FINDINGS & RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate Judge.

I. Introduction

Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2011 conviction for false imprisonment, criminal threats, two counts of assault with a deadly weapon, battery with serious bodily injury, and sexual battery by restraint. Petitioner was sentenced to 25 years in state prison. Petitioner raises nine claims alleging constitutional error. After careful review of the record, this court concludes that the petition should be denied.

II. Procedural History

"A jury acquitted petitioner of attempted murder but convicted him of six offenses arising from an incident in which he used some `muscle' over a drug debt." People v. Gentry, 2012 WL 3089829 (Cal. App. 3 Dist., July 31, 2012). On February 1, 2011, a jury found petitioner guilty of false imprisonment, criminal threats, two counts of assault with a deadly weapon, battery with serious bodily injury, and sexual battery by restraint. (Clerk's Transcript ("CT") 1151.) On April 22, 2011, petitioner was sentenced to 25 years in state prison. (CT 1391.)

Petitioner appealed the conviction to the California Court of Appeal, Third Appellate District. The Court of Appeal affirmed the conviction on July 31, 2012.

Petitioner filed a petition for review in the California Supreme Court, which was denied on October 31, 2012. (Respondent's Lodged Documents ("LD") 17.)

Petitioner filed the instant petition on January 24, 2013. (ECF No. 1.)

III. Facts1

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the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

(People v. Gentry, slip op. at 1-2.)

IV. Standards for a Writ of Habeas Corpus

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, 4 (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:

28 U.S.C. § 2254(d).

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. Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 132 S.Ct. 38 (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, 133 S.Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 132 S.Ct. 2148, 2155 (2012) (per curiam)). 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.2 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). In this regard, 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, 131 S.Ct. 770, 786 (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,131 S. Ct. at 786-87.

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, 131 S. Ct. at 784-85. 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 785 (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, 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, 131 S. Ct. at 784.

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, 131 S. Ct. at 784. 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." 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 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).

V. Petitioner's Claims

A. Admission of Propensity Evidence

Petitioner claims that the trial court erred by admitting needless other crimes and violent propensity evidence to prove the sustained fear element of the criminal threats charge which petitioner contends were not reasonably in dispute. Petitioner argues that at a minimum, the court erred by admitting details concerning persistent high level drug dealing, drug manufacturing, and prison associations suggesting that petitioner was a violent leader, all of which were not relevant to the instant crimes, and were unduly prejudicial. Petitioner contends the admission of this evidence posed an undue risk that the jury would find petitioner guilty based on the irrelevant and unduly prejudicial evidence rather than the evidence of the charged offenses, and that the "spotty" limiting instructions were insufficient to reduce the prejudice.

Respondent contends there is no basis for habeas relief based on the admission of propensity evidence because no Supreme Court precedent supports such claim, and, in any event, even assuming the evidence was erroneously admitted, such error did not have a substantial and injurious effect on the verdict.

1. State Court Opinion

The last reasoned rejection of petitioner's first claim is the decision of the California Court of Appeal for the Third Appellate District on petitioner's direct appeal. The state court addressed this claim as follows:

(People v. Gentry, slip op. at 5-8.)

2. Analysis

The United States Supreme Court "has never expressly held that it violates due process to admit other crimes evidence for the purpose of showing conduct in conformity therewith, or that it violates due process to admit other crimes evidence for other purposes without an instruction limiting the jury's consideration of the evidence to such purposes." Garceau v. Woodford, 275 F.3d 769, 774 (9th Cir. 2001), overruled on other grounds by Woodford v. Garceau, 538 U.S. 202 (2003). In fact, the Supreme Court has expressly left open this question. See Estelle, 502 U.S. at 75 n.5 ("Because we need not reach the issue, we express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of `prior crimes' evidence to show propensity to commit a charged crime"). See also Garza v. Yates, 472 Fed. Appx. 690, 691-92 (9th Cir. 2012) (the Supreme Court has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant habeas relief); Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008) (holding that state court had not acted objectively unreasonably in determining that the propensity evidence introduced against the defendant did not violate his right to due process), cert. denied, 129 S.Ct. 941 (2009); Alberni v. McDaniel, 458 F.3d 860, 863-67 (9th Cir. 2006) (denying the petitioner's claim that the introduction of propensity evidence violated his due process rights under the Fourteenth Amendment because "the right [petitioner] asserts has not been clearly established by the Supreme Court, as required by AEDPA"), cert. denied, 549 U.S. 1287 (2007); United States v. LeMay, 260 F.3d 1018 (9th Cir. 2001) (Fed. R. Evid. 414, permitting admission of evidence of similar crimes in child molestation cases, under which the test for balancing probative value and prejudicial effect remains applicable, does not violate the due process clause). Accordingly, the state court's decision with respect to this claim is not contrary to United States Supreme Court precedent.

Further, any error in admitting this testimony did not have "a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). As the trial court found, the prior misconduct evidence was relevant to demonstrate the victim's state of mind, an element of the criminal threats charge; that is, that Ebert was in sustained fear because of petitioner's threats. Although the prior misconduct evidence was potentially powerful, "[the fact] that prior acts evidence is inflammatory is not dispositive in and of itself." LeMay, 260 F.3d at 1030. In any event, as noted by the state appellate court, the prior acts evidence was not nearly as inflammatory as the allegations against petitioner involving the victim in this case.

Finally, during the trial, the judge admonished the jury, at the time Ebert testified that petitioner was a "bigwig" and explained the reasons Ebert allegedly feared petitioner's threats, that Ebert's testimony was not to be considered for the truth of the matter asserted, but only in connection with Ebert's state of mind. (CT 405-06.) In addition, the jury was further instructed that evidence admitted at trial for a limited purpose could be considered "only for that purpose and no other." (CT 1060.) The jury was specifically instructed:

(CT 1060.)

The law presumes that juries follow their instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000); United States v. Olano, 507 U.S. 725, 740 (1993). More particularly, juries are presumed to follow cautionary or limiting instructions. Richardson v. Marsh, 481 U.S. 200, 211 (1987) (describing this presumption as an "almost invariable assumption of the law"); Tennessee v. Street, 471 U.S. 409, 414-15 (1985) (trial court's limiting instruction, regarding admission of confession of defendant's accomplice to rebut defendant's claim that his own confession was the product of coercion, was adequate to protect defendant's Confrontation Clause rights.)

Accordingly, petitioner is not entitled to relief on his first claim.

B. Exclusion of Defense Evidence

Petitioner claims that the trial court erred in excluding three lines of defense evidence, which allegedly violated his right to a defense, due process, a fair trial, and his ability to confront and impeach witnesses' testimony against him. In his petition, petitioner limited this federal habeas claim to the excluded testimony of Benson, Hillhawkins and Mason. (ECF No. 1 at 7.) Petitioner contends the exclusion of evidence deprived him of the right to present a defense that Ebert fabricated the assault based on Ebert's own habit and history/fixation on similar assaults with flashlights. (ECF No. 1 at 27.)

Respondent argues that because petitioner's proposed evidence was not trustworthy or material, the state court properly rejected petitioner's claim.

1. State Court Opinion

The last reasoned rejection of petitioner's claim is the decision of the California Court of Appeal for the Third Appellate District on petitioner's direct appeal. The state court addressed this claim as follows:

(People v. Gentry, slip op. at 8-9.)

2. Legal Standards

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). But the constitutional right to present a defense is not absolute. "[S]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials." Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quoting United States v. Scheffer, 523 U.S. 303, 308 (1998).) "Only rarely have we held that the right to present a complete defense was violated by the exclusion of defense evidence under a state rule of evidence." Nevada v. Jackson, 133 S.Ct. 1990, 1992 (2013) (citations omitted).

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). Also, the Court has not clearly established a "controlling legal standard" for evaluating discretionary decisions to exclude such evidence. Id. at 758; see also 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."), cert. denied, 132 S.Ct. 593 (Nov. 14, 2011). Rather, the Supreme Court focused only on whether an evidentiary rule, by its own terms, violated a defendant's right to present evidence, and found that AEDPA does not permit a federal habeas court to conclude that a state court's discretionary exclusion of evidence pursuant to a valid evidentiary rule violated clearly established Supreme Court precedent. Moses, 555 F.3d at 756-60; accord Horell, 644 F.3d at 983. Subsequently, the Supreme Court held that its precedent did not clearly establish that the Constitution "requires a case-by-case balancing of interests" before a Nevada state rule precluding the admission of extrinsic evidence to impeach a witness could be enforced, stating that the "Court has never held that the Confrontation Clause entitles a criminal defendant to introduce extrinsic evidence for impeachment purposes." Nevada v. Jackson, 133 S. Ct. at 1992-94 (exclusion of evidence under state law for the purpose of focusing the fact-finder and conserving judicial resources was appropriate and did not impinge on a defendant's right to present a complete defense.).

Consequently, the Ninth Circuit has noted that "under AEDPA, `even clearly erroneous' evidentiary errors `that render a trial fundamentally unfair may not permit the grant of federal habeas corpus relief if not forbidden by `clearly established federal law,' as laid out by the Supreme Court.'" Hale v. Cate, 530 Fed. Appx. 636, 637 (9th Cir. 2013) (quoting Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009)), cert. denied, Hale v. Beard, 134 S.Ct. 1302 (Feb. 24, 2014). Moreover, while Moses only addressed the exclusion of expert testimony under a Washington state statute that provided guidelines for the admission of expert testimony, other courts have since extended the holding in Moses to preclude habeas claims arguing that exclusion of other, non-expert evidence by state courts was contrary to, or an unreasonable application of, controlling Supreme Court precedent, or warranted habeas relief under AEDPA. See, e.g., Chein v. Powers, 2013 WL 6535301, at *10 (C.D. Cal. Dec. 13, 2013) (citing Moses, and finding that state trial court's exclusion of proposed defense evidence regarding conduct of victim because it was irrelevant did not warrant habeas relief under AEDPA); Borges v. Gipson, 2013 WL 6240423, at *15 (C.D. Cal. Dec. 2, 2013) (citing Moses, and finding that California trial court's exclusion of proposed cross-examination pursuant to California Evidence Code § 352 because questioning would be cumulative and time-consuming did not warrant habeas relief under AEDPA); White v. Knipp, 2013 WL 5375611, at *19 (E.D. Cal. Sept. 24, 2013) (citing Moses, and finding that state court's exclusion of third party culpability evidence did not warrant relief under AEDPA); Gonzalez v. Kernan, 2009 WL 1110793, at *18 (C.D. Cal. Apr. 21, 2009) (same).

Finally, even if it can be found that a trial court committed a constitutional error in excluding evidence, it still must be shown that such error had a substantial and injurious effect or influence on the jury's verdict under Brecht, 507 U.S. at 619. See Fry v. Pliler, 551 U.S. 112, 115 (2007) (affirming Ninth Circuit's application of Brecht to exclusion of third party culpability evidence); Moses, 555 F.3d at 760 (even where exclusion of evidence was constitutional error, habeas relief not warranted unless Brecht standard is satisfied).

3. Discussion

Here, the trial court evaluated the proffered testimony under California Evidence Code § 352 and exercised its discretion to exclude it. Petitioner challenges the trial court's discretionary exclusion of defense evidence under a valid state rule, which like Rule 403 of the Federal Rules of Evidence, requires a balancing test between the probative value of the evidence and the probability that its admission will consume undue time or "create substantial danger of undue prejudice, or confusing the issues of or misleading the jury." Cal. Evid. Code § 352. The Supreme Court has found such rules to be constitutional. Holmes, 547 U.S. at 326-27. In any event, petitioner does not challenge the validity of the rule itself. See Moses, 555 F.3d at 758.

For purposes of Section 2254(d)(1), the state court's decision that the trial court did not abuse its discretion in excluding such evidence as untrustworthy, tangential, confusing and collateral cannot be said to violate any clearly established holding of the Supreme Court. See Moses, 555 F.3d at 758-60; see also Jackson, 133 S. Ct. at 1992-94. The Supreme Court has not clearly established a controlling legal standard for evaluating a trial court's discretionary decision to exclude defense evidence in general or witness testimony in particular. Cf. Hale, 530 Fed. Appx. at 637 (rejecting claim that right to present a defense was violated by exclusion of testimony of eyewitness expert, because there was no Supreme Court precedent establishing a constitutional right to eyewitness testimony). Given the absence of Supreme Court precedent, the state appellate court's rejection of petitioner's constitutional claim could not be contrary to, or an unreasonable application of, clearly established federal law. See Horell, 644 F.3d at 983; Moses, 555 F.3d at 758-59; see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (Section 2254(d)(1) is not satisfied when a state court has "decline [d] to apply a specific legal rule that has not been squarely established by" the Supreme Court.).

In any event, Ebert's credibility was thoroughly impeached at trial. Benson was allowed to testify that Ebert bragged that he could get away with anything (Reporter's Transcript ("RT") 1062), supporting the defense theory that Ebert manipulated Agent Carrell. Agent Carrell testified that Ebert told Carrell that what petitioner did to Ebert to enforce the drug debt was the kind of thing Ebert used to do in his juvenile days, also supporting the defense theory. Defense counsel cross-examined Carrell. (RT 769-70; 779; 996.) Chandler's preliminary hearing testimony was admitted confirming that Chandler believed he was offered a deal in exchange for helping Agent Carrell. (RT 819-20.) In addition, the jury was aware that Chandler was granted immunity from prosecution. (RT 742.) Evidence was introduced that Ebert used methamphetamine and sold it to support himself. (RT 411.) Ebert admitted he was dropped from the witness protection program because he returned to Shasta County and made terrorist threats, for which he subsequently pled guilty. (RT 494, 506.) Defense counsel pointed out numerous discrepancies between Ebert's initial statements to Carrell concerning the events at the ranch and Ebert's testimony at trial concerning such events, and vigorously cross-examined Ebert. (RT 410-501; 516-25.) Defense counsel also cross-examined eyewitness Collins. (RT 565-80; 590-615; 622-25.)

Further, even if the excluded evidence had been admitted at petitioner's trial for all purposes it would not have absolved him of the charged crimes because of the evidence against him. "The exclusion of tangential evidence of something that may have happened at a different time and place does not constitute a due process violation." Walters v. McCormick, 122 F.3d 1172, 1177 (9th Cir. 1997). Thus, even assuming arguendo that the trial court's exclusion of such testimony was constitutional error, the error 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. In light of the evidence of petitioner's involvement in the attack on Ebert, the exclusion of the proposed testimony does not lessen the court's confidence in the verdict. Thus, the state appellate court's rejection of this claim was not contrary to, and did not involve an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d).

C. Witness Chandler

Petitioner claims that the trial court erred by allowing the prosecutor "to parade the likely accomplice Chandler before the jury knowing he would not testify despite immunity." (ECF No. 1 at 29.) Petitioner argues that California Evidence Code § 352, "section 913," and case law preclude it, but if it does occur, a limiting instruction is required upon request. (ECF No. 1 at 29.) Petitioner argues that the state court's finding that the instruction admonishing the jury not to speculate why others involved were not charged was an unreasonable determination of fact and law because the instruction was too generic and the appearance by Chandler was too prejudicial.

Respondent counters that there is no Supreme Court authority holding that a defendant's constitutional rights are violated when a witness takes the stand and asserts a Fifth Amendment right not to testify even if granted immunity. In any event, respondent contends that the jury was properly instructed not to speculate about why Chandler was not on trial.

1. State Court Opinion

The last reasoned rejection of petitioner's claim is the decision of the California Court of Appeal for the Third Appellate District on petitioner's direct appeal. The state court addressed this claim as follows:

(People v. Gentry, slip op. at 9-10.)

2. Analysis

The United States Supreme Court has not held that a defendant's constitutional rights are violated when a witness takes the stand and asserts a Fifth Amendment right not to testify even if granted immunity. Absent such authority, this court must defer to the state court's decision. Moses, 555 F.3d at 754. In any event, as the Court of Appeal noted, the jury was properly instructed as follows:

(CT 1070.) As set forth above, juries are presumed to follow the instructions given. Weeks, 528 U.S. at 234.

Accordingly, the state court's decision was not contrary to, nor an unreasonable application of, clearly established federal law. Therefore, petitioner's third claim should be denied.

D. Refusal to Instruct on Allegedly Late Discovery

Petitioner claims that, contrary to the state court's decision, it was error for the trial court to refuse to instruct on the defense theory that jurors could consider three discovery delays. Petitioner contends that the appellate court's "passing discussion of the merits and its suggestion of forfeiture for [petitioner's] failure to cite or argue the three discovery lines in his briefs on appeal represent unreasonable determinations of fact and law." (ECF No. 1 at 32.) To the extent that counsel failed to preserve this claim at trial or on appeal, petitioner contends such failure constitutes ineffective assistance of counsel.

Respondent counters that there is no basis for habeas relief on such claim, and that in any event, such claim is procedurally barred.

1. Procedural Default

Respondent contends that petitioner's claim is procedurally defaulted. As a general rule, a federal habeas court will not review a claim rejected by a state court if the decision of the state court rests on a state law ground that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729 (1991). In order to be "independent," "the state law basis for the decision must not be interwoven with federal law." La Crosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). "To be `adequate,' the state procedural rule must be `strictly or regularly followed' and `consistently applied.'" Id. However, a procedural default does not bar a federal court from considering a federal claim on habeas review "unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263 (1989). Accordingly, petitioner's claim is defaulted absent a showing of cause for the default and actual prejudice as a result of the alleged violation of federal law. Coleman, 501 U.S. at 753.

The last reasoned rejection of petitioner's first claim is the decision of the California Court of Appeal for the Third Appellate District on petitioner's direct appeal. The state court addressed this claim as follows:

(People v. Gentry, slip op. at 10.)

Here, the California Court of Appeal stated that the denial of petitioner's claim concerning late discovery was based on a state procedural bar. Specifically, the appellate court found that petitioner failed to argue or even specifically identify the information he was talking about.

Petitioner made no showing related to cause and prejudice in his reply to respondent's answer. (ECF No. 25.) Petitioner has not otherwise carried his burden to place at issue the independence and adequacy of the cited state law grounds that the Court of Appeal relied on to foreclose review of this claim. See Bennett v. Mueller, 322 F.3d 573, 580, 586 (9th Cir. 2003). But California's inadequate briefing rule is a well-established and consistently applied rule. See People v. Hovarter, 44 Cal.4th 983, 1029, 81 Cal.Rptr.3d 299 (2008); People v. Gray, 37 Cal.4th 168, 198, 33 Cal.Rptr.3d 451 (2005); People v. Stanley, 10 Cal.4th at 793; Cal. Ct. R. 8.204(a) (1)(C). Further, the rule does not require the state court to determine if federal error has occurred. The state court simply determines whether the claim was adequately briefed. Thus, the inadequate briefing rule is an independent and adequate state law procedural rule that bars federal relief. Also, petitioner has not demonstrated cause for the default and prejudice, or that a fundamental miscarriage of justice would occur if this court did not consider the merits of the procedurally defaulted claim. See Coleman, 501 U.S. at 750. As a result, petitioner's fourth claim regarding late discovery is procedurally defaulted. Therefore, it is recommended that petitioner's fourth claim be denied as procedurally defaulted.

2. Merits

The California Court of Appeal went on to find that based on its review of the record, petitioner was not denied his ability to present a viable defense theory:

(People v. Gentry, slip op. at 11.)

Jury instruction issues are generally matters of state law for which federal habeas relief is not available. Estelle, 502 U.S. at 67-68. A federal habeas court does not review jury instructions to determine whether they violate state law, as federal habeas relief "does not lie for errors of state law." Lewis v. Jeffers, 497 U.S. 764, 780 (1990). The federal habeas question is whether the jury instruction issue so infected the entire trial that the resulting conviction was fundamentally unfair. Estelle, 502 U.S. at 71-73; Clark v. Brown, 450 F.3d 898, 904 (9th Cir. 2006); Henderson v. Kibbe, 431 U.S. 145, 156 (1977) (case where improper instruction will justify reversal is a "rarity").

Such fundamental unfairness may occur if a defendant is "arbitrarily deprive [d]" of a state law procedure such as a favorable jury instruction. Laboa v. Calderon, 224 F.3d 972, 979 (9th Cir. 2000). However, the burden on the habeas petitioner is "especially heavy" where the alleged error involves the failure to give an instruction. Hendricks v. Vasquez, 974 F.2d 1099, 1106 (9th Cir. 1992). Moreover, a federal court reviews such a habeas claim under a harmless error standard; that is, whether the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637.

Here, petitioner fails to explain how the state court's refusal to instruct with CALCRIM No. 306 violates the Constitution. No clearly established Supreme Court precedent guarantees a criminal defendant the right to an adverse jury instruction regarding alleged discovery violations. Moreover, petitioner fails to demonstrate how the omission of this jury instruction allegedly deprived him of a viable defense. As the appellate court noted, petitioner was able to address the lack of discovery with other evidence. Thus, petitioner has not demonstrated that the failure to instruct the jury with CALCRIM 306 had a substantial and injurious effect on the jury's verdict.

Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law, or was such finding based on an unreasonable application of the facts. Petitioner's fourth ground does not warrant federal habeas relief.

E. Unanimity Instruction Refused

Petitioner claims that the trial court erred in refusing to instruct on the requirement of unanimity with regard to the charge of threats with use of a knife, and argues that such refusal resulted in the denial of petitioner's jury trial and due process rights. Respondent counters that there is no Supreme Court precedent to support such contention; thus, the state court's decision that there was no error in the omission of the unanimity instruction is an interpretation of state law which is binding on this court.

The last reasoned rejection of petitioner's claim is the decision of the California Court of Appeal for the Third Appellate District on petitioner's direct appeal. The state court addressed this claim as follows:

(People v. Gentry, slip op. at 11-13.)

The Constitution does not require unanimous agreement on the theory underlying a conviction. See Richardson v. United States, 526 U.S. 813, 817 (1999) (federal jury need not unanimously decide which set of facts make up a particular element of a crime); Schad v. Arizona, 501 U.S. 624, 631-32 (1991) (plurality holding that conviction under different theories does not violate due process); see also McKoy v. N. Carolina, 494 U.S. 433, 449 (1990) (Blackmun, J., concurring) ("[D]ifferent jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line.[] Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.[]") (footnotes omitted).

While a California trial court may be required under state law to instruct the jury that it must unanimously agree on the acts underlying the offense in order to convict, federal law is clear that, at least in a non-capital case, there is no federal right to a unanimous jury verdict. Compare People v. Diedrich, 31 Cal.3d 263, 280-81, 82 Cal.Rptr. 354 (Cal. 1982), and People v. Crawford, 131 Cal.App.3d 591, 595-96, 182 Cal.Rptr. 536 (Cal. Ct. App.1982) (unanimity instruction required where defendant was charged with possession of one or more firearms by felon and jury could disagree as to particular firearm), with Schad, 501 U.S. at 634 n.5 ("a state criminal defendant, at least in noncapital cases, has no federal right to a unanimous jury verdict"), and Apodaca v. Oregon, 406 U.S. 404, 410-13 (1972) (no constitutional right to unanimous jury verdict in non-capital criminal cases). Consequently, at least in non-capital criminal cases, courts within the Ninth Circuit have routinely dismissed habeas claims arguing that a California "unanimity" jury instruction was required. See, e.g., Sullivan v. Borg, 1 F.3d 926, 927-28 (9th Cir. 1993) (citing Schad to find that instruction allowing California jury to convict defendant of first degree murder without unanimity as to whether he had committed felony murder or premeditated murder did not violate petitioner's due process rights.)

Because there is no federal law requiring a jury verdict to be unanimous, as with any instructional error, petitioner is entitled to habeas relief only if he can show that the trial court's failure to give a unanimity instruction "so infected the entire trial that the resulting conviction violates due process." Estelle, 502 U.S. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). Where the alleged error is failure to give an instruction, the burden on the petitioner is "especially heavy." Henderson, 431 U.S. at 155. Petitioner has failed to meet this burden. As found by the state court, the evidence showed that petitioner, while armed with a knife, threatened to cut Ebert from head to toe, to cut Ebert up and throw him on the woodpile, and tried to cut Ebert's penis. Moreover, petitioner's defense was that Ebert lied about what happened; defense counsel's main focus in closing argument was questioning Ebert's credibility (RT 1233-34; 1246; 1257). In addition, the record reflects that the trial court gave the following general unanimity instruction: "Your verdict on each count and any special findings must be unanimous. This means that, to return a verdict, all of you must agree to it." (CT 1090.) In closing argument, the prosecutor described for the jury the threats charged, the charge where the knife use related to the assault with a deadly weapon charge, as well as the enhancements for use of the knife. (RT 1203-04, 1206, 1207, 1208.) Under the circumstances of this case, the trial court's refusal to give a unanimity instruction did not render petitioner's trial fundamentally unfair. The decision of the state appellate court rejecting this claim is not contrary to nor an unreasonable application of federal law. Accordingly, the claim should be denied.

F. Alleged Error in Instructing Jury Not to Speculate

Petitioner claims that the trial court erred in giving the pre-2004 version of this instruction because the jury "needed to fully air out" whether the testimony of Collins and the former testimony of Chandler were the result of fears of prosecution rather than the truth. Petitioner argues this error was acute because no accomplice testimony instruction was given regarding Chandler or Collins, despite evidence that Collins brandished a knife en route to the scene, and Chandler brandished a flashlight later.

Respondent contends the state court's rejection of this claim cannot be contrary to nor an unreasonable application of Supreme Court precedent because there is no such precedent supporting petitioner's claim. Moreover, the jury was aware that Chandler was granted immunity, so the jury could evaluate his preliminary hearing testimony for bias. (RT 742.) Collins testified at trial, so petitioner could have directly asked her whether she was given any consideration in exchange for her testimony, but he did not. Respondent maintains that such question would have been futile, however, because Ebert testified that Collins did not attack him. (RT 378, 390.)

The last reasoned rejection of petitioner's claim is the decision of the California Court of Appeal for the Third Appellate District on petitioner's direct appeal. The state court addressed this claim as follows:

(People v. Gentry, slip op. at 13-14.)

Erroneous jury instructions do not support federal habeas relief unless the infirm instruction so infected the entire trial that the resulting conviction violates due process. Estelle, 502 U.S. at 72 (citing Cupp, 414 U.S. at 147). See also Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) ("`[I]t must be established not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some [constitutional right]'"). The challenged instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record overall. Estelle, 502 U.S. at 72. Moreover, relief is only available if there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. Id. at 72-73.

For the reasons explained by the appellate court, the jury instructions as a whole did not "so infect[ ] the entire trial that the resulting conviction violates due process." See Estelle, 502 U.S. at 72. The jury was aware that Chandler was granted immunity. Collins testified at trial and was therefore available for cross-examination. Moreover, the record does not support any inference that the jury may have applied the challenged instruction in a way that violates the Constitution. See id. at 72-73. The jury was instructed correctly on the prosecution's burden of proof and how to evaluate witness credibility and bias. (RT 1050, 1051, 1053-54; 1090.) Considered as a whole, the instructions given do not raise any constitutional concerns.

Thus, petitioner is not entitled to relief on this claim.

G. Alleged Error in Denying Post-Trial Pitchess3 Motion

Petitioner claims that the trial court erred in denying petitioner's post-trial request for in-camera review of deputy McCormick's employment records. Petitioner argues there was an ample prima facie showing that McCormick's records could show he fabricated or embellished his long-belated written report of a key admission by petitioner to curry favor with McCormick's superiors. (ECF No. 1 at 39.)

Respondent contends there is no basis for relief on petitioner's state law discovery violation, and there is no general constitutional right to discovery in a criminal case. Although petitioner does not allege a violation of Brady v. Maryland, 373 U.S. 83, 86-87 (1963), respondent contends that the record shows no Brady violation.

The last reasoned rejection of petitioner's first claim is the decision of the California Court of Appeal for the Third Appellate District on petitioner's direct appeal. The state court addressed this claim as follows:

(People v. Gentry, slip op. at 15-16.)

Under California law, "a criminal defendant has a limited right to the discovery of peace officer personnel records" if the defendant can show "good cause" in the form of an affidavit setting forth "the materiality thereof to the subject matter involved in the pending litigation." See Chambers v. Superior Court, 42 Cal.4th 673, 679, 68 Cal.Rptr.3d 43 (2007). A motion seeking such discovery is known as a Pitchess motion.

Petitioner's claim involves solely the interpretation and application of state law and, as such, is not cognizable on federal habeas review. See 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 67-68 (1991) (reiterating that "it is not the province of a federal habeas court to reexamine state court determinations on state law questions"); Smith v. Phillips, 455 U.S. 209, 221 (1982) ("A federally issued writ of habeas corpus, of course, reaches only convictions obtained in violation of some provision of the United States Constitution."); see also, e.g., Tafoya v. Clark, 2013 WL 5924509, at *11 (C.D. Cal. Nov.13, 2013) (collecting cases).

Liberally construing petitioner's claim to implicate the due process right to receive material exculpatory and impeachment evidence under Brady, 373 U.S. at 86-87, his claim is cognizable on federal habeas review. See, e.g., Kelley v. Wofford, 2014 WL 1330639, at *17 (E.D. Cal. Apr. 2, 2014) ("A trial court's denial of a defendant's Pitchess motion is cognizable in habeas corpus where the denial implicates the defendant's due process right to receive material exculpatory and impeachment evidence."); Gordon v. Puckett, 2010 WL 891265, at *10 (C.D. Cal. Mar. 7, 2010) (same). To establish a Brady violation, a petitioner must show three things: that the evidence was favorable to him because it was either exculpatory or impeaching; that the evidence was suppressed by the prosecution either willfully or inadvertently; and that he was prejudiced by the nondisclosure. Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

Evidence is material for purposes of a Brady only if there is a "`reasonable probability' that had the evidence been disclosed the result at trial would have been different." Wood v. Bartholomew, 516 U.S. 1, 5 (1995). Disclosure of a requested file is not warranted unless the defendant first "establish[es] a basis for his claim that it contains material evidence." Ritchie, 480 U.S. at 58 n.15; Harrison v. Lockyer, 316 F.3d 1063, 1066 (9th Cir. 2003). The Ninth Circuit has found that the Pitchess preliminary requirement of good cause complies with Supreme Court precedent under Brady (as modified in Ritchie, 480 U.S. at 58 n.15), and has held that California's procedure is not contrary to Supreme Court precedent. Harrison, 316 F.3d at 1066 (holding that the denial of Pitchess discovery does not violate due process if the defendant makes "no showing that [a police personnel] file contained complaints material to his defense").

Here, the trial court reasonably found that the declaration in support of the Pitchess motion was insufficient, and that there was no denial that petitioner made the statement attributed to him by McCormick. (RT 1328.) Moreover, the appellate court pointed out that McCormick testified that his chain of command directed him to write the report (RT 706-07), and that his disclosure of the statement to Agent Carrell prompted the order to write the report. McCormick also testified that the report was accurate. (RT 712.)

Petitioner's Brady claim fails because there has been no showing by petitioner that Deputy McCormick's personnel records that were not reviewed by the trial court constituted evidence that would have qualified as material under Brady. See, e.g., Harrison, 316 F.3d at 1066; United States v. Zuno-Arce, 44 F.3d 1420, 1425 (9th Cir.) ("To prove a Brady violation, a defendant must show that the government withheld material exculpatory evidence."), cert. denied, 516 U.S. 945 (1995); see also United States v. Agurs, 427 U.S. 97, 110-11 (1976) ("The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish `materiality' in the constitutional sense."); United States v. Michaels, 796 F.2d 1112, 1116 (9th Cir. 1986) (observing that "mere speculation" about materials in the government's files does not trigger a disclosure obligation under Brady), cert. denied, 479 U.S. 1038 (1987). Rather, petitioner merely argues that the records "could show [McCormick] fabricated or embellished his long belated written report of a key admission by [petitioner] to curry favor with superiors." (ECF No. 1 at 39 (emphasis added).) Such speculation is insufficient to demonstrate the undisclosed information was material, as defined under Brady.

Thus, there is no basis for finding or concluding that the state courts' rejection of petitioner's federal due process claim pertaining to discovery of Deputy McCormick's personnel records either was contrary to or involved an unreasonable application of clearly established Supreme Court law.

H. Alleged Sentencing Error

Petitioner next claims he was denied due process and suffered double jeopardy when the trial court erred in imposing unstayed terms under Counts 3 and 4, because the crimes were all part of one physical assault. Respondent counters that although both crimes relied on the same injury to Ebert, the crimes represent separate offenses because (a) petitioner was held accountable for criminally threatening Ebert, during which petitioner held and used a knife, and (b) petitioner was held liable for assaulting Ebert with a knife when petitioner stabbed Ebert in the elbow. Because these were separate offenses, respondent argues that the punishments attached to each offense do not violate double jeopardy principles.

The last reasoned rejection of petitioner's claim is the decision of the California Court of Appeal for the Third Appellate District on petitioner's direct appeal. The state court addressed this claim as follows:

(People v. Gentry, slip op. at 16-17.)

1. Petitioner's State Law Claim

California Penal Code Section 654(a) provides:

Cal. Penal Code § 654(a). As discussed above, petitioner's claim, based on a violation of California state law, is not cognizable on federal habeas review. Estelle, 502 U.S. at 67. Because the California Court of Appeal found no violation of the multiple punishment prohibition of § 654, this federal habeas court is bound by the state courts' interpretation and application of its own law. Bradshaw v. Richey, 546 U.S. 74, 76 (2005).

2. Fifth Amendment

The Double Jeopardy Clause of the Constitution provides that no person shall "be subject for the same offen[s]e to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The clause is enforced against the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 787 (1969). The Supreme Court has previously held that this clause protects against successive prosecutions for the same offense after acquittal or conviction and against multiple criminal punishments for the same offense. Monge v. California, 524 U.S. 721, 727-28 (1998) (citing North Carolina v. Pearce, 395 U.S. 711, 717 (1969)).

"[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. . . ." Brown v. Ohio, 432 U.S. 161, 166 (1977) (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)). "If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes." Brown v. Ohio, 432 U.S. at 166 (quoting Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975)).

Here, petitioner was convicted under state law of separate, distinct criminal acts — making criminal threats, and assault with a deadly weapon. The offenses require proof of distinct elements to support convictions. Thus, the convictions do not violate the "same elements" test of Blockburger, 284 U.S. at 304, and petitioner is not entitled to relief on this ground.

I. Cumulative Error

Finally, petitioner claims that the cumulative effect of the errors alleged herein constitute a denial of due process.

The California Court of Appeal for the Third Appellate District on petitioner's direct appeal denied this claim, stating, "[f]inding no significant individual error, we find no cumulative error." (People v. Gentry, slip op. at 17.)

The Ninth Circuit has concluded that under clearly established United States Supreme Court precedent the combined effect of multiple trial errors may give rise to a due process violation if it renders a trial fundamentally unfair, even where each error considered individually would not require reversal. Parle v. Runnels, 505 F.3d 922, 927 (9th. Cir. 2007) (citing Donnelly, 416 U.S. at 643, and Chambers v. Mississippi, 410 U.S. 284, 290 (1973)). "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,' id., 410 U.S. at 294, and thereby had a `substantial and injurious effect or influence' on the jury's verdict." Parle, 505 F.3d at 927 (quoting Brecht, 507 U.S. at 637). See also Hein v. Sullivan, 601 F.3d 897, 916 (9th Cir. 2010) (same).

This court has addressed each of petitioner's claims and concluded that no error of constitutional magnitude occurred. This court also concludes that the alleged errors, even when considered together, did not render petitioner's defense "far less persuasive," and did not have a "substantial and injurious effect or influence on the jury's verdict." Accordingly, petitioner is not entitled to relief on his claim of cumulative error.

VI. Conclusion

Accordingly, 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)(1). 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." If petitioner files objections, he shall also address whether a certificate of appealability should issue and, if so, why and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(3). Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).