FINDINGS AND RECOMMENDATIONS

CAROLYN K. DELANEY, Magistrate Judge.

Petitioner, a state prisoner, is proceeding with counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2010 conviction for second degree murder, for which he was sentenced to a term of 15 years to life, with firearm enhancements, for which he was sentenced to a consecutive term of 25 years to life. (ECF No. 1 ("Ptn.").) Respondent has filed an answer to the petition, and petitioner has filed a traverse. (ECF Nos. 15, 17.) Upon careful consideration of the record and the applicable law, the undersigned will recommend that the petition be denied.

BACKGROUND

I. Facts

In its affirmation of the judgment on appeal, the California Court of Appeal, Third Appellate District, set forth the relevant factual background as follows:

Lodged Document ("Lod. Doc.") 20 at 2-9, also at People v. Zimmerman, 2013 WL 870647 (Cal. App. 3 Dist. March 11, 2013).1 The facts as set forth by the state court of appeal are presumed correct, 28 U.S.C. §2254(e)(1), and are consistent with this court's review of the record.

II. Procedural History

Following a jury trial in the Amador County Superior Court, petitioner was convicted of second degree murder.2 The jury additionally found the charged firearm enhancements to be true.3 The trial court imposed an aggregate term of 40 years to life, consisting of 15 years to life for second degree murder, and a consecutive 25 years to life on the section 12022.53, subdivision (d), enhancement. Lod. Doc. 20 at 2. Petitioner's sentence on the section 12022.5, subdivision (a), enhancement was stayed. Id.

Petitioner appealed the judgment to the California Court of Appeal, Third Appellate District. Lod. Docs. 17-19. On appeal, he argued that the trial court committed various evidentiary and instructional errors. Id. On March 11, 2013, the appellate court rejected petitioner's claims on the merits and affirmed his sentence. Lod. Doc. 20.

Petitioner filed a petitioner for review in the California Supreme Court. Lod. Doc. 21. On June 12, 2013, the California Supreme Court denied review. Lod. Doc. 22.

Petitioner filed the instant federal habeas petition on August 29, 2013. Ptn. Respondent filed an answer on December 30, 2013. ECF No. 15. Petitioner filed a traverse on January 7, 2014. ECF No. 17.

ANALYSIS

I. AEDPA

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 (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, supra, 131 S. Ct. at 785, citing Williams v. Taylor, 529 U.S. 362, 410 (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 (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 (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 (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 (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, supra, 131 S. Ct. at 786-787. 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 (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 (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 (2002).

The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early, supra, 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).

"When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits — but that presumption can in some limited circumstances be rebutted." Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013). "When the evidence leads very clearly to the conclusion that a federal claim was inadvertently overlooked in state court, § 2254(d) entitles the prisoner to" de novo review of the claim. Id. at 1097.

II. Petitioner's Claims

A. Denial of Portions of a Recorded Statement Petitioner Made to Sheriff's Deputy Smith at the Crime Scene

First, petitioner claims that the state courts unreasonably denied him the right to present to the jury the entirety of a recorded statement he made to Sheriff's Deputy Todd Smith just after Deputy Smith arrived at petitioner's address on the evening of August 16, 2009. Petitioner argues that while the trial court permitted the introduction of a portion of the recorded statement, it improperly prevented petitioner from introducing the remaining portion of the recorded statement that contained petitioner's version of what happened when the victim had driven his tractor onto petitioner's land and showed petitioner's state of mind at the time, which petitioner claims supported his claim of self-defense. Petitioner's trial counsel attempted to introduce these additional portions of the recording into evidence, but the trial court sustained the prosecution's objection that this evidence was impermissible hearsay and excluded it. Petitioner argues that the state trial court's refusal to allow him to present this evidence to the jury during his criminal trial violated his Fourteenth Amendment right to due process, Sixth Amendment Confrontation Clause right to confront his accusers, and Fifth Amendment right to remain silent.

1. State Court Decision

In affirming the trial court's ruling denying the introduction of the entirety of petitioner's recorded statement to Deputy Smith at the crime scene, the Third Appellate District wrote:

Lod. Doc. 20 at 18-22, also at People v. Zimmerman, 2013 WL 870647 (Cal. App. 3 Dist. March 11, 2013).

2. Discussion

a. Failure to Exhaust State Court Remedies

As an initial matter, respondent argues that petitioner's claim that the trial court's evidentiary ruling denying the admission of this evidence violated petitioner's Fifth Amendment right to remain silent has not been properly exhausted and, therefore, should be denied. Specifically, respondent asserts that petitioner never properly raised this claim in the state courts until his final appeal to the California Supreme Court, therefore failing to exhaust this claim before presenting it for federal habeas review. This argument is well taken.

Under 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner first must exhaust his state court remedies on a claim before presenting that claim to the federal courts. To satisfy this exhaustion requirement, the claim must have been fairly presented to the state courts completely through to the highest court available, in this case the California Supreme Court. E.g., Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en banc) ("A petitioner must exhaust his state remedies by reaching the point where he has no state remedies available to him at the time he files his federal habeas petition."); Vang v. Nevada, 329 F.3d 1069, 1075 (9th Cir. 2003). In the state courts, the petitioner must refer to the specific federal constitutional guarantee and must also state the facts that entitle the petitioner to relief on the federal constitutional claim. E.g., Shumway v. Payne, 223 F.3d 983, 987 (9th Cir. 2000). That is, fair presentation requires that the petitioner present the state courts with both the operative facts and the federal legal theory upon which his claim is based. E.g., Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005). "[T]o exhaust a habeas claim, a petitioner must properly raise it on every level of direct review." Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004); see also Castille v. Peoples, 489 U.S. 346, 351 (1989) (holding that a claim remains unexhausted for lack of "fair presentation" where it was raised for the first time on discretionary review to the state's highest court and denied without comment). The exhaustion requirement insures that the state courts, as a matter of federal-state comity, will have the first opportunity to pass upon and correct alleged violations of federal constitutional guarantees. See, e.g., Coleman v. Thompson, 501 U.S. 722, 731 (1991).

Here, it is clear that petitioner did not present a claim based on a violation of his Fifth Amendment right to remain silent in his briefing before the California Court of Appeal.4 See Lod. Doc. 17 at 66-74. Rather, he presented a claim based on this particular alleged constitutional violation for the first time on his petition for review filed in the California Supreme Court. See Lod. Doc. 21 at 16. Raising this claim for the first time on discretionary review to the state's highest court was insufficient to meet the exhaustion requirement under 28 U.S.C. § 2254(b)(1)(A). See Casey, 386 F.3d at 916. Plaintiff's assertion in his traverse that the court can presume that the California Court of Appeal adjudicated this claim even though it did not expressly discuss that claim in its opinion under the United States Supreme Court's ruling in Johnson v. Williams, 133 S.Ct. 1088, 1095 (2013) is without merit because, unlike in Johnson, petitioner never fairly presented his right to remain silent claim in his briefing to the state appellate court. Accordingly, petitioner's claim based on the Fifth Amendment right to remain silent has not been properly exhausted and, therefore, should be denied.

b. Procedural Default

Second, respondent argues that to the extent petitioner's claims concerning the exclusion of the recorded statement are premised on arguments that the trial court improperly declined to admit the evidence under California Evidence Code sections 356 or 1202, such claims are procedurally defaulted because the Third Appellate District denied these claims on independent and adequate state procedural grounds. Respondent's argument is meritorious.

The procedural default doctrine forecloses federal review of a state prisoner's federal habeas claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). Generally, "federal habeas relief will be unavailable when (1) `a state court [has] declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement,' and (2) `the state judgment rests on independent and adequate state procedural grounds,'" Walker v. Martin, 562 U.S. 307, 316 (2011) (quoting Coleman, 501 U.S. at 729-30). A state procedural rule is "adequate" only if it is clear, consistently applied, and well established at the time of petitioner's default. Walker, 562 U.S. at 316; Calderon v. United States Dist. Court, 96 F.3d 1126, 1129 (1996). The respondent bears the burden of proof with respect to the "adequacy" of a state procedural bar. Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003). "[A] procedural default does not bar consideration of a federal claim on either direct or 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). Furthermore, a federal habeas court may still consider the merits of an otherwise procedurally defaulted claim if the petitioner successfully makes a showing of "cause" and "prejudice." Martinez v. Ryan, 132 S.Ct. 1309, 1316 (2012) ("A prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law.").

In this action, to determine whether petitioner's claim was procedurally barred, the court looks to the opinion issued by the California Court of Appeal, Third Appellate District because it is the last reasoned state court opinion. Vansickel v. White, 166 F.3d 953, 957 (9th Cir. 1999) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Here, the California Court of Appeal held that petitioner had procedurally forfeited any claims he may have had based on California Evidence Code sections 356 or 1202 with regard to the recorded statement because he failed to raise such arguments in the trial court and only raised them for the first time on appeal in his reply brief. Lod. Doc. 20 at 21. This was an independent state procedural ground for denying petitioner's claim that was well established and consistently applied in California's courts. See People v. Tully, 54 Cal.4th 952, 1075 (2012) ("For the first time in his reply brief, defendant attempts to specify 11 claims as to which the absence of transcripts prevented meaningful appellate review. It is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party."). Accordingly, petitioner's claims regarding the recorded statement should be denied as procedurally defaulted to the extent they are premised on arguments concerning California Evidence Code sections 356 and 1202.

c. Remaining Claims Regarding the Statement Evidence

Finally, respondent argues that petitioner's remaining claims that the trial court's refusal to admit the full recorded statement violated his constitutional due process and confrontation rights lack merit. This argument is well taken.

i. Due Process

Absent some federal constitutional violation, a violation of state law does not provide a basis for habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Accordingly, federal court may not grant habeas relief based on a belief that the state trial court made an incorrect evidentiary ruling under state evidence law. Briceno v. Scribner, 555 F.3d 1069, 1077 (9th Cir. 2009) (citing Estelle, 502 U.S. at 67-68) ("Our habeas powers do not allow us to vacate a conviction `based on a belief that the trial judge incorrectly interpreted the California Evidence Code in ruling' on the admissibility of evidence."). A state court's evidentiary ruling, even if erroneous, is grounds for federal habeas relief only if it is clearly prejudicial and renders the state proceedings so fundamentally unfair so as to violate due process. Drayden v. White, 232 F.3d 704, 710 (9th Cir. 2000); Spivey v. Rocha, 194 F.3d 971, 977-78 (9th Cir. 1999); Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). In essence, habeas relief must be granted when the error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (internal quotations omitted).

Here, petitioner argues that the state court's refusal to admit the entire recorded statement violated his right to due process because it prevented him from using these statements to rebut petitioner's statements to investigators that were proffered by the prosecution to support its theory that petitioner had fabricated his version of the events. Petitioner also argues that the recorded statement would have supported a later statement he had made regarding his version of the events surrounding the shooting incident. However, even assuming for the sake of argument that the trial court erred by preventing petitioner from admitting the whole recorded statement to the jury, it cannot be said that this error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 623. Generally, in a federal habeas proceeding the court will "assess whether the improper exclusion of evidence violated due process by examining the probative value of the evidence on the central issue; its reliability; whether it is capable of evaluation by the trier of fact; whether it is the sole evidence on the issue or merely cumulative; and whether it constitutes a major part of the attempted defense." Drayden v. White, 232 F.3d 704, 711 (9th Cir. 2000) (quotation marks omitted). As petitioner notes, he sought to introduce the recorded statement in order to further prove that his story was credible because it was consistent with other statements he had made that had already been introduced into evidence. Therefore, the probative core of the recorded statement, i.e., petitioner's version of the events, was largely cumulative of other evidence already proffered to the jury. Furthermore, while admission of the entire recorded statement might have possibly bolstered petitioner's version of events in the eyes of the jury, it is unreasonable to assume that it certainly would have swayed the jury to such a degree as to impact their verdict. Even with the admission of this statement, there was sufficient evidence upon which the jury could determine that petitioner's version of the events was false. Accordingly, petitioner fails to demonstrate that right to due process was violated by the state court's omission of this evidence. Therefore, this claim should be denied.

ii. Confrontation

The Sixth Amendment to the United States Constitution grants a criminal defendant the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. "The `main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.'" Fenenbock v. Director of Corrections for California, 692 F.3d 910, 919 (9th Cir.2012) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986)). The Confrontation Clause applies to the states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 406 (1965). In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court held that the Confrontation Clause bars the prosecution from introducing into evidence out-of-court statements made by non-testifying individuals which are "testimonial" in nature unless the defendant has the opportunity to confront and cross-examine that individual with respect to that testimonial evidence. However, not all hearsay implicates the core concerns of the Confrontation Clause; the dispositive question is whether the statement is "testimonial." Crawford, 541 U.S. at 51. Generally, "testimonial" statements are "live out-of-court statements against a defendant elicited by government officer with a clear eye to prosecution." United States v. Cervantes-Flores, 421 F.3d 825, 833-34 (9th Cir. 2005), cert. denied, 547 U.S. 1114 (2006). The United States Supreme Court has held that a statement is non-testimonial when it is made to law enforcement with the "primary purpose [of] enable[ing] police assistance to meet an ongoing emergency." Davis v. Washington, 547 U.S. 813, 828 (2006).

Here, the recorded statement petitioner sought to introduce was clearly non-testimonial. The record demonstrates that petitioner made these statements to Deputy Smith soon after the deputy sheriffs arrived at the scene, and while the deputies were still trying to ascertain the victim's location and how events had transpired prior to their arrival. These surrounding circumstances indicate that the primary purpose behind petitioner's recorded statement to Deputy Smith was to enable the sheriff's deputies at the scene to respond to an ongoing emergency, i.e., finding the recently shot victim. See Davis v. Washington, 547 U.S. 813, 828 (2006). Moreover, the Confrontation Clause requires only that a court not admit testimonial out-of-court statements by an unavailable individual that the prosecution seeks to introduce against the criminal defendant. See Crawford, 541 U.S. 36. In this case, petitioner argues that the trial court should have admitted these statements he made to Deputy Smith, which the defense was seeking to introduce. Accordingly, the recorded statements petitioner sought to introduce did not fall within the purview of the Confrontation Clause's prohibition.

Petitioner argues further that the trial court's evidentiary ruling violated the Confrontation Clause because the prosecution was permitted to introduce out-of-court statements that petitioner made later under interrogation by investigators. Petitioner asserts that the trial court's refusal to allow petitioner to use the full recorded statement to rebut these later statements given to investigators effectively kept petitioner from cross-examining the later statements because petitioner never testified at trial. Petitioner argues that this effectively made him a witness against himself. This argument is frivolous. Even assuming for the sake of argument that the statements proffered by the prosecution fell under the Confrontation Clause, petitioner in no way demonstrates how the inability to introduce the entire recorded statement could be construed as a restriction on petitioner's ability to "cross-examine" those statements. Accordingly, the petitioner's Confrontation Clause claim should be denied.

B. Admission of Expert Testimony Concerning a Firearms Course Petitioner Attended

Second, petitioner argues that the state trial court's failure to strike the testimony of Joe Dirickx, one of the prosecution's expert witnesses who taught a concealed weapon certification course attended by petitioner in July of 2009, violated petitioner's constitutional right to due process. Petitioner asserts that this witness's testimony "included an instruction on the asserted duty to retreat" that "purported [to] reflect[ ] California law," but which "actually contradicted California law, which posits no duty to retreat." Ptn. at 59. Petitioner argues that this testimony contradicted the trial court's instruction to the jury that there was no duty to retreat before using lethal force under California law and that this conflict misled the jury regarding the legal standards for self-defense under California law.

1. State Court Decision

In determining that the trial court did not commit prejudicial error in failing to strike Joe Dirickx's testimony from the record, the Third Appellate District wrote:

Lod. Doc. 20 at 9-12, also at People v. Zimmerman, 2013 WL 870647 (Cal. App. 3 Dist. March 11, 2013).

2. Discussion

a. Procedural Default

Respondent argues that petitioner's due process claim regarding the trial court's failure to strike Dirickx's testimony is procedurally defaulted and, therefore, cannot be considered by this court because the California Court of Appeal denied this claim on the determination that petitioner failed to secure a ruling on his motion to strike this testimony in the trial court, therefore forfeiting the issue on appeal. Indeed, under California law, a party effectively abandons a motion by failing to press the trial court to rule on it even when the trial court, through inadvertence or neglect, neither rules nor reserves its ruling on the motion. People v. Brewer, 81 Cal.App.4th 442, 461 (Cal. Ct. App. 2000) ("[W]here a court, through inadvertence or neglect, neither rules nor reserves its ruling, the party who objected or made the motion must make an effort to have the court actually rule, and that when the point is not pressed and is forgotten the party will be deemed to have waived or abandoned the point."). This procedural rule has been consistently applied by California's courts. See, e.g., People v. Jones, 210 Cal.App.4th 355, 361-62 (Cal. Ct. App. 2012) (defendant abandoned motion by failing to bring it to the court's attention where the court inadvertently failed to rule on it due to multiple continuances); Brewer, 81 Cal.App.4th at 461; People v. Skaggs, 44 Cal.App.4th 1, 7-8 (Cal. Ct. App. 1996) ("By failing to request [a ruling on a motion] and never raising the issue again, [the defendant] abandoned the motion he now claims he made."). Accordingly, petitioner's claim regarding the trial court's failure to strike Dirickx's testimony has been procedurally defaulted. Petitioner does not provide any argument showing "cause" and "prejudice" for the default of this claim. Therefore, this claim should be denied on the basis of procedural default.

b. On the Merits

Moreover even if petitioner's claim was not procedurally defaulted, he fails to show that the state appeals court's decision was contrary to, or based on an unreasonable application of, clearly established federal law for the reasons discussed below.

A challenge to jury instructions does not generally state a federal constitutional claim. See Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). Habeas corpus is unavailable for alleged error in the interpretation or application of state law. Middleton, 768 F.2d at 1085; see also Hayes v. Woodford, 301 F.3d 1054, 1086 (9th Cir. 2002); Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 1987). However, a "claim of error based upon a right not specifically guaranteed by the Constitution may nonetheless form a ground for federal habeas corpus relief where its impact so infects the entire trial that the resulting conviction violates the defendant's right to due process." Hines v. Enomoto, 658 F.2d 667, 672 (9th Cir. 1981) (citing Quigg v. Crist, 616 F.2d 1107 (9th Cir. 1980)). See also Prantil v. California, 843 F.2d 314, 317 (9th Cir. 1988) (stating that to prevail on such a claim petitioner must demonstrate that an erroneous instruction "so infected the entire trial that the resulting conviction violates due process."). The analysis for determining whether a trial is "so infected with unfairness" as to rise to the level of a due process violation is similar to the analysis used in determining whether an error had "a substantial and injurious effect" on the outcome of the trial. See McKinney v. Rees, 993 F.2d 1378, 1385 (9th Cir. 1993).

In order to warrant federal habeas relief, a challenged jury instruction "cannot be merely `undesirable, erroneous, or even universally condemned,' but must violate some due process right guaranteed by the fourteenth amendment." Prantil, 843 F.2d at 317 (quoting Cupp v. Naughten, 414 U.S. 141, 146 (1973)). In making its determination, this court must evaluate the challenged jury instructions "`in the context of the overall charge to the jury as a component of the entire trial process.'" Prantil, 843 F.2d at 817 (quoting Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir. 1984)). The United States Supreme Court has cautioned that "not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation." Middleton v. McNeil, 541 U.S. 433, 437 (2004). Further, in reviewing an allegedly ambiguous instruction, the court "must inquire `whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." Estelle, 502 U.S. at 72 (quoting Boyde v. California, 494 U.S. 370, 380 (1990)); see also United States v. Smith, 520 F.3d 1097, 1102 (9th Cir. 2008).

Here, the California Court of Appeal determined that "[b]ecause nothing in the record suggests the jury did not understand or follow the court's admonition or instructions [regarding there being no duty to retreat], we reject defendant's assertion that the jury was confused by the challenged testimony and believed that defendant had a duty to retreat." Lod. Doc. 20 at 12. Indeed, the record clearly shows that, during Dirickx's testimony, the trial court admonished the jury to consider only the law the court instructed them on at the end of trial, which included the correct instruction regarding the lack of a duty to retreat, and to disregard any other statements of law heard that differed from those instructions. Lod. Doc. 11 at 1437. Furthermore, petitioner fails to point to anything in the record that would indicate that there was a reasonable likelihood that the failure to strike Dirickx's testimony confused the jury on the state of the law to the extent that it "so infected the entire trial that the resulting conviction violate[d] due process." Prantil, 843 F.2d at 317; see also Estelle, 502 U.S. at 72. Accordingly, petitioner's claim that the state court violated his right to due process by failing to strike Dirickx's testimony from the record should also be denied on the merits.

C. Failure to Give Jury Instructions on the Right to Defend Property

Third, petitioner argues that the trial court failed to sua sponte instruct the jury on the right to defend real or personal property, which petitioner claims violated his Sixth and Fourteenth Amendment rights to adequate instructions on a defense. In particular, petitioner asserts that the factual circumstances presented at trial regarding the victim's use of a tractor to enter onto petitioner's property and smash his gate and defense counsel's argument at trial that petitioner "had every right to prevent further acts of destruction to the property" gave rise to a duty by the trial court to sua sponte instruct the jury on the law regarding defense of property. ECF No. 17 at 14.

1. State Court Decision

In determining that the trial court did not commit prejudicial error in failing to sua sponte instruct the jury on the right to defend real or personal property, the Third Appellate District wrote:

Lod. Doc. 20 at 12-14, also at People v. Zimmerman, 2013 WL 870647 (Cal. App. 3 Dist. March 11, 2013).

2. Discussion

a. Procedural Default

As an initial matter respondent argues that this claim is procedurally defaulted to the extent that it is premised on petitioner's arguments that the record provided a possibility that petitioner fired "warning shots" at the victim because, as the California Court of Appeal determined in its opinion, petitioner raised this argument for the first time in his reply brief on appeal. As discussed above with regard to petitioner's right to remain silent claim, a state court's dismissal of a claim because it was raised for the first time in the reply brief on appeal constitutes a decision based on adequate and independent state procedural law. Tully, 54 Cal. 4th at 1075. Accordingly, petitioner's claim is procedurally defaulted to the extent it is premised on this argument.

b. On the Merits

With regard to the remainder of petitioner's claim, a defect regarding jury instructions rises to the level of a constitutional violation only when it "so infect[s] the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. at 72. Furthermore, where the constitutional challenge is to a refusal or failure to give an instruction, the petitioner's burden is "especially heavy," because "[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 155 (1977); see also Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997). The burden upon petitioner is greater yet in a situation where he claims that the trial court did not give an instruction sua sponte.

Here, petitioner fails to establish that the California Court of Appeal's analysis of this claim was contrary to clearly established federal law. While petitioner is correct that "[w]hen habeas is sought under 28 U.S.C. § 2254, [f]ailure to instruct on the defense theory of the case is reversible error if the theory is legally sound and evidence in the case makes it applicable," Clark v. Brown, 450 F.3d 898, 904 (9th Cir. 2006) (internal quotation marks omitted), the California Court of Appeal reasonably determined that petitioner did not assert such a defense at trial. See Lod. Doc. 20 at 13 ("[T]rial counsel later argued defendant "had every right to prevent further acts of destruction to the property.' . . . That argument, however, was made in reference to defendant's actions after he fired at O'Sullivan. . . . Defendant's trial counsel never argued that defendant fired at O'Sullivan to protect his property from imminent harm." (emphasis in original)). More importantly, even assuming that defendant had clearly asserted defense of property as defense to shooting the victim, a failure to instruct on that defense would not have constituted reversible error because, as the state appeals court reasonably determined, this defense theory would not have been legally sound. The factual record demonstrates that no reasonable juror could find that petitioner used reasonable force to protect his property from imminent harm because he used lethal force, i.e., he fired three independently fatal shots into the victim's torso, which was per se unreasonable for purposes of a defense of property theory under California law. See People v. Curtis, 30 Cal.App.4th 1337, 1360 (1994) ("[T]he intentional use of deadly force merely to protect property is never reasonable."). For this same reason, it cannot be said that a failure to give a defense of property instruction "so infected the entire trial that [petitioner's] resulting conviction violate[d] due process" because no reasonable juror could have found petitioner not guilty under this theory. Estelle v. McGuire, 502 U.S. at 72. Accordingly, petitioner's claim that the trial court violated his constitutional rights by not sua sponte giving the jury a defense of property instruction should be denied.

D. Admission of Expert Testimony Regarding the Absence of Gunshot Residue

Fourth, petitioner claims that the trial court violated his constitutional right to due process by admitting expert opinion testimony regarding the fact that petitioner's arms and hands had no gunshot residue after the shooting incident. Petitioner argues that this testimony suggested that petitioner attempted to hide evidence and fabricate his version of the events, therefore indicating that he had a consciousness of guilt, even though there was no evidence that petitioner attempted to wash his hands or otherwise remove any gunshot residue in the time between when he fired the fatal shots and when he was examined for residue.

1. State Court Decision

In determining that the trial court did not commit prejudicial error in permitting a prosecution expert witness to testify concerning the absence of gunshot residue on petitioner's hands, the Third Appellate District wrote:

Lod. Doc. 20 at 14-16, also at People v. Zimmerman, 2013 WL 870647 (Cal. App. 3 Dist. March 11, 2013).

2. Discussion

a. Procedural Default

As an initial matter, respondent argues that this claim is procedurally defaulted because the California Court of Appeal denied this claim on procedural grounds on the basis that petitioner's trial counsel failed to raise a spontaneous objection to the introduction of the challenged expert witness's testimony at trial. However, the record shows that petitioner's trial counsel did object to the expert's testimony, which was sustained by the trial court, albeit with regard to that witness's expert status. Generally, "California courts construe broadly the sufficiency of objections that preserve appellate review." Melendez v. Pliler, 288 F.3d 1120, 1125 (9th Cir. 2002); see also People v. Scott, 21 Cal.3d 284, 290 (1978) ("In a criminal case, the objection will be deemed preserved if, despite inadequate phrasing, the record shows that the court understood the issue presented."). Furthermore, while the California Court of Appeal indicated that petitioner forfeited his claim due to trial counsel's failure to spontaneously object at trial on the specific grounds he asserted on appeal, it also adjudicated this claim on the merits. Accordingly, given the often lengthy and complicated matter of procedural default, especially considering the complex issue regarding whether the procedural rule cited by the California Court of Appeal is consistently applied in the factual context provided by this case and the broad construction California courts may give to such an objection, it appears that the interests of judicial economy counsel in favor of reaching the merits of this claim. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) ("Procedural bar issues are not infrequently more complex than the merits issues presented by the appeal, so it may well make sense in some instances to proceed to the merits if the result will be the same."); Lambrix v. Singletary, 520 U.S. 518, 525 (1997) ("We do not mean to suggest that the procedural-bar issue must invariably be resolved first; only that it ordinarily should be.") As discussed below, petitioner's claim as to the admission of this expert testimony is without merit. Therefore, an analysis of the merits of this claim appears less complicated and time-consuming than a lengthy discussion regarding whether the procedural bar cited by the California Court of Appeals has been consistently applied in the context presented by this case.

b. On the Merits

With regard to the merits of this claim, petitioner fails to show that the California Appeals Court's decision was contrary to clearly established federal law. Indeed, the Ninth Circuit Court of Appeals has held that there is no clearly established right to be free of an expert opinion on an ultimate issue. Moses v. Payne, 555 F.3d 742, 761 (9th Cir.2009) ("[It is well-established . . . that expert testimony concerning an ultimate issue is not per se improper. . . . Although "[a] witness is not permitted to give a direct opinion about the defendant's guilt or innocence. . . . an expert may otherwise testify regarding even an ultimate issue to be resolved by the trier of fact." (internal citations and quotation marks omitted)). Here, the weapons expert gave an opinion as to the possible reasons petitioner's arms and hands had no gunshot residue after petitioner fired his gun at the victim, including the possibility that any residue was wiped off through normal activity. This opinion did not pass directly upon petitioner's guilt or innocence. In fact, it even left the ultimate factual issue of why no gunshot residue was found on petitioner's arms and hands up to the jurors. Petitioner cannot demonstrate that the California Appeals Court's decision to uphold the introduction of this evidence was contrary to clearly established law. Therefore, this claim should be denied.

E. Jury Instructions that Hiding Evidence or Giving False or Misleading Statements Could be Considered as Evidence of Consciousness of Guilt

Finally, petitioner argues that the trial court committed prejudicial error when it used the language of CALCRIM numbers 362 and 371 to instruct the jury that the hiding of evidence or giving of false or misleading statements could be considered as evidence of consciousness of guilt.

1. State Court Decision

In determining that the trial court did not commit prejudicial error by instructing the jury that consciousness of guilt could be inferred from hiding evidence or making false or misleading statements, the Third Appellate District wrote:

Lod. Doc. 20 at 16-18, also at People v. Zimmerman, 2013 WL 870647 (Cal. App. 3 Dist. March 11, 2013).

2. Discussion

As discussed above, a challenged jury instruction "cannot be merely `undesirable, erroneous, or even universally condemned,' but must violate some due process right guaranteed by the fourteenth amendment." Prantil, 843 F.2d at 317. Here, petitioner argues that these two instructions on consciousness of guilt should not have been read to the jury because there was no evidence that petitioner hid evidence or lied about the circumstances of the shooting. Petitioner asserts that these unnecessary instructions "became a springboard for prosecution speculation that petitioner hid evidence as part of an effort to fabricate a false story" and that "[p]etitioner was only convicted because the jury was persuaded that he lied about the circumstances of the offense, and thereby disclosed a guilty mind and consciousness of guilt." Ptn. at 64-65. However, as the California Court of Appeal determined, there existed evidence from which the jury reasonably could conclude that defendant attempted to hide evidence and made false or misleading statements, including inconsistencies in petitioner's statements to the authorities, the discovery of only two bullet casings at the crime scene despite the fact that petitioner had shot the victim three times, and the lack of gunshot residue on petitioner's arms and hands after the shooting. Accordingly, contrary to petitioner's assertion, there was a sufficient basis for the trial court to give the two jury instructions and the California Court of Appeal reasonably relied on such evidence to deny petitioners' claim.

Furthermore, as the state appeals court noted, "[t]he challenged instructions left it up to the jury to determine whether [petitioner] had tried to hide evidence or made false or misleading statements" and the trial court admonished them that "they could not convict him on that basis alone." Lod. Doc. 20 at 18. Given the lack of any indication that the jury did not follow this admonition, or that the jury understood the instructions to mean that they were required to find that petitioner had a consciousness of guilt, it cannot be said that the instructions "so infected the entire trial that the resulting conviction violate[d] due process." Prantil, 843 F.2d at 317. Accordingly, the court recommends that petitioner's due process claims regarding the consciousness of guilt instructions be denied.

CONCLUSION

Based on the foregoing, IT IS HEREBY RECOMMENDED that the petition for writ of habeas corpus (ECF No. 1) be denied.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. 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).