FINDINGS AND RECOMMENDATIONS

DALE A. DROZD, District Judge.

Petitioner is a state prisoner proceeding through counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on December 1, 2006 in the Sacramento County Superior Court on charges of murder occurring during the commission of an attempted robbery, five counts of robbery, and two counts of attempted robbery, with the jury also finding that petitioner personally used a firearm during the commission of his crimes. Petitioner seeks federal habeas relief on the following grounds: (1) the trial court's denial of his motions to suppress pre-trial identifications and in-court identifications denied him his right to due process; (2) the trial court's exclusion of third-party culpability evidence violated his rights to a fair trial, to present a complete defense, and to due process; (3) the trial court's refusal to allow the defense to elicit from a prosecution witness petitioner's explanation for admissions made to his girlfriend violated his rights to a fair trial, cross-examination of the witnesses against him, and due process; and (4) the cumulative effect of the trial court's evidentiary errors violated his federal constitutional rights. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.

I. Background

In a published opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

* * *

On April 26, 2010, through appointed counsel, petitioner filed a petition for review in the California Supreme Court. On July 14, 2010, the California Supreme Court denied review. On June 29, 2011, petitioner filed a pro se petition for a writ of habeas corpus in the Sacramento County Superior Court, which was denied on August 23, 2011. On September 28, 2011, petitioner filed a pro se petition for a writ of habeas corpus in the California Court of Appeal. That petition was summarily denied on October 6, 2011. Finally, on June 21, 2012, petitioner filed a pro se petition for writ of habeas corpus in the California Supreme Court. That petition was denied on October 10, 2012, with the California Supreme Court citing the decisions in People v. Duvall, 9 Cal.4th 464 (1995) and Ex parte Swain, 34 Cal.2d 300 (1949). (Resp't's Lodged Docs., lodged April 11, 2013, Nos. 5-14.)

Petitioner filed his federal habeas petition with this court on or about November 28, 2012. On December 10, 2012, the court directed respondent to file a response to the petition. Before respondent filed a response in this case, petitioner filed a motion for appointment of counsel. On January 14, 2013, the court appointed the Office of the Federal Defender for the Eastern District of California to represent petitioner. By order dated January 30, 2013, petitioner's current habeas counsel substituted in as appointed counsel of record for petitioner in place of the Office of the Federal Defender.

On January 26, 2014, after respondent's motion to dismiss the pending petition as time-barred was denied, petitioner filed the amended petition for a writ of habeas corpus upon which this action now proceeds. Respondent filed an answer on September 8, 2014, and petitioner filed a traverse on November 5, 2014.

II. Standards of Review Applicable to Habeas Corpus Claims

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. Greene v. Fisher, ___ U.S. ___, 132 S.Ct. 38, 44 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent "may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (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 v. Musladin, 549 U.S. 70, 77 (2006).

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). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.1 Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a `firm conviction' that the state court was `erroneous.'") "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103.

If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").

The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When 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." Richter, 562 U.S. at 99. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Similarly, when a state court decision on a petitioner's claims rejects some claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___, ___, 133 S.Ct. 1088, 1091 (2013).

Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Richter, 562 U.S. at 98.

A summary denial is presumed to be a denial on the merits of the petitioner's claims. Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). 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, 562 U.S. at 98. This 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." 562 U.S. at 102. 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, 562 U.S. at 98).

When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

III. Petitioner's Claims

A. Suppression of Pre-trial and In-court Identifications

On September 8, 2006, the trial court ruled that petitioner's statements made in response to police interrogation were not admissible in the prosecution's case-in-chief at petitioner's trial because interrogating detectives had failed to give petitioner warnings required under Miranda v. Arizona, 384 U.S. 436 (1966). (Reporter's Transcript on Appeal (RT) at 78-79.) On that same date, the trial court denied petitioner's motion to exclude from evidence pre-trial lineup identifications and in-court identifications of petitioner by various witnesses. (Id. at 108.) In petitioner's first ground for federal habeas relief, he claims that the trial court violated his right to due process in denying his motion to exclude the pre-trial and in-court identifications from admission at his trial. (ECF No. 32 at 20.)2

1. State Court Decision

In considering this claim on direct appeal, the state appellate court summarized petitioner's arguments and the underlying facts:

Johnson, 183 Cal.App.4th at 270-71.

On direct appeal the state appellate court rejected petitioner's challenges to the pretrial and in-court witness identifications, reasoning as follows:

Id. at 271-74.

2. Petitioner's Arguments

As he did in state court, petitioner challenges the identification procedures specific to each individual witness who testified at trial, as well as the cumulative effect of police procedures allegedly designed to result in petitioner's identification as the robber. With respect to witness Timothy Meton, petitioner notes the following: (1) Mr. Meton did not provide any details of the robber's face in his initial description of the individual to police but was able to recall details about the robber's gun and clothing, indicating that he did not pay close attention to the robber's face; (2) the robber was in the store for only about 30 seconds; (3) prior to his identification of petitioner as the robber, Mr. Meton saw a surveillance photo of murder victim Chetty's killer in the Sacramento Bee; (4) prior to the live lineup Meton was shown a photographic lineup that included petitioner's photo but he was still unable to identify anyone as the robber; and (5) "the only person present (at the live lineup) who was also in the photo lineup was Petitioner." (ECF No. 32 at 23, 24; ECF No. 45 at 11. See also Clerk's Transcript on Appeal (CT) at 446; ECF 32-1.) Petitioner argues that these factors cast doubt on the reliability of Meton's identification of petitioner as the robber. He also contends that "law enforcement gave Meton a clue that the person he was supposed to identify was the only person whose photograph he had seen." (ECF No. 45 at 11.) Petitioner asserts that "clearly the live identification was influenced by the prior photographic lineup." (ECF No. 32 at 23.)

Petitioner also challenges the identification of the robber provided by Rui Mar. He claims her identification was unreliable because she mainly described the robber's clothing and weapon when speaking to the police after the robbery, but did not provide details about the robber's facial features. (ECF No. 32 at 24; CT at 447.) He argues that Mar's identification was not based on her independent recollection of the robbery, but on her memory of the suspect depicted in the surveillance photos from the Shell station robbery and murder, which she had been shown prior to identifying petitioner as the robber at the live lineup. (ECF No. 32 at 24; ECF No. 45 at 11.)

With regard to Mathew Johnson, petitioner argues that, during the robbery, Johnson "appeared to be focused on the gun, as he was able to describe it as dark, dirty, partly corroded and having an orange stripe on the front." (ECF No. 32 at 24.) He further argues that before viewing petitioner at close range in the courtroom, Johnson's descriptions of the robber had been only "generic." (Id. at 25.) After encountering petitioner in the courtroom, however, Johnson's description of the robber became much more specific. (Id.) Petitioner complains that Johnson "was allowed to leave the witness stand and walk right up to the defendant — the only African American at the defense table — and identify the defendant as his assailant." (ECF No. 45 at 13.) He notes that Johnson had never mentioned that the robber had a tattoo before he observed petitioner at close range in the courtroom. (Id.) Petitioner also notes that Johnson did not identify petitioner as the robber until ten days after the robbery. (ECF No. 32 at 25.)

Petitioner claims that Jesus Fernandez' identification at the photo lineup was unduly influenced by the surveillance photo of his own robbery, which police presented to him immediately prior to the photo lineup. (ECF No. 32 at 23, 24; ECF No. 45 at 11.) He notes that Fernandez had difficulty choosing a suspect even under these circumstances. (Id.) He argues that Fernandez's identification of petitioner as the robber `was enhanced not by his own recollection of his assailant but by his view of a photograph." (ECF No. 45 at 11.)

Finally, petitioner notes that Lidia Fretwell, who identified petitioner as the robber from a photo lineup, initially gave police a detailed description only of the robber's clothing but not his facial features. (ECF No. 32 at 25.) He also notes that Fretwell viewed the photo lineup more than two weeks after the robbery. (Id.) Petitioner argues that Fretwell's identification, and that of Mathew Johnson, were suspect because of their "limited opportunity to view the gunman and the length of time that had transpired from the robbery to the identification procedures." (ECF No. 45 at 12.)

Petitioner argues that all of the witness identifications of himself as the robber were tainted by suggestive information supplied to those witnesses by the police. (ECF No. 32 at 20.) He also contends that "none of the witness identifications were reliable when considered in light of the witnesses' limited opportunities to view the criminal at the instant of the crime, the witnesses' degree of attention, the accuracy of their prior descriptions of their assailants, their level of certainty at the time of the confrontations, and the time between the crimes and the confrontations." (Id.) Petitioner further argues that each of the identifications were unreliable because: (1) the witnesses were not African-American and therefore not the same race as petitioner; (2) some of the witnesses were uncertain of their choice of petitioner at the time of their identification; and (3) the witnesses' prior descriptions of the robber tended to be vague, indicating they did not really get a good luck at the robber. (A at 22; ECF No. 45 at 10, 15.) Petitioner asserts that "all of the clerks were focused on the clothing and the weapon, but not the assailant's face." (ECF No. 32 at 24.) Finally, petitioner argues that the live lineup itself was unduly suggestive because he "was thinner than the other suspects and because he was the only suspect in the lineups who had a braid protruding from one side of his hat, thereby calling particular attention to him." (ECF No. 32 at 22.)

In general, petitioner asserts that the state court decisions rejecting his challenges to the eyewitness identification evidence constituted "unreasonable applications of clearly established federal law in ignoring the impact of the tainted identification procedures" and that the California Court of Appeal ignored the "cumulative effect of impermissible methods." (ECF No. 45 at 11, 15.)

3. Applicable Law

The Due Process Clause of the United States Constitution prohibits the use of identification procedures which are "unnecessarily suggestive and conducive to irreparable mistaken identification." Stovall v. Denno, 388 U.S. 293, 302 (1967), overruled on other grounds by Griffith v. Kentucky, 479 U.S. 314, 326 (1987). A suggestive identification violates due process if it was unnecessary or "gratuitous" under the circumstances. Neil v. Biggers, 409 U.S. 188, 198 (1972). An identification procedure is suggestive where it "[i]n effect . . . sa[ys] to the witness `This is the man.'" Foster v. California, 394 U.S. 440, 443 (1969). "[E]ach case must be considered on its own facts" and whether due process has been violated depends on "the totality of the surrounding circumstances." Simmons v. United States, 390 U.S. 377, 383 (1968) (citing Stovall, 388 U.S. at 302).

"Even when the police use [a suggestive identification] procedure, suppression of the resulting identification is not the inevitable consequence." Perry v. New Hampshire, ___ U.S. ___, ___, 132 S.Ct. 716, 719 (2012). Courts must assess each case to determine whether improper police conduct created a "substantial likelihood of misidentification." Biggers, 409 U.S. at 201. "Where the `indicators of [a witness'] ability to make an accurate identification' are `outweighed by the corrupting effect' of law enforcement suggestion, the identification should be suppressed." Perry, 132 S. Ct. at 719 (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 116 (1977)).

Factors indicating the reliability of an identification include: (1) the opportunity to view the criminal at the time of the crime; (2) the witness' degree of attention (including any police training); (3) the accuracy of the prior description; (4) the witness's level of certainty at the confrontation; and (5) the length of time between the crime and the identification. Brathwaite, 432 U.S. at 114 (citing Biggers, 409 U.S. at 199-200). Additional factors to be considered in making this determination are "the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification." United States v. Wade, 388 U.S. 218, 241 (1967). The "central question," is "whether under the `totality of the circumstances' the identification is reliable even though the confrontation procedure was suggestive." Biggers, 409 U.S. at 199. See also United States v. Drake, 543 F.3d 1080, 1088 (9th Cir. 2008).

If the flaws in the pretrial identification procedures are not so suggestive as to violate due process, "the reliability of properly admitted eyewitness identification, like the credibility of the other parts of the prosecution's case is a matter for the jury." Perry, 132 S. Ct. at 719; Foster, 394 U.S. at 443 n.2. See also Brathwaite, 432 U.S. at 116 ("[j]uries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature"); United States v. Jones, 84 F.3d 1206, 1210 (9th Cir. 1996) (unless the procedure used is so suggestive that it raises a "very substantial likelihood of irreparable misidentification," doubts go to the weight, not the admissibility, of the evidence and "identification evidence is for the jury to weigh") (quoting United States v. Kessler, 692 F.2d 584, 586-87 (9th Cir. 1982)). On the other hand, if an out-of-court identification is inadmissible due to unconstitutionality, a related in-court identification is also inadmissible unless the government establishes that it is reliable by introducing "clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification." Wade, 388 U.S. at 240. See also United States v. Hamilton, 469 F.2d 880, 883 (9th Cir. 1972) (in-court identification admissible, notwithstanding inherent suggestiveness, where it was obviously reliable).

Under California law, an extrajudicial identification violates a defendant's right to due process only if the identification procedure was unduly suggestive and unnecessary, and the identification itself, under the totality of the circumstances, was unreliable. People v. Carpenter, 15 Cal.4th 312, 366-367 (1997). The defendant has the burden of showing the identification procedure was unfair "as a demonstrable reality, not just speculation." People v. DeSantis, 2 Cal.4th 1198, 1222 (1992). See also People v. Ochoa, 19 Cal.4th 353, 412 (1998). If the challenged procedure is not impermissibly suggestive, the reviewing court's inquiry into the due process claim ends. Ochoa, 19 Cal.4th at 412; DeSantis, 2 Cal.4th at 1224 n.8. As the California Supreme court has stated,

DeSantis, 2 Cal.4th at 1222.

In California, generally, a pretrial identification procedure is deemed unfair only if it suggests the identity of the person suspected by the police before the witness has made an identification. People v. Brandon, 32 Cal.App.4th 1033, 1052 (1995). The crucial question under California law is whether the defendant was singled out from the others in such a way that his identification was a foregone conclusion under the circumstances. People v. Faulkner, 28 Cal.App.3d 384, 391 (1972) disapproved on other grounds in People v. Hall, 28 Cal.3d 143, 156, fn.8 (1980) and People v. Bustamonte, 30 Cal.3d 88, 102 (1981)).

4. Analysis

In order to prevail on his challenges to the eyewitness identifications admitted into evidence at his trial, petitioner must demonstrate that the California Court of Appeal's adjudication of the claim was "objectively unreasonable" and "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 131 S. Ct. at 786-87. Petitioner has failed to make the required showing.

The undersigned agrees with the California Court of Appeal's conclusion that the live lineup procedure utilized in petitioner's case was not unduly suggestive. Photographs of the lineup participants have been provided to this court. (See Resp't's Lod. Doc. 15.) As noted by the state appellate court, petitioner was not the only participant with braids in his hair or with hair protruding from the bottom of his baseball cap, and there were several participants who appeared to be approximately the same size as petitioner. (See Id.) None of the lineup participants stand out as being significantly different in appearance from the others. The selection of participants in the lineup was not "unnecessarily suggestive" and does not appear to this court to have been "conducive to irreparable mistaken identification." Stovall, 388 U.S. at 302. Accordingly, standing alone, the live lineup procedure employed did not violate petitioner's right to due process. See United States v. Burdeau, 168 F.3d 352, 357 (9th Cir. 1999) (photo lineup was not impermissibly suggestive where the defendant's picture was placed in the center of the array, was darker than the rest, and was the only one in which the eyes were closed); United States v. Carbajal, 956 F.2d 924, 929 (9th Cir. 1992) (array not impermissibly suggestive when defendant's photograph was only one in which individual wore wig and had bruises on face); United States v. Johnson, 820 F.2d 1065, 1073 (9th Cir. 1987) (photographic array was not impermissibly suggestive when defendant's photograph was hazier than others); United States v. Sambrano, 505 F.2d 284, 286 (9th Cir. 1974) (photographic array in which defendant's photograph was darker and clearer was not impermissibly suggestive); see also United States v. Carr, 761 F.3d 1068, 1075-76 (9th Cir. 2014) (fact that witness felt pressured and had an incentive to cooperate in the hope of receiving a lesser charge or a lighter sentence did not create an impermissibly suggestive lineup).

As described above, Meton and Mar identified petitioner at the live lineup after having previously viewed a photograph of petitioner. Specifically, a sequential photo lineup was shown to Meton and still photos from the video of the Chetty murder were shown to Mar. Witness Fernandez was shown the surveillance video from his own robbery. As the California Court of Appeal correctly noted, the fact that petitioner was the only individual common to both the photos and the live lineups shown to witnesses did not, without more, violate due process. This is true even though the video shown to Fernandez was from his own robbery. See United States v. Davenport, 753 F.2d 1460, 1463 (9th Cir. 1985) ("The fact that [robbery suspect] was the only individual common to the photo spread and the lineup cannot, without further indicia of suggestiveness, render the lineup conducive to irreparable misidentification."); United States v. Monks, 774 F.2d 945, 956 (9th Cir. 1985) (identification procedures were not impermissibly suggestive where witnesses were shown a surveillance photograph of their bank robber just before they identified the defendant in a photographic lineup); United States v. Stubblefield, 621 F.2d 980, 983 (9th Cir. 1980) ("[t]he rights of the accused are not jeopardized when, as here, the recollection of an eyewitness is refreshed by the use of photographs of the crime itself"). United States v. Portillo, 633 F.2d 1313, 1324 (9th Cir. 1980) (rejecting the argument that "showing an eyewitness surveillance photographs taken of the robbery as it occurred was impermissibly suggestive"). This is not a situation where witnesses were shown two live lineups in which petitioner was the only participant in common, as was the case in Foster. Nor is this a case where the police specifically emphasized petitioner as the robber in some overly suggestive way. See Simmons, 390 U.S. at 383-84 (noting that "improper employment of photographs by police may sometimes cause witnesses to err in identifying criminals"). Accordingly, the fact that witnesses Merton, Mar, and Fernandez each saw a photograph of petitioner prior to participating in the live lineup procedure at which they identified him as the robber did not render the procedure overly suggestive or conducive to a mistaken identification.

This court also agrees with the California Court of Appeal that the in-court identification of petitioner by witness Mathew Johnson was not unduly suggestive. As noted by the state appellate court, there was no material difference between having Johnson view petitioner from the witness stand with his glasses on as opposed to allowing him to approach petitioner until he could see him as clearly as if he had been wearing glasses on the witness stand. Although Johnson mentioned for the first time only after seeing petitioner up close that the robber had a tattoo, Johnson later explained on cross-examination that he didn't mention the robber's tattoo to the police because he was too stunned to do so immediately after having been robbed. (Reporter's Transcript on Appeal (RT) at 1017, 1019.) In addition, this issue was fully explored in front of the jury during Mr. Johnson's cross-examination. (Id. at 1017-21.) Petitioner's jury was thus able to fully evaluate the reliability of Johnson's identification as well as of his specific statement that the robber had a tattoo.

There is also no evidence in this case that improper police conduct in setting up these identification procedures created a "substantial likelihood of misidentification." Biggers, 409 U.S. at 201. Although many of these identification procedures were conducted more than 10 days after the robberies, witnesses Fernandez, Mar, Mathew Johnson, and Fretwell all identified petitioner as the robber. Even though Meton was unable to identify anyone in a photo lineup 15 days after the robbery, he identified petitioner as the robber in a subsequent live lineup and again at petitioner's trial. All of the witnesses were in close proximity to petitioner during the robberies and, with the possible exception of witness Fretwell, spoke to the robber directly during events thereby meriting their full attention. Regardless of whether their initial descriptions of the robber to police were vague, they had had sufficient exposure to the individual who robbed them to recognize him later if they saw him. The undersigned does not find that in this case the "`indicators of [the witnesses'] ability to make an accurate identification'" were "`outweighed by the corrupting effect' of law enforcement suggestion." Perry, 132 S. Ct. at 719. In short, there is no evidence before this court case suggesting that the circumstances gave rise to a substantial likelihood of mistaken identification or that the identifications of petitioner by witnesses were otherwise unreliable. See Biggers, 409 U.S. at 198-99; Johnson, 820 F.2d at 1072. Because the identification procedures utilized in the case were not unduly suggestive, the trial court was not required to suppress the witnesses' in-court identifications of petitioner. Rather, the reliability of those witness identifications was a matter for the jury consider and ultimately to decide. Perry, 132 S. Ct. at 719. See also Angov v. Holder, 736 F.3d 1263, 1272 (9th Cir. 2013) ("The way to deal with unreliable evidence, the Supreme Court tells us, is via the adversary system, which includes the ability to confront witnesses, the assistance of counsel, jury instructions, the burden of proof and the right to introduce contrary evidence.")

For the reasons set forth above, the undersigned concludes that the identification procedures that were employed in this case did not violate petitioner's right to due process. The decision of the California Court of Appeal to the same effect is not contrary to or an unreasonable application of federal law. Accordingly, petitioner is not entitled to federal habeas relief with respect to this claim.

B. Exclusion of Third-Party Culpability Evidence

In his next ground for relief, petitioner claims that the trial court violated his rights to a fair trial, to present a defense of third-party culpability, and to due process when it improperly relied on petitioner's suppressed confession to deny his request to introduce testimony at trial from Thomas Claussen, the gas station clerk at the Arco/Valero station that was robbed, that the gunman in that robbery "was darker" than petitioner and the four other men he viewed in a live lineup. (ECF No. 32 at 7.) Petitioner was not charged with the Arco/Valero robbery, even though he confessed to committing it during his police interrogation. However, petitioner argues that evidence that the robber in that case was "darker" than he, would tend to raise a reasonable doubt as to whether he was the perpetrator of the robberies he was charged with. (Id. at 28.) Petitioner points out that his defense theory was that the robberies charged against him were actually committed by his cousin Thaddeus Taylor, "who shared a bedroom with Mr. Johnson, had access to a handgun and had similar facial features, although Mr. Taylor had darker skin." (Id.) Petitioner notes that a witness who saw the face of the man leaving the Shell station after the Chetty shooting identified a photograph of Thaddeus Taylor as the possible perpetrator of that robbery and failed to identify petitioner as the robber at a subsequent photo lineup. (Id. at 27.) Petitioner argues that the trial court's refusal to allow petitioner to call Claussen to testify at his trial about this matter, coupled with the court's refusal to allow the introduction into evidence of exculpatory statements made by petitioner to his girlfriend, "thwarted the defense efforts" to place the blame for the robberies and the shooting on Thaddeus Taylor. (Id.)

1. State Court Decision

The California Court of Appeal summarized the background to this claim of evidentiary ruling error, as follows:

Johnson, 183 Cal.App.4th at 274-78.

On direct appeal, the California Court of Appeal rejected petitioner's argument that the trial court's evidentiary ruling excluding evidence of Claussen's remarks violated his right to due process. The state appellate court reasoned as follows:

Id. at 278-85.

In his claim before this court, petitioner again asserts that the trial court violated the presumption of innocence when it considered his suppressed confession in determining the admissibility of Thomas Claussen's potential testimony. (ECF No. 32 at 29.) He argues, "there is no authority for applying the presumption of innocence differently to confessing and nonconfessing defendants." (Id.) Petitioner argues that the trial court's determination that Claussen's testimony might have misled the jury was based on "the trial court's own belief in petitioner's guilt." (Id. at 31.) He argues, as he did in state court, that the trial court's ruling violated the holding in Holmes v. South Carolina, 547 U.S. 319 (2006), wherein the United States Supreme Court held that the trial court's refusal to admit third-party culpability evidence based on a state court rule which excluded such evidence if the prosecution evidence strongly supported a guilty verdict denied the defendant a fair trial. (Id.) Petitioner argues that "focusing solely on the confession, as the trial court did in Mr. Johnson's case, is the equivalent of focusing only on the strength of evidence of guilt, as the South Carolina trial court did in Holmes." (Id.)

Petitioner further argues that he was prejudiced by the trial court's exclusion of Claussen's potential testimony that the Arco/Valero robber had darker skin than petitioner, and that Claussen had failed to identify petitioner as his assailant at a live lineup. Petitioner reasons that the prosecution's case, which according to him was based largely on unreliable eyewitness identifications, was relatively weak and thus Claussen's testimony was "important and dramatic evidence for the defense." (Id. at 32.) He argues that the prejudice he suffered as a result of the trial court's ruling was not mitigated by the fact that he was allowed to put on other evidence suggesting that Thaddeus Taylor was the perpetrator of the robberies. (Id.) Petitioner also asserts that the third-party culpability evidence he was allowed to introduce at trial was not as strong as the potential Claussen testimony would have been. (Id. at 33.) He contends that the trial court's ruling prevented him from putting on the "strongest case possible in his defense." (Id.) Petitioner also argues that the Claussen's potential testimony "would cause a reasonable juror to question the reliability of the generic descriptions given by the other witnesses." (Id. at 34.)

Finally, petitioner argues that the trial court's evidentiary rulings, which according to petitioner were based on the trial judge's personal belief that petitioner was guilty of the Arco/Valero robbery, constituted structural error. (Id.) He argues, "the [trial] court's ultimate analysis that Mr. Johnson's defense should be restricted from presenting third-party culpability evidence because of the existence of an inadmissible confession is a form of implicit bias." (Id.)

2. Applicable Legal Standards and Analysis

Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants "a meaningful opportunity to present a complete defense" and the right to present relevant evidence in their own defense. Holmes, 547 U.S. at 324 (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). However, the United States Supreme Court has not "squarely addressed" whether a state court's exercise of discretion to exclude testimony violates a criminal defendant's right to present relevant evidence. Moses v. Payne, 555 F.3d 742, 758-59 (9th Cir. 2009). Nor has the Supreme Court clearly established a "controlling legal standard" for evaluating discretionary decisions to exclude the type of evidence at issue here. Id. at 758. Accordingly, the decision of the California Court of Appeal that the trial court did not violate petitioner's federal constitutional rights in excluding proffered evidence of third party culpability is not contrary to or an unreasonable application of clearly established federal law and may not be set aside. Id. See also Knowles v. Mirzayance, 556 U.S. 111, 112 (2009) ("it is not `an unreasonable application of' `clearly established Federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by [the United States Supreme Court]"); Wright v. Van Patten, 552 U.S. 120, 126 (2008) (relief is "unauthorized" under § 2254(d)(1) when the Supreme Court's decisions "give no clear answer to the question presented, let alone one in [the petitioner's] favor," because the state court cannot be said to have unreasonably applied clearly established federal law); Brown v. Horell, 644 F.3d 969, 983 (9th Cir. 2011) ("Between the issuance of Moses and the present, the Supreme Court has not decided any case either `squarely address[ing]' the discretionary exclusion of evidence and the right to present a complete defense or `establish[ing] a controlling legal standard' for evaluating such exclusions.").

More specifically, as respondent points out, petitioner has failed to cite any federal case holding that a trial court violates a defendant's federal constitutional rights, or misapplies the presumption of innocence, by considering a defendant's inadmissible but reliable confession in deciding whether to admit evidence of third party culpability under state evidentiary rules. For this reason alone, the state court decision rejecting petitioner's arguments on this issue was not objectively unreasonable and petitioner is not entitled to federal habeas relief.

Petitioner's claim also fails on the merits. Evidence of potential third-party culpability must be admitted when, under the "facts and circumstances" of the individual case, its exclusion would deprive the defendant of a fair trial. Thus, in Chambers v. Mississippi, 410 U.S. 284, 303 (1973), exclusion of evidence of a third party confession was found to violate due process where the excluded evidence was highly corroborated and the excluded testimony was crucial to the defense. Likewise, in Lunbery v. Hornbeak, 605 F.3d 754, 760-61 (9th Cir. 2010), the exclusion of a statement by a third party that he had killed defendant's husband deprived defendant of the right to present a defense because the "excluded testimony . . . bore substantial guarantees of trustworthiness and was critical to [defendant's] defense." On the other hand, where the proffered evidence of third party culpability simply affords a possible ground of suspicion pointing to a third party and does not directly connect that person with the actual commission of the crime, that evidence may be properly excluded. People of Territory of Guam v. Ignacio, 10 F.3d 608, 615 (9th Cir. 1993) (citing Perry v. Rushen, 713 F.2d 1447, 1449 (9th Cir. 1983)).

Even if Claussen's statements had been admitted into evidence at petitioner's trial for all purposes, this would not have absolved petitioner of the charged crimes. Mr. Claussen's proposed testimony that he believed the perpetrator of the robbery committed at his gas station was "darker" than petitioner, is vague and subjective and would not have been particularly relevant to the question whether petitioner committed any robberies other than the Arco/Valero robbery. Nor was Claussen's potential testimony "crucial" to petitioner's defense because, as the California Court of Appeal pointed out, petitioner was still allowed to present other evidence tending to cast the blame for at least some of the robberies on Mr. Taylor. Specifically, as noted by the state appellate court:

Johnson, 183 Cal.App.4th at 280.

Petitioner does not deny that the jury heard all of this evidence and argument. Rather, he merely argues that the proposed testimony by Claussen was stronger than the evidence of third-party culpability he was allowed to present at trial. The undersigned disagrees. Given all of the evidence that petitioner was able to present at trial which supported his defense that Thaddeus, and not petitioner, may have been the perpetrator of the charged crimes, the proposed testimony by Claussen about an uncharged and apparently unrelated robbery would have added little of substance to petitioner's third-party culpability defense. At most, Claussen's proposed testimony afforded a "possible ground of suspicion" pointing to Thaddeus Taylor. It certainly did not directly connect Taylor with the actual commission of any of the robberies with which petitioner was charged and convicted.

Even assuming arguendo that the trial court's exclusion of Claussen's proposed testimony was constitutional error, any such error could not have had a "substantial and injurious effect or influence in determining the jury's verdict" under the circumstances of petitioner's case. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (in a federal habeas corpus proceeding, the federal court must determine whether any error had a "substantial and injurious effect" on the jury's verdict); Henry v. Ryan, 720 F.3d 1073, 1089 (9th Cir. 2013). See also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (Brecht harmless error review applies whether or not the state court recognized the error and reviewed it for harmlessness). The significant evidence of petitioner's involvement in the robberies and murder with which he was charged and convicted was summarized by the California Court of Appeal and is set forth above. In light of that evidence, the exclusion of the testimony from a gas station clerk in an uncharged robbery who believed the robber of his station was "darker" than petitioner and that he was unable to pick petitioner as the robber out of a lineup, does not lessen this court's confidence in the jury's verdict in this case.

Finally, petitioner argues that the trial judge's evidentiary ruling excluding Claussen's potential testimony was improperly based on the judge's personal bias that petitioner was guilty of the Arco/Valero gas station robbery. Assuming arguendo that this claim was exhausted in state court and is properly before this court, it lacks merit and should be rejected. There is no evidence before this court that the trial judge's ruling with regard to the potential Claussen testimony was based on any personal bias against petitioner. The trial judge was simply considering the fact of petitioner's prior confession to that robbery, in addition to other facts of record, to determine whether introduction into evidence at petitioner's trial of Claussen's testimony would be substantially more prejudicial than probative in this case.

As the Ninth Circuit has explained:

Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir. 2008). Accordingly, in order to sustain a claim of judicial bias on habeas corpus, the issue is "whether the state trial judge's behavior rendered the trial so fundamentally unfair as to violate federal due process under the United States Constitution." Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995). Petitioner has failed to make that demanding showing here.3

For all of these reasons, petitioner is not entitled to federal habeas relief with respect to his federal constitutional challenge to the trial court's decision to exclude Claussen's potential testimony at petitioner's trial.

C. Petitioner's Explanation for Admissions

In petitioner's third ground for relief, he claims that the trial court violated his rights to a fair trial, to cross-examine the witnesses against him, and to due process when it ruled that his trial counsel could not elicit from his girlfriend Natalie Brand an exculpatory statement he made to her about the murder. (ECF No. 32 at 35.) Petitioner argues that this exculpatory statement should have been admitted into evidence at his trial in order to explain incriminating statements about the murder that he had previously made to Brand which were admitted. (Id. at 36.) He contends that "the trial court allowed the prosecution to admit only the portions of statements by Mr. Johnson that were favorable to the prosecution's position and exclude the portions that explained the statements as false confessions." (Id. at 37.) Petitioner also argues that the trial court violated state law in excluding at trial evidence of his exculpatory statement to Brand. (Id. at 36-37.)

1. State Court Decision

The California Court of Appeal explained the background to this claim and the reasoning underlying its decision thereon, as follows:

Johnson, 183 Cal.App.4th at 285-88.

2. Petitioner's Arguments in the Traverse

In his traverse, petitioner argues for the first time that the California Court of Appeal's decision rejecting his arguments on this issue was based on an unreasonable determination of the facts. Specifically, he points to the state appellate court's statement that his exculpatory comment to Brand

(ECF No. 45 at 22.) Petitioner argues that, contrary to the California Court of Appeals' characterization of his statements, the "admissions" he made during police interrogations were "ambiguous" and "included indications that he was willing to accept responsibility for crimes he did not commit," in order to protect his cousin Thaddeus Taylor from being prosecuted for the robberies. (Id.)

In support of this argument, petitioner cites a portion of the transcript of his police interview wherein he told a police detective that he didn't want to get Thaddeus "in trouble." A review of the state court record reflects that after petitioner admitted to committing at least five specific robberies in the Sacramento area, he made the following statements to police:

(Resp't's Lod. Doc. 21 (volume 1) at 46-47.)

Petitioner states that the police interview during which he made the statements related above occurred shortly before he told Natalie that he had committed the murder. He argues that the close proximity in time between his police interview and his incriminating statement to Natalie indicates that he was still trying to protect his cousin Thaddeus when he made this false statement. (ECF No. 45 at 23.) Petitioner also appears to be arguing that the statements he made to police, set forth above, render his incriminating statements to his girlfriend Natalie Brand "ambiguous" because he was at that time still trying to protect Thaddeus Taylor. Petitioner contends that his statements to Brand, considered in light of his statements he made to the police, were not "reliable and unambiguous." (Id. at 23.) Therefore, according to petitioner, the trial court should have allowed his later statement to Brand, that he did not commit the murder and was just protecting somebody when he said he did, to be admitted into evidence under California Evidence Code § 356 in order to clarify that he initially lied to Brand in order to protect his cousin, Thaddeus Taylor. Petitioner also argues that his later statement to Brand that he was "just protecting somebody" is consistent with his earlier statement to police that he didn't want to get Thaddeus in trouble. (Id. at 22.)

3. Applicable Law

As explained above, criminal defendants have a constitutional right, implicit in the Sixth Amendment, to present a defense; this right is "a fundamental element of due process of law." Washington v. Texas, 388 U.S. 14, 19 (1967). However, the constitutional right to present a defense is not absolute. Alcala v. Woodford, 334 F.3d 862, 877 (9th Cir. 2003). "[A] defendant does not have an absolute right to present evidence, no matter how minimal its significance or doubtful its source." Jackson v. Nevada, 688 F.3d 1091, 1096 (9th Cir. 2012), reversed on other grounds by Nevada v. Jackson, ___ U.S. ___, 133 S.Ct. 1990 (2013). "Even relevant and reliable evidence can be excluded when the state interest is strong." Alcala v. Woodford, 334 F.3d 862, 877 (9th Cir. 2003) (quoting Perry v. Rushen, 713 F.2d 1447, 1450 (9th Cir. 1983).

A state law justification for exclusion of evidence does not abridge a criminal defendant's right to present a defense unless it is "arbitrary or disproportionate" and "infringe[s] upon a weighty interest of the accused." United States v. Scheffer, 523 U.S. 303, 308 (1998). See also Crane, 476 U.S. at 689-91 (discussing the tension between the discretion of state courts to exclude evidence at trial and the federal constitutional right to "present a complete defense"); Greene v. Lambert, 288 F.3d 1081, 1090 (9th Cir. 2002); Perry, 713 F.2d at 1451 (While "[t]he right to present a defense is fundamental," "the state's legitimate interest in reliable and efficient trials is also compelling."). Further, a criminal defendant "does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Montana v. Egelhoff, 518 U.S. 37, 42 (1996) (quoting Taylor v. Illinois, 484 U.S. 400, 410 (1988)). "A habeas petitioner bears a heavy burden in showing a due process violation based on an evidentiary decision." Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005).

The United States Supreme Court has acknowledged a "traditional reluctance to impose constitutional restraints on ordinary evidentiary rulings by state trial courts." Crane, 476 U.S. at 689. The Supreme Court has further made clear that federal habeas power does not allow the granting of relief on the basis of a belief that the state trial court incorrectly interpreted the state evidence code in ruling on the admissibility of evidence. Estelle, 502 U.S. at 72; see also Briceno v. Scribner, 555 F.3d 1069, 1077 (9th Cir. 2009). A petitioner seeking habeas relief from an allegedly erroneous evidentiary ruling bears the burden of establishing that the evidentiary error deprived the petitioner of due process because it was so pervasive that it denied the petitioner a fundamentally fair trial. Brecht, 507 U.S. at 637; see also Duncan v. Ornoski, 528 F.3d 1222, 1244 n. 10 (9th Cir. 2008); Larson, 515 F.3d at 1065.

Petitioner's claim, if any, that the trial court erred in its application of the California Evidence Code in denying his request to admit his exculpatory remark to Natalie Brand is not cognizable in this federal habeas corpus proceeding. Thus, the question whether petitioner's admissions to his girlfriend Natalie Brand were ambiguous, therefore requiring that they be explained by his later statements to Brand pursuant to California Evidence Code § 356, is not properly before this court. Petitioner has failed to demonstrate that the state courts' application of Evidence Code § 356 was erroneous, arbitrary, or capricious, or that it rendered his trial fundamentally unfair in violation of the Due Process Clause. Lewis v. Jeffers, 497 U.S. 764, 780 (1990).

In any event, petitioner's argument advanced in his traverse that his statements somehow rendered ambiguous his incriminating admissions to police detectives and/or to Brand is unavailing. The record reflects that during petitioner's interrogation it was a police officer, not petitioner, who suggested that petitioner didn't want to get Thaddeus Taylor "in trouble." (CT at 46.) Petitioner responded to the officer's suggestion by stating, "What do you mean by that?" (Id.) Although petitioner later responded that he hid the Beretta pistol in Thaddeus' room because "I don't want to get him in trouble," he then immediately clarified that he had, indeed, hidden the gun there himself. (Id.) This colloquy between petitioner and the police falls far short of rendering petitioner's later admission to Brand that he killed the store clerk "ambiguous" or untrustworthy.

Nor is petitioner entitled to habeas relief on a federal due process claim in connection with this argument. As explained above, the Ninth Circuit Court of Appeals for has observed that the United States Supreme Court has not "squarely addressed" whether a state court's exercise of its discretion to exclude testimony violates a criminal defendant's right to present relevant evidence. Moses, 555 F.3d at 758-59; Brown, 644 F.3d at 983. Accordingly, the decision of the California Court of Appeal that the trial court's discretionary evidentiary ruling did not violate the federal constitution cannot be contrary to or an unreasonable application of clearly established United States Supreme Court precedent and may not be set aside. Id. See also Knowles, 556 U.S. at 112; Wright, 552 U.S. at 126.

Finally, given the significant evidence that petitioner committed the Chetty murder, the exclusion from evidence at his trial of petitioner's later, self-serving statement to Natalie Brand that he did not commit the murder but was merely "protecting somebody" when he previously told her he had indeed committed the murder, could not have had a "substantial and injurious effect or influence in determining the jury's verdict" under the circumstances of this case. Brecht, 507 U.S. at 623.

For all of these reasons, petitioner is not entitled to federal habeas relief with respect to this due process claim.

D. Cumulative Effect of Errors by Trial Court

In his final claim for relief, petitioner argues that the cumulative effect of the trial court's erroneous rulings violated his "federal constitutional rights under the Fifth, Sixth and 14th Amendments." (ECF No. 45 at 24.) Petitioner argues that the trial court's rulings constituted "arbitrary" and "disproportionate" applications of state rules of evidence. (ECF No. 32 at 39.) The state appellate court rejected that contention on direct appeal, stating:

Johnson, 183 Cal.App.4th at 288.

The cumulative error doctrine in habeas recognizes that, "even if no single error were prejudicial, where there are several substantial errors, `their cumulative effect may nevertheless be so prejudicial as to require reversal.'" Killian v. Poole, 282 F.3d 1204, 1211 (9th Cir. 2002) (quoting United States v. de Cruz, 82 F.3d 856, 868 (9th Cir. 1996)). See also Cunningham v. Wong, 704 F.3d 1143, 1165 (9th Cir. 2013). However, where there is no single constitutional error existing, nothing can accumulate to the level of a constitutional violation. See Fairbank v. Ayers, 650 F.3d 1243, 1257 (9th Cir. 2011) ("[B]ecause we hold that none of Fairbank's claims rise to the level of constitutional error, `there is nothing to accumulate to a level of a constitutional violation.'") (citation omitted); 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."). "The fundamental question in determining whether the combined effect of trial errors violated a defendant's due process rights is whether the errors rendered the criminal defense `far less persuasive,' Chambers, 410 U.S. at 294, and thereby had a `substantial and injurious effect or influence' on the jury's verdict." Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (quoting Brecht, 507 U.S. at 637).

This court has addressed each of petitioner's claims of error above and has concluded that no error of constitutional magnitude occurred in connection with his trial. There is also no evidence before this court that an accumulation of errors rendered petitioner's trial fundamentally unfair. Accordingly, petitioner is not entitled to federal habeas relief on his claim that cumulative error resulted in a violation of his right to due process.

IV. Conclusion

For the foregoing reasons, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus 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)(l). Within fourteen 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." Any reply to the objections shall be served and filed within fourteen days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).