ORDER

KENDALL J. NEWMAN, Magistrate Judge.

I. Introduction

Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2012 conviction for possessing marijuana while inside a penal institution. Petitioner was sentenced to three years in state prison. Petitioner claims that the trial court violated his Sixth and Fifth Amendment rights by limiting cross-examination of a witness. Both parties consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c).

After careful review of the record, this court concludes that the petition should be denied.

II. Procedural History

Petitioner was serving an indeterminate sentence of twenty-five years to life for a 2001 conviction for first degree murder at the time he was charged with possession of marijuana. (CT 57-58.) On September 18, 2012, a jury found petitioner guilty of possession of marijuana while inside a penal institution, and the jury found true a prior prison term enhancement. (Clerk's Transcript ("CT") 83.) On November 30, 2012, petitioner was sentenced to three years in state prison for the possession offense, to run consecutively with the indeterminate life sentence. (CT 145.) The trial court declined to dismiss the prior prison term enhancement but also declined to impose the additional one-year penalty. (Id.)

Petitioner appealed the conviction to the California Court of Appeal, Third Appellate District. On October 24, 2014, the Court of Appeal modified the judgment of conviction by striking the prior prison term allegation, but affirmed the judgment as modified. (Respondent's Lodged Document ("LD") No. 4.)

Petitioner filed a petition for review in the California Supreme Court, which was denied on January 14, 2015. (LD Nos. 5-6.)

On February 11, 2016, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court. (LD No. 7.) On June 13, 2016, the superior court denied the petition on procedural and substantive grounds. (LD No. 8.)

No additional state habeas petitions were filed.

Petitioner filed the instant petition on April 12, 2016. (ECF No. No. 7.)

III. Facts1

In its unpublished opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual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

People v. McDaniels, No. C072707, slip op. at 2-3 (Cal. Ct. App. Oct. 24, 2014)

IV. Standards for a Writ of Habeas Corpus

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

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

28 U.S.C. § 2254(d).

For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 132 S.Ct. 38, 44-45 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). Circuit court precedent "may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may not be "used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced." Marshall v. Rodgers, 133 S.Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 132 S.Ct. 2148, 2155 (2012) (per curiam)). Nor may it be used to "determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct. Id. Further, where courts of appeals have diverged in their treatment of an issue, it cannot be said that there is "clearly established Federal law" governing that issue. Carey v. Musladin, 549 U.S. 70, 77 (2006).

A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.2 Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams v. Taylor, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. at 411. 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 fair-minded 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 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, 568 U.S. 289, (2013) (citing Richter, 562 U.S. at 98). If a state court fails to adjudicate a component of the petitioner's federal claim, the component is reviewed de novo in federal court. Wiggins v. Smith, 539 U.S. 510, 534 (2003).

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." Id. at 101. 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).

V. Petitioner's Claims

A. Limit on Cross-Examination — Alleged Sixth Amendment Violation

1. The Parties' Positions

Petitioner claims that the trial court violated his Sixth Amendment right to confront witnesses by limiting his cross-examination of Officer Patricia Hampton, an evidence officer at Folsom State Prison responsible for retrieving, maintaining, and transporting evidence collected in the prison. During cross-examination, petitioner's counsel elicited testimony regarding Hampton's involvement in the search of petitioner's cell, and petitioner argues that Hampton voluntarily testified that she was searching a different cell at the same time she was searching petitioner's cell. (ECF No. 7 at 11; 24 at 19.) Petitioner argues that because Hampton volunteered such information, petitioner should have been allowed to cross-examine her on the issue of such timing in an effort to demonstrate she was not a credible witness. (ECF No. 24 at 17, 20, 24-25.) Thus, petitioner contends that such limitation violated his confrontation rights. He also argues that he should have been permitted to question Hampton concerning what other contraband was discovered that day, particularly where Officer Lofton testified the wrapper sealing the contraband found in petitioner's feces was a different color from the color she remembered. (ECF No. 7 at 12-13.) He also argues he should have been able to cross-examine Hampton on the proximity, amount and size of other discovered contraband, in an effort to further dispute the variations in weight of the contraband discovered in petitioner's feces. (ECF No. 7 at 14.) Petitioner argues that the limit on Hampton's cross-examination deprived the jury from hearing any discrepancies that may have been elicited. (ECF No. 7 at 15.) Petitioner contends that such limitation had a substantial and injurious effect on the verdict. (ECF No. 24 at 26.)

Respondent counters that the state court's rejection of petitioner's Sixth Amendment claim was not unreasonable or contrary to Supreme Court precedent. First, respondent argues that to the extent defense counsel was barred from introducing Hampton's report from an unrelated cell search, there is no clearly established Sixth Amendment right to introduce extrinsic evidence for impeachment purposes. (ECF No. 17 at 16.) Second, respondent contends that the excluded report did not impeach Hampton's testimony, citing the trial judge's explanation that there was "no necessary discrepancy between the times indicated because [Officer Hampton] did not say, nor did she claim under oath, that she stood by, stationary, in a single position or within a few feet within a particular time period." (ECF No. 17 at 16, citing RT 72-73.) Third, respondent argues the excluded report was not relevant because Hampton did not testify as a percipient witness to any of the events leading up to the marijuana seizure. (ECF No. 17 at 16.) Rather, Officer Guzman described how petitioner swallowed the cellophane ball just after Guzman entered the cell to conduct the search. (Id., citing RT 85-88.) Officer Lofton testified that she recovered the cellophane ball from petitioner's feces. (Id., citing RT 98-100.) Criminalist Anderson testified that the contents of the cellophane ball testified positive for marijuana with a net weight of .11 grams (Id., citing RT 120-21.) Because any possible time discrepancy had no relevance to the question of whether the contraband seized constituted a sufficient amount of marijuana to fall within the criminal statute, respondent argues that the trial court properly excluded the cross-examination of Hampton.

Fourth, respondent maintains that defense counsel expressly denied that there were any issues surrounding evidence tampering or questions concerning chain of custody of the evidence; thus, petitioner's claim that the omitted cross-examination could have revealed other defects in Hampton's credibility is mere speculation. (ECF No. 17 at 17.) Finally, respondent notes that the trial court found defense counsel's failure to provide pretrial discovery of the excluded report to be "completely inappropriate," but that even if discovery was not "technically" required, the report was properly excluded as irrelevant, and "far outweighed by the possibility of confusion or other things." (Id., citing RT 73, 74, 76-77, 137.) Respondent contends that such legitimate concerns supported the trial court's decision to exclude the report and limit cross-examination of Hampton.

In the alternative, respondent argues that any possible error in limiting the cross-examination of Hampton was harmless error because it had no adverse effect on the jury's verdict.

2. The State Court Decision

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

A. Background

B. Analysis

(People v. McDaniels, slip op. at 3-8.) (LD 4.)

3. Governing Legal Principles

Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants "a meaningful opportunity to present a complete defense" and the right to present relevant evidence in their own defense. Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)); Nevada v. Jackson, 569 U.S. 505, 509 (2013). This right is not unlimited, but rather is subject to reasonable restrictions. United States v. Scheffer, 523 U.S. 303, 308 (1998); Alcala v. Woodford, 334 F.3d 862, 877 (9th Cir. 2003). The Constitution permits judges to exclude evidence "if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury." Holmes, 547 U.S. at 319.

The Sixth Amendment to the United States Constitution grants a criminal defendant the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. "The `main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.'" Fenenbock v. Director of Corrections for California, 692 F.3d 910, 919 (9th Cir. 2012) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986)). A defendant meets his burden of establishing a Confrontation Clause violation by showing that "[a] reasonable jury might have received a significantly different impression of [a witness's] credibility had . . . counsel been permitted to pursue his proposed line of cross-examination." Id. at 680; Slovik v. Yates, 556 F.3d 747, 753 (9th Cir. 2009).

However, Confrontation Clause violations are subject to harmless error analysis. Whelchel v. Washington, 232 F.3d 1197, 1205-06 (9th Cir. 2000). "In the context of habeas petitions, the standard of review is whether a given error `had substantial and injurious effect or influence in determining the jury's verdict.'" Christian v. Rhode, 41 F.3d 461, 468 (9th Cir. 1994) (quoting Brecht, 507 U.S. at 637).

4. Discussion

First, the undersigned finds that petitioner cannot obtain habeas relief based on a claim that the trial court improperly excluded Hampton's unrelated cell search report. The Supreme Court "has never held that the Confrontation Clause entitles a criminal defendant to introduce extrinsic evidence for impeachment purposes." Nevada v. Jackson, 569 U.S. at 512. This court is bound by such decision.

Second, the California court's affirmation of the trial court's exclusion of evidence relating to Hampton's search of other cells under California Evidence Code § 352 was not contrary to, or an unreasonable application of clearly established federal law. Section 352, like its federal counterpart, Rule 403 of the Federal Rules of Evidence, is frequently used to exclude evidence where its probative value is far outweighed by the probability that its admission will unduly delay, waste time, or confuse or mislead the jury. The application of section 352 by the trial court to exclude Hampton's evidence or restrict cross-examination of her testimony (Reporter's Transcript ("RT") 74) did not result in a Confrontation Clause violation or violate petitioner's right to present a defense.

As argued by respondent, petitioner's reliance on United States v. Baker, 10 F.3d 1374, 1405-05 (9th Cir. 1993), overruled on other grounds by, United States v. Nordby, 225 F.3d 1053 (9th Cir. 2000), is unavailing. (ECF No. 17 at 18, citing ECF No. 7 at 13.) This court is required to review the state court's decision deferentially under § 2254(d), whereas the Ninth Circuit reviewed the decision in Baker on appeal. In addition, unlike here where the limitation involved non-relevant testimony by a non-percipient witness on cross-examination, in Baker, the court excluded relevant testimony of the expert witness' qualifications to offer an expert opinion. Therefore, Baker is inapposite to the case at bar. In addition, petitioner points to no Supreme Court case finding the defendant's confrontation rights were violated where the trial court excluded evidence after weighing the probative value of the evidence and finding it to be far outweighed by issue confusion or undue delay.

The Confrontation Clause guarantees criminal defendants the right of cross-examination, which includes exploration of bias. See Davis v. Alaska, 415 U.S. 308, 315-16 (1974). But such guarantee does not

Van Arsdall, 475 U.S. at 679. Courts will not find that a due process violation has occurred based on the exclusion of evidence proffered by the defense if the excluded evidence was, among other things, only marginally relevant or repetitive. See Crane, 476 U.S. at 689-90 (judges are granted "wide latitude" in their evidentiary rulings); see also Wood v. State of Alaska, 957 F.2d 1544, 1549 (9th Cir. 1992) ("A defendant has no right, however, to present irrelevant evidence."); Perry v. Rushen, 713 F.2d 1447, 1453 (9th Cir. 1983) ("Evidence of little importance, whether merely cumulative or of little probative value, will almost never outweigh the state interest in efficient judicial process."). This determination is because "`the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'" Van Arsdall, 475 U.S. at 679 (quoting Fensterer, 474 U.S. at 20). The exclusion of specific lines of cross-examination is not error if there is "no substantial likelihood" that "the jury's impression of [the witness'] credibility" would have been changed. Sully v. Ayers, 725 F.3d 1057, 1075 (9th Cir. 2013). Even relevant evidence may be excluded on account of certain evidentiary rules. Montana v. Egelhoff, 518 U.S. 37, 42 (1996).

Here, had the trial court allowed such cross-examination, the jury would have heard testimony concerning events that took place four days prior to the recovery of the contraband evidence. Such testimony would have wasted time and possibly confused the jury with facts not relevant to the specific criminal act at issue in the trial. Therefore, the trial judge reasonably limited the cross-examination of Hampton to her involvement as custodian of the evidence. Moreover, the record shows that Hampton, as custodian of the evidence, was subject to cross-examination. (RT 59-70.) Also, petitioner's defense counsel conceded that there was no issue of tampering with the evidence or other misconduct by Hampton. (RT 73.) Contrary to petitioner's claims, denying him the opportunity to cross-examine Hampton as to the timing of the cell searches in the hope that petitioner might develop impeachment evidence did not infringe his right to confrontation or to present a defense. See Van Arsdall, 475 U.S. at 679 (when some inquiry is permitted, "trial judges retain wide latitude . . . to impose reasonable limits on such cross-examination"); cf. Hayes v. Ayers, 632 F.3d 500, 517-20 (9th Cir. 2011) (defendant's Confrontation Clause rights were not violated by trial court's quashing subpoena of witness' attorney because the testimony of such attorney would have been of low probative value and on a collateral point to impeach a prosecution witness). Therefore, the state appellate court's affirmation of the trial court's limit on the cross-examination of Hampton was not contrary to, or an unreasonable application of, clearly established federal law.

But even assuming, arguendo, that the trial court violated petitioner's right to confrontation by limiting the cross-examination of Hampton, any error was harmless because it was not reasonably probable that allowing such cross-examination would have resulted in a more favorable verdict. Hampton's role in providing a flashlight for other officers to search the cells was peripheral, at best, and therefore the exclusion of evidence as to the timing of the cell searches could have no effect on the verdict. Petitioner was not precluded from putting on a defense; indeed, he had his own expert witness who testified as to the seized contraband. In addition to cross-examining Hampton as to her role as custodian of evidence, petitioner's counsel cross-examined the officers involved in the contraband surveillance watch, as well as the prosecution's criminalist. Officers Guzman and Lofton testified concerning witnessing petitioner put something in his mouth and later recovering the evidence from petitioner's feces. (RT 85-88; 98-100.) Criminalist Anderson provided testimony concerning the analysis of what was recovered. (RT 120-21.) The physical evidence corroborated the testimony of these percipient witnesses. Even if the trial judge had allowed defense counsel to continue cross-examining Hampton on the issue of her presence during the cell searches, such testimony would not have impacted the evidence that a substance that tested positive as marijuana was recovered from petitioner's feces four days after the cell searches. Therefore, it was reasonable for the state appellate court to find that the limit on cross-examining Hampton did not have a "substantial and injurious effect or influence" on the jury's verdict. Brecht, 507 U.S. at 637.

Accordingly, the state appellate court's rejection of petitioner's first claim was not contrary to or an unreasonable application of clearly established federal law. Petitioner is not entitled to relief on his first claim.

B. Limit on Cross-Examination — Alleged Fifth Amendment Violation

Petitioner argues that the limitation on Hampton's cross-examination shifted the burden of proof from the prosecution to petitioner because petitioner was required to disprove that the recovered quantity of marijuana was a usable amount under California law. (ECF No. 7 at 10-16.) Petitioner also argues that when he heard Hampton testify in a manner different from what petitioner knew the facts to be, he "highly considered testifying" that what he swallowed was tobacco but it was wrapped in content that may have previously contained marijuana which accounted for the traces of the marijuana. However, because the trial court limited cross-examination of Hampton, petitioner contends he was deprived of such defense. (ECF No. 7 at 15-16.)

Respondent counters that petitioner's Fifth Amendment claim is unexhausted because he did not raise such challenge in any state appellate proceedings or on direct appeal, and therefore such claim may not be granted. (ECF No. 17 at 19.) In any event, respondent argues that such claim fails because the jury was properly instructed, and the restricted cross-examination of Hampton had no bearing on the amount of marijuana that was seized.

Because petitioner did not raise this claim in state court, there is no reasoned state court decision on petitioner's Fifth Amendment claim. (LD 1-5.)

The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).

As argued by respondent, petitioner failed to raise his Fifth Amendment claim in any of his state court proceedings, direct appeal or in a collateral challenge. Thus, such claim is not exhausted. That said, a petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. § 2254(b)(2).

The Due Process Clause of the Fourteenth Amendment "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). Here, the record reflects that petitioner's Fifth Amendment rights were not violated. The jury was properly instructed on the elements of the crime, as well as what the prosecution had to prove beyond a reasonable doubt. Initially, the trial judge instructed the jury that petitioner was not required to present evidence because he was presumed innocent, and he did not have to prove he was not guilty. (RT 43.) In addition, the court admonished the jury as to the presumption of innocence and the prosecution's burden of proof:

(RT 46.) The judge further instructed the jury on reasonable doubt. (Id.) Following the close of evidence the jury was again instructed as to the prosecution's burden of proof, as well as the petitioner's presumption of innocence, and his right not to testify. (RT 189-90; 193-94; 196-98.) A jury is presumed to follow its instructions. Richardson v. Marsh, 481 U.S. 200, 211 (1987).

Moreover, as discussed above, the limit placed on Hampton's cross-examination was not germane to the facts and evidence underlying petitioner's guilt: petitioner was seen putting something in his mouth and swallowing; following surveillance, contraband evidence was removed from his feces four days later, and was collected by Officer Lofton, not Hampton. Therefore, the limitation on defense counsel's ability to cross-examine Hampton as to the timing of cell searches performed four days prior to the recovery of the contraband evidence could not have shifted the burden of proof to petitioner. Moreover, the prosecutor's expert testified that the substance was marijuana and that there was a usable amount of marijuana. The timing of the cell searches bore no relevance to the quantity or testing of the contraband obtained. Petitioner's self-serving claim that he would have testified that the substance was tobacco does not alter the fact that the jury believed the prosecution's expert testimony as to the nature and weight of the seized substance.

For all of these reasons, petitioner is not entitled to relief on his second claim.

VI. Conclusion

In accordance with the above, the undersigned denies petitioner's application for a writ of habeas corpus.

VII. Certificate of Appealability

The federal rules require a district court that issues an order denying a habeas petition to either grant or deny a certificate of appealability. See Rules Governing § 2254 Cases, Rule 11(a).

A judge will grant a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), and the certificate must indicate which issues satisfy this standard. 28 U.S.C. § 2253(c)(3). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: [t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).

As discussed above, this court finds that petitioner has not made "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Moreover, petitioner has not demonstrated that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack, 529 U.S. at 484. Therefore, the court declines to issue a certificate of appealability.

VIII. Orders

Accordingly, IT IS HEREBY ORDERED that: