FINDINGS AND RECOMMENDATIONS

DALE A. DROZD, Magistrate Judge.

Petitioner is a state prisoner proceeding without counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on January 27, 2009, in the Placer County Superior Court on charges of first degree murder with use of a firearm. He seeks federal habeas relief on the following grounds: (1) there was insufficient evidence introduced at his trial to support his conviction for murder with use of a firearm; (2) evidentiary rulings made by the trial court violated his right to due process; (3) prosecutorial misconduct violated his right to due process; (4) jury instruction error violated his right to due process; (5) incompetence and prejudicial behavior by law enforcement authorities violated his federal constitutional rights; (6) witness tampering by a federal law enforcement officer violated his federal constitutional rights; (7) his trial and appellate counsel rendered him ineffective assistance; (8) he was not advised of his constitutional rights at any of his police interrogations, in violation of the decision in Miranda v. Arizona, 384 U.S. 436 (1966); (9) the prosecutor's suppression of evidence before the grand jury violated his federal constitutional rights; and (10) jury misconduct violated his right to a fair and impartial jury. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

I. Background

In its published 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:

FACTS

Background

Marital Relationship

Death of the Family Dog

Janet's Decision to Leave Defendant

The Days Leading up to Janet's Disappearance

Janet's Disappearance

The Days Following Janet's Disappearance

Initial Investigation

Discovery of the Skull at Rollins Lake

People v. Kovacich, 201 Cal.App.4th 863, 867-879 (2011).3

After the California Court of Appeal affirmed his judgment of conviction, petitioner filed a petition for review in the California Supreme Court. (Resp't's Lod. Doc. 41.) Therein, he challenged the Court of Appeal's rulings with regard to the admission of evidence regarding the dog kicking incident as well as the admission of expert witness testimony regarding the behavior and reactions of victims of domestic violence. The Supreme Court summarily denied that petition for review by order dated March 14, 2012. (Resp't's Lod. Doc. 42.) Petitioner subsequently filed a petition for writ of habeas corpus in the California Supreme Court. (Resp't's Lod. Doc. 43.) That petition was summarily denied by order dated September 24, 2014. (Id.)

Petitioner filed his federal habeas petition in this court on May 20, 2013.

II. Standards of Review Applicable to Habeas Corpus Claims

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

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

For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. Greene v. Fisher, ___ U.S. ___, ___, 132 S.Ct. 38, 44 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent "may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may not be "used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced." Marshall v. Rodgers, ___ U.S. ___, ___, 133 S.Ct. 1446, 1450 (2013) (citing Parker v. Matthews, ___ U.S. ___, ___, 132 S.Ct. 2148, 2155 (2012)). Nor may it be used to "determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct. Id. Further, where courts of appeals have diverged in their treatment of an issue, it cannot be said that there is "clearly established Federal law" governing that issue. Carey v. Musladin, 549 U.S. 70, 77 (2006).

A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a `firm conviction' that the state court was `erroneous.'") "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103.

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

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

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

A summary denial is presumed to be a denial on the merits of the petitioner's claims. Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal court cannot analyze just what the state court did when it issued a summary denial, the federal court must review the state court record to determine whether there was any "reasonable basis for the state court to deny relief." Richter, 562 U.S. at 98. This court "must determine what arguments or theories . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." 562 U.S. at 102. The petitioner bears "the burden to demonstrate that `there was no reasonable basis for the state court to deny relief.'" Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98).

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

III. Petitioner's Claims

A. Insufficient Evidence

In his first ground for federal habeas relief, petitioner claims that the evidence introduced at his trial was insufficient to support the imposition of the sentencing enhancement against him for use of a firearm because there was inadequate proof that Janet died from a gunshot wound. (ECF No. 1 at 5-6.)4 In a related argument, petitioner contends that the lack of proof supporting the firearm use enhancement also "eliminates the murder conviction." (Id.) Petitioner notes that two expert witnesses called by the defense testified that it was impossible to conclude whether the fracture on the skull remnant found at Rollins Lake was caused by a bullet or by something else that occurred either before or after Janet's death. (Id.)

1. State Court Decision

The California Court of Appeal rejected this insufficient evidence claim by petitioner as well as the arguments upon which it was based. The state appellate court reasoned as follows:

Kovacich, 201 Cal. App.4th at 879-884.

2. Applicable Legal Standards

The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a conviction if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). If the evidence supports conflicting inferences, the reviewing court must presume "that the trier of fact resolved any such conflicts in favor of the prosecution," and the court must "defer to that resolution." Id. at 326. See also Juan H. v. Allen, 408 F.3d 1262, 1274, 1275 & n. 13 (9th Cir.2005). "[T]he dispositive question under Jackson is `whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.'" Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 318). Put another way, "a reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury." Cavazos v. Smith, ___ U.S. ___, ___, 132 S.Ct. 2, 4 (2011).

In conducting federal habeas review of a claim of insufficiency of the evidence, "all evidence must be considered in the light most favorable to the prosecution." Ngo v. Giurbino, 651 F.3d 1112, 1115 (9th Cir. 2011). "Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial," and it requires only that they draw "`reasonable inferences from basic facts to ultimate facts.'" Coleman v. Johnson, ___ U.S. ___, ___, 132 S.Ct. 2060, 2064 (2012) (citation omitted). "`Circumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction.'" Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (citation omitted).5

"A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H., 408 F.3d at 1274. In order to grant relief, the federal habeas court must find that the decision of the state court rejecting an insufficiency of the evidence claim reflected an objectively unreasonable application of the decisions in Jackson and Winship to the facts of the case. Ngo, 651 F.3d at 1115; Juan H., 408 F.3d at 1275 & n.13. Thus, when a federal habeas court assesses a sufficiency of the evidence challenge to a state court conviction under AEDPA, "there is a double dose of deference that can rarely be surmounted." Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011). See also Kyzar v. Ryan, 780 F.3d 940, 948-49 (9th Cir. 2015) (same); Long v. Johnson, 736 F.3d 891, 896 (9th Cir. 2013) (same).

3. Analysis

The decision of the California Court of Appeal that the evidence introduced at petitioner's trial was sufficient to support imposition of the gun use sentencing enhancement, and therefore petitioner's murder conviction, was not contrary to or an unreasonable application of the decisions in Jackson and In re Winship to the facts of this case. Smith, 132 S. Ct. at 4. Viewing the evidence admitted at petitioner's trial as a whole and in the light most favorable to the prosecution, a rational juror could have found beyond a reasonable doubt that petitioner killed his wife with a handgun. This is true even though the evidence introduced at petitioner's trial could also have supported a jury finding that the hole in Janet's skull was caused by something other than a bullet. Notwithstanding the defense evidence suggesting a different possible explanation, for the reasons expressed by the California Court of Appeal there was sufficient evidence to support the jury's verdict in this case. Here, the jury decided what inferences to draw from the evidence presented at trial and petitioner has not met his heavy burden of establishing that no rational trier of fact could have agreed with the jury's finding in this case. Accordingly, petitioner is not entitled to federal habeas relief on his claim of insufficiency of the evidence.

B. Trial Court's Erroneous Admission of Evidence

Petitioner raises two claims challenging the trial court's evidentiary rulings at his trial. The court will address these two claims in turn below.

1. Dog Kicking Incident

Petitioner claims that the trial court committed "reversible error" in admitting "extensive disputed tainted" evidence, including Janet's statements about the dog kicking incident. (ECF No. 1 at 8.) He argues there was no evidence introduced at his trial that he ever abused his own or any other police dog. (Id.)6

The California Court of Appeal set forth the background to this claim as follows:

Kovacich, 201 Cal. App.4th at 890-891.

The California Court of Appeal concluded that Janet's statements about the dog kicking incident were properly admitted under California law as circumstantial evidence of her state of mind. Id. at 891. The court also agreed with the trial court that Janet's statements were properly admitted under Cal. Evidence Code § 352. Id. at 892. The court reasoned that Janet's statements were "highly probative of her fear of defendant, both for herself and for her children, shortly before she disappeared," and that the probative value of the evidence was not outweighed by its prejudicial effect because "it was not unreasonable for the trial court to conclude that the jury would be able to use the statement solely as evidence of Janet's state of mind." Id. The state appellate court also concluded that petitioner's own statements about kicking the dog were admissible under the California hearsay rules and did not constitute improper character evidence. Id. at 892-93.

The court reasoned as follows:

Defendant's Admissions

Kovacich, 201 Cal. App.4th at 891-896.

2. Expert Opinion on Domestic Violence

In his third ground for relief, petitioner claims that the trial court erred in admitting the prosecution's expert testimony on domestic violence. He also claims that the prosecutor committed misconduct in "violating the court's order limiting that testimony." (ECF No. 1 at 14.)

The California Court of Appeal rejected this argument, reasoning, in pertinent part, as follows:

Background

Analysis

People v. Kovacich, 201 Cal.App.4th at 896-904.

3. Applicable Law and Analysis

As noted above, errors of state law do not warrant the granting of federal habeas relief. Estelle, 502 U.S. at 67. "The issue for us, always, is whether the state proceedings satisfied due process; the presence or absence of a state law violation is largely beside the point." Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991). "The admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process." Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995) (citing Estelle, 502 U.S. at 67-68). See also Wood v. Ryan, 693 F.3d 1104, 1113 (9th Cir. 2012) ("On habeas review, constitutional errors of the "trial type," . . ., warrant relief only if they `had substantial and injurious effect or influence in determining the jury's verdict.') (quoting Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)).

A writ of habeas corpus will be granted for an erroneous admission of evidence "only where the `testimony is almost entirely unreliable and . . . the factfinder and the adversary system will not be competent to uncover, recognize, and take due account of its shortcomings.'" Mancuso v. Olivarez, 292 F.3d 939, 956 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 899 (1983)). Evidentiary rules do not violate a defendant's constitutional rights unless they "infring[e] upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve." Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (alteration in original) (internal quotation marks omitted). Thus, the admission of evidence at trial violates due process only if "there are no permissible inferences the jury may draw from the evidence." Jammal, 926 F.2d at 920. Put another way, evidence must "be of such quality as necessarily prevents a fair trial" for its admission to violate due process. Id. (quoting Kealohapauole v. Shimoda, 800 F.2d 1463, 1465 (9th Cir. 1986)).

Notwithstanding the above, the Ninth Circuit has observed that:

Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). The Ninth Circuit has also observed that the United States Supreme Court has not squarely addressed whether rules of evidence regarding the admissibility of expert testimony, similar to the rule employed by the trial court in this case, "infring[e] upon a weighty interest of the accused" or are "arbitrary or disproportionate to the purposes [they are] designed to serve." Moses v. Payne, 555 F.3d 742, 758 (9th Cir. 2009) (quoting United States v. Scheffer, 523 U.S. 303, 308 (1998)). 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." Holley, 568 F.3d at 1101. See also Greel v. Martel, No. 10-16847, 472 Fed. Appx. 503, 504, 2012 WL 907215, *1 (9th Cir. Mar. 19, 2012) ("There is likewise no clearly established federal law that admitting prejudicial evidence violates due process.").11

In light of the authorities cited above, the state appellate court's rejection of petitioner's claim that the trial court violated his right to due process in allowing the admission of unduly prejudicial evidence does not support the granting of federal habeas relief under AEDPA. Petitioner has cited no "clearly established federal law" prohibiting the admission of evidence that is relevant to the state of mind of a domestic abuse victim, even if that evidence may be viewed as inflammatory. Holley, 568 F.3d at 1101

Nor did the admission of the challenged evidence violate petitioner's right to due process. After a careful review of the record, the undersigned concludes that the admission of evidence of the dog kicking incident and the effect of domestic violence on the victim of such violence was not so unduly prejudicial as to "necessarily" prevent a fair trial, given the other evidence of petitioner's guilt and the relevance of the challenged testimony. Jammal, 926 F.2d at 919-20 (erroneous admission of evidence in a state trial denies a defendant due process only when the evidence "so fatally infect[s] the proceedings as to render them fundamentally unfair"). With respect to the testimony of expert witness Marjorie Cusick, the jury at petitioner's trial was given an appropriate cautionary instruction. (CT at 2498). This federal habeas court must presume that the jurors followed this instruction, which would have lessened any possible prejudice caused by the admission of Ms. Cusick's testimony. See Blueford v. Arkansas, 566 U.S. ___, ___, 132 S.Ct. 2044, 2051 (2012); Richardson v. Marsh, 481 U.S. 200, 206 (1987); Deck v. Jenkins, 768 F.3d 1015, 1023 (9th Cir. 2014); Fields v. Brown, 503 F.3d 755, 782 (9th Cir. 2007).

Petitioner has also failed to show that the prosecutor committed misconduct at his trial by the manner in which he questioned Ms. Cusick in light of the trial court's previous orders limiting the scope of her testimony. On habeas review of a prosecutorial misconduct claim, the court may grant relief only if the misconduct rises to the level of a due process violation. See Sechrest v. Ignacio, 549 F.3d 789, 807 (9th Cir. 2008) ("On federal habeas review, the narrow issue before us is whether the prosecutor's comments violated the defendant's due process right to a fair trial. . . ."); see also Deck, 768 F.3d at 1022; Wood, 693 F.3d at 1113. For the reasons expressed by the California Court of Appeal, the questions asked by the prosecutor of Ms. Cusick did not call for testimony in violation of the trial court's in limine ruling and did not render petitioner's trial fundamentally unfair.

Petitioner has failed to demonstrate that the decision of the California Court of Appeal rejecting these due process claims was contrary to or an unreasonable application of federal law. He has certainly failed to show that the state appellate court's thoughtful and thorough opinion was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103. Accordingly, he is not entitled to federal habeas relief with respect to these claims that his right to due process was violated.

C. Trial Court's Erroneous Exclusion of Evidence

Petitioner also raises several claims regarding the trial court's alleged improper exclusion of evidence. In his fourth ground for relief, petitioner claims that the trial court violated his federal constitutional rights in: (1) failing to allow the defense to introduce evidence regarding an alleged "sighting" of a woman matching Janet's description on the afternoon of September 8, 1982 by Lyle Fullerton, an employee of a grocery store frequented by Janet; (2) failing to allow the defense to introduce evidence regarding another alleged sighting of Janet by Roberto Taneida, who related to police that a woman matching Janet's description told him she was being forced to "go with" a person who had "threatened to harm her children;" and (3) failing to allow the defense to introduce evidence from a person named Kelly Ray Thompson, who admitted to killing a woman in the Rollins Lake Area and "cutting off her head and throwing the head into the lake." (ECF No. 1 at 17-18.)

In his fifth ground for relief, petitioner claims that the trial court `erred" in excluding from trial defense evidence concerning the "bias" of Jerry Johnson, the chief police investigator, "and many other investigative defects." Petitioner also claims the trial court erred in refusing to give a jury instruction requested by the defense "concerning the bias" of Officer Johnson. (Id. at 20.) As he did in support of his second claim for relief, petitioner includes numerous examples of events and trial testimony that he believes demonstrate Officer Johnson's bias against him and the improper nature of the police investigation into Janet's disappearance. (Id. at 22-32.) Petitioner also complains, again, that a "media blitz" about his case was improperly instigated by Officer Johnson, who was only a reserve police officer and who harbored "animosity" towards petitioner. (Id.) Petitioner contends that Officer Johnson fed "damaging and false information to potential witnesses in the case" which led to misleading testimony at his trial. (Id. at 20-32.) In his opening brief on appeal, petitioner's appellate counsel had the following to say about Jerry Johnson and his involvement in the investigation of this case:

(Resp't's Lod. Doc. 37 at 2.)

All of the above-described claims were raised for the first time in a habeas petition filed by petitioner in the California Supreme Court. That petition was summarily denied. (Resp't's Lod. Doc. 43.) Accordingly, this court must review the state court record to determine whether there was any "reasonable basis for the state court to deny relief." Richter, 562 U.S. at 98. In doing so this court "must determine what arguments or theories . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Id. at 102.

"The Constitution guarantees criminal defendants `a meaningful opportunity to present a complete defense' and the right to present relevant evidence in support thereof. Nevada v. Jackson, ___ U.S. ___, ___, 133 S.Ct. 1990, 1992 (2013) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). See also Holmes v. South Carolina, 547 U.S. 319, 324 (2006). Nonetheless, the United States Supreme Court has not "squarely addressed" whether a state court's exercise of discretion to exclude testimony at trial violates a criminal defendant's right to present relevant evidence. Moses, 555 F.3d at 758-59; see also Brown v. Horell, 644 F.3d 969, 983 (9th Cir. 2011) ("Between the issuance of Moses and the present, the Supreme Court has not decided any case either `squarely address[ing]' the discretionary exclusion of evidence and the right to present a complete defense or `establish[ing] a controlling legal standard' for evaluating such exclusions."), cert. denied, ___ U.S. ___, 132 S.Ct. 593 (2011)). However, the Supreme Court has rejected the argument that due process necessarily requires the exclusion of prejudicial or unreliable evidence. See Perry v. New Hampshire, ___ U.S. ___, ___ 132 S.Ct. 716, 728 (2012); Spencer v. Texas, 385 U.S. 554, 563-564 (1967).

Accordingly, the decision of the California Supreme Court rejecting petitioner's challenge to the trial court's decision to exclude from introduction at trial the evidence described above was not contrary to or an unreasonable application of clearly established federal law and may not be set aside. Id. See also Knowles v. Mirzayance, 556 U.S. 111, 112 (2009) ("it is not `an unreasonable application of' `clearly established Federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by [the United States Supreme Court]"); Wright v. Van Patten, 552 U.S. 120, 126 (2008) (relief is "unauthorized" under Section 2254(d)(1) when the Supreme Court's decisions "give no clear answer to the question presented, let alone one in [the petitioner's] favor," because the state court cannot be said to have unreasonably applied clearly established federal law); Hedlund v. Ryan, 750 F.3d 793, 799 (9th Cir. 2014).

Here, petitioner has also failed to demonstrate that any of the trial court's challenged evidentiary rulings violated his right to due process.

Lisenba v. California, 314 U.S. 219, 236 (1991) (holding that admission of coerced confession violates due process). The United States Supreme Court has "defined the category of infractions that violate `fundamental fairness' very narrowly." Medina v. California, 505 U.S. 437, 443 (1992) (quoting Dowling v. United States, 493 U.S. 342, 352 (1990)). See also Hayes v. Ayers, 632 F.3d 500, 515 (9th Cir. 2011).

With regard to the trial court's exclusion of defense evidence of alleged "sightings" of Janet, the undersigned notes the following. Petitioner's trial counsel argued during a hearing on motions in limine that the investigation into this case had not been sufficiently thorough. (Reporter's Transcript on Appeal (RT) at 856-57.) He noted that store clerk Lyle Fullerton reported seeing a woman matching Janet Kovacich's picture at his store shortly after her disappearance. (Id. at 857.) Defense counsel stated that this evidence was not pursued by the prosecution and that Fullerton was now deceased and could not appear as a trial witness. (Id. at 858-59.) Defense counsel argued that this lack of follow-up demonstrated that petitioner had been prejudiced by "the lack of investigation and the passage of time that's occurred here." (Id. at 861.)

The prosecutor, on the other hand, noted that Mr. Fullerton had in fact been interviewed and told police he could not be certain the woman he saw was the same woman on the missing person poster and that he did not think he could pick the woman out of a photo lineup. (Id.; ECF No. 1, Ex. 9.) When the trial judge asked defense counsel whether he was seeking to introduce the testimony of Mr. Fullerton at trial and, if so, how he would "propose to do it," defense counsel conceded that he was not "certain that there's any sort of evidentiary foundation that allows its introduction." (RT at 861.) In the end, petitioner's trial counsel did not seek to have evidence about Mr. Fullerton's alleged possible sighting of Janet admitted into evidence at trial. Therefore, the trial court was not asked to, and did not, issue any ruling on the matter.

In another discussion during the hearing on pretrial motions in limine, the prosecution moved to exclude from the trial evidence that a Robert Taneida had reported seeing a person matching Janet's description. (Id. at 908.) Petitioner's counsel noted the police had obtained Mr. Taneida's statement in 1983 but that "no discovery is provided to the defense, and we do not learn about this except just by happenstance." (Id. See also ECF No. 1, Ex. 11.) Petitioner's trial counsel argued that the information was relevant because it "goes to the investigation conducted originally back in 1982 and 1983 as to what was done, what was not done, what was followed up on, what was not followed up on," and that it was also relevant to "the competence or the quality of the investigation." (RT at 908-09.)

Later, during the same hearing on motions in limine, the prosecution sought to exclude from the trial evidence that a person named Kelly Ray Thompson had confessed "to about eight murders, and one of those murders he said he committed — he said he committed the murder in September or October of 1995 . . . this murder happened near this lake in Placer County; that it was a woman, and that he cut off her head, and that . . . the woman was driving a small pickup." (Id. at 896.) The prosecutor explained that Placer County detectives were unable to corroborate "anything that Mr. Thompson said" and were unable to connect Thompson's confession with Janet's murder. (Id. at 896-98.) Petitioner's counsel, on the other hand, argued that this evidence was "certainly relevant" to petitioner's defense.

The following colloquy then took place between the court and counsel:

(Id. at 938-39.) Ultimately, the trial court asked petitioner's trial counsel whether he wanted to "get [Thompson's] confession into evidence somehow." Defense counsel responded to that inquiry by stating "I would concede that there does appear to be some hearsay issues with that." (Id. at 942.)

After hearing extensive argument from the parties on the motions in limine, the trial court refused to admit evidence at petitioner's trial regarding statements allegedly made by Kelly Ray Thompson, as well as all the other proposed defense evidence suggesting possible third-party culpability, on the grounds that petitioner had not "proffered any direct or circumstantial evidence linking any third party to the murder of Janet Kovacich." (Id. at 1030.) The trial court ruled that petitioner would not "be permitted to cross-examine investigators concerning the details of unsolved murders or disappearances, other bones or bodies not connected to this, or statements of others" on the basis that "to allow this would likely require the prosecution to respond by introducing further evidence concerning these unconnected incidents and would consume an undue consumption of time on a collateral matter that has little relevance." (Id. at 1033.)

Evidence of potential third-party culpability must only be admitted at trial when, under the "facts and circumstances" of the individual case, its exclusion would deprive the defendant of a fair trial. The Ninth Circuit has determined that where the proffered evidence of third party culpability simply affords a possible ground of suspicion pointing to a third party and does not directly connect that person with the actual commission of the offense, such evidence may properly be excluded. People of Territory of Guam v. Ignacio, 10 F.3d 608, 615 (9th Cir. 1993) (citing Perry v. Rushen, 713 F.2d 1447, 1449 (9th Cir. 1983)); see also United States v. Bowman, 215 F.3d 951, 962 (9th Cir. 2000). Under the circumstances of this case, the trial judge's ruling with regard to possible evidence suggesting third party culpability, including evidence about the alleged "confession" of Kelly Ray Thompson and/or alleged sightings of Janet after her disappearance, did not render petitioner's trial fundamentally unfair. Petitioner has not provided this federal habeas court any competent evidence directly connecting Kelly Ray Thompson or any other person with the disappearance and murder of Janet Kovacich.

Petitioner's trial counsel also sought to introduce extensive evidence regarding the alleged bias of Officer Jerry Johnson and his conduct of the investigation into Janet's murder. (RT at 962, et seq.) The trial judge ruled that the defense would be allowed to cross-examine government witnesses on the issue of their bias against petitioner. The trial judge also stated he was willing to give petitioner "wide latitude in that regard." (Id. at 1032-33.) The trial court made the following rulings with respect to Officer Johnson in particular:

(Id. at 1036-38.)

Petitioner has failed to show that these trial court's rulings, with respect to the extent the alleged bias of Officer Johnson could be explored at trial, violated his right to due process. The undersigned also notes that, regardless of Officer Johnson's motives in reviving the investigation into Janet Kovacich's murder and/or his methods of investigation, a jury found petitioner guilty of this murder beyond a reasonable doubt after hearing all of the admissible evidence at his trial. Petitioner has not demonstrated that the investigation conducted by Jerry Johnson, or Johnson's possible bias against petitioner, resulted in petitioner being convicted of crimes he did not commit. While petitioner may be unhappy or disappointed that Officer Johnson re-opened the police investigation of this matter many years after the initial investigation was closed, he has not demonstrated before this court that any of Officer Johnson's actions in conducting that re-opened investigation rendered the proceedings fundamentally unfair.

For all of the reasons set forth above, petitioner is not entitled to federal habeas relief on his claims challenging the trial court's exclusion of defense evidence at his trial.

D. Presentation of Evidence to the Grand Jury

Petitioner raises several claims concerning the presentation of evidence before the grand jury that indicted him. The court will address these claims in turn below.

1. Suppression of Exculpatory Evidence

In his sixth ground for relief, petitioner claims that the prosecution "knowingly suppressed exculpatory evidence" before the Grand Jury of "sightings" of Janet Kovacich occurring after her disappearance. (ECF No. 1 at 34-35.) In the body of this claim, petitioner provides numerous examples of evidence he believes should have been presented to the grand jury by the prosecutor. (Id. at 53-85.) Petitioner also attaches a motion filed by his trial counsel seeking to dismiss portions of the amended indictment brought against him on the grounds that the prosecutor violated state and federal law in failing to inform the grand jury that: (1) Donald Henrickson, a forensic pathologist with the Placer County Office of the Sheriff-Coroner, had opined that the hole in Janet's skull could have been caused by a bullet or blunt-force trauma; (2) the presence of metallic fragments in the skull were consistent with the "film developing process" and were not necessarily suggestive of a gunshot wound; and (3) it was not possible to determine whether the fracture in Janet's skull occurred before or after her death. (Id. at 41-42.) Petitioner argues that "he would assume it was the duty of the prosecutor . . . to disclose all evidence, testimony and any and all facts that may expose the truth so as the Grand Jury could properly and correctly adjudicate the case before them." (Id. at 54.) This claim was raised for the first time in petitioner's application for a writ of habeas corpus filed in the California Supreme Court. That petition was summarily denied.

"[I]ndictment by grand jury is not part of the due process of law guaranteed to state criminal defendants by the Fourteenth Amendment." Branzburg v. Hayes, 408 U.S. 665, 688 n.25 (1972) (citing Hurtado v. California, 110 U.S. 516, 534-35 (1884) (no due process right to a grand jury indictment before criminal prosecution in state court)). See also Peterson v. California, 604 F.3d 1166, 1169-70 (9th Cir. 2010) (denying habeas relief on a claim that petitioner's Sixth Amendment confrontation rights were violated at a preliminary hearing because there is no federal constitutional right to a preliminary hearing); Bazzo v. Soto, NO. EDCV 12-2112-CJC (DTB), 2015 WL 3561733, *31 (C.D. Cal. Mar. 3, 2015) ("[T]he right to presentation of a criminal case to a grand jury in federal criminal proceedings under the Fifth Amendment has not been extended to the states via the Fourteenth Amendment."), adopted by 2015 WL 3561735 (C.D. Cal. June 2, 2015). Accordingly, petitioner is not entitled to relief on his claim that the prosecutor committed misconduct before the grand jury.

Even if the Fifth Amendment right to a grand jury did apply to the states, petitioner would not be entitled to federal habeas relief with respect to this claim. This is because even if any cognizable misconduct12 took place, any claimed constitutional violation was rendered harmless by petitioner's subsequent conviction at trial. United States v. Mechanik, 475 U.S. 66, 70 (1986) ("[T]he petit jury's subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury's verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt."); see also Williams v. Stewart, 441 F.3d 1030, 1042 (9th Cir.2006) ("any constitutional error in the grand jury proceedings is harmless because [the petitioner] was ultimately convicted of the offenses charged); People of Territory of Guam v. Muna, 999 F.2d 397, 399 (9th Cir.1993) ("If. . . a petit jury subsequently convicts a defendant of the charges upon which he was indicted, `any error in the grand jury proceeding connected with the charging decision [is deemed] harmless beyond a reasonable doubt.'" (quoting Mechanick, 475 U.S. at 70)).13

Finally, the undersigned notes that the state trial court concluded that the prosecution's failure to inform the grand jury of arguably favorable evidence regarding the cause of Janet's death did not affect the outcome of the proceedings or result in any prejudice to petitioner. Specifically, the trial court ruled as follows:

(Resp't's Lod. Doc. 15 at 36.)

Petitioner has failed to demonstrate that the trial court's rulings in this regard were erroneous. He has also failed to show that his trial proceedings were rendered fundamentally unfair by the prosecutor's failure to present the claimed potentially exculpatory evidence to the grand jury. For all of the reasons set forth above, petitioner is not entitled to federal habeas relief on his claim that his federal constitutional rights were violated by the prosecution's suppression of exculpatory evidence before the grand jury.

2. Presentation of False Information

In his thirteenth ground for relief, petitioner claims that the prosecutor in his case committed misconduct in presenting knowingly false information to the grand jury. (ECF No. 1 at 143.) In this regard, petitioner argues:

(Id.) In support of his contention, petitioner provides a lengthy recitation of witnesses who appeared before the grand jury and the testimony they gave that he believes was untruthful. (Id. at 143-49.) As one example, petitioner alleges:

(Id. at 145.) Petitioner argues that a prosecutor has a duty "not to permit a person to stand trial when he knows that perjury permeates the indictment." (Id. at 148.) He asks,

(Id. at 149.)

For the reasons set forth above with respect to his claim challenging the prosecutor's alleged failure to present alleged exculpatory evidence to the grand jury, this claim based on the alleged presentation of false evidence to the grand jury is not cognizable in these federal habeas proceedings. Moreover, if it was cognizable any such error was rendered harmless as a result of petitioner's conviction at trial. Finally, even assuming arguendo that this claim is cognizable in this federal habeas proceeding, petitioner is not entitled to relief.

A violation of a defendant's rights occurs if the government knowingly uses false evidence in obtaining a conviction. Albright v. Oliver, 510 U.S. 266, 299 (1994) ("It is, . . ., well-established that adherence to procedural forms will not save a conviction that rests in substance on false evidence or deliberate deception."); Giglio v. United States, 405 U.S. 150, 153-54 (1971); Napue v. Illinois, 360 U.S. 264, 269 (1959); Soto v. Ryan, 760 F.3d 947, 957-58 (9th Cir. 2014). It is clearly established that "a conviction obtained by the knowing use of perjured testimony must be set aside if there is any reasonable likelihood that the false testimony could have affected the jury's verdict." United States v. Bagley, 473 U.S. 667, 680 n.9 (1985). See also United States v. Agurs, 427 U.S. 97, 103 (1976) ("the Court has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair"); Hall v. City of Los Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012) ("there is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government.") (quoting Devereaux v. Abbey, 263 F.3d 1070, 1074-75 (9th Cir. 2001) (en banc)).

The undersigned has read all of the examples provided by petitioner in support of his argument that the prosecutor in his case committed misconduct in presenting false testimony to the grand jury. Petitioner has filed to demonstrate that any material information was knowingly withheld or presented by the prosecutor or that any false evidence could have affected the judgment of the jury at his trial. The decision of the California Supreme Court rejecting petitioner's argument on this issue was not contrary to or an unreasonable application of the federal authorities cited above, nor was it objectively unreasonable. Accordingly, petitioner is also not entitled to federal habeas relief with respect to this claim.

E. Police Investigation

In his seventh ground for relief, petitioner claims that the police investigation Janet's death was incompetent and lacked thoroughness. (ECF No. 1 at 87.) He complains that the police failed to interview "crucial witnesses" or to obtain physical evidence documenting his whereabouts on the day of Janet's disappearance. Petitioner includes numerous suggestions as to how the police investigation could have been better pursued and cites numerous examples of areas where he believes the investigation was sloppy or incomplete. (Id. at 87-107.) Petitioner also once again attacks the credibility and motivations of Officer Jerry Johnson. (Id.) This claim was raised for the first time in petitioner's application for a writ of habeas corpus which he filed in the California Supreme Court. As noted above, that petition was summarily denied.

Petitioner has failed to demonstrate that the decision of the California Supreme Court rejecting this claim was contrary to or an unreasonable application of federal law. Indeed, petitioner has not cited any authority in support of his arguments for federal habeas relief with respect to this claim. In particular, petitioner has not cited any federal decision holding that due process requires the police to seek and find exculpatory evidence, that prosecutors have a duty to seek evidence that is adequate, competent or exculpatory, or that a habeas petitioner's federal constitutional rights are violated by a pretrial investigation that the petitioner believes is not sufficiently thorough.14 In light of this lack of authority on point, the state court did not unreasonably apply federal law in concluding that petitioner was not entitled to relief with respect to this claim. See Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004) ("If no Supreme Court precedent creates clearly established federal law relating to the legal issue the habeas petitioner raised in state court, the state court's decision cannot be contrary to or an unreasonable application of clearly established federal law.") (citation omitted).

Assuming arguendo that this claim of an inadequate police investigation is cognizable in this federal habeas action, petitioner has failed to demonstrate prejudice in light of the extensive evidence introduced at his trial which supported the jury's guilty verdict and the fact that he was indeed convicted by the jury which heard that evidence at trial. Nor has petitioner made any showing that a more thorough investigation by law enforcement would have resulted either in a decision by the District Attorney's Office not to prosecute him for Janet's murder or in an acquittal at trial if charged. Accordingly, he is not entitled to federal habeas relief on his claim that police investigation of Janet's death was inadequate.

F. Failure to Turn Over Exculpatory Material to the Defense

In his eighth ground for relief, petitioner claims that the prosecutor failed to disclose the following information to the defense:

(ECF No. 1 at 109.) Petitioner explains that "numerous allied agencies assisted Reserve Officer Jerry Johnson in his attempt to discredit the petitioner," but that "none or very little of this potentially crucial information that could prove Petitioner's innocence was released in the form of discovery to defense attornies [sic] prior to Petitioner's trial or to date." (Id.) Petitioner also provides a lengthy list of generic materials that were, according to him, "potentially crucial exculpatory evidence." (Id. at 109-112.) For example, petitioner alleges that the prosecution improperly failed to produce the following to the defense:

(Id. at 110)

Petitioner's claim that the prosecution failed to turn over exculpatory material to the defense is unduly vague and conclusory and federal habeas relief should be denied on that basis alone. "`Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.'" Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (quoting James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)). In short, petitioner's overly broad allegations in support of this claim of prosecutorial misconduct fail to state a cognizable claim for relief.

To the extent petitioner is arguing that the prosecution violated its obligations under Brady v. Maryland, 373 U.S. 83 (1963), he has not established that he is entitled to relief. The United States Supreme Court has held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. There are three components of a Brady violation: "[t]he 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." Comstock v. Humphries, 786 F.3d 701, 708 (9th Cir. 2015) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). See also Runningeagle v. Ryan, 686 F.3d 758, 769 (9th Cir. 2012). In order to establish prejudice, petitioner must demonstrate that "`there is a reasonable probability' that the result of the trial would have been different if the suppressed documents had been disclosed to the defense." Strickler, 527 U.S. at 289. See also Runningeagle, 686 F.3d at 769.

A habeas petitioner must do more than "merely speculate" about the substance of the Brady material. Runningeagle, 686 F.3d at 769. "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish `materiality' in the constitutional sense." United States v. Olsen, 704 F.3d 1172, 1184 (9th Cir. 2013) (quoting Barker v. Fleming, 423 F.3d 1085, 1099 (9th Cir. 2005) (in turn quoting United States v. Croft, 124 F.3d 1109, 1124 (9th Cir. 1997)). Thus, evidence is not "material" under Brady where the defendant has only "a hunch" that the evidence would be useful. United States v. Abonce-Barrera, 257 F.3d 959, 970 (9th Cir. 2001). See also Downs v. Hoyt, 232 F.3d 1031, 1037 (9th Cir. 2000) (rejecting a Brady claim in part because the petitioner's arguments were speculative). Accordingly, "[f]or purposes of determining prejudice," therefore, "the withheld evidence must be analyzed `in the context of the entire record.'" Olsen, 704 F.3d at 1184 (quoting Benn v. Lambert, 283 F.3d 1040, 1053 (9th Cir. 2002) (in turn quoting Agurs, 427 U.S. at 112)).

Here, petitioner has done nothing more than speculate that production of all the material he suggests should have been produced to the defense would have led to a different result at his trial. However, petitioner has completely failed to demonstrate that any particular item would have changed the outcome of these proceedings. As explained above, mere speculation is an insufficient basis for establishing a Brady violation. For these reasons, petitioner he is not entitled to federal habeas relief on this claim.15

G. Witness Tampering

In petitioner's ninth ground for relief, he claims that there is "evidence of witness tampering" in connection with his case. (ECF No. 1 at 114.) Petitioner explains,

(Id.) In particular, petitioner alleges that reserve officer Jerry Johnson, "who Petitioner assumes never advised any witness or potential witnesses that he was a reserve officer only and therefore never experienced a position of a full-time paid civil service position as a police officer in the State of California," did not have the "credibility and experience" to conduct the police investigation into this case. Petitioner complains that Officer Johnson misled witnesses and other persons about his previous experience and expertise, used "unprofessional interviewing techniques," and gave witnesses and potential witnesses "an extraordinary amount of information about the case." (Id.) Petitioner further contends that there is evidence that "suggests" that "statements that were given to Reserve Officer Jerry Johnson were falsified." (Id. at 115.) For instance, petitioner alleges:

(Id.)

Petitioner also alleges that Officer Johnson encouraged witnesses to "speak to each other" and to "look the case up on the internet," and that he also may have changed some of the original witness statements resulting from the initial investigation into Janet's disappearance. (Id. at 116-20.)

All of petitioner's allegations in support of his claim based upon alleged witness tampering in connection with the underlying investigation concern the conduct of Officer Johnson. Petitioner argues that Johnson "tamper[ed] with critical witnesses in a major case in order to gain witness testimony to favor his goal of a malicious unlawful prosecution." (Id. at 119-20.) However, petitioner cites absolutely no case law in support of his claim for habeas relief based upon this alleged "witness tampering."

Petitioner's wide ranging and conclusory allegations fail to state a claim cognizable in these federal habeas corpus proceedings. To the extent petitioner is attempting to raise a broad due process claim that Officer Johnson's actions during the investigation of the case and the subsequent trial rendered petitioner's criminal proceedings fundamentally unfair, he has failed to demonstrate any prejudice. "Even where constitutional error is found, `in § 2254 proceedings a court must [also] assess the prejudicial impact of constitutional error' under the Brecht [v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)] standard." Dixon v. Williams 750 F.3d 1027, 1034 (9th Cir. 2014) (citations omitted). Under Brecht, a habeas petitioner is entitled to relief only if "the error `had substantial and injurious effect or influence in determining the jury's verdict." 507 U.S. at 637. None of the examples that petitioner provides in support of this claim or the questions that petitioner raises concerning Officer Johnson's actions rise to the level of a due process violation. The incidents petitioner describes, even if true, could not have had a "substantial and injurious effect or influence in determining the jury's verdict," given the extensive evidence introduced at his trial supporting the jury's verdict and the fact that petitioner was convicted by the just who heard that evidence at trial. Brecht, 507 U.S. at 619. Nor is there any evidence that petitioner was found guilty based on the introduction of false evidence. See Owens v. Foltz, 797 F.2d 294, 296 (6th Cir. 1986) ("In a habeas corpus review, a court can reverse for inadequate investigation only when the petitioner can show a deprivation of due process tantamount to a suppression of relevant evidence.")

The decision of the California Supreme Court rejecting petitioner's claim of "witness tampering" was not contrary to or an unreasonable application of federal law. Accordingly, petitioner is not entitled to federal habeas relief with respect to this claim.

H. Ineffective Assistance of Trial and Appellate Counsel

Petitioner raises one claim of ineffective assistance of trial counsel and one claim of ineffective assistance of appellate counsel. After setting forth the applicable legal standards, the court will address both claims in turn below.

1. Legal Standards

The clearly established federal law governing ineffective assistance of counsel claims is that set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a Strickland claim, a defendant must show that (1) his counsel's performance was deficient and that (2) the "deficient performance prejudiced the defense." Id. at 687. Counsel is constitutionally deficient if his or her representation "fell below an objective standard of reasonableness" such that it was outside "the range of competence demanded of attorneys in criminal cases." Id. at 687-88 (internal quotation marks omitted). "Counsel's errors must be `so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" Richter, 562 at 104 (quoting Strickland, 466 U.S. at 687). A reviewing court is required to make every effort "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 669. See also Richter, 562 U.S. at 107 (same). Reviewing courts must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. There is in addition a strong presumption that counsel "exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689). This presumption of reasonableness means that the court must "give the attorneys the benefit of the doubt," and must also "affirmatively entertain the range of possible reasons [defense] counsel may have had for proceeding as they did." Cullen v. Pinholster, ___ U.S. ___, ___, 131 S.Ct. 1388, 1407 (2011) (internal quotation marks and alterations omitted).

The Strickland standards apply to appellate counsel as well as trial counsel. Smith v. Murray, 477 U.S. 527, 535-36 (1986); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). However, an indigent defendant "does not have a constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points." Jones v. Barnes, 463 U.S. 745, 751 (1983). Counsel "must be allowed to decide what issues are to be pressed." Id. Otherwise, the ability of counsel to present the client's case in accord with counsel's professional evaluation would be "seriously undermined." Id. See also Smith v. Stewart, 140 F.3d 1263, 1274 n.4 (9th Cir. 1998) (Counsel is not required to file "kitchen-sink briefs" because it "is not necessary, and is not even particularly good appellate advocacy.") There is, of course, no obligation to raise meritless arguments on a client's behalf. See Strickland, 466 U.S. at 687-88 (requiring a showing of deficient performance as well as prejudice). Thus, appellate counsel is not deficient for failing to raise a weak issue. See Miller, 882 F.2d at 1434. In order to establish prejudice in this context, petitioner must demonstrate that, but for appellate counsel's errors, he probably would have prevailed on appeal. Id. at 1434 n.9.

2. Ineffective Assistance of Appellate Counsel

In his tenth ground for relief, petitioner claims that his appellate counsel rendered him ineffective assistance in failing to inform the California Court of Appeal that: (1) Jerry Johnson was only a reserve officer and therefore did not receive the training given to full time police officers; and (2) the family dog, Fuzz, was also a trained police canine and was therefore expected to exhibit exemplary behavior and discipline. (ECF No. 1 at 125.)

Petitioner notes that his appellate counsel referred to Johnson only as a "retired officer" and he argues that his counsel's failure to inform the California Court of Appeal that Johnson was actually merely a reserve officer and had not received the full training provided to full time police officers "may have been" a factor in the state appellate court's decision to uphold his judgment of conviction. (Id. at 126-27.) Petitioner argues that an accurate depiction of Johnson's status would have alerted the appellate court to "the unprofessional and inaccurate biased investigation that was prompted by the inexperience and questionable status that this so called reserve officer had with the Placer County Sheriff's Office." (Id. at 127.)

With regard to the family dog actually being a trained police canine, petitioner argues that his appellate counsel should have informed the California Court of Appeal that the dog had a "high level of expected obedience directly relate[d] to a public safety issue and a liability issue for the public agency if that canine does not perform at the highest level." (Id.) Petitioner argues that these facts "should have been instrumental in the Appellate court reversing the trial court's conviction." (Id.)

Respondent counters that, under state law, appellate counsel was precluded from citing facts that were not in the trial record.

Simply put, petitioner has failed to demonstrate any prejudice stemming from these claims of ineffective assistance of appellate counsel. There is no reasonable likelihood that, but for appellate counsel's alleged error in failing to advise the California Court of Appeal that Officer Johnson was a reserve officer and that Fuzz was a trained police canine, petitioner probably would have prevailed on his appeal in state court. Accordingly, petitioner is not entitled to federal habeas relief on his ineffective assistance of appellate counsel claim.

3. Ineffective Assistance of Trial Counsel

In his twelfth ground for relief, petitioner claims that his trial counsel rendered ineffective assistance in failing to investigate the whereabouts of Janet's mother, Jean Gregoire, for the first several days after Janet disappeared, as well as Gregoire's history of "violent behavior." (ECF No. 1 at 134.) Petitioner contends that the prosecution conducted interviews of Jean Gregoire in 1982 and that the transcripts of these interviews "should have disclosed Jean's location the first two or three nights of Janet's disappearance." (Id.) Petitioner notes that Janet's mother, Gregoire, was asked to take a polygraph test because petitioner had suggested to police that Gregoire was possibly "hiding [Janet] out." (Id. at 135.) Petitioner argues that "reports that lead up to the suggestion of the polygraph should have been disclosed to the defense. (Id.)

Petitioner also informs this court that a Placer County Superior Court judge denied Jean Gregoire's request for visitation rights to her grandchildren, because "he apparently felt the children would be in danger." (Id.) Petitioner points to an FBI interview with Gregoire's "distant supervisor," wherein the supervisor stated that Gregoire was a "hard core, neo-nazi type." (Id.) Petitioner provides several examples of incidents which he contends show that Gregoire was volatile and abusive to her daughter and antagonistic to petitioner, that Janet Kovacich frequently visited her mother's house, and that Jean Gregoire wanted her daughter to leave petitioner and flee to Europe. (Id. at 136-41.) Petitioner appears to be claiming, or at least suggesting, that his trial counsel rendered ineffective assistance in failing to conduct sufficient investigation into whether Jean Gregoire was responsible for Janet's death.

Petitioner's conclusory allegations that investigation into Jean Gregoire's whereabouts around the time of Janet's disappearance or Gregoire's reputation would have resulted in a different verdict in his case are insufficient to establish either deficient performance by his trial counsel or prejudice. See Jones, 66 F.3d at 205 ("conclusory suggestions" and "bald assertions" fall short of stating an ineffective assistance of counsel claim and do not entitle the petitioner to an evidentiary hearing). Likewise, a general assertion that further investigation by counsel may have uncovered exculpatory evidence is insufficient to establish prejudice. Villafuerte v. Stewart, 111 F.3d 616, 632 (9th Cir. 1997) (petitioner's ineffective assistance claim denied where he presented no evidence concerning what counsel would have found had he investigated further, or what lengthier preparation would have accomplished). Simply speculating, or baldly stating, that further investigation would have led to evidence that could have led to a different verdict does not establish prejudice. Bible v. Ryan, 571 F.3d 860, 871 (9th Cir. 2009); Gonzalez v. Knowles, 515 F.3d 1006, 1015-16 (9th Cir. 2008) ("Such speculation is plainly insufficient to establish prejudice.")

Petitioner has presented no evidence to this habeas court that his trial counsels' failure, if any, to conduct investigation into Jean Gregoire's whereabouts around the time of Janet's disappearance or Gregoire's prior actions was objectively unreasonable. He has also certainly failed to provide any evidence that Gregoire was responsible for the death of her daughter. See Strickland, 466 U.S. at 691 ("Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.") In addition, there is no evidence before this court that petitioner's counsel did not conduct investigation into the areas now suggested by petitioner and/or that he simply concluded that those areas of investigations were not fruitful. Of course, "counsel need not undertake exhaustive witness investigation." Matylinsky v. Budge, 577 F.3d 1083, 1092 (9th Cir. 2009). See also Mickey, 606 F.3d at 1237 ("At the same time, of course, counsel need not investigate interminably.")

Petitioner has failed to adequately allege or establish either deficient performance or prejudice with respect to this claim of ineffective assistance of his trial counsel based on a failure to investigate. Accordingly, he is not entitled to federal habeas relief with respect to this claim.

I. Miranda Claim

In his eleventh ground for relief, petitioner claims that he was never advised of his constitutional rights pursuant to the decision in Miranda v. Arizona, 384 U.S. 436 (1966), even though he was interviewed numerous times by law enforcement and his residence was searched after Janet's disappearance. (ECF No. 1 at 129.) Petitioner claims that although he did not know it at the time, he was considered a suspect in the crime during these law enforcement interviews. (Id. at 129-32.) Petitioner alleges that "during any one of these interrogations there were absolutely no rights to counsel or rights to remain silent disclosed to the Petitioner." (Id. at 130.) Petitioner also notes that at one such interview, "the interrogation became heated, Petitioner got up from the interrogation and left the building." (Id.)

Respondent argues that petitioner's claim is conclusory and is not supported by the state court record. (ECF No. 28 at 44.) Respondent also notes that petitioner did not raise any arguments based on an alleged Miranda violation at or prior to his trial. Accordingly, according to respondent, the record with regard to any such issue was not "properly developed." (Id.) Respondent also argues that petitioner has not established he was "in police custody" during any of these interviews or that he was "not free to leave" at his first formal police interview conducted on September 15, 1982. (Id.) Respondent points out that prior to the September 15, 1982 interview, petitioner spoke voluntarily with law enforcement and agreed to a search of his home. (See Resp't's Lod. Doc. No. 24 at 2756-58.) Respondent also notes that petitioner was never arrested after the initial investigation into Janet's death and that the investigation was first closed in 1983. (ECF No. 28 at 44.)

In Miranda v. Arizona, the United States Supreme Court held that the Fifth Amendment privilege against self-incrimination prohibits the admission into evidence of statements given by a suspect during "custodial interrogation" without a prior warning. 384 U.S. at 444. Custodial interrogation means "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444. "To determine whether an individual was in custody, a court must, after examining all of the circumstances surrounding the interrogation, decide whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." United States v. Kim, 292 F.3d 969, 973 (9th Cir. 2002) (alteration in original) (internal quotation marks and citation omitted). See also United States v. Craighead, 539 F.3d 1073, 1082 (9th Cir. 2008) (The court must "examine the totality of the circumstances surrounding the interrogation.").

Whether a suspect is "in custody" for purposes of Miranda requires application of an objective test. J.D.B. v. North Carolina, ___ U.S. ___, ___, 131 S.Ct. 2394, 2402 (2011); Yarborough v. Alvarado, 541 U.S. 652, 662-63 (2004). The custody determination is not based upon "the subjective views of the officers or the individual being questioned." Kim, 292 F.3d at 973. Rather, two inquiries are necessary for a determination of an individual's "in custody" status under this test: (1) what were the overall circumstances surrounding the interrogation; and (2) given those circumstances, would a reasonable person in the suspect's situation have felt free to terminate the interrogation and leave. J.D.B., 131 S. Ct. at 2402; Yarborough, 541 U.S. at 662-63; Thompson v. Keohane, 516 U.S. 99, 112 (1995); Stansbury v. California, 511 U.S. 318, 322 (1994).

The Ninth Circuit has recently addressed this area, stating as follows:

United States v. Cazares, 788 F.3d 956, 980-81 (9th Cir. 2015).

Here, petitioner has failed to show that he was "in custody" for purposes of the Miranda rule at the time of any of his interactions with police after Janet disappeared. Although petitioner provides some details from two of these police interviews, the facts he highlights do not establish that he was "in custody" at the time they took place. For instance, petitioner notes that Chief Willick testified that in the first several days after Janet's disappearance the police "had some reason to possibly suspect Mr. Kovacich" and that the investigation was initiated "as a homicide." (ECF No. 1, Exs. 88, 89.) However, as noted above, whether petitioner was "in custody" for purposes of Miranda analysis is not based on the subjective views of the questioning officers. Petitioner has come forward with no evidence suggesting that a reasonable person in his circumstances would have believed he was not free to "terminate the interrogation and leave" during those interviews with law enforcement. See J.D.B., 131 S. Ct. at 2402. See also Howes v. Fields, ___ U.S. ___, ___, 132 S.Ct. 1181, 1189 (2012). Specifically, petitioner has failed to show that he was prevented from leaving the interrogation room, that he was subjected to lengthy questioning, that he was physically restrained, or that he was told he was required to answer questions. Indeed, petitioner himself states that after one of the interview sessions became heated, he simply left the police station. This implies that petitioner reasonably believed he was, and was in fact, free to leave. Finally, having failed to show that Miranda warnings were called in connection with his law enforcement interviews, petitioner fails to show that any evidence obtained from an unlawful interrogation was introduced at his trial or played any part in his conviction.

Petitioner's conclusory allegations that police officers violated the Miranda rule during his interrogations in 1982 are insufficient to demonstrate his entitlement to federal habeas relief with respect to this claim. Jones, 66 F.3d at 204; James, 24 F.3d at 26.

J. Juror Misconduct

In petitioner's fourteenth ground for relief, he claims that his rights under the Sixth and Seventh Amendments were violated by juror misconduct. (ECF No. 1 at 151.) He explains:

(Id.)

The Sixth Amendment right to fair and impartial jury requires that jurors be "capable and willing to decide a case solely on the evidence before it." United States v. Olano, 507 U.S. 725, 738 (1993) (quoting Smith v. Phillips, 455 U.S. 209, 217 (1982)). See also Irvin v. Dowd, 366 U.S. 717 (1961). A juror who falls asleep during trial is not, however, per se incompetent. See Tanner v. United States, 483 U.S. 107, 126-27 (1987); United States v. Springfield, 829 F.2d 860, 864 (9th Cir. 1987). A sleeping juror only rises to the level of a constitutional violation requiring a new trial if the juror missed essential portions of the trial and thus was unable to fairly consider the evidence. United States v. Barrett, 703 F.2d 1076, 1083 n.13 (9th Cir. 1983) ("[E]ven if the juror in the present case is found to have been asleep during portions of the trial, a new trial may not be required if he did not miss essential portions of the trial and was able fairly to consider the case.").

Here, petitioner fails to identify the "numerous jurors" he now alleges were sleeping during his trial and there is no evidence in the record before this court that any of the jurors at petitioner's trial missed essential, or any, portions of the trial. Although petitioner identifies one specific juror who informed the judge that she fell asleep during one point in the trial, he also fails to show with respect to this juror that she missed any essential portions of the trial and/or was unable to fairly consider the evidence. Under these circumstances, petitioner has failed to demonstrate that his right to a fair and impartial jury was violated by juror misconduct.

The California Supreme Court's denial of petitioner's juror misconduct claim is not an unreasonable determination of the facts or contrary to clearly established federal law.

Accordingly, petitioner is also not entitled to federal habeas relief on this claim.

IV. Conclusion

For the foregoing reasons, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be denied.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).