ORDER AND FINDINGS AND RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate Judge.

Petitioner is a state prisoner, proceeding through counsel, with a petition for writ of habeas pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2007 conviction for robbery (Cal. Penal Code 211) with a firearm personal use enhancement (Cal. Penal Code § 12022.53(b)), evading an officer (Cal. Vehicle Coe § 2800.2(a)), and use of tear gas (Cal. Penal Code § 12403.7(g)). Petitioner is serving a sentence of thirteen years.

Petitioner raises the following claims: (1) trial counsel had a conflict of interest; and (2) ineffective assistance of counsel. After careful consideration of the record, the undersigned recommends that the petition be denied.

BACKGROUND FACTS

The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the court finds this summary to be accurate and adopts it herein:

People v. Woods, 2010 WL 1805382, at *1-4 (Cal. Ct. App. May 6, 2010).

PROCEDURAL BACKGROUND

Petitioner's trial in Siskiyou County Superior Court began on November 13, 2007. (Respondent's Lodged Document ("LD") 4 at 212, see ECF. No. 25.) The jury returned its guilty verdict on November 16, 2007. (LD 7 at 827.) Petitioner received a sentence of three years imprisonment for robbery and a ten-year consecutive sentence for the gun use enhancement. (Id. at 1028.) On May 6, 2010, the California Court of Appeal for the Third Appellate District affirmed petitioner's conviction. Woods, 2010 WL 1805382, at *1. On September 1, 2010, the California Supreme Court denied his petition for review. (LD 13.).

On November 30, 2011, petitioner filed a petition for writ of habeas corpus and a motion to stay in this court. (ECF Nos. 1, 2.) The court granted petitioner's motion to stay on February 29, 2012. (ECF No. 10.)

On March 27, 2012, petitioner filed a petition for writ of habeas corpus in Siskiyou County Superior Court. (LD 14.) The Superior Court denied the petition on May 16, 2012. (ECF No. 17-5 at 11 ("Exhibit P").) On June 22, 2012, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. (LD 15.) The Court of Appeal denied the petition without a reasoned decision on November 8, 2012. (LD 17.).

On December 21, 2012, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (LD 18.) The petition differed from the prior petitions in that it incorporated a declaration from petitioner's trial counsel, Joseph Gazzigli. (Id. at Exhibit O.) The California Supreme Court denied the petition without a reasoned decision on March 13, 2013. (LD 19.)

On April 15, 2013, petitioner filed a second amended petition for writ of habeas corpus in this court. (ECF No. 17.) Respondent filed an answer on August 7, 2013. (ECF No. 24.) Petitioner filed a traverse on November 4, 2013. (ECF No. 28.)

APPLICATION OF 28 U.S.C. § 2254(d)

I. Legal Standards

Section 2254 confers upon a federal district court the jurisdiction to consider a petition for writ of habeas corpus challenging a state court conviction. A writ of habeas corpus is available under § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1994); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085.

Where a state court resolves a federal constitutional claim on the merits, the petitioner in federal court may not succeed on that claim absent a showing that the state court's resolution of the claim was contrary to law or unreasonable. § 2254(d). Congress adopted this standard when it revised the habeas statutes in 1996 as part of the Anti-terrorism and Effective Death Penalty Act (the "AEDPA"). To meet this standard, a petitioner must establish that the state court's adjudication of the claim

§ 2254(d).

Section 2254(d) is a gateway; if a petitioner satisfies either subsection (1) or (2) for a claim, then the federal court considers that claim de novo. See Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (When § 2254(d) is satisfied, "[a] federal court must then resolve the claim without the deference AEDPA otherwise requires."); Frantz v. Hazey, 533 F.3d 724, 737 (9th Cir. 2008).

In 2011, the Supreme Court clarified the § 2254(d) standards. First, the Court made clear that, when making the determination that a state court decision was contrary to law or unreasonable, a federal court may not consider evidence which was not available to the state court. Cullen v. Pinholster, ___ U.S. ____, 131 S.Ct. 1388, 1398-1401 (2011). Second, the Court stressed the deferential nature of the § 2254(d) standards:

Harrington v. Richter, ___ U.S. ____, 131 S.Ct. 770, 786-87 (2011).

Thus, federal habeas relief is precluded if "`fairminded jurists could disagree' on the correctness of the state court's decision." Id. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). This objective standard of reasonableness applies to review under both subsections of § 2254(d). See Hibbler v. Benedetti, 693 F.3d 1140, 1146-47 (9th Cir. 2012). The federal court must engage in this deferential review even where the state court has not provided a reasoned decision. Richter, 131 S. Ct. at 784-85.

In the present case, most of petitioner's claims were raised and rejected in the Court of Appeal's reasoned decision on direct appeal. However, he raised some new claims in his state habeas petition, which was summarily denied. A summary denial is presumed to be a denial on the merits. Stancle v. Clay, 692 F.3d 948, 957 n.3 (9th Cir. 2012) (the presumption that the denial is based on the merits, rather than on procedural grounds, may be overcome if it is not "plausible"). While the federal court cannot analyze just what the state court did when it issued a summary denial, the federal court must review the state court record to determine whether there was any "reasonable basis for the state court to deny relief." Richter, 131 S. Ct. at 784. The federal court "must determine what arguments or theories . . . could have supported[ ] the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Id. at 786. The petitioner bears "the burden to demonstrate that `there was no reasonable basis for the state court to deny relief.'" Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 131 S. Ct. at 784).

When reviewing the California Supreme Court's summary denial of a petition, this court must consider that

Pinholster, 131 S. Ct. at 402 n.12 (quoting In re Clark, 5 Cal.4th 750, 770 (1993), and citing People v. Duvall, 9 Cal.4th 464, 474 (1995)).

Accordingly, if this court finds petitioner has unarguably presented a prima facie case for relief on a claim, the state court's summary rejection of that claim would be unreasonable. Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); Nunes v. Mueller, 350 F.3d 1045, 1054-55 (9th Cir. 2003).

Under § 2254(d)(1), a state court decision is "contrary to . . . clearly established Federal law" if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). A state court decision is an "unreasonable application" of clearly established federal law if "the state court correctly identifies the governing legal principle . . . but unreasonably applies it to the facts of the particular case." Bell v. Cone, 535 U.S. 685, 694 (2002) (citing Williams v. Taylor, 529 U.S. 362, 407-08 (2000)). "Clearly established Federal law" is found in the United States Supreme Court's "applicable holdings." Carey v. Musladin, 549 U.S. 70, 74 (2006). It refers to "`holdings, as opposed to the dicta, of [the Supreme Court's] decisions' at the time the state court decides the matter." Cannedy v. Adams, 706 F.3d 1148, 1157 (9th Cir. 2013) (quoting Stanley v. Schriro, 598 F.3d 612, 617 (9th Cir. 2010)), amended by 733 F.3d 794 (9th Cir. 2013). "[C]ircuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may not be "used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced." Marshall v. Rodgers, ___U.S. ____, 133 S.Ct. 1446, 1450 (2013) (citing Parker v. Matthews, ___ U.S. ____, 132 S.Ct. 2148, 2155 (2012)). Nor may it be used to "determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct." Id. Further, where courts of appeals have diverged in their treatment of an issue, it cannot be said that there is "clearly established Federal law" governing that issue. Carey, 549 U.S. at 77.

There are two ways a petitioner may satisfy § 2254(d)(2). Hibbler, 693 F.3d at 1146. He may show the state court's findings of fact "were not supported by substantial evidence in the state court record" or he may "challenge the fact-finding process itself on the ground it was deficient in some material way." Id. (citing Taylor, 366 F.3d at 999-1001). If a petitioner overcomes one of the hurdles posed by § 2254(d), this court may review the merits of the claim de novo. See Frantz, 533 F.3d at 737.

Addressed below is the application of § 2254(d) to each claim in the petition. This court finds that none of petitioner's claims survives § 2254(d) review.

II. Petitioner's Conflict of Interest Claim

Petitioner argues that trial counsel, Joseph Gazzigli, had a conflict of interest because he previously represented an adverse witness in a medical malpractice case. For the reasons described below, this court finds that petitioner's conflict of interest claim does not satisfy the requirements of § 2254(d) and therefore recommends denial of that claim.

A. Background

The Court of Appeal set out the background for this claim as follows:

Woods, 2010 WL 1805382, at *4-6.

B. Legal Standards

It is well established that the Sixth Amendment right to effective assistance of counsel carries with it "a correlative right to representation that is free from conflicts of interest." Wood v. Georgia, 450 U.S. 261, 271 (1981). Conflicts of interest broadly embrace all situations in which an attorney's loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or by his own interests. See generally ABA, Model Rules Prof. Conduct, Rule 1.7 and Commentary (1983). Conflicts may occur in various factual settings. For example, conflicts may arise in circumstances in which one attorney represents more than one defendant in the same proceeding. See, e.g., Holloway v. Arkansas, 435 U.S. 475, 481-91 (1978). Conflicts may also arise in situations in which an attorney has represented a person who is a witness, has a financial interest in the outcome of the case, or has a personal relationship with the prosecutor. See, e.g., Houston v. Schomig, 533 F.3d 1076, 1081 (9th Cir. 2008); United States v. Hearst, 638 F.2d 1190, 1193 (9th Cir. 1980). The rule prohibiting counsel from representing conflicting interests serves to protect confidential information obtained during the course of an earlier representation, ensure undivided attorney loyalty, and/or guard against infringement of the right to cross-examination. See Sanders v. Ratelle, 21 F.3d 1446, 1452-53 (9th Cir. 1994); Fitzpatrick v. McCormick, 869 F.2d 1247, 1251 (9th Cir. 1989); United States v. Allen, 831 F.2d 1487, 1497 (9th Cir. 1987); Trone v. Smith, 621 F.2d 994, 999 (9th Cir. 1980). Courts "generally presume that the lawyer is fully conscious of the overarching duty of complete loyalty to his or her client." Burger v. Kemp, 483 U.S. 776, 784 (1987).

Generally, courts apply the Strickland standard to ineffective assistance of counsel claims, and a petitioner must therefore prove that his attorney acted unreasonably and that those actions or inactions prejudiced him. Strickland v. Washington, 466 U.S. at 687, 694 (1984). However, the Supreme Court has carved out an exception to the requirement that a petitioner prove prejudice for certain claims of attorney conflict of interest: where a petitioner's attorney "actively represented conflicting interests," the petitioner must show that "an actual conflict of interest" existed and that it "adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). In Sullivan, the Court examined multiple concurrent representations and stressed the "high probability of prejudice arising" from this conflict situation and the difficulty of proving prejudice. Mickens v. Taylor, 535 U.S. 162, 175 (2002) (citing Sullivan, 446 U.S. at 348-49). A petitioner who shows an "adverse affect" as a result of this conflict need not also show he was prejudiced under Strickland. Sullivan, 446 U.S. at 349-50.

Many courts of appeals have applied the Sullivan prejudice standard to a variety of conflicts of interest. See Mickens, 535 U.S. at 174-75 (collecting cases). In Mickens, the Supreme Court noted that this "expansive application" of the Sullivan prejudice standard was not supported by the language of Sullivan. Id. at 175. The Court in Mickens explained that whether or not the Sullivan prejudice standard should apply to conflict situations other than those involving multiple concurrent representation was an "open question." Id. at 176; see also Schomig, 533 F.3d at 1081 ("Supreme Court . . . has left open the question whether conflicts in successive representation that affect an attorney's performance require a showing of prejudice for reversal."); Alberni v. McDaniel, 458 F.3d 860, 873 (9th Cir. 2006) (same); Earp v. Ornoski, 431 F.3d 1158, 1184 (9th Cir. 2005) (same); but see Lewis v. Mayle, 391 F.3d 989 (9th Cir. 2004) (court applies Sullivan prejudice standard to conflict based on successive representation; no discussion of, or citation to, Mickens).2 The Court stated that Sullivan does not "clearly establish, or indeed even support" application of the Sullivan prejudice standard to these other situations. Mickens, 535 U.S. at 176. If Sullivan does not apply, a petitioner must meet the Strickland prejudice standard by establishing a reasonable probability that, but for the conflict, the result of the proceedings would have been different. See id.; Strickland, 466 U.S. at 694.

A defendant may "waive his right to the assistance of an attorney unhindered by a conflict of interests." Holloway, 435 U.S. at 483 n.5. "A valid waiver of conflict of interest must be voluntary, knowing, and intelligent, such that the defendant is sufficiently informed of the consequences of his choice." Lewis, 391 F.3d at 996. See also Garcia v. Bunnell, 33 F.3d 1193, 1195 (9th Cir. 1994) ("Even if counsel is subject to an actual conflict of interest, however, the trial court may generally allow the attorney to proceed if the defendant makes a voluntary, knowing, and intelligent waiver."); Allen, 831 F.2d at 1494 ("Of course, a defendant may waive his right to the assistance of an attorney who is unhindered by conflicts . . . provided the waiver is given knowingly and intelligently."). Whether there is a proper waiver is to be determined by the trial court and any such waiver should appear on the record. Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938). Resolution of the issue of waiver depends "upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Id.; see also Edwards v. Arizona, 451 U.S. 477, 482 (1981). Moreover, a court must "indulge every reasonable presumption against the waiver of fundamental rights." Lewis, 391 F.3d at 997 (citations omitted.)

C. State Court Decision

Petitioner raised his conflict of interest claim on direct appeal and again in his state habeas petition. The Court of Appeal issued a reasoned denial of the claim on direct appeal. That denial is set out below. Neither the Court of Appeal nor the California Supreme Court explained its denial of the claim when denying petitioner's habeas corpus petition. The habeas claim appears to be substantially similar to the appellate claim. However, petitioner did present the California Supreme Court with one piece of extra-record evidence in support of his habeas petition: Gazzigli's declaration. (See LD 18, Exhibit O.)

Gazzigli's declaration adds little, if anything, of substance to petitioner's conflict of interest claim. Because the claim on appeal was essentially the same as the claim in the state habeas petition, the Court of Appeal's decision on appeal is the "last reasoned state court decision" and therefore the decision subject to analysis under § 2254(d). See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) ("Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim [are presumed to] rest upon the same ground.").

But whether this court reviews the Court of Appeal's decision on direct appeal or the California Supreme Court's summary denial of the habeas petition, the result is the same. Petitioner has not shown the state court decisions were contrary to or an unreasonable application of federal law, or that they rested on an unreasonable determination of the facts. The relevant portion of the Court of Appeal's opinion on appeal is set out below:

Woods, 2010 WL 1805382, at *6-8.

D. Discussion

Petitioner challenges the state court determinations that: (1) Gazzigli did not have a conflict of interest that adversely affected his performance; (2) petitioner arguably waived the alleged conflict; and (3) the trial court did not have a duty to investigate the alleged conflict. Petitioner fails to demonstrate that these determinations were contrary to, or an unreasonable application of, clearly established federal law, or that they were based on an unreasonable determination of the facts.

1. A conflict of interest adversely affecting counsel's performance

a. Background

The Court of Appeal explained the role of Dr. Sternberg in petitioner's conviction: a Rite Aid pharmacist testified that petitioner dropped off a prescription bearing Dr. Sternberg's forged signature, and the parties stipulated that, if called, Dr. Sternberg would testify that he did not sign that prescription. Woods, 2010 WL 1805382, at *4, 8. In just one of "various ways" that the prosecutor attacked petitioner's credibility, the prosecutor suggested to the jury that petitioner forged and presented the prescription. Id. at *8.

Petitioner contends that Gazzigli had a conflict of interest because Gazzigli successfully represented Dr. Sternberg in a medical malpractice case in 1988—nearly twenty years before petitioner's criminal trial. (ECF No. 17 at 32, 37.) Petitioner believes that, given the "sensitive nature of a medical malpractice case, . . . it is virtually certain [Gazzigli] . . . acquired information about Dr. Sternberg which if raised during cross-examination would have been damaging to Dr. Sternberg's credibility." (Id. at 32.) According to petitioner, Gazzigli resolved this conflict by stipulating to Dr. Sternberg's testimony. (Id.)

b. Analysis

In Mickens, the Supreme Court explained that "`an actual conflict of interest mean[s] precisely a conflict that affected counsel's performance—as opposed to a mere theoretical division of loyalties." Mickens, 535 U.S. at 171. Here, the Court of Appeal explicitly stated that it was "applying the federal standard set forth in Mickens," and explained that it "d[id] not see even a theoretical division of loyalties." Woods, 2010 WL 1805382, at *6. The Court of Appeal reasoned that the evidence "supports the inference that Attorney Gazzigli opted not to further cross-examine [the pharmacist] and not to call Dr. Sternberg because counsel determined the testimony would not assist the defense." Id. at 8. In the opinion of the Court of Appeal, "Gazzigli did not pull his punches but instead made a tactical decision on how best to proceed." Id. Gazzigli's declaration, which petitioner submitted with his habeas petition to the California Supreme Court and this court, does not undermine the Court of Appeal's analysis. (See ECF No. 17-5 at 7 ("Gazzigli Decl.").) Petitioner has failed to establish that the state court's determination that Gazzigli did not have an actual conflict of interest amounts to a transgression of federal law, particularly when Gazzigli's representation of Dr. Sternberg in an unrelated medical malpractice case preceded petitioner's criminal trial by nearly twenty years.

With respect to the issue of prejudice, the Court of Appeal noted that a presumption of prejudice applies in cases of multiple concurrent representation, but applied the Strickland standard and found no prejudice in light of the "overwhelming" evidence against petitioner. Woods, 2010 WL 1805382, at *8. Petitioner's emphasis on Sullivan and his claim that the Court of Appeal should have applied the presumption of prejudice is misguided, as the Court of Appeal's finding that petitioner did not establish a conflict of interest mooted the issue of prejudice. Because petitioner had not established the foundational element of a conflict of interest claim (i.e., an actual conflict of interest), the Court of Appeal could have ended its analysis of the claim upon finding that Gazzigli did not labor under a conflict of interest. See Sullivan, 446 U.S. 349 ("[U]ntil a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.").

Furthermore, petitioner has not established any error in the Court of Appeal's determination that—if there were an actual conflict of interest—petitioner would have had to show prejudice. As explained in Mickens, the Supreme Court has not decided whether the presumption of prejudice applies in any context other than multiple concurrent representation. Mickens, 535 U.S. at 171. The present case does not involve multiple concurrent representation, as Gazzigli represented Dr. Sternberg in a medical malpractice case nearly two decades before representing petitioner. See Rowland v. Chappell, 902 F.Supp.2d 1296, 1319 (N.D. Cal. 2012) ("Petitioner can cite to no Supreme Court cases finding an actual conflict of interest where, as here, defense counsel previously represented a state witness in a civil matter completely unrelated to the criminal matter."). The Court of Appeal's conclusion that petitioner failed to establish prejudice in light of the "overwhelming" evidence of his guilt does not warrant habeas relief.

Thus, petitioner has not established that the state court's conclusion that Gazzigli did not labor under a conflict of interest that adversely affected his performance was contrary to, or an unreasonable application of, clearly established federal law, or that such a finding was based on an unreasonable application of the facts.

2. Waiver

The Court of Appeal opined that "it may be argued that defendant accepted the risk of conflict." Woods, 2010 WL 1805382, at *6. Petitioner challenges this suggestion and emphasizes that he was "never asked to waive the conflict of interest, either in writing or verbally, and never in fact waived such potential or actual conflict." (ECF No. 17 at 38-39.)

Petitioner fails to appreciate that the Court of Appeal merely speculated, and did not actually reach a conclusion, on the issue of waiver. Woods, 2010 WL 1805382 at *6 ("On this record, it is unclear what more, if anything, defendant was told about the potential conflict and whether he expressly waived it. In any event, defendant's claim must be rejected."). The Court of Appeal did not make a determination on the issue of waiver because it found that there was no conflict of interest for petitioner to waive. Stated otherwise: finding that there was no conflict of interest mooted the issue of waiver. The Court of Appeal's dicta does not warrant habeas relief.

3. Trial court's duty to inquire

The Court of Appeal concluded that the trial court was "not obligated to inquire" into the purported conflict of interest.3 Id. Citing Holloway, petitioner contends that once a trial court becomes aware of a potential or actual conflict, it has a duty to inquire into the conflict. (ECF No. 17 at 39.) Petitioner argues that it was error therefore for the trial court to make no attempt to inquire into the conflict, which the court became aware of "when petitioner filed his motion for new trial and brought trial counsel's letter admitting the conflict to the court's attention." (Id. at 40.)

But the Supreme Court has elaborated on—and considerably narrowed—the duty of trial courts to inquire into conflicts of interest since Holloway. See United States v. Lafuente, 436 F.3d 894, 897 (7th Cir. 2005) ("Subsequent Supreme Court decisions have limited the Holloway holding to situations in which the district court requires joint representation over a timely objection."). Of particular relevance is the Supreme Court's statement in Sullivan that a trial court need only initiate inquiry if "the trial court knows or reasonably should know that a particular conflict exists." 446 U.S. at 347.

The fact that there was no actual conflict of interest is fatal to petitioner's argument. Because there was no conflict of interest, there was nothing for the trial court to inquire about. Again, Sullivan quite clearly imposes the duty to inquire only "when the trial court knows or reasonably should know that a particular conflict exists." Id. Accordingly, petitioner has not demonstrated that the trial court had a duty to investigate the purported conflict of interest. The state court's rejection of petitioner's argument was not contrary to or an unreasonable application of clearly established federal law or based on an unreasonable determination of the facts.

4. Conclusion on petitioner's conflict of interest claim

Petitioner has not demonstrated that the state court's rejection of his conflict of interest claim was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement. See Richter, 131 S. Ct. at 786-87. Accordingly, a writ of habeas corpus on that claim is not available under § 2254.

III. Petitioner's Ineffective Assistance of Counsel Claims

Petitioner contends that Gazzigli's performance was constitutionally inadequate because Gazzigli (1) failed to investigate and call several witnesses, (2) failed to introduce into evidence petitioner's backpack, (3) failed to subpoena a witness after promising to present her testimony to the jury in his opening statement, (4) failed to request a jury instruction on involuntary intoxication, (5) conceded petitioner's use of pepper spray, and (6) rendered a cumulatively deficient performance. For the reasons set out below, this court finds petitioner has failed to satisfy § 2254(d) for any of these assertions of ineffective assistance of counsel. This court therefore recommends denial of petitioner's claim of ineffective assistance of counsel.

A. Legal Standards

The Sixth Amendment standard for analyzing an ineffective assistance of counsel claim is well established. First, a petitioner must show that counsel's conduct failed to meet an objective standard of reasonableness. Strickland, 466 U.S. at 687. There is "a `strong presumption' that counsel's representation was within the `wide range' of reasonable professional assistance." Richter, 131 S. Ct. at 787 (quoting Strickland, 466 U.S. at 689). When determining whether the state court's application of the Strickland standard was reasonable, the federal court must be "doubly" deferential. Id. at 788. The "standard for judging counsel's representation is a most deferential one" and the reasonableness standards of § 2254(d) are also "highly deferential." Id. Further, because the Strickland rule is a "general" one, courts have "more leeway . . . in reaching outcomes in case-by-case determinations" and the "range of reasonable applications is substantial." Id. at 786; Premo v. Moore, ___ U.S. ____, 131 S.Ct. 733, 740 (2011). As the Court explained in Richter: "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." 131 S. Ct. at 788.

The second part of the Strickland test requires a petitioner to show that counsel's conduct prejudiced him. Id. at 691-92. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. "The likelihood of a different result must be substantial, not just conceivable." Richter, 131 S. Ct. at 792 (citing Strickland, 466 U.S. at 693).

B. Evidence Presented

The Court of Appeal summarized the evidence presented:

Woods, 2010 WL 1805382, at *8.

C. Petitioner's Inadequacy of Counsel Claims

1. Failure to investigate and call witnesses

Petitioner contends that "a competent defense attorney would have given disproving the gun enhancement top priority," complains that Gazzigli relied "upon the prior public defender's very limited investigation and the district attorney[`s] investigation," and sets out the evidence he argues a reasonable attorney would have found and presented.4 Specifically, he contends that Gazzigli should have interviewed and called Sierra Black, Patricia Moore, Roben Printy, and Norma Knickerbocker—each of whom petitioner alleges was available to testify—because their testimony would have established that immediately after the robbery neither of the victims stated that petitioner had used a gun.

Petitioner raised this issue in his direct appeal. The Court of Appeal found the record was "insufficient to evaluate a claim of ineffective assistance of counsel," at least with respect to the allegation that Gazzigli was deficient in not calling Black and Printy. Petitioner's habeas petitions included declarations from Black and Printy. A declaration from private investigator Ilir Nushi described his post-conviction conversations with Moore and Knickerbocker.

Petitioner argues that the witnesses described above would have established that neither victims Linderman nor Moikeha, immediately after the robbery, stated that petitioner had used a gun in the robbery, and that both only mentioned pepper spray. Petitioner contends that Linderman and Moiheka fabricated the story that petitioner had a gun because they were upset that petitioner had sprayed Linderman with pepper spray. In support of this alleged motive, petitioner cites Exhibit G attached to the amended petition, which is one page of the report prepared by defense investigator Bowlin of her interview with Black dated December 16, 2005. (ECF No. 17-2 at 7.) This report states that Black told Bowlin that Moikeha "really want[ed] [petitioner] to go down for this." (Id.) The portion of the report submitted by petitioner does not suggest that either Linderman or Moikeha were motivated to fabricate based on petitioner's use of pepper spray.

a. Analysis

Black

Petitioner contends that Gazzigli's performance was constitutionally inadequate because Gazzigli "failed to pursue an investigation" of Black. (ECF No. 17 at 40.)

As noted above, attached to the amended petition is one page of a report by defense investigator Bowlin of her interview with Black. (ECF No. 17-2 at 7.) In the page attached to the amended petition, Bowen reports that Black stated that robbery victim Shelly Moikeha is a substance abuser and, on the night or the robbery, asked her daughter to bring her a bag of marijuana. (Id.) After Black and Moikeha's daughter delivered the marijuana to Moikeha at the gas station, Black and Moikeha's daughter left. (Id.) A short time later, Moikeha called her daughter and told her that there had been a robbery. (Id.) Black and Moikeha's daughter returned to the gas station. (Id.)

When Black returned to the gas station after the robbery, Moikeha told her that she was in the back when petitioner came in and robbed the place, so she called the police. (Id.) Black said that Moikeha said that the other victim, Linderman, told Moikeha that petitioner had held a gun to Linderman's head, Linderman said, "please don't kill me," and petitioner responded, "It's too late for that." (Id.) Black told investigator Bowlin that Moikeha stated that she did not hear these statements herself or see a gun. (Id.) Moikeha told Black that she assumed that petitioner had a gun but it might have been the pepper spray. (Id.)

Petitioner alleges that prosecution investigator Golden also interviewed Black. Petitioner alleges that the prosecutor provided this report to the defense. Petitioner claims that in this interview with Golden, Black denied delivering marijuana to Moikeha and claimed that investigator Bowlin lied in her report about the marijuana. Attached to petitioner's amended petition is a portion of Golden's report of this interview. (ECF No. 17-3 at 58.) In this statement, Black states that she was interviewed by defense investigator Bowlin. (Id.) Black said that the statement in Bowlin's report that Black said that Moikeha used drugs was a lie. (Id.) In the petition, citing the Golden report, i.e., exhibit M, petitioner argues that Golden's report also states that Moikeha did not say she saw a gun during the robbery when speaking to Black. (ECF No. 17 at 42.) The undersigned has reviewed petitioner's exhibit M and finds no mention by Golden of any statement made to her by Black regarding a gun.

In a post-conviction declaration, Black clarified that her statements to Bowlin were the truth. In this declaration, signed September 28, 2010, Black states that on the night of the robbery, she and Moikeha's daughter delivered marijuana to Moikeha at the gas station. (ECF No. 17 at 55.) Black states that when she returned to the gas station after the robbery, Moikeha did not mention seeing a gun, hearing any comments by either the robber or Linderman about a gun, or any mention of the robber having a gun. (Id. at 56.) Black states that her statement to defense investigator Bowlin is accurate except she does not remember Moikeha telling her about any statements made by Linderman during the robbery. (Id.)

The Bowlin report states that Black stated that Moikeha told her that she did not see a gun during the robbery. Petitioner claims that Black told Golden the same thing. The Bowlin report also states that on the night of the robbery, Moikeha told Black that Lindeman told Moikeha that petitioner had a gun. In her post-conviction declaration, Black now states that she does not remember Moikeha making this statement. The portion of the Golden report in the instant record does not address whether Moikeha discussed with Black statements made by Linderman to Black regarding whether petitioner had a gun.

Because Black gave conflicting statements to the defense and prosecution investigators, Gazzigli may have made a tactical decision not to call her as a witness. In any event, for the reasons stated herein, the undersigned finds that petitioner was not prejudiced by Gazzigli's failure to call Black as a witness.

Testimony by Black that Moikeha, on the night of the robbery, told her that Moikeha did not see a gun would have undermined Moikeha's trial testimony that she saw a gun. However, there was other, sufficient evidence that petitioner had a gun on the night of the robbery and that the victims did not later fabricate petitioner's use of the gun. In her testimony regarding the 911 tape played to the jury, Moikeha testified that she referred to the "man with the gun" during the 911 call:

(RT at 305-06.)

While Moikeha may have been confused regarding whether she actually saw petitioner with the gun, the 911 tape, played to the jury and discussed at trial, in which Moikeha referred to the "man with the gun," demonstrated that she and Linderman did not later fabricate a story regarding petitioner using a gun. In addition, were she called to testify, Black could have testified that on the night of the robbery Moikeha told her that Linderman told Moikeha that petitioner had a gun.

Moreover, Linderman's testimony regarding petitioner's use of the gun was clear. (RT at 249, 251, and 257 (Linderman testifying that she tried to grab petitioner's gun, that petitioner pointed the gun at her head, and that petitioner had the gun in his hand until his demeanor changed and "he went and got the pepper spray.")

For these reasons, the undersigned finds that the reasons discussed above, the undersigned finds that petitioner has not established that Gazzigli's failure to Black amounted to deficient performance or prejudiced petitioner. Black's testimony would not have demonstrated that, after the robbery, the victims fabricated petitioner's use of a gun.

According to Nushi's declaration, Moore spoke with Moikeha after the robbery and, "[t]o the best of her recollection, [Moore] did not hear Moikeha mention that the robber had a gun." (ECF No. 17 at 62.) The declaration also notes that "Moore has never previously been interviewed by anyone about the robbery or the subject matter discussed in this declaration apart from one phone call that she received approximately one year after the robbery." (Id.) Nushi's declaration further notes that "Moore was apprehensive to sign a declaration." (Id.) Petitioner did not submit a declaration from Moore.

Petitioner contends that Gazzigli was ineffective for failing to investigate Moore. But petitioner does not even allege that Gazzigli should have known about the existence of Moore. Even if a reasonable attorney would have identified, located, and interviewed Moore, a reasonable attorney would likely avoid calling a witness that refuses to sign a declaration even years after petitioner's conviction.

In addition, as noted above, Moikeha referred to the "man with the gun" on the 911 tape. For this reason, Moore's alleged testimony that Moikeha did not mention that a gun was used during the robbery would not have demonstrated that, well after the robbery, the victims allegedly fabricated their claim that petitioner used a gun.

For the reasons discussed above, the undersigned finds that petitioner has not established that Gazzigli's failure to investigate and call Moore amounted to deficient performance or prejudiced petitioner.

Printy

Printy saw petitioner flee the gas station holding something in his hands. (ECF No. 17 at 57.) Printy could not say whether the object was a gun, and he did not see petitioner discard anything while fleeing. (Id.) Immediately after the robbery, Printy spoke with Linderman; according to Printy, Linderman stated that she had been robbed and maced, but did not say that the perpetrator had a gun. (Id. at 47.)

On direct appeal, the Court of Appeal commented that it was "unclear from the record what [Printy] may have seen." Woods, 2010 WL 1805382, at *10. In support of the state habeas petition, petitioner submitted a post-conviction declaration from Printy. Unfortunately, the declaration does not clarify what Printy saw. The declaration states that (1) Printy saw petitioner holding something in his hands during the robbery, but that Printy still did not know what the object was, (2) Printy did not see the petitioner drop anything while fleeing, and (3) when Printy spoke to one of the victims after the robbery, she "did not say anything about the robber having a gun." (ECF No.17 at 57-58.)

According to petitioner, Gazzigli never interviewed Printy, despite his statement being in the police reports. (Id. at 42.) Petitioner does not indicate whether or to what extent Printy's statement in the police report differs from his declaration. More critically, petitioner has not demonstrated that the police report would have prompted a reasonable attorney to contact and interview Printy. If Printy's statement in the police report is similar to Printy's declaration, a reasonable attorney might not bother to seek testimony of what Printy did not see or what he alleges a victim allegedly did not say.

In addition, Printy's statement that one of the victims did not mention the robber using the gun would not have demonstrated that, well after the robbery, the victims allegedly fabricated their claim that petitioner used a gun. As noted above, in the 911 call, Moikeha referred to the "man with the gun."

Accordingly, petitioner has not demonstrated Gazzigli was ineffective with respect to his decision to not investigate or to have Printy testify.

Knickerbocker

Knickerbocker, an employee of the gas station at the time of the robbery, "never heard that there was a gun involved in the robbery until many months, perhaps even a year, after the robbery." (ECF No. 17 at 63.)

Petitioner contends that the deficiency of Gazzigli's investigation is evidenced by the fact that Gazzigli "never interviewed or even mentioned" Knickerbocker. (Id. at 43.) But Nushi's declaration provides a reasonable explanation for why Gazzigli never interviewed Knickerbocker: even years after petitioner's conviction, Knickerbocker "was reluctant to become involved in this case in any manner." (Id. at 63.) There is simply no reason why Gazzigli would have interviewed an employee of the gas station that was not present at the time of the robbery. Moreover, Knickerbocker's observation, like that of the other witnesses petitioner emphasizes should have been interviewed and called to testified, is hardly probative. As noted above, Moikeha told Black on the night of the robbery that Linderman told Moikeha that petitioner had used a gun.

The fact that Knickerbocker did not hear about petitioner's use of a gun until months after the robbery does not demonstrate that the victims fabricated their claim that petitioner used a gun. As noted above, Moikeha's reference in the 911 call to the "man with the gun" undermines this claim. Accordingly, petitioner has not established that Gazzigli's failure to investigate and call Knickerbocker amounted to deficient performance or prejudiced petitioner.

c. Conclusion on Gazzigli's failure to investigate and call witnesses

Petitioner cannot show that Gazzigli's failure to present the proposed evidence deprived petitioner of his Sixth Amendment right to counsel. The Ninth Circuit "has repeatedly held that `[a] lawyer who fails adequately to investigate and introduce . . . [evidence] that demonstrate[s] his client's factual innocence, or that raise[s] sufficient doubt as to that question to undermine confidence in the verdict, renders deficient performance.'" Duncan v. Ornoski, 528 F.3d 1222, 1234 (9th Cir. 2008) (quoting Hart v. Gomez, 174 F.3d 1067, 1070 (9th Cir. 1999)). But, the proposed testimony of Black, Moore, Printy, and Knickerbocker, even cumulatively, does not demonstrate that petitioner did not use a gun when committing the robbery or raise a sufficient doubt to undermine confidence in the verdict. Accordingly, habeas relief under § 2254 is not warranted.

3. Counsel's decision to not introduce petitioner's backpack

a. Background

In a declaration submitted in petitioner's state habeas action in Siskiyou County Superior Court, Gazzigli's explains that petitioner initially and subsequently told Gazzigli that he did not own a .25 caliber Berretta. (ECF No. 17-5 at 4.) However, it turned out that petitioner did have a.25 caliber Berretta that he claimed he lost on a camping trip. (Id.) Petitioner provided Gazzigli with the name of a witness, Mr. Vickery. (Id.) Vickery testified that he was told by petitioner hat he had lost the gun while on the camping trip with Vickery. (Id.) It was Gazzigli's recollection that Vickery testified that he did not see the gun and that they did not go back to their campsite to retrieve the gun. (Id.) Not wanting to suborn perjury, Gazzigli reported this ethical dilemma to the judge and district attorney, but the judge denied Gazzigli's motion to be relieved. (Id.)

Gazzigli explains that Linderman described a gun identical to the one petitioner's wife gave petitioner but allegedly lost. (Id. at 7.) Gazzigli "therefore felt that any further []examination of [petitioner] along these lines would have been untrue and subornation of perjury" and did not introduce into evidence the backpack form which petitioner claims to have lost the gun. (Id.)

Petitioner challenged Gazzigli's response to the perceived perjury in his habeas petitions but not on direct appeal. Because the state courts summarily denied the habeas petition, petitioner must prove there was no reasonable basis to deny relief. Richter, 131 S. Ct. at 784.

b. Analysis

In Nix v. Whiteside, 475 U.S. at 157, 166 (1986), the United States Supreme Court addressed what constitutes "`reasonable professional' responses to a criminal defendant client who informs counsel that he will perjure himself on the stand." First among the reasonable responses is "attempt[ing] to dissuade the client from the unlawful course of conduct." Id. at 169. This attempt may include the threat to withdraw from representation if the client persists in the desire to commit perjury. Id. at 171. Counsel may also move to withdraw from representation prior to the start of trial. Id. at 170. When counsel learns of proposed perjury during trial, counsel has the option of allowing his client to take the stand and to testify in narrative fashion, unaided by counsel. Id. at 170 n.6. Finally, "an attorney's revelation of his client's perjury to the court is a professionally responsible and acceptable response to the conduct of a client who has actually given perjured testimony." Id. at 170.

Petitioner contends that Gazzigli's decision to not introduce the backpack from which petitioner claimed to have lost the gun while camping was not a reasonable professional response under Nix. But this is not a Nix issue; rather, petitioner is simply challenging Gazzigli's decision to not introduce an item of evidence. Gazzigli explained the decision in his declaration: "[F]or us to produce the backpack at that time . . . would be nothing more than confusing and would only draw additional attention to [petioner's] previous and obvious prevarications and thus would further inflame the jury." (Gazzigli Decl. at 6.) Trial counsel is not constitutionally obligated to present available evidence when, in the trial counsel's view, the witness or evidence may ultimately prove to be unhelpful or even detrimental to his client's defense. See Lord, 184 F.3d at 1095. Where counsel has made an informed, strategic decision against proffering testimony or evidence, that decision cannot be second-guessed on habeas review. See Strickland, 466 U.S. at 690. Because petitioner has not established that there was no reasonable basis for the state courts to deny relief on this argument, this court cannot grant habeas relief.

4. Counsel's failure to subpoena a witness after promising the jury to present her testimony

a. Background

The Court of Appeal summarized and analyzed petitioner's argument:

Woods, 2010 WL 1805382, at *10.

b. Analysis

Petitioner's habeas petitions restate his argument that Gazzigli's failure to subpoena Karen Edwards after promising her testimony to the jury in his opening statement amounted to ineffective assistance of counsel. In support of his claim, petitioner cites to Williams v. Woodford, 859 F.Supp.2d 1154 (E.D. Cal. 2012), and Saesee v. McDonald, 725 F.3d 1045 (9th Cir. 2013). Though relevant, those decisions actually corroborate the state court's rejection of petitioner's claim. In Williams, trial counsel promised the jury—but failed to present—the testimony of both the defendant an alibi witness. 859 F. Supp. 2d at 1171. Chief Judge Kozinski observed that "[a] number of circuits have held, in similar circumstances, that a lawyer's unfulfilled promise of key testimony qualifies as deficient performance under Strickland." Id. at 1170 (emphasis added). Moreover in Saesee, the Ninth Circuit explained that "no clearly established federal law required the California Court of Appeal to presume prejudice for a broken promise or to assign the alleged broken promise any particular prejudicial weight." 725 F.3d at 1050.

The Court of Appeal's rejection of petitioner's argument was not contrary to, or an unreasonable application of, clearly established federal law. The Court of Appeal explicitly found that Gazzigli's performance was not inadequate, and the Court's rationale suggests petitioner was not prejudiced by Gazzigli's failure to call Edwards. As noted above, the Court of Appeal found that the contents of Edwards' report, petitioner's complaints of pain, and petitioner's pain prescriptions still "came in through Dr. Andrews's and defendant's testimony." Woods, 2010 WL 1805382, at *10. Additionally, the trial court judge instructed the jury that neither petitioner nor the prosecution was required to call all witnesses. Id. Even if Edwards' testimony was "key"(the Court of Appeal opinion and this court's review of the record suggests otherwise), and Gazzigli's unfulfilled promise to present it amounted to deficient performance, petitioner fails to demonstrate that every fairminded jurist would have found prejudice. Therefore, petitioner's claim fails to satisfy § 2254(d).

5. Failure to request a jury instruction on involuntary intoxication

Petitioner contends that Gazzigli's failure to request a jury instruction on involuntary intoxication amounted to inadequate assistance of counsel because there was evidence in the record supporting the instruction. Petitioner argues that counsel was ineffective during closing argument for conceding petitioner's guilt of using tear gas because petitioner's involuntary intoxication was a defense to this offense.

Petitioner raised this claim in his direct appeal and the California Court of Appeal rejected both petitioner's premise and conclusion. The Court found that "there was no substantial evidence to support an instruction on involuntary intoxication, that is, defendant unknowingly ingested medication or alcohol or his intoxication was caused by the force of someone else . . . ." Woods, 2010 WL 1805382, at *10.

The undersigned agrees with the California Court of Appeal that the record did not support an instruction for involuntary intoxication. There was no substantial evidence that petitioner unknowingly ingested medication or alcohol or that someone forced him to become intoxicated.5

Because it is not likely that the outcome of the trial would have been different had the jury received an instruction for involuntary intoxication, this claim of ineffective assistance of counsel is without merit.

It is difficult to fault Gazzigli for conceding petitioner's use of tear gas. Given that both victims testified to that fact, Gazzigli was wise to focus his efforts elsewhere. See Richter, 131 S. Ct. at 790 ("There is a `strong presumption' that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than `sheer neglect.'"). Given the evidence indicating that petitioner used tear gas, Gazzigli's concession could not have prejudiced petitioner. Accordingly, this court cannot grant petitioner's habeas petition on the grounds that Gazzigli conceded petitioner's use of tear gas.

6. Counsel's "cumulative deficient performance"

a. Background

Without citing any authority, petitioner argues that Gazzigli rendered a "cumulative[ly] deficient performance." (ECF No. 17 at 50.) In addition to the aforementioned errors, petitioner contends that trial counsel "sat down nearly the entire trial" and "belittled petitioner in open court, conceded evidence, failed to object, ignored petitioner's questions, and consumed alcohol." (Id. at 50-51.) According to petitioner, "[s]uch behavior prejudices petitioner's appearance to the jury and lowers counsel's professional appearance, a valuable asset in a criminal defense case." (Id. at 50.)

Petitioner raised this argument in his state habeas petition but not on direct appeal of his conviction. Thus, this court must review the state court record to determine whether there was any "reasonable basis for the state court to deny relief." Richter, 131 S. Ct. at 784.

b. Analysis

Petitioner does not provide authority for his "cumulative deficient performance" argument because there is none. Presumably, petitioner's theory is based on a misreading of Ninth Circuit precedent that permits courts to aggregate prejudice—an element distinct from deficient performance under Strickland—when there is at least one "error of constitutional magnitude." Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011) ("Because we conclude that no error of constitutional magnitude occurred, no cumulative prejudice is possible.") (citation omitted); Mancuso v. Olivarez, 292 F.3d 939, 957 (2002) ("Because there is no single constitutional error in this case, there is nothing to accumulate to a level of a constitutional violation."); see also Galloway v. Adams, 2007 WL 295552, at *13 n.11 (N.D. Cal. Jan. 30, 2007) (declining to consider whether prejudice resulted from "the cumulative impact of deficiencies" when habeas petitioner failed to demonstrate counsel was deficient in the first instance), aff'd, 316 Fed. Appx. 530 (9th Cir. 2008). Moreover, simply alleging multiple errors does not obviate the need to establish prejudice; rather, it obviates the need to find prejudice from any one error. See Mak v. Blodgett, 970 F.2d 614, 622 (9th Cir. 1992). The fact that several errors are identified does not by itself show cumulative prejudice. See Yates v. Small, 357 Fed. Appx. 40, 42 (9th Cir. 2009) (observing that the claimed errors by trial counsel "were not prejudicial individually or cumulatively").

Similar to Hayes and Mancuso, here petitioner has failed to establish an error of constitutional magnitude. There is simply no authority supporting petitioner's suggestion that sitting down for most of the trial, belittling petitioner in open court, conceding evidence, failing to object to evidence, ignoring petitioner's questions, and consuming alcohol, individually amount to deficient performance; unsurprisingly, petitioner does not even attempt to argue such. Thus, because there is no "cumulative deficient performance" doctrine and because petitioner has still not established any error amounting to deficient performance under Strickland, the state court's decision was no contrary to or an unreasonable application of clearly established federal law or based on an unreasonable determination of the facts.

CONCLUSION

The standard for federal court review of a state court decision under § 2254(d) is a highly deferential one. After considering application of this standard to petitioner's claims, this court concludes that petitioner has failed to satisfy § 2254(d).

Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall appoint a district judge to this action; and

IT IS HEREBY RECOMMENDED that the petition be denied.

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 sixty 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." 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).