FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

MICHAEL J. SENG, Magistrate Judge.

Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus under 28 U.S.C. § 2254. He is represented by the Law Offices of David Mugridge. Respondent Daniel Paramo, Warden at the R.J. Donovan Correctional Facility, is substituted as the proper respondent under Rule 25(d) of the Federal Rules of Civil Procedure. Respondent is represented by Darren K. Indermill of the office of the California Attorney General. The parties have not consented to Magistrate Judge jurisdiction. (ECF Nos. 5, 10.)

I. PROCEDURAL BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a judgment of the Superior Court of California, County of Mariposa, following his conviction by jury trial on April 29, 2010, of fifteen counts of lewd acts upon a child. (Clerk's Tr. at 674-78.) On July 23, 2010, Petitioner was sentenced to an indeterminate term of ninety (90) years to life plus twenty-two (22) years in state prison. (Id.)

Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate District on February 4, 2011. (Lodged Docs. 25-27.) The appeal was denied on December 9, 2011. (Lodged Doc. 28.) On January 19, 2012, Petitioner filed a petition for review with the California Supreme Court. (Lodged Doc. 29.) The petition was summarily denied. (Id.)

On March 8, 2013, Petitioner filed a petition for writ of habeas corpus with the Mariposa County Superior Court. (Lodged Doc. 30.) The petition was dismissed on April 2, 2013. (Id.) Petitioner proceeded to file a petition for writ of habeas corpus with the California Supreme Court. The petition was summarily denied on July 10, 2013. (See Lodged Doc. 31.)

Petitioner filed his federal habeas petition on May 29, 2013. (Pet., ECF No. 1.) The petition raised two different claims for relief. Petitioner asserts that:

Respondent filed an answer to the petition on September 18, 2013, and Petitioner filed a traverse on February 12, 2014.1 (Answer & Traverse, ECF Nos. 14, 18.) The matter stands ready for adjudication.

II. STATEMENT OF THE FACTS2

People v. MacDonald, 2011 Cal. App. Unpub. LEXIS 9454, 1-2 (Cal. App. Dec. 9, 2011) (footnote omitted).

II. DISCUSSION

A. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 fn.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. In addition, the conviction challenged arises out of the Mariposa County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2241(d); 2254(a). Accordingly, the Court has jurisdiction over the action.

B. Legal Standard of Review

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). The instant petition was filed after the enactment of the AEDPA; thus, it is governed by its provisions.

Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. at 375 n. 7 (2000). Federal habeas corpus relief is available for any claim decided on the merits in state court proceedings if the state court's adjudication of the claim:

28 U.S.C. § 2254(d).

1. Contrary to or an Unreasonable Application of Federal Law

A state court decision is "contrary to" federal law if it "applies a rule that contradicts governing law set forth in [Supreme Court] cases" or "confronts a set of facts that are materially indistinguishable from" a Supreme Court case, yet reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005) citing Williams, 529 U.S. at 405-06. "AEDPA does not require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied. . . . The statue recognizes . . . that even a general standard may be applied in an unreasonable manner" Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (citations and quotation marks omitted). The "clearly established Federal law" requirement "does not demand more than a `principle' or `general standard.'" Musladin v. Lamarque, 555 F.3d 830, 839 (2009). For a state decision to be an unreasonable application of clearly established federal law under § 2254(d)(1), the Supreme Court's prior decisions must provide a governing legal principle (or principles) to the issue before the state court. Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003). A state court decision will involve an "unreasonable application of" federal law only if it is "objectively unreasonable." Id. at 75-76, quoting Williams, 529 U.S. at 409-10; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). In Harrington v. Richter, the Court further stresses that "an unreasonable application of federal law is different from an incorrect application of federal law." 131 S.Ct. 770, 785 (2011), (citing Williams, 529 U.S. at 410) (emphasis in original). "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. 653, 664 (2004)). Further, "[t]he more general the rule, the more leeway courts have in reading outcomes in case-by-case determinations." Id.; Renico v. Lett, 130 S.Ct. 1855, 1864 (2010). "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 this Court." Knowles v. Mirzayance, 129 S.Ct. 1411, 1419 (2009), quoted by Richter, 131 S. Ct. at 786.

2. Review of State Decisions

"Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the claim rest on the same grounds." See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). This is referred to as the "look through" presumption. Id. at 804; Plascencia v. Alameida, 467 F.3d 1190, 1198 (9th Cir. 2006). Determining whether a state court's decision resulted from an unreasonable legal or factual conclusion, "does not require that there be an opinion from the state court explaining the state court's reasoning." Richter, 131 S. Ct. at 784-85. "Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Id. ("This Court now holds and reconfirms 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.'").

Richter instructs that whether the state court decision is reasoned and explained, or merely a summary denial, the approach to evaluating unreasonableness under § 2254(d) is the same: "Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; 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. at 786. Thus, "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. at 75). AEDPA "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents." Id. To put it yet another way:

Id. at 786-87. The Court then explains the rationale for this rule, i.e., "that state courts are the principal forum for asserting constitutional challenges to state convictions." Id. at 787. It follows from this consideration that § 2254(d) "complements the exhaustion requirement and the doctrine of procedural bar to ensure that state proceedings are the central process, not just a preliminary step for later federal habeas proceedings." Id. (citing Wainwright v. Sykes, 433 U.S. 72, 90 (1977).

3. Prejudicial Impact of Constitutional Error

The prejudicial impact of any constitutional error is assessed by asking whether the error had "a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness). Some constitutional errors, however, do not require that the petitioner demonstrate prejudice. See Arizona v. Fulminante, 499 U.S. 279, 310 (1991); United States v. Cronic, 466 U.S. 648, 659 (1984). Furthermore, where a habeas petition governed by AEDPA alleges ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), the Strickland prejudice standard is applied and courts do not engage in a separate analysis applying the Brecht standard. Avila v. Galaza, 297 F.3d 911, 918, n. 7 (2002). Musalin v. Lamarque, 555 F.3d at 834.

III. REVIEW OF PETITION

A. Claim 1: Ineffective Assistance of Counsel

Petitioner presents several arguments that his right to effective assistance of counsel was violated.

1. State Court Decision

Petitioner presented this claim by way of direct appeal to the California Court of Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the appellate court and summarily denied in subsequent petition for review by the California Supreme Court. (See Lodged Docs. 25-29.) Because the California Supreme Court's opinion is summary in nature, this Court "looks through" that decision and presumes it adopted the reasoning of the California Court of Appeal, the last state court to have issued a reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 804-05 & n.3 (1991) (establishing, on habeas review, "look through" presumption that higher court agrees with lower court's reasoning where former affirms latter without discussion); see also LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000) (holding federal courts look to last reasoned state court opinion in determining whether state court's rejection of petitioner's claims was contrary to or an unreasonable application of federal law under 28 U.S.C. § 2254(d)(1)).

In denying Petitioner's claim, the California Court of Appeal explained:

People v. Macdonald, 2011 Cal. App. Unpub. LEXIS 9454 at 9-12.

2. Law Applicable to Ineffective Assistance of Counsel Claims

The law governing ineffective assistance of counsel claims is clearly established for the purposes of the AEDPA deference standard set forth in 28 U.S.C. § 2254(d). Canales v. Roe, 151 F.3d 1226, 1229 (9th Cir. 1998). In a petition for writ of habeas corpus alleging ineffective assistance of counsel, the Court must consider two factors. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). First, the petitioner must show that counsel's performance was deficient, requiring a showing that counsel made errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The petitioner must show that counsel's representation fell below an objective standard of reasonableness, and must identify counsel's alleged acts or omissions that were not the result of reasonable professional judgment considering the circumstances. Id. at 688; United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995). Judicial scrutiny of counsel's performance is highly deferential. A court indulges a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 687; see also, Harrington v. Richter, 131 S.Ct. 770, 178 L. Ed. 2d 624 (2011).

Second, the petitioner must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result . . . would have been different," Strickland, 466 U.S. at 694. Petitioner must show that counsel's errors were so egregious as to deprive defendant of a fair trial, one whose result is reliable. Id. at 687. The Court must evaluate whether the entire trial was fundamentally unfair or unreliable because of counsel's ineffectiveness. Id.; Quintero-Barraza, 78 F.3d at 1348; United States v. Palomba, 31 F.3d 1456, 1461 (9th Cir. 1994).

A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the petitioner as a result of the alleged deficiencies. Strickland, 466 U.S. at 697. Since the defendant must affirmatively prove prejudice, any deficiency that does not result in prejudice must necessarily fail. However, there are certain instances which are legally presumed to result in prejudice, e.g., where there has been an actual or constructive denial of the assistance of counsel or where the State has interfered with counsel's assistance. Id. at 692; United States v. Cronic, 466 U.S., at 659, and n.25 (1984).

As the Supreme Court reaffirmed recently in Harrington v. Richter, meeting the standard for ineffective assistance of counsel in federal habeas is extremely difficult:

Harrington v. Richter, 131 S. Ct. at 785-86.

"It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 786. "As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings." Id. "As 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." Id. at 786-87.

Accordingly, even if Petitioner presents a strong case of ineffective assistance of counsel, this Court may only grant relief if no fairminded jurist could agree on the correctness of the state court decision.

3. Analysis

The crux of Petitioner's argument is that trial counsel repeatedly failed to object to improper questions from the prosecutor. Petitioner asserts that counsel did not object to questions that were leading, asked and answered, testimonial in nature, compound, irrelevant, speculative, and solicited hearsay. (See Pet. at 53.) In a footnote, Petitioner provides a list of hundreds of references to the trial transcript that involve "examples where defense counsel was duty-bound to object to improper questions and failed to do so." (Id. at 49-53.) The state court denied the claim of ineffective assistance of counsel because Petitioner did not describe how the failure to object to the prosecution's questions prejudiced Petitioner.

The Court agrees. Petitioner has presented no basis to doubt that, even if the objections had been made and sustained, the prosecutor could have simply rephrased the questions and elicited the same substantive testimony. Further, failure to object to the form of the questions from the prosecution is a matter of trial strategy. See Strickland, 466 U.S. at 690 ("Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable."). There could have been perceived benefits to not objecting. For example, objecting to the questions could have slowed the examination of the witnesses and caused the jury to dwell on the witnesses' allegations of molestation for a longer time. Petitioner has not shown that the failure to object caused counsel's conduct to fall below an objective level of reasonableness, or that Petitioner was prejudiced by the conduct.

Petitioner also claims that counsel was ineffective for failing to object to the admission into evidence of a photograph of one of the victims as contestant in a beauty pageant as a child. Petitioner argues that the age of the witness at the time of the molestation had been established, and that the picture was overly prejudicial by showing the "cuteness" of the victim as a thirteen year old girl. (Pet. at 54-55.) The state court relied on the prosecution's argument that the victim recalled the pageant as an event occurring around when the sexual abuse started, and that the photo was helpful for the jury to gain perspective on the appearance and actions of the victim at the time of the sexual abuse. At trial, the victim was 24 years old, and her appearance would not necessarily convey to the jury how the victim might have been susceptible to abuse as a child. Based on the arguments presented by the prosecution, the state court found the photograph was more probative than prejudicial, and that the failure of Petitioner's counsel to object was without merit. The state court's decision was reasonable, and Petitioner fails to demonstrate that the decision was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 131 S. Ct.786-87.

Petitioner presents several other actions of counsel that he claims show ineffectiveness. Petitioner complains that in order to enable an earlier return to his office, counsel withdrew an objection to the admission of evidence On appeal, the state court denied the claim because the trial court agreed to change the order of testimony to accommodate Petitioner's trial counsel. Petitioner also contends that trial counsel allowed the prosecutor to misstate the evidence by stating that Petitioner touched a child victim's "breast" rather than "chest." The state court denied the claim as the child victim had already used the word "breast" when she testified about the molestation. Neither claim shows that counsel was ineffective nor that the state court's determination was unreasonable.

Petitioner's final ground for ineffectiveness in the petition is that counsel, by asking Petitioner whether he had ever physically abused a child, opened the door for impeachment testimony by a witness who stated that when Petitioner was drinking he "sort of slid his hand close to [her] chest area" but that she got up and "went somewhere else" and did not "let him get to [her] boob." People v. Macdonald, 2011 Cal. App. Unpub. LEXIS 9454 at 9-12. Counsel was aware of the impeachment witness, but noted that the police report stated that she was not willing to testify. In denying the claim, the state court explained that the witness testified that Petitioner was not successful at attempting to touch her breast, and in light of the exceedingly more damaging testimony of child victims regarding his repetitive commission of acts of sexual molestation including digital penetration, oral copulation, forced masturbation, and sexual intercourse, that the impeachment testimony was "trifling" in comparison. The state court's reasoning was sound. Regardless whether Petitioner's conduct was ineffective, Petitioner has not shown prejudice especially in light of the large amount of incriminating testimony that was admitted.

Petitioner has failed to meet his burden of showing that he was prejudiced as required under Strickland. The state court decision that Petitioner was not prejudiced by counsel's conduct was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law, nor was its decision based on an unreasonable determination of the facts.

In his traverse, Petitioner asserts that his claim was not alleging ineffectiveness under Strickland, but that "counsel entirely fail[ed] to subject the prosecution's case to meaningful adversarial testing" as required by United States v. Cronic, 466 U.S. 648, 659 (1984). Under Cronic, The attorney's failure must be complete. Id.; Bell v. Cone, 535 U.S. 685, 695-97 (2002). Further, a claim of denial of the right to counsel under Cronic does not require a showing of prejudice. Id. at 466 U.S. at 659. The Cronic exception to the requirement of showing prejudice is "narrow" and the presumption of ineffectiveness is "infrequently" justified. Florida v. Nixon, 543 U.S. 175, 190, 125 S.Ct. 551, 160 L. Ed. 2d 565 (2004).

Petitioner argues that Cronic error was committed by Petitioner's counsel in failing to object to the prosecution's questions to several witnesses. Counsel's failure to object, by itself, does not constitute a complete failure to test the prosecution's case. In the example provided by Petitioner, counsel rarely objected to questions of Holly Eaton. (Traverse at 11-14.) Instead, Petitioner's counsel cross-examined Eaton at length. (See Rep. Tr. at 2022-82.) During the cross-examination, counsel attempted to undermine the witness's testimony by pointing out that she had not told anyone about the sexual abuse until just before trial (Id. at 2024); that she hated Petitioner and wanted him to be found guilty (Id.); that the witness was confused and misstated dates during her direct testimony (Id. at 2027); that when she reported Petitioner's conduct to the sheriff's department as a teenager, she only reported that Petitioner touched her, but lied and told them she was not engaging in intercourse with Petitioner (Id. at 2040-41.); and that the victim moved back to Petitioner's ranch for several years with her two young daughters even with the knowledge that Petitioner sexually abused her when she was not much older than her daughters. (Id. at 2045-61.)

Petitioner's assertion that the state court misinterpreted and misapplied Cronic is without merit. Although counsel did not raise objections, Petitioner has not shown that "counsel entirely fail[ed] to subject the prosecution's case to meaningful adversarial testing." United States v. Cronic, 466 U.S. 648, 659 (1984). Counsel elicited beneficial testimony during cross-examination of the witness in question, and otherwise actively participated throughout trial. Counsel's failure to represent Petitioner was not complete, and Petitioner is not entitled to relief under Cronic. See Bell v. Cone, 535 U.S. 685, 695-97 (2002).

Petitioner has not shown that counsel was ineffective under either Strickland or Cronic. The state court decision denying Petitioner's claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law, nor was its decision based on an unreasonable determination of the facts. Petitioner is not entitled to relief on claim one.

B. Claims 2 and 3 — Procedural Bar

Respondent asserts that the second and third claims presented in the petition are subject to procedural default. Petitioner presented the claims in his direct appeals before the California Court of Appeal and Supreme Court. (Lodged Docs. 25-29.) Because the California Supreme Court's opinion is summary in nature, this Court "looks through" that decision and presumes it adopted the reasoning of the California Court of Appeal, the last state court to have issued a reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 804-05 & n.3 (1991).

The California Supreme Court denied the petition based on a state procedural bar. The court addressed Petitioner's claims as follows:

People v. Macdonald, 2011 Cal. App. Unpub. LEXIS 9454 at 12-13.

Based on the cases cited by the California Supreme Court, it appears that the California Supreme Court found the claims procedurally barred for failure to raise the claims on direct appeal.

1. Legal Framework for Procedural Default

The Supreme Court recently described the legal requirements that prevent review of claims that were rejected on state court grounds:

Walker v. Martin, 562 U.S. 307, 131 S.Ct. 1120, 1127-1128 (2011) (abrogating Townsend v. Knowles, 562 F.3d 1200 (9th Cir. 2009)).

Respondent contends that Petitioner's claim is barred by the procedural default doctrine as stated in Coleman v. Thompson, 501 U.S. 722 (1991). Coleman bars review of a petitioner's federal habeas claim when the claim was rejected in state court based on an adequate and independent state procedural bar. Id. at 729-30.

Id. at 750.

Respondent points out that a procedural bar must have risen from explicit and independent state law. Id. at 735; Harris v. Reed, 489 U.S. 255, 265, 109 S.Ct. 1038, 103 L. Ed. 2d 308 (1988). For the procedural bar to be adequate, the bar must be clear, consistently applied, and well established at the time of the alleged default. Collier v. Bayer, 408 F.3d 1279, 1284 (9th Cir. 2005). Also, the opinion of the last state court rendering a judgment in the case must clearly and expressly state that its judgment rests on a state procedural bar. Harris, 489 U.S. at 263; see Coleman, 501 U.S. at 729-30.

Petitioner's counsel failed to raise claims of judicial or prosecutorial misconduct at trial. The state court ruled that "[t]he law is settled that failure to raise the issue of judicial conduct at trial forfeits the right to appellate review of that issue and that failure to raise the issue of prosecutorial conduct at trial forfeits the right to appellate review of that issue." Macdonald, 2011 Cal. App. Unpub. LEXIS 9454 at 12-13. (citations omitted). In making this ruling, the state court relied on California's contemporaneous objection rule, "that a defendant cannot complain on appeal of misconduct by a prosecutor at trial unless in a timely fashion he made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety." People v. Ayala, 23 Cal.4th 225, 284, 96 Cal.Rptr.2d 682, 1 P.3d 3 (2000); People v. Ochoa, 19 Cal.4th 353, 427, 79 Cal.Rptr.2d 408, 966 P.2d 442 (1998); e.g., People v. Samayoa, 15 Cal.4th 795, 841, 64 Cal.Rptr.2d 400, 938 P.2d 2 (1997); People v. Benson, 52 Cal.3d 754, 794, 276 Cal.Rptr. 827, 802 P.2d 330 (1990). The Supreme Court has held that a violation of a state contemporaneous objection rule can indeed result in a habeas petitioner's claim being barred under the procedural default doctrine. Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 53 L. Ed. 2d 594. The Ninth Circuit has held that the California contemporaneous objection rule results in a procedural default of a prosecutorial misconduct claim. Rich v. Calderon, 187 F.3d 1064, 1069-70 (9th Cir. 1999); Howard v. Campbell, 305 Fed. Appx. 442, 444 (9th Cir. 2008)3; Miles v. Hedgpeth, 514 Fed. Appx. 673 (9th Cir. 2013). Based on the same reasoning, the Court finds that Petitioner's judicial misconduct claim would be procedurally barred by the contemporaneous objection rule. Muhammad v. Martel, 2012 U.S. Dist. LEXIS 76445 (N.D. Cal. 2012).

The Ninth Circuit uses a burden-shifting analysis to determine adequacy. Bennett v. Mueller, 322 F.3d 573, 585-586 (9th Cir. 2003). Under this analysis, when the state pleads, as an affirmative defense, that a claim is procedurally barred, the burden shifts to the petitioner to challenge the adequacy of that bar by showing that it has been inconsistently applied. Id. Where the petitioner challenges the adequacy of the bar, the state retains the ultimate burden of proving adequacy. Id.

Respondent argues that the contemporaneous objection rule in question is an explicit and independent state law. The opinion of the last state court rendering judgment, the Fifth District Court of Appeal, citing several California Supreme Court cases, clearly and expressly stated that Petitioner's failure to preserve his challenge was grounds to deny his claim.

In this case, Petitioner provides no response to the procedural bar asserted by Respondent and therefore fails to meet his burden of shifting the burden back to Respondent. See King v. LaMarque, 464 F.3d 963, 967 (9th Cir. 2006) ("Bennett requires the petitioner to `place [the procedural default] defense in issue" to shift the burden back to the government"). It should also be noted that when challenged, federal courts have questioned whether the contemporaneous objection rule is consistently applied and well established. See e.g., Steele v. Ayers, 2010 U.S. Dist. LEXIS 70731 (E.D. Cal. July 14, 2010) (failing to rely on other federal courts review of procedural default based on the contemporaneous objection rule due to the lack of review of whether the bar is consistently applied). However, in light of recent Supreme Court authority, even if not applied entirely consistently, a state rule can be considered consistently applied. See Walker v. Martin, 131 S.Ct. 1120, 1128, 179 L. Ed. 2d 62 (2011) ("A discretionary state procedural rule . . . can serve as an adequate ground to bar federal habeas review. A rule can be firmly established and regularly followed even if the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not others.") (citations and internal quotations omitted). Petitioner has not provided any evidence to establish that contemporaneous objection rule was not consistently applied. The Court finds that Petitioner has not met his burden of challenging the procedural default and his claim is barred from federal review.

To overcome a procedural default a prisoner must "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. "`[C]ause' under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him: `[W]e think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.'" Id. at 753 (citing Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L. Ed. 2d 397 (1986)).

2. Reasons to Overcome Procedural Default

Even when a federal claim has been procedurally defaulted, "[t]he bar to federal review may be lifted, if `the prisoner can demonstrate cause for the [procedural] default [in state court] and actual prejudice as a result of the alleged violation of federal law.'" Maples v. Thomas, 132 S.Ct. 912, 922, 181 L. Ed. 2d 807 (2012) (quoting Coleman, 501 U.S. at 750, 746-47); see also Schneider v. McDaniel, 674 F.3d 1144, 1153 (9th Cir. 2012). Adequate "cause" for a default must be an "external" factor that cannot fairly be attributed to the petitioner. Coleman, 501 US. at 753.

a. Cause

In Coleman, the court noted that attorney error which rises to the level of ineffective assistance of counsel is considered "cause" within the meaning of this rule. Coleman, 501 U.S. at 753-54. This is because a defendant has a right to effective assistance of counsel under the Sixth Amendment, and a violation of that must be seen as an external factor, and thus the error must be imputed to the state. Id.; Murray, 477 U.S. at 488. Here, Petitioner has alleged claims of prosecutorial misconduct and judicial misconduct. Petitioner asserts that the prosecutor and the judge acted improperly, preventing Petitioner from having a fair trial. The Court shall assume, without deciding, that Petitioner has shown cause for the procedural default.

b. Prejudice

In addition to cause, prejudice is a required element for Petitioner to overcome a procedural bar. In order to establish prejudice to overcome a procedural default, Petitioner must show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." See United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L. Ed. 2d 816 (1982) (discussing prejudice where defendant failed to object to jury instructions in proceeding under 28 U.S.C. § 2255); Schneider v. McDaniel, 674 F.3d 1144, 1153 (9th Cir. 2012). "Prejudice [to excuse a procedural default] is actual harm resulting from the alleged error." Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998).

1. Judicial Misconduct

Petitioner asserts that the judge committed misconduct based on several events: he failed to make rulings or made vague rulings with regard to several objections; he noted that the court of appeal might disagree with his decision to admit evidence; he denied defense counsel's request to declare his own witness as hostile; he read juror questions into the record without providing defense counsel the right to review the questions beforehand; he misstated when he would interview a juror about contact with a witness; he admonished defense counsel for asking leading questions, but did not admonish the prosecution for the same actions; and he allowed the prosecution to read Petitioner his advisements after conviction rather than reading them himself. (Pet. at 58-64.)

The Due Process Clause guarantees a criminal defendant the right to a fair and impartial judge. See In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L. Ed. 942 (1955). There are two general ways in which a defendant may establish that he was denied his constitutional right to a fair and impartial judge: (1) the appearance of judicial bias or advocacy, or (2) the judge's pecuniary or personal interest in the outcome of the proceedings. See Taylor v. Hayes, 418 U.S. 488, 501-04, 94 S.Ct. 2697, 41 L. Ed. 2d 897 (1974). A claim of judicial misconduct by a state judge in the context of federal habeas review does not simply require that the federal court determine whether the state judge committed judicial misconduct; rather, the question is whether the state judge's behavior "rendered the trial so fundamentally unfair as to violate federal due process under the United States Constitution." Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995). A state judge's conduct must be significantly adverse to a defendant before it violates constitutional requirements of due process and warrants federal intervention. See Garcia v. Warden, Dannemora Corr. Facility, 795 F.2d 5, 8 (2d Cir. 1986). "[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L. Ed. 2d 474 (1994).

Petitioner argues that many small actions of the judge over the course of the trial illustrated that the judge was biased towards the prosecution and that Petitioner was denied a fundamentally fair trial. However, while Petitioner may have disagreed with many of the decisions made by the judge, he has not provided any evidence of overt bias against him.

Petitioner claims that the judge failed to make rulings on objections or made vague rulings, at best. (Pet. at 58-59.) Petitioner cites to over forty objections that he claims the court failed to properly rule. (Id.) Upon review of the objections, it appears that on several occasions the judge did not rule on the objection because the opposing counsel rephrased the question prior to a ruling. Further, other rulings on objections appear to have been stated on the record with sufficient clarity as to allow the parties to understand whether the judge was sustaining or overruling the objections. Neither the trial judge's silence nor rulings on objections pointed out a bias towards either party that would have made trial fundamentally unfair.

The only specific evidentiary ruling that Petitioner raises is where the judge improperly ruled to allow the admission of evidence while noting that the appeals court might disagree: Petitioner claims this violated his duty of professional competence. (Pet. at 66.) The judge stated that he would admit the evidence based on the arguments he heard, but that he "would like to admonish the district attorney that, you know, you might have to face an appeals court that feels that this is going too far with the evidence." (Rep. Tr. at 2004-05.) The judge's admonishment that his ruling was a close one, and may be subject to reversal on appeal, does not show that his conduct was unreasonable or based on his bias. Judges are constantly required to make difficult decisions without time for serious reflection. Stating that an appeals court might reverse an evidentiary ruling does not show that the judge acted with improper intent, and moreover does not show that the judge displayed "a deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky, 510 U.S. at 555.

Petitioner also complains of the manner in which the trial court handled defense counsel's questioning of defense witness Kathy Wallis — Petitioner's wife and the mother and grandmother of the victims. (Pet. at 59-60.) Petitioner contends that the trial court failed to allow him to treat Ms. Wallis as a hostile witness and ask her leading questions. Upon review of the transcript, prior to calling the witness, defense counsel requested the right to treat the witness as hostile. (Reptr's Tr. at 2355-57.) The judge did not specifically rule, and the defense counsel requested that the witness not be considered hostile unless there was evidence of hostility towards defense counsel. (Id.) Defense counsel stated that he understood, and the witness was called. (Id.)

After substantial questioning of the witness, the prosecution started to object to the questions presented by defense counsel. However, most were technical objections to the form of the questions asked, such as the question being vague or compound. (Reptr's Tr. at 2376-87.) From the written record, there is no indication that the witness was failing to respond to the questions posed by defense counsel. (Id.) However, defense counsel did ask several leading questions, and the judge sustained objections to those questions. (Id.) Upon review of the transcript, it appears that the witness was answering questions and did not evince overt signs of hostility. The witness was not refusing to answer questions, and usually provided relevant responses to the questions presented by defense counsel.

Defense counsel requested a sidebar, at which the judge and the prosecutor attempted to calm defense counsel down, and explain how to elicit testimony from the witness. (Reptr's Tr. at 2387-2398.) For example, the judge explained, ""But the point is if you ask a question. Why didn't you just — Did you do this? Did you do that? It is leading. And she has a right to object." (Id. at 2393.) At no point did the court prevent Petitioner from questioning the witness, it only limited leading questions, because at the time, the witness had yet to display signs of hostility. Nothing about the conduct of the judge during the questioning of this witness demonstrated judicial bias as to make the trial fundamentally unfair.

Next, Petitioner claims judicial misconduct based on the judge's action in reading questions posed by jurors to the entire jury before defense counsel had an opportunity to review the questions. (Pet. at 68.) Even if the judge failed to follow appropriate procedures with regard to juror questions, Petitioner has shown no basis for bias or other misconduct on behalf of the judge. Petitioner argues that the questions possibly could have tainted the entire jury, but failed to present argument that the questions indeed did so. Petitioner has not shown that the judge's actions in reading the questions to the entire jury rendered the trial fundamentally unfair.

Petitioner next contends that there was evidence of bias by the judge because the judge failed to remember to call and question jurors the next day after they were seen talking to a witness. (Pet. at 68.) The issue of tainting the jury was raised by the prosecution, not defense counsel. (Rept'rs Tr. at 2826-30.) Regardless, upon the prosecution's renewed request, made without objection by defense counsel, the court proceeded to question the jurors. Nothing about this exchange raises the specter of judicial misconduct or bias.

Petitioner argues that the judge improperly found witness Lance MacDonald to be argumentative, and repeatedly admonished him to answer the questions asked. Upon review of the record it appears that MacDonald provided unresponsive answers, perhaps even attempting to argue with the prosecution. An example is an exchange during the examination of Mr. MacDonald:

(Rept'rs Tr. at 2879.) While the judge admonished this witness repeatedly, it appears that the witness provided several non-responsive answers to direct questions rather than relevant testimony. The fact that the judge attempted to curtail such commentary prior to objections from the prosecution does not show bias. If anything, it demonstrates the efforts of the judge to control the proceeding. Further, the testimony of the witness was objectionable, and had the Court not taken action, there is little doubt that the prosecution would have properly objected to the testimony. Again, Petitioner's claims do not evidence misconduct by the judge that would make the trial fundamentally unfair.

Finally, Petitioner argues that the fact that the judge allowed the prosecutor to read some of the advisements onto the record shows that the judge was either incompetent or favored the prosecution. (Pet. at 71.) What Petitioner fails to mention is that the judge was a visiting judge from a different county, and that the prosecutor assisted the judge in finding a copy of the proper advisements. (Rep. Tr. 3891-95.) While the prosecutor assisted the judge, the judge's concern was that Petitioner received proper notice of his rights regarding his sentence and his right to appeal. (Id.) Petitioner has not shown that the actions of the judge rendered his trial fundamentally unfair.

For the reasons discussed above, the Court finds that Petitioner would not be successful in his claim of judicial misconduct. As the claim would not be successful, Petitioner is unable to show prejudice from counsel's failure to present the claim at trial.

2. Prosecutorial Misconduct

Petitioner also asserts that the prosecutor committed misconduct based on several events, including: asking leading questions; asking for nine sidebars as a part of objections to defense counsel's questioning of witnesses; and improperly objecting to prevent Petitioner from presenting impeachment evidence. (Pet. at 65-68.)

In general, a prosecutor's actions will not be grounds for habeas relief unless they "`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 180, 106 S.Ct. 2464, 91 L. Ed. 2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L. Ed. 2d 431 (1974)). This is a "very general" standard, "leaving courts `more leeway . . . in reaching outcomes in case-by-case determinations.'" Parker v. Matthews, U.S., 132 S.Ct. 2148, 2155, 183 L. Ed. 2d 32 (2012) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L. Ed. 2d 938 (2004)) (alteration in original).

A prosecutor's "misleading . . . arguments" to the jury may rise to the level of a federal constitutional violation. Sechrest v. Ignacio, 549 F.3d 789, 807 (9th Cir. 2008) (citing Darden, 477 U.S. at 181-82); see also Allen v. Woodford, 395 F.3d 979, 997 (9th Cir. 2005) (citing Darden for conclusion that improper prosecutorial argument may violate federal constitutional rights). "[A] prosecutor's improper comments will be held to violate the Constitution only if they `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Parker, 132 S. Ct. at 2153 (quoting Darden, 477 U.S. at 181); see also Caldwell v. Mississippi, 472 U.S. 320, 340, 105 S.Ct. 2633, 86 L. Ed. 2d 231 (1985).

Petitioner cannot establish prejudice with regard to his claim of prosecutorial misconduct. Petitioner claims that the prosecutor committed misconduct by asking leading questions and that the admitted to doing so on the record. (Pet. at 66.) Petitioner's claims are without merit. Even assuming the prosecutor asked leading questions, that, by itself, would not rise to the level of misconduct or make the underlying trial fundamentally unfair. Further, where Petitioner claims that the prosecutor admitted to asking improper questions, the prosecutor corrected her questions to prevent misleading testimony from being admitted. (See Rep. Tr. at 1703; 1876.) The prosecutor's statements that "I guess I should have said it the other way" and "I think my question was misleading. I misspoke. Hygienist. I don't want to mislead. You're in school correct?" do not illustrate misconduct. (Id.) If anything, the comments show that the prosecutor was being trying to present accurate evidence to the jury.

Petitioner claims that the prosecution committed misconduct by preventing Petitioner from presenting evidence of a witness's relationship with an ex-boyfriend. (Pet. at 67.) Petitioner claims this was improper because the prosecution based the objection on a false claim that she lacked knowledge of the ex-boyfriend. In reality, the prosecution objected to the questions posed by defense counsel because they were outside the scope of her re-direct. Regardless, the judge allowed Petitioner to question the witness with regard to whether the witness knew that her boyfriend had admitted to child molestation during the time they were cohabitating. (Rep. Tr. at 2147.) Petitioner has not shown that the prosecutor's objections were improper, or that he was prejudiced by the objections.

The Court finds that Petitioner would not be successful in his claim of prosecutorial misconduct. As the claim would not be successful, Petitioner is unable to show prejudice from counsel's failure to present the claim at trial.

c. Miscarriage of Justice

Finally, Petitioner can avoid a procedural default if he can demonstrate that a fundamental miscarriage of justice would result from the default. The United States Supreme Court has limited the "miscarriage of justice" exception to petitioners who can show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L. Ed. 2d 808 (1995). "In order to pass through Schlup's gateway, and have an otherwise barred constitutional claim heard on the merits, a petitioner must show that, in light of all the evidence, including evidence not introduced at trial, "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" Majoy v. Roe, 296 F.3d 770, 775-76 (9th Cir. 2002), quoting Schlup, 513 U.S. at 327. In applying this standard, "A petitioner need not show that he is "actually innocent' of the crime he was convicted of committing; instead, he must show that ""a court cannot have confidence in the outcome of the trial.'" Majoy, 296 F.3d at 776, quoting Carriger v. Stewart, 132 F.3d 463, 478 (9th Cir. 1987) (en banc), quoting Schlup, 513 U.S. at 316.

Petitioner has not presented any credible evidence to undermine the factual assertions that form the basis of his convictions. Without presenting reliable, credible evidence of his innocence, Petitioner has not made a sufficient showing of actual innocence to serve as an equitable exception to procedural default. Schlup, 513 U.S. at 324 ("To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.") Petitioner has not shown that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt in light of the alleged errors at trial described above. Id. at 314-15. Accordingly, Petitioner is procedurally barred from presenting his second and third claims.

IV. RECOMMENDATION

It is recommended that the petition for writ of habeas corpus be DENIED with prejudice.

This Findings and Recommendation is submitted to the assigned District Judge, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) days after being served with the Findings and Recommendation, 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 Recommendation." Any reply to the objections shall be served and filed within fourteen (14) 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. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).

IT IS SO ORDERED.