723.2

Following his conviction, petitioner filed a direct appeal with the California Court of Appeal raising two of the same claims presented in the instant federal habeas petition. Petitioner challenged the trial court's admission of the recorded interview of one of the victims as well as the sufficiency of the evidence supporting his conviction under section California Penal Code § 288(a). Compare ECF No. 1 at 60-71 (direct appeal opinion) with ECF No. 1 at 4-6 (identifying federal habeas claims).3 On July 30, 2008, the California Court of Appeal affirmed petitioner's convictions. See People v. Fowler, 2008 WL 2917093 (Cal. App. July 30, 2008) (unpublished). The California Supreme Court denied his petition for review on October 28, 2008. ECF No. 1 at 73; ECF No. 15-2, Ex. 4.

On January 5, 2010, petitioner filed a state habeas petition in the Solano County Superior Court raising the remaining six claims presented in the instant federal habeas petition.4 Petitioner raised allegations of jury misconduct, a Brady violation, prosecutorial misconduct, the trial court's abuse of discretion, and ineffective assistance of both trial and appellate counsel. The only two claims denied on the merits were petitioner's allegations that appellate counsel was ineffective and that trial counsel was ineffective for failing to investigate matters that were not discovered until after trial. ECF No. 1 at 322. The Superior Court found that appellate counsel's performance was not objectively unreasonable and that petitioner failed to establish that trial counsel "could have conducted an investigation prior to or during trial." Id. The court further found that petitioner's claims concerning jury misconduct, a Brady violation, prosecutorial misconduct, the trial court's abuse of discretion, Blakely error, and trial counsel's failure to file a writ of prohibition/mandate were procedurally barred because they should have been raised on direct appeal since they all "involve[d] matters on the record. . . ." ECF No. 1 at 321-322 (citing In re Dixon, 41 Cal.2d 756, 759 (1953)). The remaining ineffective assistance of trial counsel claims failed to state a prima facie case for relief. Id. at 322 (citing People v. Duvall, 9 Cal.4th 464, 474 (1995)).

Next petitioner filed a state habeas corpus petition in the California Court of Appeal which was denied, in a postcard denial with no citation to authority, on May 24, 2010. ECF No. 1 at 324. The California Supreme Court denied petitioner's habeas corpus application in a postcard denial without citation to authority on March 16, 2011.5 ECF No. 15-2, Ex. 5.

Petitioner filed the instant federal habeas corpus petition on April 5, 2011 raising the following grounds for relief: (1) a sufficiency challenge to the evidence supporting the conviction in count 1 for committing a lewd act upon a child; (2) juror misconduct; (3) a due process violation based on the prosecution's suppression of favorable evidence (i.e. a "Brady"6 violation); (4) prosecutorial misconduct; (5) the trial court's abuse of discretion; (6) ineffective assistance of trial counsel; (7) ineffective assistance of appellate counsel; and (8) a Confrontation Clause challenge to the admission of the victim's pretrial recorded statements.7 ECF No.1 at 4-6.8

II. Factual Background

Petitioner expressly adopts the statement of facts as set forth by the California Court of Appeal, stating that any caveats are noted. ECF No. 1 at 9.9

People v. Fowler, A115550, 2008 WL 2917093 at *1-*4 (Cal. Ct. App. July 30, 2008) (unpub.).

III. Standards of Review

In order to determine the appropriate standard of review, the court looks to the last reasoned state court decision on each of petitioner's claims for relief. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004); Ylst v. Nunnemaker, 501 U.S. 797 (1991). While respondent completely fails to identify the last reasoned state court opinion adjudicating any of petitioner's claims, the court has determined that the California Court of Appeal decision is the last reasoned state opinion regarding those claims raised on direct appeal. The Solano Superior Court's denial of state habeas relief constitutes the last reasoned state court opinion on the claims raised on state habeas.

A. De Novo Review

In Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011), the Supreme Court stated that "[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Likewise, in Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013), the Court concluded that "[w]hen a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits — but that presumption can in some limited circumstances be rebutted." However, when it is clear that a state court did not reach the merits of petitioner's constitutional claim, de novo review is appropriate because there is simply nothing to which a federal court could defer under the AEDPA. See Cone v. Bell, 556 U.S. 449, 472 (2009). That is the case where, for example, a claim is denied on the exclusive basis of a state procedural rule. Id. at 464-66, 472.10

In the instant case, as noted above, the superior court denied the following claims on purely procedural grounds: juror misconduct; prosecutorial misconduct, including Brady; trial court's abuse of discretion; and a single instance of ineffective assistance of trial counsel. The higher state courts are presumed to have adopted this basis for decision. Ylst, 501 U.S. 797. No state court adjudicated those issues on the merits. Accordingly, these claims must be reviewed here de novo.

B. Review Under the AEDPA

The remaining claims for relief are governed by the AEDPA. 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides in relevant part as follows:

Section 2254(d) constitutes a "constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus." Williams v. Taylor, 529 U.S. 362, 412 (2000). It does not, however, "imply abandonment or abdication of judicial review," or "by definition preclude relief." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). If either prong (d)(1) or (d)(2) is satisfied, the federal court may grant relief based on a de novo finding of constitutional error. See Frantz v. Hazey, 533 F.3d 724, 736 (9th Cir. 2008) (en banc).

A state court decision is "contrary to" clearly established federal law if the decision "contradicts the governing law set forth in [the Supreme Court's] cases." Williams, 529 U.S. at 405. This includes use of the wrong legal rule or analytical framework. "The addition, deletion, or alteration of a factor in a test established by the Supreme Court also constitutes a failure to apply controlling Supreme Court law under the `contrary to' clause of the AEDPA." Benn v. Lambert, 283 F.3d 1040, 1051 n.5 (9th Cir. 2002).

A state court decision "unreasonably applies" federal law "if the state court identifies the correct rule from [the Supreme Court's] cases but unreasonably applies it to the facts of the particular state prisoner's case." Williams, 529 U.S. at 407-08. It is not enough that the state court was incorrect in the view of the federal habeas court; the state court decision must be objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). State court decisions can be objectively unreasonable when they interpret Supreme Court precedent too restrictively, when they fail to give appropriate consideration and weight to the full body of available evidence, and when they proceed on the basis of factual error. See, e.g., Williams, 529 U.S. at 397-98; Wiggins, 539 U.S. at 526-28 & 534; Rompilla v. Beard, 545 U.S. 374, 388-909 (2005); Porter v. McCollum, 130 S.Ct. 447, 454 (2009).

The phrase "clearly established Federal law" in § 2254(d)(1) refers to the "governing legal principle or principles" previously articulated by the Supreme Court. Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Only Supreme Court precedent may constitute "clearly established Federal law," but circuit law has persuasive value regarding what law is "clearly established" and what constitutes "unreasonable application" of that law. Duchaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000); Robinson v. Ignacio, 360 F.3d 1044, 1057 (9th Cir. 2004).

Relief is also available under AEDPA where the state court predicates its adjudication of a claim on an unreasonable factual determination. Section 2254(d)(2). The statute explicitly limits this inquiry to the evidence that was before the state court. Even factual determinations that are generally accorded heightened deference, such as credibility findings, are subject to scrutiny for objective reasonableness under § 2254(d)(2). See, e.g., Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (rejecting credibility finding as unreasonable in light of the evidence before the state court).

Where the state court's adjudication is set forth in a reasoned opinion, § 2254(d)(1) review is confined to "the state court's actual reasoning" and "actual analysis." Frantz, 533 F.3d at 738 (emphasis in original). A different rule applies where the state court rejects claims summarily, without a reasoned opinion. In Richter, supra, the Supreme Court held that when a state court denies a claim on the merits but without a reasoned opinion, the federal habeas court must determine what arguments or theories may have supported the state court's decision, and subject those arguments or theories to § 2254(d) scrutiny. Richter, 131 S. Ct. at 786.

In this case, the California Court of Appeal denied petitioner's constitutional challenge to the admission of the victim's pretrial statements, and the sufficiency of the evidence supporting count one, in a reasoned opinion on direct appeal. See ECF No. 1 at 60-71 (direct appeal opinion). Therefore, these claims are reviewed under AEDPA's deferential standard. The Solano County Superior Court also denied relief in a reasoned, albeit terse, opinion rejecting petitioner's claim that trial counsel failed to investigate matters that were not discovered until after trial and his ineffective assistance of appellate counsel claims. See ECF No. 1 at 322. This court will therefore determine whether the Superior Court's determination was contrary to or an unreasonable application of clearly established federal law.

The last reasoned state court opinion denying petitioner's remaining two ineffective assistance of trial counsel claims summarily denied relief, without a reasoned opinion, but with citation to People v. Duvall, 9 Cal.4th 464, 474 (1995). ECF No. 1 at 322. This citation indicates that the petition was denied for failure to allege facts that were sufficient to state a claim. Duvall, 9 Cal.4th at 474 (discussing petitioner's "initial burden of pleading adequate grounds for relief"); Pinholster, 131 S. Ct. at 1402 n. 12 (recognizing that California summary denial indicates failure to state a prima facie case, citing Duvall). Accordingly, the determination this court must review for objective reasonableness under § 2254(d)(1) is the state court's holding that petitioner failed to state a prima facie case of a constitutional violation. See Nunes v. Mueller, 350 F.3d 1045, 1054-55 (9th Cir. 2003), cert. denied, 543 U.S. 1038 (2004).

IV. Insufficient Evidence to Support Conviction on Count 1

Because petitioner's claim of insufficient evidence constitutes a running theme in the petition as well as a discrete claim for relief, and because analysis of several other claims requires consideration of the trial evidence as a whole, the court addresses this claim first. The evidence presented at petitioner's trial regarding the sexual abuse charges is detailed above. At trial the children also testified that they had been physically abused in the home of Angelica and Paul De Lima, the aunt and uncle with whom they lived after the alleged sexual abuse by petitioner.11 At trial the defense argued that the testimony regarding abuse by the De Limas was false, and reflected adversely on the children's credibility. In habeas, petitioner contends that Paul De Lima did abuse the children, sexually as well as physically, and that this fact is exculpatory as to petitioner.

A. Petitioner's Allegations

Petitioner challenges the sufficiency of the evidence supporting his conviction on Count I, arguing that the record is devoid of any evidence that he compelled J. to touch her vagina because she could not recall this at trial.

B. Standard Applicable on Habeas Review

As explained more fully above, this claim was adjudicated on direct appeal and thus AEDPA deference applies.

C. Clearly Established Law Standard Governing Sufficiency Challenges

The prosecution in a criminal case has the burden of proving each and every element of the crime charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a conviction if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); Juan H. v. Allen, 408 F.3d 1262, 1274, 1275 & n.13 (9th Cir. 2005). In order to grant a writ of habeas corpus under AEDPA, the court must find that the decision of the state court reflected an objectively unreasonable application of Jackson and Winship to the facts of the case. Juan H, 408 F.3d at 1274. The federal habeas court determines the sufficiency of the evidence in reference to the substantive elements of the criminal offense as defined by state law. Jackson, 443 U.S. at 324 n.16; Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004).

D. Analysis

On direct appeal, the state court rejected this claim by finding that "D's testimony is substantial evidence that defendant forced J. to touch herself." See ECF No. 1 at 69-70. It pointed out that during his interview at the Rainbow Center, D. indicated that his sister told him that petitioner forced her to "play with her private." Id. At trial, D. testified that he wasn't sure, but he still thought that his sister had been forced to touch her private part by petitioner. Id. Although J. did not report this particular form of abuse to an adult, describe it during the videotaped interview, or testify to it at trial, D.'s testimony was sufficient under California law to establish that defendant violated Penal Code § 288(a) by (1) willfully caused J. to touch her own body; (2) with the intent of arousing, appealing to or gratifying the lust, passions, or sexual desires of himself or the child; and (3) that J. was under the age of 14 at the time of the crime.

Here, petitioner's challenge to the sufficiency of the evidence boils down to a credibility assessment of D.'s testimony, which petitioner concedes in his traverse. ECF No. 18 at 5. However, a jury's credibility determination is not subject to re-litigation during post-conviction proceedings. Schlup v. Delo, 513 U.S. 298, 330 (1995) ("under Jackson, the assessment of the credibility of witnesses is generally beyond the scope of review."). The state court held that "[a]lthough brief, D.'s testimony is substantial evidence that defendant forced J. to touch herself." ECF No. 1 at 70. This conclusion is not unreasonable in light of clearly established federal law.

To the extent petitioner means to argue that D.'s testimony on this issue is fatally unreliable and therefore insufficient to support the verdict because of its hearsay nature, this presents a federal constitutional question only to the degree that the Confrontation Clause is implicated. As the court discusses more fully below regarding petitioner's challenge to admission of the videotapes, there is no confrontation problem where the declarant is present and testifies. Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004). Both children were present and testified, and were subject to examination regarding the fact, contents, and meaning of alleged prior statements. Accordingly, there was no constitutional prohibition on the jury's consideration of D.'s testimony. Any errors of state law in the admission of the children's pretrial statements, as prior inconsistent statements or on other grounds, do not state cognizable claims for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[W]e have repeatedly held that `it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.'").

In sum, petitioner does not contend that there was no evidence provided by D. on this issue, he merely challenges the weight which the jury accorded it. This court will not reweigh a jury's credibility assessment from a cold record. Therefore, state court's application of the Jackson standard was not objectively unreasonable in light of the jury's determination that D.'s testimony was credible.

V. Juror Misconduct

A. Petitioner's Allegations

Petitioner raises three sub-claims involving juror misconduct. The first sub-claim is based on alleged inappropriate interaction between a Juror No. 12 and the bailiff. Secondly, petitioner alleges that he was prejudiced by the trial court's failure to remove Juror No. 4. Lastly, petitioner claims that some jurors determined he was guilty before the case was submitted to them, thereby engaging in premature deliberations. According to petitioner, the trial court's failure to hold an evidentiary hearing on these issues further denied him a fair trial. ECF No. 1 at 20-22.

1. Sub-Claim #1: Inappropriate Interaction Between the Bailiff and Juror No. 12

Petitioner first contends that a member of the jury interacted inappropriately with the bailiff, the circumstances of which are set forth in a letter petitioner wrote to the trial judge. ECF No. 1 at 226. In the letter, petitioner claims that the bailiff allowed the jury foreperson, Victoria Walters, to call the jury and to have a junior deputy badge, and that petitioner heard Ms. Walters state that she had brought the bailiff sandwiches. ECF No. 1 at 9, 225-226.

2. Sub-Claim #2: Alleged Bias of Juror No. 4

Juror No. 5 was removed during trial after making inappropriate case-related comments to Juror No. 4. Petitioner challenges the trial court's failure to also remove Juror No. 4.

On the morning of February 28, 2006, after the jury had heard two days of testimony, Juror No. 4 submitted a note informing court that another juror had discussed the case with him during a recess. IV RT at 623-634. Juror No. 4 informed the trial court that the other juror had stated: "Like my daddy used to say, it's a shame a girl's got to be deflowered, but somebody has got to do it." IV RT at 625. In response, Juror No. 4 just walked away. Id. Following this disclosure, the trial judge briefly questioned Juror No. 4. Juror No. 4 identified the juror who made the statement as Juror No. 5, and stated that no other juror had been present when the statement was made. Id. at 624-26. No counsel sought to ask questions of Juror No. 4 after the trial court had questioned him. Id.

The court then separately questioned Juror No. 5 who admitted to having made a remark "to that effect." IV RT at 626-630. When the trial judge reminded him that jurors had been advised not to make any comment or express any opinion "on any subject matter touching this trial," Juror No. 5 stated that he had been "just trying to make a joke," conceding that "it was in poor taste." Id. at 627. Juror No. 5 also stated that he had prefaced the remark by commenting that he had "never heard that much information about hymens before in my life," referring to lengthy testimony on the subject ("almost eight hours about genitalia and female anatomy"). Id. at 626-27. He explained that he thought the "joke" about "deflowering virgins" was "appropriate" in that context. Id. at 627. Juror No. 5 insisted he had not made a decision in the case yet, and was "still listening to all the evidence." Id. at 630.

Defense counsel requested that Juror No. 5 be removed because his joke indicated he did not take the matter seriously; the juror had initially indicated that he had formed an opinion about the case; and because he might have some animosity about having been singled out and questioned. IV RT at 631-32. The prosecutor did not seek removal of Juror No. 5 because she felt his answers to the questioning had been "forthright and honest in details," and because he had not yet formed an opinion as to the facts of the case. Id. at 631. Ultimately, the trial court decided to replace Juror No. 5 with an alternate, finding his comment "appalling," and suggesting that Juror No. 5 had begun to form an opinion about whether there had been trauma or damage to the victim's hymen. Id. at 632. The court was also concerned that Juror No. 5 would likely know who had reported his comment. Id. at 632-33.

There was no request by either counsel to remove Juror No. 4. IV RT 623-634. Petitioner, however, argues that the removal of Juror No. 5 did not eliminate the prejudice because Juror No. 4 was "fully privy to the misconduct" and thereby also tainted. ECF No. 1 at 10, 20. Petitioner argues that Juror No. 4 implied the interaction involved only a quick comment, but Juror No. 5 revealed during the hearing that "it was an explicit and detailed joke directly relating to the evidence presented at that point in the trial." Id. (citing [IV] RT 624-634). Due to this single discrepancy, petitioner argues that the trial court erred in failing to sua sponte remove Juror No. 4.

3. Sub-Claim #3: Pre-Deliberation Discussions of Guilt

In his third sub-claim, petitioner submits an affidavit from his mother, Carol Gadow, alleging that several jurors engaged in premature deliberations. At the sentencing hearing, petitioner's mother spoke with a juror who indicated that members of the jury had been discussing petitioner's "`guilt' well before the evidence was submitted to them and well before the defense had even begun to present its case." ECF No. 1 at 10, 121-22. Juror Prenton told her "that some of the jurors" thought petitioner "was guilty" based on the nature of the charges even before they saw the videotapes. Id. at 121-122.

B. Standard Applicable to Habeas Review

Because the state court denied this claim on procedural grounds and did not reach the merits, AEDAP standards do not apply and this court will conduct a de novo review.

C. Governing Legal Principles: Juror Misconduct

The Sixth Amendment guarantees a criminal defendant a fair trial by a panel of impartial, indifferent jurors. Irvin v. Dowd, 366 U.S. 717, 722 (1961); Tinsley v. Borg, 895 F.2d 520, 523 (9th Cir.1990). An unbiased jury is a basic requirement of due process. In re Murchison, 349 U.S. 133, 136 (1955). A single juror's improperly influenced vote deprives a defendant of an unprejudiced, unanimous jury. See Parker v. Gladden, 385 U.S. 363, 366 (1966).

Impartiality, however, does not require a lack of any preconceptions about the defendant or the case. "To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard." Irvin, 366 U.S. at 723. A presumption of impartiality applies if jurors provide assurances that they can "lay aside [their] impression or opinion and render a verdict based on the evidence presented in court." Murphy v. Florida, 421 U.S. 794, 800 (1975). This presumption is overcome only where the defendant can demonstrate that a juror actually held a biased opinion, or that the community is so inflamed with prejudicial sentiment that a fair trial is impossible. Id. at 800-803.

Moreover, "not every incident of juror misconduct requires a new trial." United States v. Klee, 494 F.2d 394, 396 (9th Cir.1974). "The test is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial." Id. On collateral review, if misconduct has occurred, a petitioner must "show that the alleged error `had a substantial and injurious effect or influence in determining the jury's verdict.'" Jeffries v. Blodgett, 5 F.3d 1180, 1190 (9th Cir.1993) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).

D. Analysis

1. Interaction Between Bailiff and Juror No. 12

Petitioner's allegations concerning the interaction between Juror No. 12 and the bailiff do not rise to the level of juror misconduct. Indeed, petitioner does not explain how the interaction he alleges had any impact on the verdict in his case. This is not a situation where the bailiff made any statements concerning defendant's guilt or innocence, or even commented on the evidence presented at trial. Compare Parker v. Gladden, 385 U.S. 363, 364-65 (1966) (finding a bailiff's comment to at least one juror or alternate that the defendant was guilty violated the petitioner's Sixth Amendment right to confrontation and cross-examination); Dickson v. Sullivan, 849 F.2d 403, 405, 407 (9th Cir. 1988) (concluding that a deputy sheriff's pre-deliberation comment to two jurors that the defendant had "done something like this before" would lead rationally to the conclusion that defendant "had done `this' again."). This case is more akin to United States v. Smith, 424 F.3d 992 (9th Cir. 2005), where a month after the verdicts were returned a juror wrote a letter to a prosecution witness indicating a romantic interest. Id. at 1011-12. The district court did not hold an evidentiary hearing in Smith, and denied the motion for a new trial based on the alleged bias of the juror. Id. at 1012-13. The Ninth Circuit affirmed, noting that it was unlikely that the juror was trying to impress the prosecution witness by finding the defendants guilty. Id. at 1012. Here, there is nothing in the record demonstrating that the interactions concerned "the matter pending before the jury." Remmer, 347 U.S. at 229. Accordingly, the trial court did not err in failing to remove Juror No. 12 and the undersigned recommends denying relief on this claim.

2. Alleged Bias of Juror No. 4

The undersigned finds that petitioner was not prejudiced by the trial court's failure to remove Juror No. 4, because the circumstances do not support a finding that Juror 4 was biased. Juror No. 4 was on the receiving end of an offensive comment that he did not endorse in any way. Juror No. 4 simply walked away upon hearing the comment, and promptly reported it to the judge. He did not respond verbally to Juror No. 5 and did not act in any manner that would suggest that he was biased against petitioner. In fact, his response to the offensive remarks suggests that Juror No. 4 understood his duty to be impartial and not comment on the evidence prior to deliberating. Moreover, Juror No. 4's failure to separately detail Juror No. 5's comment about the extensive testimony regarding hymens does not indicate that he was influenced by that comment. Petitioner points to no facts or circumstances indicating "a reasonable possibility that the extrinsic material could have affected the verdict," such that he is entitled to a new trial based on this incident. United States v. Vasquez, 597 F.2d at 193. Therefore, this sub-claim should be denied.

3. Pre-Deliberation Discussions of Guilt

The trial court denied petitioner's motion for a new trial based on the alleged premature deliberations of several jurors, noting that no juror had provided a declaration supporting petitioner's mother's allegation of misconduct. VIII RT 1708-1709. The trial court also found that there was no way to determine when the alleged misconduct took place, observing that if the alleged comments had been made during deliberations, an inquiry would invade the deliberative process. Id. at 1709.

Petitioner concedes it is not mandatory for a trial court to hold an evidentiary hearing to ascertain whether allegations of juror misconduct are true or false. However, citing United States v. Navarro-Garcia, 926 F.2d 818, 823 (9th Cir. 1991), he argues that a trial court abuses its discretion when an evidentiary hearing regarding juror misconduct is denied simply because the evidence of misconduct is presented in the form of an affidavit containing hearsay.12 Petitioner argues that his mother's affidavit, like the declaration supporting an evidentiary hearing request in Navarro-Garcia, made a sufficient showing of misconduct that an evidentiary hearing should have been held. See ECF No. 1 at 20-21. Petitioner's argument presents two distinct grounds for relief: (1) the trial court's failure to conduct an evidentiary hearing; and (2) the separate and independent claim that reversal of his conviction is warranted, notwithstanding the failure to hold an evidentiary hearing, based on the jurors' premature deliberations. The court will review each subclaim in turn.

Although preferable, "[a]n evidentiary hearing is not mandated every time there is an allegation of jury misconduct or bias." United States v. Montes, 628 F.3d 1183, 1187 (9th Cir. 2011) (quoting United States v. Angulo, 4 F.3d 843 at 847 (9th Cir. 1993)). "Rather, in determining whether a hearing must be held, the court must consider the content of the allegations, the seriousness of the alleged misconduct or bias, and the credibility of the source." United States v. Smith, 424 F.3d at 1011. In this case, the undersigned does not find that the trial court erred in failing to conduct an evidentiary hearing. The type of misconduct alleged suggests that an evidentiary hearing was not necessary in this case. See Grotemeyer v. Hickman, 393 F.3d 871, 881 (9th Cir. 2004) (finding that "[b]ecause no impermissible extrinsic evidence was discussed, the state court did not act improperly by denying the motion for a new trial without holding an evidentiary hearing."). As the Ninth Circuit Court of Appeal has explained, premature jury deliberations "though not necessarily proper, . . . [are] not as serious as `private communication, contact, or tampering . . . with a juror during a trial [or] . . . influence of the press upon the jury,' nor does `every incident of juror misconduct require[ ] a new trial.'" Davis v. Woodford, 384 F.3d 628, 653 (9th Cir. 2004) (quoting United States v. Klee, 494 F.2d 394, 396 (9th Cir. 1974) (internal citations and quotation marks omitted), cert. dismissed sub nom. Davis v. Brown, 545 U.S. 1165 (2005)).

Here, in considering whether a hearing was required, the trial court also noted that there were no affidavits from any actual jurors supporting the allegations raised in petitioner's mother's affidavit. In this vein, the trial court appropriately considered the source of the information which was a member of petitioner's own family rather than a member of the Bar or an affected juror. See United States v. Smith, 424 F.3d at 1011. Furthermore, the declaration was specific only as to the time and place of the mother's communication with a juror and not regarding the actual substance of the juror's remarks. Accordingly, the factual content of the declaration was insufficient to warrant an evidentiary hearing. For all these reasons, the undersigned finds that the trial court's failure to hold an evidentiary hearing regarding juror misconduct was not erroneous. It certainly did not violate any of petitioner's constitutional rights.

As to the specific allegation of jury misconduct in violation of the Sixth Amendment, the most that petitioner's mother's affidavit establishes is that an unknown number of jurors expressed a pre-conceived notion of petitioner's guilt based on the specific charges involved. Even assuming the contents of the affidavit were admissible, the trial court's conclusion that additional testimony on the issue would have improperly invaded the thought processes of the jury was entirely correct. The same principles apply in this court, and would prevent further development of the facts. See United States v. Pimentel, 654 F.2d at 542 (stating that "[t]estimony of a juror concerning the motives of individual jurors and conduct during deliberations is not admissible."); see also Fed. R. Evid. 606(b). This case is similar to United States v. Davis, 960 F.2d at 828, in which the Ninth Circuit concluded on direct review that a juror's affidavit stating that he knew the defendant was guilty from the first day was insufficient to set aside a conviction based on juror misconduct. Here, petitioner has presented no evidence that any juror refused to set any preconceived notions aside and render a verdict based on the evidence as they were instructed to do. See Richardson v. Marsh, 481 U.S. 200, 206 (1987) (applying "the almost invariable assumption of the law that jurors follow their instructions"). Accordingly, the undersigned finds that there was no juror misconduct in petitioner's case and that this claim should be denied.13

VI. Brady Violation

A. Petitioner's Allegations

Petitioner's Brady claim is based on the prosecutor's failure to disclose Suisun City Police Report Number 04-3496. Even though petitioner still does not have access to this report, he asserts that it contains allegations that Eliseu Paulo De Lima, the victims' uncle and foster parent, physically and sexually abused them. Petitioner suggests in various pleadings that the victims' uncle was the true perpetrator of any sexual abuse that the victims suffered, and that the police report detailing his crimes was exculpatory evidence in petitioner's criminal case. Had the jury heard this evidence, petitioner maintains, it would have bolstered his argument that the claims against him were fabricated and would likely have changed the outcome.

B. Standard Applicable to Habeas Review

This claim also requires de novo review as the state court denied relief on procedural grounds and did not adjudicate the merits.

C. Applicable Legal Standard

A Brady violation has three components: "[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999); see also Banks v. Dretke, 540 U.S. 668, 691 (2004); Silva v. Brown, 416 F.3d 980, 985 (9th Cir. 2005). In order to establish prejudice, petitioner must demonstrate that "`there is a reasonable probability' that the result of the trial would have been different if the suppressed documents had been disclosed to the defense." Strickler, 527 U.S. at 289. "`The question is not whether the [petitioner] would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.'" Id. (quoting Kyles v. Whitley, 514 U.S. at 434). Once the materiality of the suppressed evidence is established, no further harmless error analysis is required. Kyles, 514 U.S. at 435-36; Silva, 416 F.3d at 986.

D. Analysis

Petitioner's claim fails for two reasons. First, petitioner has not demonstrated that the police report was actually suppressed by the prosecution in this case. Both the prosecutor and defense counsel became aware of the allegations against the uncle based on a limited release of information contained in the victims' mental health records that were subpoenaed by defense counsel. The record demonstrates that the prosecution told the court and defense counsel that she had requested police reports after the testimony about abuse by the uncle. V RT at 1028. Moreover, a letter that petitioner wrote to his trial attorney in March of 2006 indicated that both he and his attorney were aware during trial that there might be a police report concerning his children's claims of abuse by their uncle. ECF No. 1 at 11, 24, 235; ECF No. 18 at 4. In the 2006 letter, petitioner states he had been "under the impression" his counsel would follow up to obtain any such report. He then indicates that he has just learned the report number and asks that she obtain the document. Since counsel for the defense was at least aware of the existence of such a report during trial, it does not constitute suppressed evidence. "[I]f the means of obtaining the exculpatory evidence has been provided to the defense, the Brady claim fails." United States v. Dupuy, 760 F.2d 1492, 1502 n. 5 (9th Cir. 1985) (citing United States v. Shelton, 588 F.2d 1242, 1250 (9th Cir.1978)). "In the end," as Justice White has said, "any allegation of suppression boils down to an assessment of what the State knows at trial in comparison to the knowledge held by the defense." Dupuy, 760 F.2d at 1502 n. 5 (quoting Giles v. Maryland, 386 U.S. 66, 96 (1967) (White, J., concurring). In this instance, there is no evidence that the prosecution had any more information than defense counsel already had about the allegations of abuse by the victims' uncle.

Even assuming the police report was suppressed by the prosecution, there is no reasonable probability that the outcome of the trial would have changed had it been produced. See Strickler, 527 U.S. at 289. There was extensive cross-examination of the victims by defense counsel concerning their uncle's alleged physical abuse. See II RT at 267-287; 333-340; 343-344; 351-52. Dominick stated, among other things, that his uncle had choked and slapped him, had stapled him by his jacket sleeves to a garage door, and that he wanted his uncle to go to jail. II RT 267-287. Jessica testified that the abuse involved both her aunt and uncle, recounting alleged incidents of having been bruised by choking, kicking, punching and near-drowning. RT at 333. With this background in mind, it is difficult to discern how a police report regarding any such allegations would have assisted the defense. Evidence is material under Brady "`when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.'" Runningeagle v. Ryan, 686 F.3d 758, 769 (9th Cir. 2012) cert. denied, 133 S.Ct. 2766 (2013) (quoting Cone v. Bell, 556 U.S. 449, 469-70 (2009) (citing United States v. Bagley, 473 U.S. 667, 682 (1985)). Petitioner does not demonstrate that the children's unsubstantiated claims against their uncle would have undermined their separate and distinct allegations against petitioner, which involved acts that occurred during an earlier time period.

For these two separate and distinct reasons, the undersigned recommends denying petitioner's Brady claim.

VII. Other Prosecutorial Misconduct

A. Petitioner next contends that the prosecutor engaged in misconduct based on her improper cross-examination of witness Angelica De Lima as well as her improper closing argument. ECF No. 1 at 11-12, 25-26.

1. Improper Questions to Witness De Lima

Petitioner first faults the prosecutor in her efforts to impeach defense witness Angelica De Lima, the children's aunt, by using what petitioner characterizes as false evidence.14 This false evidence was a police report involving a complaint of domestic abuse made by Angelica De Lima against Paul De Lima in Napa, California in 2000. Petitioner argues that the prosecutor did not have a good faith basis to ask about this domestic violence report because it was not in the husband's full name of Eliseu Paulo De Lima and contained a different date of birth. ECF No. 1 at 11-12, 25-26; V RT at 857-858 (cross-examination by prosecutor); V RT 1026-1031 (objection by defense); V RT 1029-30 (trial court's ruling); VIII RT 1522-1529 (defense objection to curative instruction).

A review of the record indicates that the prosecutor had the following exchange with Ms. De Lima during her cross-examination of the witness:

V RT 857:8-25.

Defense counsel requested that the jury be instructed that there had been no report of physical abuse by Angelica De Lima against her husband Paul. V RT 1027:3-5. The trial court denied the motion since the jury is instructed that "questions are not evidence . . . [and] the only purpose . . . to consider the question, is as it gives meaning to the answer." V RT 1029:16-19. The trial court noted that the full names of the two individuals were different, but he observed that both went by "Paul" and they both lived in the Napa area at the time of the report. V RT 1030:2-8. On this basis, the trial court found that the prosecutor did have a good faith basis for asking Ms. De Lima about the domestic violence report. Id. Later in trial, the court confirmed that it did not find the question was asked in bad faith, that a mistrial was unwarranted even if a higher court should determine the question to be improper, and that the matter could be "easily cured." VII RT 1254. During a conference on the final jury instructions, the trial court offered to provide a pinpoint cautionary instruction after the general jury instruction that questions asked by lawyers are not evidence. VIII RT at 1525-29. However, defense counsel objected to such a specific curative instruction so it was not given to the jury. Id.

2. Improper Argument

Petitioner next claims that the prosecutor misstated facts in closing argument by stating (1) that defense counsel had said the complaining witness had been penetrated; (2) that the defense expert witness, Dr. Kania, had testified that one should do as many interviews as it takes with a child victim; and (3) that no one knows how D. was hurt while living with Mr. and Mrs. De Lima, when the prosecution knew or ought to have known about the Suisun Police report involving physical and sexual abuse. ECF No. 1 at 12, 25-26.15 The trial judge overruled defense objections to the argument and found that the prosecution had made a "legitimate comment on the evidence." VIII RT 1645:16-22.

B. Standard Applicable on Habeas Review

This court will apply a de novo standard of review because the state court denied the prosecutorial misconduct claims on procedural grounds and did not adjudicate the merits.

C. Legal Standard: Prosecutorial Misconduct

Prosecutorial misconduct does not, per se, violate a petitioner's constitutional rights. Jeffries v. Blodgett, 5 F.3d 1180, 1191 (9th Cir. 1993) (citing Darden v. Wainwright, 477 U.S. 168, 181 (1986), and Campbell v. Kincheloe, 829 F.2d 1453, 1457 (9th Cir. 1987)). Rather, claims of prosecutorial misconduct are reviewed "`on the merits, examining the entire proceedings to determine whether the prosecutor's [actions] so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995); see also Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); Turner v. Calderon, 281 F.3d 851, 868 (9th Cir. 2002). Relief is limited to cases in which the petitioner can establish that prosecutorial misconduct resulted in actual prejudice. Johnson, 63 F.3d at 930 (citing Brecht v. Abrahamson, 507 U.S. at 637-38; see also Darden, 477 U.S. at 181-83; Turner, 281 F.3d at 868. Put another way, prosecutorial misconduct violates due process when it has a substantial and injurious effect or influence in determining the jury's verdict. See Ortiz-Sandoval, 81 F.3d 891, 899 (9th Cir. 1996).

D. Analysis

1. Improper Questions to Witness De Lima

To begin with, the court notes that a prosecutor's improper questioning, in and of itself, is insufficient to warrant reversal of a conviction. Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998). Here, petitioner points to a single example of an improper question by the prosecutor in a month long jury trial to support his claim for relief. Such an isolated instance of misconduct, even assuming it constituted misconduct, does not rise to the level of a due process violation. "Where an allegedly improper question is an isolated or one-time incident, this Court consistently has refused to find a due process violation." Ortiz, 149 F.3d at 934. Furthermore, the undersigned finds that the isolated nature of the question establishes that any error did not have a substantial or injurious effect on the jury's verdict in light of the admonition given to the jury. See VIII RT 1538:1-9. Accordingly, this sub-claim should be denied.

2. Improper Argument

The examples of improper argument cited by petitioner, considered individually or cumulatively, do not rise to the level of establishing a due process violation when they are considered in the context in which they were made. Turner, 281 F.3d at 868; Sandoval v. Calderon, 241 F.3d 765, 778 (9th Cir. 2001). The first example cited by petitioner was not a mischaracterization of the evidence concerning whether the victim's hymen had been penetrated to support the rape count. The prosecutor's comment was immediately followed by the statement that "[w]e don't know how far it is, but we know it was sufficient to touch the hymen. So we know, according to the law, that any penetration, however slight, is penetration." VIII RT at 1630. Petitioner fails to demonstrate that this argument by the prosecutor amounts to misconduct once the entire statement is taken into consideration.

Likewise, the second example does not amount to misconduct when it is "evaluated in light of the defense argument that preceded it." See Darden v. Wainwright, 477 U.S. at 179. In her closing argument, defense counsel relied upon Dr. Kania's testimony that suggestive interview techniques were used on the children as one of the main theories of defense. VIII RT 1592-1599. Therefore, the prosecutor's comment on this testimony, and the reasonable inferences that could be drawn from it, was not improper. See United States v. Necoechea, 986 F.3d 1273, 1276 (9th Cir. 1993) (stating that prosecutors can argue reasonable inferences based on the evidence).

The third example of prosecutorial misconduct concerned the children's allegations of physical abuse by Paul De Lima. Defense counsel argued in closing that these allegations against Mr. De Lima were false and demonstrated that the victims were liars. VIII RT at 1617, 1622. In rebuttal, the prosecutor stated that "there is nothing to indicate that there are false accusations about Paul. We don't know what happened" in Paul and Angelica De Lima's house. VIII RT at 1655. To the extent that petitioner is attempting to argue that this statement amounted to a concession that Paul De Lima was the real abuser of the victims in this case, is not supported by the record. The allegations against Mr. De Lima that arose during petitioner's trial involved physical abuse of both children and not any sexual abuse. Furthermore, this alleged physical abuse occurred years after the charged sexual abuse by petitioner. Therefore, the prosecutor's statement in closing was a reasonable comment on the defense attorney's attack on the victims' credibility, and not an admission that petitioner was innocent. For this reason, the undersigned finds that there was no prosecutorial misconduct during closing argument.

Even when these statements are considered cumulatively, habeas relief is not warranted because the prosecutor's statements cannot be found to have `so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden, 477 U.S. at 181.

Accordingly, the undersigned therefore recommends that this claim be denied.

VIII. Ineffective Assistance of Trial Counsel

A. Petitioner's Allegations

Petitioner claims that his trial counsel rendered ineffective assistance by: (1) failing to bring a petition for writ of prohibition/mandate or a new trial motion to preclude evidence supporting an amended charge with a possible life sentence; (2) failing to investigate the Suisun City Police Report, No. 04-3496, alleging abuse of the victim by one or both De Limas; and, (3) failing to investigate the alleged recantation by petitioner's son, D. ECF No. 1 at 17-18; ECF No. 18 at 9-10.

B. Standard Applicable on Habeas Review

The first subclaim was not adjudicated on the merits in state court and therefore must be accorded de novo review. However, the last reasoned state court opinion rejecting petitioner's habeas corpus application found that petitioner failed to establish a prima facie case of ineffective assistance in relation to the second and third subclaims. See ECF No. 1 at 322 (Superior Court denial order) (citing People v. Duvall, 9 Cal.4th 464, 474 (1995) (discussing petitioner's "initial burden of pleading adequate grounds for relief")); see also Cullen v. Pinholster, 131 S.Ct. 1388, 1402 n. 12 (2011) (recognizing that pursuant to Duvall, a California summary denial indicates a failure to state a prima facie case). Accordingly, the determination this court must review for objective reasonableness under the AEDPA is the state court's holding that petitioner failed to state a prima facie case of a constitutional violation. See 28 U.C.C. § § 2254(d)(1); Nunes v. Mueller, 350 F.3d 1045, 1054-55 (9th Cir. 2003), cert. denied, 543 U.S. 1038 (2004).

C. Legal Standard: Ineffective Assistance of Counsel

To establish a constitutional violation based on ineffective assistance of counsel, a petitioner must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 692, 694 (1984). Prejudice means that the error actually had an adverse effect on the defense. There must be a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 693-94. The court need not address both prongs of the Strickland test if the petitioner's showing is insufficient as to one prong. Id. at 697. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id.

The United States Supreme Court has emphasized, "[t]he standards created by Strickland and § 2254(d) are both `highly deferential,' and when the two apply in tandem, review is `doubly' so." Richter, 131 S.Ct. at 788 (internal quotations and citations omitted). The determination to be made on federal habeas review, therefore, is not whether counsel acted reasonably, but "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.

D. Analysis

1. Subclaim #1

Petitioner first faults counsel for failing to challenge the evidence supporting an amended charge at the preliminary hearing. Specifically, petitioner contends that counsel should have filed a petition for writ of prohibition/mandate or a post-trial motion for a new trial challenging the probable cause finding. The record, however, belies petitioner's claim. During the preliminary hearing, defense counsel's objection and motion to strike the challenged portion of the testimony was ultimately sustained as double hearsay by the trial court. RT of 5/17/05 at 23:28-24:2 (Preliminary Hearing Transcript). As a result, the trial court did not predicate the aggravated assault claim on a report of what the victim said to the aunt which the aunt then reported to the authorities, i.e. the double hearsay. The trial court, after reviewing the transcript, made clear that its finding of probable cause for violating Cal. Pen. Code § 269(a)(1) was predicated only on that portion of the testimony in which victim J. stated that her father had told her he would beat her. RT 5/19/05 at 2:23-4:2. Trial counsel therefore had no double hearsay basis upon which to challenge the trial court's probable cause determination. Counsel's performance was neither deficient nor prejudicial, and the undersigned recommends denying relief on this claim.

2. Subclaim #2

In his second assertion of ineffectiveness, petitioner alleges that counsel failed to investigate Suisun City Police Report No. 04-3496, which purportedly described allegations of abuse of the victims by their aunt and uncle, the De Limas. Petitioner assumes that trial counsel did nothing with respect to the allegations of abuse by the De Limas. However, the record establishes otherwise. During trial, counsel cross-examined the victims with respect to these abuse allegations. See II RT 267-287; 333-340; 343-44; 351-52. Therefore, counsel was aware of the information in the report and used it as part of the theory of defense. Petitioner does not describe how having an actual copy of the report would have changed the outcome of the trial. Therefore, this claim is entirely conclusory. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (stating that "[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief."). In this context, the state court's determination that petitioner failed to establish a prima facie case of a Sixth Amendment violation is objectively reasonable. See Nunes v. Mueller, 350 F.3d at 1054-55. The undersigned recommends denying this claim for relief.

3. Subclaim #3

In his third claim of ineffectiveness, petitioner faults trial counsel for not investigating his son's alleged recantation in 2008, two years after he was convicted. After being advised of this information, trial counsel informed petitioner via letter that "my office can do the investigation and then either my office or your appellate attorney can do the actual habeas petition." ECF No. 1 at 310. That was the last communication petitioner received from trial counsel on the subject. Because he is prevented from directly contacting his son, petitioner concedes that he "does not possess the necessary facts to support the claim of recantation." Id. at 41; ECF No. 18 at 10.

Regardless of whether his son actually recanted, there is no evidence that counsel could have conducted such an investigation prior to or during trial. See ECF No. 1 at 322. Simply put, counsel was not deficient for failing to obtain evidence that did not even exist at the time of trial. Petitioner's son testified at trial, was cross-examined, and did not recant his allegations of sexual abuse by his father. Therefore, the state court's conclusion that petitioner failed to establish a prima facie case of trial counsel's ineffectiveness is not objectively unreasonable. See Nunes v. Mueller, 350 F.3d at 1054-55.

IX. Ineffective Assistance of Appellate Counsel

A. Petitioner's Allegations

Petitioner contends that appellate counsel was ineffective for failing to raise on appeal a claim of cumulative error based on jury misconduct, a Brady violation, the prosecutorial misconduct, and the trial court's abuse of discretion. ECF No. 1 at 18, 42-43; ECF No. 18 at 10-11. In addition, petitioner faults his appellate counsel for not raising a Blakely16 challenge to the trial court's imposition of an aggravated term absent a jury finding. Id. at 18, 43-44, referencing VIII RT 1713-1714.

B. Standard Applicable on Habeas Review

Based on the Solano County Superior Court's finding that these claims failed due to a lack of deficient performance by counsel, these claims are subject to deferential AEDPA review. See ECF No. 1 at 322 (stating that petitioner "has not shown that appellate counsel's performance was objectively deficient" and citing to Strickland).

C. Legal Standard

The Strickland standards set forth supra apply to appellate counsel as well as trial counsel. Smith v. Murray, 477 U.S. 527, 535-36 (1986); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). To prevail on a claim of ineffective assistance on appeal, a petitioner "must first show that his counsel was objectively unreasonable . . . in failing to find arguable issues for appeal — that is, that counsel unreasonably failed to discover nonfrivolous issues and to file a merits brief raising them." Smith v. Robbins, 528 U.S. 259, 285 (2000) (internal citation omitted).

D. Analysis

Because the claims raised in petitioner's current habeas petition fail to establish that any constitutional error occurred, there cannot be any cumulative error. See Wood v. Ryan, 693 F.3d 1104, 1121 (9th Cir. 2012) (finding that "Wood's assertion of cumulative error fails because his individual claims of his counsel's errors at trial and sentencing are not supportable, and they do not entitle him to relief even when aggregated."), cert denied, 134 S.Ct. 239 (2013). Therefore, appellate counsel's decision not to raise a cumulative error argument cannot fall outside the bounds of reasonably competent professional assistance. The state court's conclusion that counsel was not deficient is therefore not objectively unreasonable. See Strickland, 466 U.S. at 691.

With respect to appellate counsel's failure to raise a Blakely/Cunningham17 challenge to petitioner's sentence, the record demonstrates that this claim was not meritorious and was appropriately weeded out of the appellate briefs by counsel. See RT at 1721-22 (trial court's finding that the upper term was appropriate for count 1); ECF No. 1 at 319 (letter from appellate counsel to petitioner explaining why he was not raising this sentencing challenge). In fact, appellate counsel's decision was legally sound. See People v. Black, 41 Cal.4th 799, 805-06 (2007) (holding that "imposition of an upper term sentence did not violate defendant's right to a jury trial because at least one aggravating factor was established by means that satisfy the Sixth Amendment); see also Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998) (finding that a prior conviction was a sentencing factor and not an element of the offense used to enhance a sentence and, as a result, was not required to be found by a jury rather than a judge). Therefore, the state court's conclusion that appellate counsel's performance was not deficient is not objectively unreasonable. The undersigned recommends denying petitioner's ineffective assistance of appellate counsel claims.

X. Admission of Victim's Pretrial Videotaped Statements

A. Petitioner's Allegations

Petitioner challenges the trial court's admission of the videotapes of interviews of victim J. that were conducted in December 2004 at the Rainbow Center. ECF No. 1 at 45. The trial court admitted these prior statements on the ground that they were inconsistent with victim J's trial testimony that she could not remember specific events. II RT at 372-376. Because victim J. testified that she could not remember making the statements at the Rainbow Center, she could not be cross-examined as to the content of those statements. Petitioner argues that the admission of the prior inconsistent statements effectively precluded defense counsel any meaningful opportunity to cross-examine victim J. about the charged offenses. ECF No. 1 at 53. Thus, he contends that the trial court denied him his Sixth Amendment right to confront his accusers and his Fourteenth Amendment right to due process. Id. at 54.

In support of his argument, petitioner cites to Crawford v. Washington, 541 U.S. 36 (2004). ECF No. 1 at 56. While explicitly recognizing that Crawford does not bar the use of testimonial hearsay when the declarant is present at trial and subject to cross-examination, as was the case here, petitioner then asserts that victim J.'s memory problems resulted in a "mental infirmity" that should have precluded her from giving any testimony at all. Id. at 56-57 (citing People v. Alcala, 4 Cal.4th 742, 778-779 (1992); Cal. Evid. Code § 240(a)(3)).

B. Applicable Standard on Habeas Review

This claim was adjudicated on the merits on direct appeal and is thus entitled to AEDPA deference.

C. Clearly Established Federal Law

Under the Sixth Amendment, a criminal defendant has the right to confront and cross-examine the witnesses who testify against him. Pennsylvania v. Ritchie, 480 U.S. 39, 51(1987). "In short, the Confrontation Clause only guarantees `an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'" Ritchie, 480 U.S. at 52-53 (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (emphasis in original)).

D. Analysis

The California Court of Appeal denied relief on this claim relying on Crawford v. Washington, 541 U.S. 36 (2004). See Lodged Doc. No. 3 at 9. In Crawford, the Supreme Court held that "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. . . . The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it." Id. at 59, n. 9. The California Court of Appeal explained that there was no Confrontation Clause violation in this case because the victim testified at trial and was subject to cross-examination by defendant. See Lodged Doc. No. 3 at 9. The court rejected petitioner's argument that victim J. "was suffering from a total memory loss that rendered her mentally infirm and so unable to give testimony" because it was not supported by the record "in any way." Id.

In this case, the undersigned finds that the state court's decision was neither contrary to nor an unreasonable application of Crawford. The victim testified at trial and was cross-examined by defense counsel. Therefore, there is simply no Sixth Amendment violation. While petitioner may have wished for cross-examination to have yielded more results, the constitution does not require an adequate cross-examination but merely the opportunity for such. Ritchie, 480 U.S. at 52-53. If the court were to accept petitioner's argument, then every case in which defense counsel failed to obtain a Perry Mason-style recantation or admission of guilt from the witness would require a new trial under the Sixth Amendment. Not only is such an interpretation a strained reading of the Sixth Amendment, but that argument is not supported by any clearly established federal law. For these reasons, the undersigned recommends denying habeas relief on this claim.18

XI. Abuse of Discretion

Petitioner's scattershot allegations do not point to any specific constitutional violations committed by the trial court. While petitioner may be entitled to liberal construction of his pleadings as a pro se party, Haines v. Kerner, 404 U.S. 519, 520 (1972), that does not require this court to craft his arguments for him out of whole cloth. The Ninth Circuit Court of Appeal has emphasized that "it is not our role on federal habeas review to pass upon the wisdom of a state court's discretionary decisions. It is of no moment that we may disagree with the court's reasons or that we may have made different choices ourselves; `our only concern when reviewing the constitutionality of a state-court conviction is whether the petitioner is in custody in violation of the Constitution or laws or treaties of the United States.'" Gonzalez v. Knowles, 515 F.3d 1006 (9th Cir. 2008) (emphasis in original and internal quotations omitted) (quoting Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000)). This court has no authority to grant habeas relief absent any constitutional violation. See 28 U.S.C. § 2254(a). Merely because petitioner disagrees with the trial court's decisions does not render them unconstitutional. In this case, the trial court's actions are not subject to this court's review absent any allegation of constitutional error. Accordingly, with the two exceptions noted below, this court finds that petitioner's allegations of an "abuse of discretion" fail to state a cognizable claim for habeas relief and should be denied on that basis.19

Construing petitioner's abuse of discretion claims liberally, the only two constitutional issues raised therein are a Sixth Amendment violation based on the trial court's failure to allow defense counsel adequate time to prepare to cross-examine an expert witness's qualifications and a challenge to the use of CALCRIM 318 and 1192. ECF No. 1 at 12, 16.

A. Denial of Adequate Time to Prepare to Cross-Examine Rebuttal Witness

Turning to petitioner's first constitutional claim, the record establishes that petitioner's counsel objected at least three times to proceeding with a 402 hearing concerning Dr. Urquiza's qualifications as a rebuttal witness on the basis that the defense had not had enough time to prepare. See VII RT 1314-1315, 1366-1367, 1380, 1402-1403. Petitioner argues that the failure to allow more time to prepare amounts to a violation of the Sixth Amendment's Confrontation Clause. ECF No. 1 at 28.

Notwithstanding defense protestations of insufficient time to prepare, petitioner's trial counsel engaged in a rather extensive cross-examination of Dr. Urquiza at the 402 hearing. VII RT 1381-1439; VIII RT 1445-1453. As discussed above regarding petitioner's Crawford challenge to the admission of the victim's prior statements, the Confrontation Clause guarantees only "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Ritchie, 480 U.S. at 52-53 (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (emphasis in original)). Accordingly, this claim should be denied.

B. Challenge to CALCRIM 330, 318 and 1192

1. Factual Allegations

Here petitioner challenges the jury instructions on the testimony of a child (CALCRIM 330);20 the use of prior statements as evidence (CALCRIM 318);21 and testimony on rape trauma syndrome (CALCRIM 1192).22 He argues that these instructions violated his Sixth Amendment right of confrontation. Petitioner contends that CalCrim 330 contains a "conclusive presumption that testimony by child witnesses necessarily includes deficiencies that must be overlooked by the jury." ECF No. 1 at 33-34.

2. Legal Standard

A challenge to jury instructions does not generally state a federal constitutional claim. See Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983); see also, Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985). Habeas corpus is unavailable for alleged error in the interpretation or application of state law. Estelle v. McGuire, 502 U.S. 62 (1991). It is not enough that there is some "slight possibility" that the jury misapplied the instruction. Weeks v. Angelone, 528 U.S. 225, 236 [] (2000). Rather, petitioner must demonstrate that "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process," Estelle, 502 U.S. at 72. "[N]ot every ambiguity, inconsistency, or deficiency'" in an instruction constitutes a violation of due process. Middleton v. McNeil, 541 U.S. 433, 437 (2004) (per curiam); Waddington v. Sarausad, 555 U.S. 179, 190 (2009). It must be shown that there is "a reasonable likelihood" that the jury applied the instruction in such a way that the state was relieved of its burden to prove beyond a reasonable doubt every element of the crime. Waddington v, Sarausad, 555 U.S. 179, 190-91 (2009). In making this determination, the jury instruction "`may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record." Estelle, 502 U.S. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). Should a constitutional error be found, habeas relief is warranted only if the error had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Calderon v. Coleman, 525 U.S. 141, 145-47 (1998) (per curiam) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

3. Analysis

The predecessor to CalCrim 330, CALJIC 2.20.1, has repeatedly withstood constitutional challenge in California's courts and has been found not to unduly bolster or inflate a child's testimony, to usurp the jury's role in determining witness credibility, to lessen the state's burden of proof, or to violate a defendant's Sixth Amendment right to confront witnesses. People v. Harlan, 222 Cal.App.3d 439, 455-457 (Cal. App. 1990); People v. Gilbert, 5 Cal.App.4th 1372, 1393 (Cal. App. 1992); People v. Jones, 10 Cal.App.4th 1566, 1572-73 (1992); People v. McCoy, 133 Cal.App.4th 974, 978-80 (Cal. App. 2005) (rejecting the challenge as well to then-new CALCRIM 330). In petitioner's case, the jury was instructed to consider all factors and characteristics of the children but not simply to distrust their testimony because they were children. Petitioner does not suggest much less demonstrate how this instruction was applied in a manner that relieved the prosecution of its burden of proof. For all these reasons, the challenge to this instruction should be denied.

With respect to petitioner's challenge to CalCrim 318, the record shows that the jury was also instructed that a defendant was presumed to be innocent; that the prosecution had the burden of proving defendant guilty of each element of a crime beyond a reasonable doubt; that the jury alone could judge whether the witnesses were credible or believable and could ignore any evidence it determined to be untrustworthy. RT 1537:8-12; 1540:16-1542:13; 1552:17-21; 1553:15-20. In considering the challenged instruction "in the context of the instructions as a whole," Estelle, supra, at 72, petitioner has not shown that the prosecution's burden of proof was diminished by consideration of the out-of-court statements.

Lastly, petitioner's argument that CalCrim 1192 allowed the jury to make the assumption that a molestation had occurred is not supported by the record. The jury was instructed prior to Dr. Urquiza's testimony that such an assumption was not permitted but instead must be found to be true beyond a reasonable doubt. See VIII RT at 1460. In this case, the jury was amply instructed that it should find guilt only if all elements of the specific crimes were proven beyond a reasonable doubt. CALCRIM 1192 makes clear that testimony about child sexual abuse accommodation syndrome does not constitute evidence that petitioner molested either of his children. For this reason, the undersigned recommends denying relief.

XII. Ancillary Motions

A. Evidentiary Hearing Request

Although petitioner has not filed a motion for an evidentiary hearing, he states in his petition that he believes one is required due to the "potential recantation," the alleged Brady violation which petitioner contends may be directly related to the would-be recantation, and his trial counsel's alleged ineffectiveness. ECF No. 1 at 41.

Pursuant to 28 U.S.C. § 2254(e)(2), a district court presented with a request for an evidentiary hearing must first determine whether a factual basis exists in the record to support a petitioner's claims and, if not, whether an evidentiary hearing "might be appropriate." Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999); see also Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir. 2005); Insyxiengmay v. Morgan, 403 F.3d 657, 669-70 (9th Cir. 2005). A petitioner requesting an evidentiary hearing must also demonstrate that he has a "colorable claim for relief." Earp, 431 F.3d at 1167 (citing Insyxiengmay, 403 F.3d at 670). To show that a claim is "colorable," a petitioner is "required to allege specific facts which, if true, would entitle him to relief." Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998) (internal quotation marks and citation omitted).

For the reasons described above, petitioner's claims are all based on speculation and are therefore not "colorable." Petitioner's claims regarding his son's recantation are not supported by specific facts suggesting a constitutional violation. Accordingly, an evidentiary hearing is not appropriate. With respect to petitioner's ineffective assistance of counsel claim, the court concludes that no additional factual supplementation is necessary and that an evidentiary hearing is not appropriate. The facts alleged in support of these claims, even if established at a hearing, would not entitle petitioner to relief. Therefore, petitioner's request for an evidentiary hearing will be denied.

B. Motion for Discovery

Long after this matter was submitted, petitioner brought a motion for discovery. ECF No. 19. By order filed on August 19, 2013, the court granted petitioner's motion to expand the record to include: (1) petitioner's recently obtained copy of California Department of Corrections and Rehabilitation parole revocation documents; and, (2) a follow-up investigative report submitted by a Detective Cohen to the district attorney. The court permitted the record to be expanded subject to the qualification that the records must be properly authenticated before their relevance and weight was determined. ECF No. 22.

C. Motion to Compel

Following the court's order, petitioner filed a motion to compel discovery, pursuant to Rule 6 of the Rules Governing § 2254 Cases, asking that respondent be required to produce authenticated versions of these documents. ECF No. 23. Even assuming the records previously provided by petitioner are authentic, they do not alter the court's analysis with respect to petitioner's prosecutorial misconduct or ineffective assistance of counsel claims. Therefore, the court will deny petitioner's motion to compel as moot as the documents have been read and considered, but fail to alter the court's analysis.

Accordingly, IT IS ORDERED that:

1. Petitioner's request for an evidentiary hearing is denied; and,

2. Petitioner's motion to compel (ECF No. 23) is denied as moot.

Furthermore, IT IS RECOMMENDED that petitioner's application for a writ of habeas corpus (ECF No. 1) be denied without an evidentiary hearing.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days after being served with these findings and recommendations, 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 Recommendations." If petitioner files objections, he shall also address if a certificate of appealability should issue and, if so, as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The certificate of appealability must "indicate which specific issue or issues satisfy" the requirement. 28 U.S.C. § 2253(c)(3). Any reply to the objections shall be served and filed within fourteen 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).