ORDER AND FINDINGS AND RECOMMENDATIONS

GREGORY G. HOLLOWS, Magistrate Judge.

INTRODUCTION AND SUMMARY

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of lewd and lascivious acts with a child, unlawful sexual intercourse with a child more than three years younger, oral copulation with a child under 18, sexual penetration by foreign object with a child under 18, sodomy with a victim under 18, and engaging in three or more sex acts with a child under 14. Petitioner challenges his conviction on the following grounds: 1) trial counsel rendered ineffective assistance of counsel by, inter alia, failing to perform forensic testing of physical evidence, failing to investigate or call witnesses, failing to subpoena medical records, failing to object to privileged testimony, and failing to communicate with petitioner; 2) the trial court violated petitioner's Sixth Amendment right to counsel when it failed appoint new counsel at the Marsden hearing; 3) the admission of Angela Bryant's testimony regarding her sexual relationship with petitioner violated petitioner's right to due process; 4) there was insufficient evidence to convict petitioner of oral copulation of K.; and 5) the prosecution withheld exculpatory material evidence from petitioner. In conjunction with his ineffective assistance of counsel claims, petitioner has requested an evidentiary hearing be held.

Upon careful consideration of the record and the applicable law, the request for an evidentiary hearing is denied and undersigned recommends that petitioner's application for habeas corpus relief be denied.

BACKGROUND

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the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. Hawes, 2012 Cal. App. Unpub. LEXIS 7307, at **1-9 (October 5, 2012).

After petitioner's judgment of conviction was affirmed by the California Court of Appeal, he filed a petition for review in the California Supreme Court. Resp't's Lod. Doc. 9. The Supreme Court summarily denied that petition without comment or citation by order. Resp't's Lod. Doc. 10. Petitioner then filed three state habeas petitions. The first petition, filed with the Sacramento Superior Court, was denied in a reasoned order. Resp't's Lod. Docs. 11 & 12. The second and third petitions, filed with the Third District Court of Appeal and the California Supreme Court, respectively, were denied without comment or citation. Resp't's Lod. Docs. 13-16.

DISCUSSION

I. AEDPA Standards

The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:

As a preliminary matter, the Supreme Court has recently held and reconfirmed "that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been `adjudicated on the merits.'" Harrington v. Richter, 131 S.Ct. 770, 785 (2011). Rather, "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." Id. at 784-785, citing Harris v. Reed, 489 U.S. 255, 265, 109 S.Ct. 1038 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785.

The Supreme Court has set forth the operative standard for federal habeas review of state court decisions under AEDPA as follows: "For purposes of § 2254(d)(1), `an unreasonable application of federal law is different from an incorrect application of federal law.'" Harrington, 131 S.Ct. at 785, citing Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495 (2000). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Id. at 786, citing Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140 (2004).

Accordingly, "a habeas court must determine what arguments or theories supported or . . . 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 this Court." Id. "Evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.'" Id. Emphasizing the stringency of this standard, which "stops short of imposing a complete bar of federal court relitigation of claims already rejected in state court proceedings[,]" the Supreme Court has cautioned that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id., citing Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166 (2003).

The undersigned also finds that the same deference is paid to the factual determinations of state courts. Under § 2254(d)(2), factual findings of the state courts are presumed to be correct subject only to a review of the record which demonstrates that the factual finding(s) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." It makes no sense to interpret "unreasonable" in § 2254(d)(2) in a manner different from that same word as it appears in § 2254(d)(1) — i.e., the factual error must be so apparent that "fairminded jurists" examining the same record could not abide by the state court factual determination. A petitioner must show clearly and convincingly that the factual determination is unreasonable. See Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 974 (2006).

The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S.Ct. 357 (2002). Specifically, the petitioner "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." Harrington, 131 S.Ct. at 786-87. "Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 746 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76, 127 S.Ct. 649, 653-54 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection). The established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. 3, 9, 123 S.Ct. 362, 366 (2002).

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). However, if the state courts have not adjudicated the merits of the federal issue, no AEDPA deference is given; the issue is reviewed de novo under general principles of federal law. Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir. 2012).

The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early, 537 U.S. at 8. Where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "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 v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

II. Ineffective Assistance of Counsel (Claims 1 through 19)

Petitioner claims that he was deprived of effective assistance of counsel. He contends that trial counsel was ineffective for the following reasons:

Claim 1: Failing to conduct DNA analysis on the massager used on K.

Claim 2: Failing to subpoena M.'s medical records.

Claim 3: Failing to secure petitioner's medical records.

Claim 4: Failing to conduct DNA analysis of petitioner's bedding.

Claim 5: Failing to investigate a prior molest of M. and K. by their biological father.

Claim 6: Failing to follow the procedures outlined in California Evidence Code section 782 to show M.'s propensity to lie about sexual matters.

Claim 7: Failing to subpoena M.'s Facebook account.

Claim 8: Failing to subpoena M.'s computer and media.

Claim 9: Failing to interview M.'s friends.

Claim 10: Failing to obtain an expert to testify regarding the special assault forensic evaluation ("SAFE") interview technique.

Claim 11: Failing to interview alibi witnesses.

Claim 12: Failing to raise a marital privilege objection on petitioner's behalf.

Claim 13: Failing to subpoena Angela Bryant's medical records.

Claim 14: Failing to collect information from petitioner's computer.

Claim 15: Failing to subpoena Comcast's operation records.

Claim 16: Failing to request rape/assault kits of M. and K.

Claim 17: Failing to secure a lie detector test.

Claim 18: Failing to properly communicate with petitioner.

Claim 19: Cumulative error.

As more fully discussed below, petitioner failed to show that trial counsel's representation fell below an objective standard of reasonableness and how he was prejudiced by trial counsel's alleged ineffectiveness. Accordingly, petitioner's ineffective assistance of counsel claims should be denied.

A. Applicable Legal Principles

The test for demonstrating ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, a petitioner must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Id. at 688. To this end, the petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. Id. at 690. The federal court must then determine whether in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id. "We strongly presume that counsel's conduct was within the wide range of reasonable assistance, and that he exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir.1990), citing Strickland at 466 U.S. at 689.

Second, a petitioner must affirmatively prove prejudice. Strickland, 466 U.S. at 693. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. "That requires a `substantial,' not just `conceivable,' likelihood of a different result." Cullen v. Pinholster, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011) quoting Richter, 562 U.S., at ___, 131 S. Ct. at 791.

The Supreme Court has emphasized the importance of giving deference to trial counsel's decisions, especially in the AEDPA context:

Bell v. Cone, 535 U.S. 685, 698-99, 122 S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002).

B. Analysis

1. Claims 1 and 4 — DNA Analysis

Petitioner contends trial counsel was ineffective for failing to conduct DNA analysis on the "massager" that was used on K. and on petitioner's bedding. He argues that because the police seized both the massager and the bedding, there was substantial DNA evidence to prove or disprove M. and K.'s allegations. Petitioner contends trial counsel should have filed a motion to require forensic examination and the failure to do so constituted ineffective assistance of counsel. Petitioner presented these claims to state court in a habeas petition. Resp't's Lod. Doc. 11, Grounds 3 & 4. The state court rejected these claims reasoning that petitioner did not present results of any DNA testing on physical evidence and thus could not show prejudice as the result of trial counsel's actions. Resp't's Lod. Doc. 12, at 2.

The decision to perform forensic testing on physical evidence is a tactical one. See Richter, 131 S.Ct. at 789; Grisby v. Blodgett, 130 F.3d 365, 372 (9th Cir. 1997). The Supreme Court has noted that defense strategies in criminal cases will differ even among the best attorneys:

Richter, 131 S.Ct. 788-89 (internal citation omitted). There may have been many reasons for trial counsel to decide against testing the massager and the bedding. For example, the risk of a positive match to defendant may well have been too great to proceed with this tactic. Instead, trial counsel put together a defense consisting of discrediting M. and K.'s account of the events (1 RT 131, 338), showing bias on the part of M. (1 RT 132), discrediting Krystal Hawes's testimony (1 RT 172), discrediting Angela Bryant's testimony via introducing evidence of her mental disorders (1 RT 378), presenting an appearance that the police investigation was shoddy (1 RT 405), and allowing defendant to testify to explain the allegations (1 RT 408-36). If trial counsel had ordered the testing, it would have been at the cost of forgoing one or more of these other strategies and for very little benefit. That is, even if DNA testing on the massager and bedding came back favorable to petitioner, that potential evidence may have been relevant to two of the seventeen counts of sexual misconduct all of which petitioner was found guilty. (1 CT 196-212). On the other hand, unfavorable testing results would severely undermine the defense's theory that all of the allegations were fabricated and/or easily explained away. As such, petitioner cannot show that trial counsel's tactical decision fell below an objective standard of reasonableness.

Even if petitioner can argue that his counsel should have done what petitioner in hindsight alleges presently, in no way, shape, or form has petitioner demonstrated with facts the potential for any prejudice. The undersigned pauses here to remark on a continuing problem with petitioner's arguments that exist not only here, but for the vast majority of claims made herein. Petitioner believes that he can simply posit the allegation of potential prejudice, and the federal court must hold an evidentiary hearing to see if the allegation is true. However, as discussed in the last section of these Findings, Cullen v. Pinholster, 131 S.Ct. 1388 (2013), precludes this court from ascertaining the facts outside the state court record. Petitioner may not use federal habeas as a mechanism to discover and prove the facts which he did not present to the state courts. If his presentation of evidence in the state courts is "zero," and the state court decides the claim on "zero," and assuming that the state courts did nothing to unduly thwart the presentation of facts which would require the state court to hold an evidentiary hearing, "zero," is what the federal court must make its decision upon. It follows that: zero plus zero equals zero.

Given that petitioner demonstrated no facts which would have required the state court to hold an evidentiary hearing on his DNA claims, his "zero" presentation requires a finding of no prejudice herein.

2. Claims 2, 3 & 13 — Medical Records Subpoenas

Petitioner further contends trial counsel was ineffective for failing to subpoena certain medical records, including records exposing M.'s allergy to latex, showing petitioner's severe back injury, and demonstrating Angela Bryant's mental disorders. He contends records showing M.'s allergy to latex would have demonstrated that M.'s testimony regarding petitioner using latex condoms when he had vaginal intercourse with her was false. As to the records of his severe back injury, he contends these records showing petitioner was limited to lifting five pounds would negate K.'s testimony that, during the same time period, petitioner lifted K. up to place her on his shoulders. With regard to Angela Bryant's records, petitioner contends these would show that her mental disorders rendered her incompetent to testify.

Petitioner presented these claims to state court in a habeas petition. Resp't's Lod. Doc. 11, Grounds 11, 12 & 13. The state court rejected these claims reasoning that petitioner did not present documents demonstrating what trial counsel would have discovered had she subpoenaed them. Resp't's Lod. Doc. 12, at 2. In addition to the lack of documentation supporting these claims, the information the records would have revealed were presented at trial. Rebecca Hawes, M.'s mother, testified that M. was not allergic to latex. 1 RT 482. Several witnesses acknowledged that petitioner had a back injury. See e.g., 1 RT 137 (M. noting that petitioner had a back injury while he homeschooled M.), 226 (Rebecca Hawes noting petitioner's back injury). Angela Bryant's mental disorders were thoroughly discussed. See e.g., 1 RT 378 (Ms. Bryant's testimony regarding her diagnosis of major depression, obsessive compulsive disorder and attention deficit disorder). As such, petitioner cannot show that he suffered prejudice from the lack of medical records relating to these topics.

3. Claim 5 — Failure to Investigate Prior Molest by Victims' Biological Father

Petitioner claims trial counsel should have investigated into a prior molest by M. and K.'s biological father. Petitioner made this identical claim in his state habeas corpus petition. Resp't's Lod. Doc. 11, Ground 1. The trial court rejected this claim stating that "[p]etitioner makes numerous allegations that his trial counsel was ineffective for failing to conduct adequate pre-trial investigation. Yet, Petitioner has not attached any evidence of what counsel could have discovered by conducting such an investigation: [inter alia,] no documents showing the alleged molestation by the victims' biological father . . . ." Resp't's Lod. Doc. 12 at 2. This claim wholly consists of petitioner's unsubstantiated statements. Accordingly, this claim should be dismissed.

4. Claim 6 — Failure to Comply with Evidence Code Section 782

Petitioner claims trial counsel rendered ineffective assistance of counsel by failing to follow the proper procedures to attack M.'s credibility on the basis of her alleged past sexual conduct. The California Court of Appeal denied this claim as follows:

Hawes, 2012 Cal. App. Unpub. LEXIS 7307, at **15-19.

Trial counsel may have made a mistake in failing to follow the proper procedure to attack M.'s credibility pursuant to California Evidence Code section 782, but she declined the court's invitation to comment and proceeded with another line of questioning on cross-examination. Trial counsel may have made this tactical decision to press forward and to rely on the previous inconsistent statements M. had made rather than to paint a more specific picture that M. consistently lied about sexual matters. She may have decided that cornering a 17-year-old witness—who just described, in detail, numerous instances of molest—about a collateral matter might have made her look like a bully in the eyes of the jury. Whatever the reasoning was behind the decision to forgo exploration into M.'s sexual conduct, it cannot be said that the decision fell below an objective standard of reasonableness. As explained by the California Court of Appeal, M.'s testimony was corroborated by several witnesses. As a result, petitioner cannot demonstrate prejudice resulting from trial counsel's misstep, if it even can be called that. Petitioner has not satisfied the requirements of Strickland, thus, failed to show that the California Court of Appeal's decision on this claim as objectively unreasonable. This claim should be denied.

5. Claims 7 & 8 — Failure to Subpoena M.'s Computer and Social Media Activity

Petitioner contends trial counsel was ineffective for failing to obtain information from M.'s electronic and social media activity. He asserts that, at the time of his arrest, M. described her life as "perfect" on her Facebook profile and that emails and messages between M. and her friends would support petitioner's theory that M.'s story was "ever changing." Petitioner made these claims in his state habeas corpus petition. Resp't's Lod. Doc. 11, Grounds 8 & 15. The trial court rejected these claims stating that petitioner did not attach any evidence of what counsel could have discovered by conducting such an investigation into records from M.'s Facebook activity, her computer, or her cell phone. Resp't's Lod. Doc. 12, at 2.

It is not surprising that a teenage girl would describe her life as "perfect" on social media but in reality experience horrific circumstances at home. Here, M had resisted telling anyone about the molest for a lengthy period of time. It is therefore not surprising, or worthy of an evidentiary hearing, to view records where M had not presented herself as an unwilling participant in years of abuse. A recordation of abuse would have meant that M had determined to turn her stepfather over to authorities—a decision that would inevitably involve M in reliving all of the abuse, and having such abuse become the focal point of her life for months in a criminal process. This is a decision that is seldom made at the start of an abusive relationship.

Moreover, it is beyond cavil that most youths like to portray themselves as attractive to other persons. A recoded chronology of being abused would have made M very unattractive to many persons, making most persons shy away—either not wanting to be vicariously involved in what was undeniably a criminal situation, or not having a relationship with someone who would be most certainly psychologically scarred. Reflecting that her life was "perfect" on social media is no different than her saying "good," when asked by anyone "how are you doing?"

In addition, petitioner's reasoning for seeking M.'s text messages—that she texted her friends a lot—does not describe a unique characteristic of M. Indeed M., like any teenage girl with a cell phone, sent text messages to her friends. There is no indication that a review of those text messages would have lead to relevant, exculpatory evidence. See above discussion. Trial counsel's decision to not review these messages cannot be said to have been objectively unreasonable. Furthermore, similar to Claim 6 which also related to information that would attack M.'s credibility, petitioner failed to demonstrate prejudice, as even if those records revealed what petitioner said they would, several other witnesses corroborated M.'s testimony. Accordingly, these claims should be denied.

6. Claims 9 & 11— Failure to Interview or Call Witnesses

Petitioner claims trial counsel was ineffective for failing to interview or call M.'s close friends as witnesses, all of whom could testify to M.'s propensity to lie, as well as failing to interview two alibi witnesses, whose testimony would have placed petitioner away from the alleged scene on the dates specified by K. Petitioner made these claims in his state habeas corpus petition. Resp't's Lod. Doc. 11, Grounds 6 & 9. The trial court rejected these claims stating that petitioner did not attach any evidence of what counsel could have discovered had she interviewed these witnesses. Resp't's Lod. Doc. 12, at 2.

As the state court reasonably concluded, these claims fail because petitioner has not provided declarations from M.'s friends or from the alibi witnesses, demonstrating their willingness to testify and the substance of their testimony. See Allen v. Woodford, 395 F.3d 979, 1002 n.2 (9th Cir. 2004) (district court correctly disregarded counsel's failure to call witnesses because petitioner made no showing that they would have testified); Dows v. Wood, 211 F.3d 480, 486-87 (9th Cir. 2000) (petitioner presented no evidence that alleged alibi witness actually existed or that they would have provided helpful testimony; i.e. presented no affidavit from the witness); Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001) (petitioner failed to identify what witness would have said, thus his claim was wholly speculative); United States v. Berry, 814 F.2d 1406, 1409 (9th Cir. 1989) (petitioner "offers no indication of what these witnesses would have testified to, or how their testimony might have changed the outcome of the hearing").

Accordingly, these claims should be denied.

7. Claim 10— Failure to Retain an Expert Regarding SAFE Interview Techniques

Petitioner claims the SAFE interview technique asks suggestive questions with "yes" or "no" answers. He argues that defense counsel should have obtained an expert on the interview technique to poke holes in the reliability of the interview. However, petitioner has provided no declaration from an expert supporting this claim. Speculation about what an expert could have said is not enough to establish prejudice. See Grisby, 130 F.3d at 373. Accordingly, this claim should be denied.

8. Claim 12 — Failure to Object and Assert Privilege on Petitioner's Behalf

Petitioner contends trial counsel was ineffective for failing to object on marital privilege grounds to questions posed to Angela Bryant, petitioner's ex-wife, regarding their sex life. The court of appeal rejected this claim as follows:

Hawes, 2012 Cal. App. Unpub. LEXIS 7307, at **19-21. As with many of petitioner's ineffective assistance of counsel claims, this claim fails to show any prejudice at all. As the Court of Appeal explained, Ms. Bryant testified that petitioner's penchant for play acting and role playing began when they were dating. As such, even if trial counsel had objected to this evidence, such an objection would not have precluded Ms. Bryant from testifying as to what happened before they were married. Accordingly, this claim should be denied.

9. Claim 14 — Failure to Conduct Forensic Analysis on Petitioner's Computer

Petitioner contends trial counsel was ineffective because she failed to obtain information from petitioner's computer hard drive. He argues that if an individual is sexually interested in children, that interest almost always is accompanied by child pornography. He claims there was no child pornography on his computer and thus he has proof that he has no sexual interest in children. Petitioner raised this claim in his state habeas corpus petition. Resp't's Lod. Doc. 11, Ground 10. The trial court rejected this claim stating that petitioner did not attach any documentation of what counsel could have discovered had she obtained a mirror image of petitioner's hard drive. Resp't's Lod. Doc. 12, at 2. Even if the jury had this mirror image, it cannot be said that petitioner's "absence of evidence" argument would have provided a reasonable probability of changing the result. That is, even if petitioner's computer had no evidence of child pornography, there were several witnesses who testified that he in fact had a sexual interest in children and acted on that interest. As such, petitioner cannot establish prejudice and this claim should be dismissed.

10. Claim 15 — Failure to Subpoena Comcast's Operational Records

Petitioner contends trial counsel was ineffective because she failed to subpoena records from Comcast showing when episodes of Star Trek were televised. He argues that these records would contradict K.'s testimony that petitioner would molest her while they were on the family room couch watching Star Trek because the show aired at a time when petitioner's wife was home. As such, so the argument goes, it would have been impossible for the acts of molestation committed on K. to occur as she testified.

Petitioner raised this claim in his state habeas corpus petition. Resp't's Lod. Doc. 11, Ground 7. The trial court rejected this claim stating that petitioner did not attach any documentation of what counsel could have discovered had she obtained these records from Comcast. Resp't's Lod. Doc. 12, at 2. Even if the jury had this information, it cannot be said that would have provided a reasonable probability of changing the result. That is, even if Star Trek had in fact aired at a time when Rebecca Hawes was home, K. testified that petitioner molested her in his bedroom and in her bedroom as well. As such, petitioner cannot establish prejudice and this claim should be dismissed.

11. Claims 16 & 17— Failure to Obtain Rape Kits and to Secure a Lie Detector Test

Petitioner claims trial counsel was ineffective for failing to obtain a rape kit from K. and M. and for failing to secure a lie detector test. He asserts that on the day of his arrest, K. alleged petitioner had molested her that afternoon. As such, a forensic kit would have been able to show his innocence. Petitioner raised these claims in his state habeas corpus petition. Resp't's Lod. Doc. 11, Ground 5 & 14. The trial court rejected these claims as follows:

Resp't's Lod. Doc. 12, at 2-3.

As the state court concluded, it is not even clear if any kind of forensic testing of K. or M. would have been feasible at the time counsel was appointed. Furthermore and as respondent notes, counsel did not have the power to compel M. or K. to submit to such testing under California law. Cal. Penal Code § 13823.95(b). Again, the decision to perform forensic testing is a tactical one and as noted above (see supra Section II.B.1), there may have been several strategic reasons for not seeking this testing. As to prejudice and petitioner's desire for a polygraph test, the effect of that test would presumably be that petitioner shows he answered the prosecution's questions truthfully. Petitioner had this opportunity when he testified at trial. As such, this claim should be dismissed.

12. Claim 18 — Failure to Communicate with Petitioner

Petitioner contends trial counsel failed to communicate and consult with petitioner in order to present a defense. Petitioner presented this claim in a state habeas petition (Resp't's Lod. Doc. 11, Ground 18) which the state court rejected as follows:

Resp't's Lod. Doc. 12, at 3. Contrary to petitioner's claim, there is no indication that trial counsel ignored petitioner's questions or failed to communicate important developments, such as a plea offer from the prosecution. See United States v. Blaylock, 20 F.3d 1458, 1465-69 (9th Cir. 1994) (ineffective assistance of counsel for failing to communicate plea offer).

There were four sets of complaints which trial counsel addressed to the trial court's satisfaction. First, petitioner stated that trial counsel had not visited him enough to prepare for the case. (1 CT 35). In response, trial counsel noted that she had spent time throughout the case and, as a practice, does not let a month pass without seeing her clients. (1 CT 46). Petitioner was also dissatisfied with the fact that he could not view the video recording of K.'s SAFE interview. (1 CT 37). Trial counsel explained that, for some time, the defense panel policies prevented her from showing the video. (1 CT 40). Once those policies lifted that restriction, she put in a request to show the video but had not heard back on the decision of that request. (1 CT 41). In addition, petitioner stated that trial counsel failed to subpoena certain witnesses. (1 CT 41). Trial counsel had, in fact, hired an investigator to track down these witnesses. (1 CT 48-49). That investigator was unsuccessful, despite several attempts, in obtaining statements from some of these witnesses. (1 CT 48-49). Finally, as the state court noted, it was clear that there was a lack of trust between petitioner and trial counsel. (1 CT 41). Apparently, petitioner simply did not believe trial counsel's responses to his questions. (1 CT 41, 50-51). However, the trial and appellate courts found that while the relationship between trial counsel and petitioner was strained, it did not rise to irreconcilable conflict. This finding was not objectively unreasonable. Furthermore, petitioner cannot demonstrate prejudice. As discussed supra, petitioner's claims of ineffective assistance of counsel, some of which involved trial counsel's tactical decisions to not introduce testimony from certain witnesses and to not seek testing of physical evidence, should be denied. Thus, petitioner's claims that the breakdown in communication resulted in trial counsel rendering constitutionally ineffective assistance should be denied.

13. Claim 19 — Cumulative Error in Legal Representation

Petitioner argues that he is entitled to habeas relief based on the cumulative errors of trial counsel which effectively rendered representation nonexistent. Petitioner presented this claim before the state court on habeas. Resp't's Lod. Doc. 11, Ground 16. The state court denied petitioner's claim concluding that petitioner "has not shown that trial counsel's conduct was objectively unreasonable or that any of the acts or omissions affected the outcome of the case . . ." Resp't's Lod. Doc. No. 12 at 3. "Cumulative error applies where, `although no single trial error examined in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors may still prejudice a defendant.'" Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002), quoting United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996). In the instant case, "[b]ecause there is no single constitutional error in this case, there is nothing to accumulate to a level of a constitutional violation." Id. The denial of this claim by the state court was not an unreasonable application of clearly established Supreme Court authority. Accordingly, this claim should be denied.

III. Claim 20 — Failure to Appoint New Counsel

Petitioner claims that the trial court should have appointed him new counsel at the Marsden hearing. The California Court of Appeal rejected petitioner's claim as follows:

Hawes, 2012 Cal. App. Unpub. LEXIS 7307, at **12-15.

Here, the ultimate constitutional question is whether an irreconcilable conflict between trial counsel and petitioner in fact existed. See Schell v. Witek, 218 F.3d 1017, 1026 (9th Cir. 2000) (en banc). As the court of appeal explained, petitioner was given the opportunity to discuss his concerns regarding his trial attorney. (1 CT 34-38). These included failing to follow his suggestions, such as which witnesses to secure and what to investigate, and failing to spend enough time with petitioner. (1 CT 34-38). The trial court then asked trial counsel for her experience revealing that she had been a criminal defense attorney for 13 years and half of her practice consisted of sexual abuse cases. (1 CT 38). Trial counsel revealed that she hired an investigator to interview the potential witnesses petitioner identified and spoke with petitioner about his attempts to interview those potential witnesses. (1 CT 49). Trial counsel noted there was a lack of communication and that visits were confrontational. (1 CT 41, 46). After hearing from petitioner and trial counsel, the trial court found that trial counsel had properly presented petitioner up to that point and that the relationship had no broken so as to prevent trial counsel from properly representing petitioner. The state court decision rejecting this claim was not unreasonable. Accordingly, this claim should be denied.

IV. Claim 21 — Admission of Privileged Marital Communications

A. Exhaustion

Respondent argues that this claim is unexhausted because petitioner failed to present it before the California Supreme Court. The exhaustion of available state remedies is a prerequisite to a federal court's consideration of claims presented in habeas corpus proceedings. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); 28 U.S.C. § 2254(b); see also Woodford v. Ngo, 548 U.S. 81, 92, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.1985), cert. denied, 478 U.S. 1021, 106 S.Ct. 3336, 92 L.Ed.2d 741 (1986). A petitioner is deemed to have exhausted state remedies if he makes a fair presentation of his federal claims to the state courts. Peterson v. Lampert, 319 F.3d 1153, 1155-56. Fair presentation requires that a state's highest court has "a fair opportunity to consider [an appellant's constitutional claim] and to correct that asserted constitutional defect." Picard, 404 U.S. at 276; see also Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.1999) (requiring that petitioner "alert" the state courts of the constitutional issues that are on appeal).

Contrary to respondent's claim, petitioner fairly raised this claim in front of the California Supreme Court and thus this claim is exhausted. On appeal, petitioner argued that the trial court abused its discretion under California law and also rendered the trial fundamentally unfair in violation of the Fourteenth Amendment by permitting evidence of petitioner's sexual role playing with Ms. Bryant. Resp't's Lod. Doc. 5, at 48. In his petition for review before the California Supreme Court, petitioner argued that the trial court should have excluded this evidence under California Evidence Code section 352 and that its admission in the trial court was a violation of petitioner's right to due process of law under the Fourteenth Amendment. Resp't's Lod. Doc. 9, at 8. Accordingly, the undersigned is satisfied that petitioner fairly presented this claim to the California Supreme Court.

B. Background

The Third District Court of Appeal addressed this claim as follows:

Hawes, 2012 Cal. App. Unpub. LEXIS 7307, at **22-24.

C. Analysis

A federal writ of habeas corpus is not available for alleged error in the interpretation or application of state law. Wilson v. Corcoran, 562 U.S. ___, 131 S.Ct. 13, 16, 178 L.Ed.2d 276 (2010). Absent some federal constitutional violation, a violation of state law does not provide a basis for habeas relief. Id. A petitioner may not "transform a state-law issue into a federal one" merely by asserting a violation of the federal constitution. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997). Rather, petitioner must show that the decision of the California Court of Appeals "violated the Constitution, laws, or treaties of the United States." Little v. Crawford, 449 F.3d 1075, 1083 (9th Cir. 2006) (quoting Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 480 (1991)). Accordingly, to the extent petitioner's due process claims are based on alleged violations of state law governing the admissibility of evidence, they should be rejected.

A state court's evidentiary ruling, even if erroneous, is grounds for federal habeas relief only if it renders the state proceedings so fundamentally unfair as to violate due process. Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009); Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). Even so, as the Ninth Circuit has observed:

Holley, 568 F.3d at 1101. Therefore, "under AEDPA, even clearly erroneous admissions of evidence 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." Id. On the basis of these authorities, the state court's rejection of petitioner's due process claim here does not support federal habeas relief under AEDPA because the admission of evidence at trial regarding sexual role-playing between petitioner and his ex-wife did not violate any clearly established federal law. See id.

V. Claim 22 — Sufficiency of Evidence

Petitioner contends there was insufficient evidence to convict him on Count 12, that he willfully and unlawfully orally copulated K. between August 1, 2007 and June 1, 2008. 1 CT 29. The Third District Court of Appeal rejecting this claim as follows:

Hawes, 2012 Cal. App. Unpub. LEXIS 7307, at **24-27.

When a challenge is brought alleging insufficient evidence, federal habeas corpus relief is available if it is found that upon the record evidence adduced at trial, viewed in the light most favorable to the prosecution, no rational trier of fact could have found "the essential elements of the crime" proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Jackson established a two-step inquiry for considering a challenge to a conviction based on sufficiency of the evidence. United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc).

Id. at 1164-65.

Superimposed on these already stringent insufficiency standards is the AEDPA requirement that even if a federal court were to initially find on its own that no reasonable jury should have arrived at its conclusion, the federal court must also determine that the state appellate court could not have affirmed the verdict under the Jackson standard in the absence of an unreasonable determination. Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005).

A federal habeas court determines sufficiency of the evidence in reference to the substantive elements of the criminal offense as defined by state law. See Jackson, 443 U.S. at 324 n. 16; Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004). California Penal Code section 288.7(b) provides "[a]ny person 18 years of age or older who engages in oral copulation or sexual penetration, as defined in Section 289, with a child who is 10 years of age or younger is guilty of a felony . . . ." As supplemented by People v. Jones, discussed and cited in the appellate court opinion, K.'s testimony was sufficient to establish the elements of this crime. Any rational trier of fact could have believed K.'s testimony, which described the kinds of acts petitioner committed, the approximate number of times it occurred and the general time period when the molests occurred. Certainly, the appellate court was not AEDPA unreasonable in finding the evidence sufficient. As such, petitioner's sufficiency of evidence claim should be denied.

VI. Claim 23 — Brady Claim

Petitioner contends the district attorney failed to disclose exculpatory material consisting of DNA evidence, rape/assault kit evidence and computer data. He raised this claim in a state habeas petition which the trial court denied as follows:

Resp't's Lod. Doc. 12, at 1-2.

A Brady claim contains three elements: "the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; [the] evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (citations and internal quotation marks omitted). But it is not just any prejudice that will be sufficient to make the undisclosed evidence material. "Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability of a different result exists when the government's evidentiary suppression undermines confidence in the outcome of the trial." Jones v. Ryan, 733 F.3d 825, 837 (9th Cir. 2013) (citations and internal quotation marks omitted).

It is insufficient for a federal court in habeas to make a materiality decision on a de novo basis. Rather, the ultimate inquiry here is whether "fairminded jurists" could not agree with the state supreme court decision that the alleged withheld information in this case was not actionable or was immaterial. Richter, 131 S.Ct. at 786.

Petitioner has not indicated that this allegedly withheld evidence even existed. First, Sergeant Brian Dean, the lead detective on this case, testified that he did not process the physical evidence he retrieved, which included petitioner's bedding, for DNA or fingerprints. (1 RT 405). As to the rape/assault kit, petitioner admits that one never existed because he claimed his trial counsel was ineffective for failing to obtain one. See Claim 16. Finally, as to the computer data, there is no indication that the data was copied or retrieved. Again, he admits as much in claiming that trial counsel was ineffective for failing to obtain M.'s electronic and social media activity (Claims 7 and 8) and for failing to obtain an image of his hard drive (Claim 14).

In effect, petitioner's intended claim appears to be a non-preservation of evidence claim. See, Arizona v. Youngblood, 488 U.S. 51 (1988). As such, petitioner's intended claim is unexhausted. Moreover, petitioner has failed to set forth any facts regarding an intentional destruction of evidence as required by Youngblood. With respect to his stated Brady claim, petitioner failed to meet the first element of a Brady claim and, thus, the state court's decision was not objectively unreasonable. This claim should be denied.

VII. Evidentiary Hearing

Petitioner has requested an evidentiary hearing be held to assess the prejudice he suffered in relation to his ineffective assistance of counsel claims. In Cullen v. Pinholster, 131 S.Ct. 1388 (2013), the United States Supreme Court held that federal review of habeas corpus claims under § 2254(d)(1) is "limited to the record that was before the state court that adjudicated the claim on the merits." 131 S.Ct. at 1398. See also Dow v. Virga, 729 F.3d 1041, 1043 (9th Cir. 2013). Therefore, evidence introduced at an evidentiary hearing in federal court may not be used to determine whether a state court decision on the merits of a petitioner's habeas claim violates § 2254(d). Pinholster, at 1398. Following the decision in Pinholster, the holding of an evidentiary hearing in a federal habeas proceeding is futile unless the district court has first determined that the state court's adjudication of the petitioner's claims was contrary to or an unreasonable application of clearly established federal law, and therefore not entitled to deference under § 2254(d)(1), or that the state court unreasonably determined the facts based upon the record before it, and therefore deference is not warranted pursuant to § 2254(d)(2).

Here, this undersigned has already determined that the state court's decision was not contrary to or an unreasonable application of clearly established federal law. Nor was it an unreasonable determination of the facts. Therefore, petitioner's request for an evidentiary hearing is denied.

CONCLUSION

For all the foregoing reasons, the petition should be denied. Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A certificate of appealability may issue only "if the applicant has made a substantial showing of the denial of a constitution right." 28 U.S.C. § 2253(c)(2). For the reasons set forth in these findings and recommendations, a substantial showing of the denial of a constitutional right has not been made in this case.

Accordingly, IT IS HEREBY ORDERED that petitioner's request for an evidentiary hearing is denied.

IT IS HEREBY RECOMMENDED that:

1. Petitioner's application for a writ of habeas corpus be denied; and

2. The District Court decline to issue a certificate of appealability.

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 documents 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. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).