FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS

[THIRTY DAY OBJECTION DEADLINE]

SHEILA K. OBERTO, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is currently serving a sentence of 29 years for his conviction of several offenses involving an attempted murder. He has filed the instant habeas action challenging the conviction. As discussed below, the Court finds the claims to be without merit and recommends the petition be DENIED.

I. PROCEDURAL HISTORY

On February 28, 2013, a Kern County jury found Petitioner guilty of attempted murder (Cal. Penal Code §§ 664, 187(a)), assault with a semiautomatic firearm (Cal. Penal Code §245(b)), being a felon in possession of a firearm (Cal. Penal Code §29800(a)(1)), being a felon in possession of ammunition (Cal. Penal Code § 30305(a)(1)), and felony false imprisonment (Cal. Penal Code § 236). (Doc. 61-2 at 89.1) Petitioner was sentenced to a total state prison term of 29 years. Id.

Petitioner appealed to the California Court of Appeal, Fifth Appellate District ("Fifth DCA"). On December 14, 2015, the Fifth DCA ordered the abstract of judgment corrected to reflect that certain enhancements were in fact dismissed, but in all other respects, the judgment was affirmed. (Doc. 61-20.) Petitioner then filed a petition for review in the California Supreme Court. (Doc. 61-21.) The petition was denied on February 17, 2016. (Doc. 61-22.)

Petitioner also sought collateral relief in the state courts. On March 1, 2017, Petitioner filed a petition for writ of habeas corpus in the Kern County Superior Court. (Doc. 61-23.) The superior court denied the petition in a reasoned decision on April 25, 2017. (Doc. 61-24.) He then filed a habeas petition in the California Supreme Court which was summarily denied on November 29, 2017. (Doc. 61-26.)

On April 5, 2017, Petitioner filed a petition for writ of habeas corpus in this Court. (Doc. 1.) On December 22, 2017, following a stay of the proceedings pending exhaustion of state remedies, Petitioner filed a Third Amended Petition, which is the operative pleading. (Doc. 30.) On April 4, 2019, Respondent filed an answer to the petition. (Doc. 60.) On July 15, 2019, Petitioner filed a traverse to Respondent's answer. (Doc. 67.)

II. FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision2:

People v. Casillas, 2015 WL 8483864, at *1-5 (Cal. Ct. App. Dec. 10, 2015).

III. 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, 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 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Kern County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d).

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 (1997) (holding the AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

B. Legal Standard of Review

A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the petitioner can show that the state court's adjudication of his claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 412-413.

A state court decision is "contrary to" clearly established federal law "if it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or "if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-406).

In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that an "unreasonable application" of federal law is an objective test that turns on "whether it is possible that fairminded jurists could disagree" that the state court decision meets the standards set forth in the AEDPA. The Supreme Court has "said time and again that `an unreasonable application of federal law is different from an incorrect application of federal law.'" Cullen v. Pinholster, 563 U.S. 170, 203 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court "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 of fairminded disagreement." Harrington, 562 U.S. at 103.

The second prong pertains to state court decisions based on factual findings. Davis v. Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). Under § 2254(d)(2), a federal court may grant habeas relief if a state court's adjudication of the petitioner's claims "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Wiggins v. Smith, 539 U.S. 510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). A state court's factual finding is unreasonable when it is "so clearly incorrect that it would not be debatable among reasonable jurists." Jeffries, 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004).

To determine whether habeas relief is available under § 2254(d), the federal court looks to the last reasoned state court decision as the basis of the state court's decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). "[A]lthough we independently review the record, we still defer to the state court's ultimate decisions." Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

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, 119-120 (2007) (holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness).

C. Review of Petition

The petition presents the following claims for relief: 1) Defense counsel rendered ineffective assistance in failing to file a motion to dismiss a twice-dismissed charge pursuant to section 1387 and for failing to object to a jury instruction on felony false imprisonment; 2) The trial court violated Petitioner's right to counsel by denying his motion for new counsel; 3) Defense counsel rendered ineffective assistance in several instances; 4) The prosecutor committed misconduct by knowingly using false evidence in the form of perjured testimony to obtain a conviction; 5) Petitioner's right to confrontation was violated when a witness's statements were introduced at trial and Petitioner was not afforded an opportunity to cross-examine; and 6) Petitioner was denied due process by the combined effect of errors in his case.

1. Ineffective Assistance of Counsel

Petitioner first claims trial counsel rendered ineffective assistance when he failed to timely bring a motion to dismiss a charge that had already been dismissed on two prior occasions. He contends that a motion pursuant to section 1387 would have been meritorious and the charge of unlawful possession of a firearm would have been dismissed. Petitioner also contends that trial counsel failed to object to a jury instruction on false imprisonment. Petitioner raised this claim on direct appeal in the state courts. In the last reasoned decision, the Fifth DCA denied the claim as follows:

Casillas, 2015 WL 8483864, at *5-9.

a. Legal Standard

Effective assistance of counsel is guaranteed by the Due Process Clause of the Fourteenth Amendment. Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of counsel are reviewed according to Strickland's two-pronged test. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989); United States v. Birtle, 792 F.2d 846, 847 (9th Cir.1986); see also Penson v. Ohio, 488 U.S. 75 (1988) (holding that where a defendant has been actually or constructively denied the assistance of counsel altogether, the Strickland standard does not apply and prejudice is presumed; the implication is that Strickland does apply where counsel is present but ineffective).

To prevail, Petitioner must show two things. First, he must establish that counsel's deficient performance fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687-88. Second, Petitioner must establish that he suffered prejudice in that there was a reasonable probability that, but for counsel's unprofessional errors, he would have prevailed at trial. Id. at 694. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome of the trial. Id. The relevant inquiry is not what counsel could have done; rather, it is whether the choices made by counsel were reasonable. Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998).

With the passage of the AEDPA, habeas relief may only be granted if the state-court decision unreasonably applied this general Strickland standard for ineffective assistance. Knowles v. Mirzayance, 556 U.S. 111, 122 (2009). Accordingly, the question "is not whether a federal court believes the state court's determination under the Strickland standard "was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Knowles, 556 U.S. at 123. In effect, the AEDPA standard is "doubly deferential" because it requires that it be shown not only that the state court determination was erroneous, but also that it was objectively unreasonable. Yarborough v. Gentry, 540 U.S. 1, 5 (2003). Moreover, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard. See Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) ("[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.")

b. Analysis

Petitioner fails to show that counsel erred by failing to move to dismiss a charge of unlawful possession of a firearm. As discussed by the appellate court, the trial court's dismissal of count 4 was not pursuant to any of the reasons listed in section 1387. Therefore, the prosecution was not barred from re-charging Petitioner. The federal court is bound by the state court's interpretation of its own statute. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) ("[A] state court's interpretation of state law . . . binds a federal court sitting in habeas corpus"). Moreover, Petitioner was not re-charged with the same crime, because the state court found that count 4 as initially charged was not the same charge that was charged as count 4 of the amended complaint. The two counts referred to different dates and therefore different incidents. Thus, Petitioner fails to show that counsel erred. He also fails to show prejudice, because even if he had moved to dismiss count 4 in the amended complaint, the motion would have been denied.

Petitioner also fails to show that counsel erred by failing to object to the jury instruction on felony false imprisonment as a lesser included offense to kidnapping for ransom. The state court determined that under California law, the jury was properly instructed on felony false imprisonment. The appellate court noted that there was substantial evidence from which a jury could have found that Petitioner committed the crime of felony false imprisonment. The federal court is bound by the state court's determination. Moreover, as Respondent correctly points out, the Ninth Circuit has found that "the failure of a state court to instruct on a lesser offense in a non-capital case fails to present a federal constitutional question and will not be considered in a federal habeas corpus proceeding." Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000).

2. Substitution of Counsel

Petitioner next contends that the trial court erred by denying his motions to substitute counsel pursuant to People v. Marsden, 2 Cal.3d 118 (1970). He raised this claim on direct appeal as well. In the last reasoned decision, the Fifth DCA rejected the claim as follows:

Casillas, 2015 WL 8483864, at *9-18.

a. Legal Standard and Analysis

Petitioner challenges the trial court's application of People v. Marsden, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 (1970), in four Marsden hearings. Generally, the interpretation and application of state laws are not cognizable on federal habeas. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)) ("We have stated many times that `federal habeas corpus relief does not lie for errors of state law.'"); Gilmore v. Taylor, 508 U.S. 333, 348-49 (1993) (O'Connor, J., concurring) ("mere error of state law, one that does not rise to the level of a constitutional violation, may not be corrected on federal habeas"); Sawyer v. Smith, 497 U.S. 227, 239 (1990) (quoting Dugger v. Adams, 489 U.S. 401, 409 (1989) ("[T]he availability of a claim under state law does not of itself establish that a claim was available under the United States Constitution"). Petitioner contends the trial court erred in the manner in which it conducted the Marsden hearings, and that the appellate court's approval of the trial court's determinations was erroneous. To the extent the claim concerns the interpretation and application of state law, it is not cognizable on federal habeas review. Pulley v. Harris, 465 U.S. 37, 41 (1984) ("A federal court may not issue the writ on the basis of a perceived error of state law"). Moreover, federal courts are bound by state court rulings on questions of state law. Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir.1989).

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to ... have the Assistance of Counsel for his defense." U.S. Const. amend. VI. The Ninth Circuit has stated that the denial of a Marsden motion to substitute counsel can implicate a criminal defendant's Sixth Amendment right to counsel and is properly considered in federal habeas corpus, Bland v. California Dep't of Corrections, 20 F.3d 1469, 1475 (9th Cir.1994), and the Sixth Amendment requires an inquiry into the grounds for a motion to remove counsel. Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir.2000). However, as noted by Respondent, there is no direct precedent from the Supreme Court which holds that a denial of a motion to substitute counsel can be unconstitutional. "[I]t 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 Supreme] Court." Knowles, 556 U.S. at 122. Therefore, Petitioner's allegation that the trial court abused its discretion in denying his motion to remove counsel does not present a cognizable claim on habeas review.

Even if the Court considered the claim under Ninth Circuit caselaw, it is without merit. An indigent defendant, while entitled to appointed counsel, is not constitutionally entitled to appointed counsel of choice. Hendricks v. Zenon, 993 F.2d 664, 671 (9th Cir. 1993). The Supreme Court has "reject[ed] the claim that the Sixth Amendment guarantees a `meaningful relationship' between an accused and his counsel. Morris v. Slappy, 461 U.S. 1, 13-14 (1983). The Ninth Circuit has found that a trial court's refusal to allow substitution of counsel can violate a defendant's Sixth Amendment right to counsel if the defendant and his attorney have an "irreconcilable conflict." Stenson v. Lambert, 504 F.3d 873, 886 (9th Cir. 2007), cert. denied, 523 U.S. 1008 (2008). This level of conflict exists only if communication has so broken down that it prevents the effective assistance of counsel. Id. at 886; Schell, 218 F.3d at 1026.

In this case, the trial court held a Marsden hearing in each of the four instances in which Petitioner sought substitute counsel. The trial court gave Petitioner the opportunity to explain his reasons for wanting substitute counsel. The trial court then asked counsel to address the alleged deficiencies and satisfied itself that counsel's preparation for and representation at trial were more than adequate. The trial court noted that counsel maintained his professionalism, provided defendant with effective assistance, and effectively communicated with him despite Petitioner being a difficult client. The record established that there was no breakdown of attorney-client communications; rather, petitioner and his attorney had disagreements over trial tactics and whether investigation into a particular matter was warranted. In some instances, counsel acceded to Petitioner's requests such as with the evidence of GPS location data. In any case, "[d]isagreements over strategical or tactical decisions do not rise to [the] level of a complete breakdown in communication" that amounts to a Sixth Amendment violation. Stenson v. Lambert, 504 F.3d at 886 (citing Schell, 218 F.3d at 1026). The factual record developed was sufficient to allow the court to make an informed decision that petitioner's claim of conflict did not require substitute counsel. See Stenson, 504 F.3d at 887 (inquiry was adequate when court determined lines of communication were open and counsel was competent); United States v. Prime, 431 F.3d 1147, 1155 (9th Cir.2005) (inquiry was adequate where defendant `was given the opportunity to express whatever concerns he had, and the court inquired as to [defense attorney's] commitment to the case and his perspective on the degree of communication.")

In conclusion, it is clear from the record that the appellate court's decision was not contrary to or an unreasonable application of Supreme Court precedent. Further, there was no evidence of a complete collapse in the attorney-client relationship. The claim should be rejected.

3. Ineffective Assistance of Counsel

Next, Petitioner raises multiple claims of ineffective assistance of counsel. He asserts that defense counsel: 1) failed to raise the right of confrontation and challenge false testimonial hearsay; 2) failed to properly communicate a 6 year plea offer; 3) failed to consult and retain an expert in the field of forensics and ballistics to discredit the victim's allegations; 4) failed to interview or call supporting defense witnesses; 5) failed to investigate the facts and circumstantial evidence; 6) failed to bring a meritorious motion to dismiss pursuant to Cal. Penal Code § 995; 7) failed to meet with Petitioner to establish a working attorney-client relationship; and 8) failed to personally keep Petitioner updated on significant and meaningful developments in the case. This claim was raised in a habeas petition to the California Supreme Court, and the petition was summarily denied. (Doc. 61-26.) In such a case as this where the state court decided the petitioner's claims on the merits but provided no reasoning for its decision, the federal habeas court conducts "an independent review of the record . . . to determine whether the state court [was objectively unreasonable] in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2002). "[A]lthough we independently review the record, we still defer to the state court's ultimate decisions." Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

a. Legal Standard

As fully set forth in Ground One, supra, in order to demonstrate ineffective assistance of counsel, Petitioner must establish that counsel's deficient performance fell below an objective standard of reasonableness, and as a result, Petitioner suffered prejudice in that there was a reasonable probability that, but for counsel's unprofessional errors, he would have prevailed. Strickland, 466 U.S. at 694. The relevant inquiry is not what counsel could have done; rather, it is whether the choices made by counsel were reasonable. Babbitt, 151 F.3d at 1173.

b. Analysis — Failure to Raise Right of Confrontation and Challenge False Hearsay Testimony

Petitioner claims defense counsel failed to raise Petitioner's right to confrontation and challenge false hearsay testimony. He points to Detective Castaneda's testimony concerning Dolcinea Robinson who told him that she had been hanging around with Petitioner for two weeks prior to the incident and that she had stolen Petitioner's drugs. Petitioner claims her statements were false and defense counsel rendered ineffective assistance in failing to challenge her statements. However, as Respondent correctly notes, it was defense counsel who introduced her statements to Detective Castaneda, not the prosecutor. In addition, it was defense counsel who pointed out that her statements could not be true since Petitioner was in custody at the time. (Doc. 61-11 at 64.) Counsel may have reasonably believed that introducing her statements and then pointing out their inherent falsity would have cast doubt on the credibility of those witnesses testifying that Petitioner was the perpetrator. In any case, Petitioner cannot demonstrate prejudice because the prosecution did not rely on those statements to secure a conviction.

c. Analysis — Failure to Communicate Plea Deal

Petitioner next alleges that defense counsel failed to communicate a six-year plea deal that was extended by the Kern County District Attorney's Office prior to the second preliminary hearing. As correctly stated by Respondent, a minute order dated March 19, 2013, reflects that Petitioner was present with his attorney at a preliminary hearing where Petitioner was offered a plea bargain to plead to count 1 and admit two priors in return for a six-year sentence, but rejected it. (Doc. 61-1 at 30.) There is no basis to the claim.

d. Analysis — Failure to Consult and Retain Experts in Fields of Forensics, Ballistics, and GPS Monitoring Technology

Petitioner contends that defense counsel rendered ineffective assistance by failing to consult and ultimately retain an expert in the fields of forensics, ballistics and GPS monitoring or tracking technology to discredit the allegations in the case made by the victim. He claims that had defense counsel consulted and retained an expert in forensics and ballistics, the casings could have been analyzed for latent fingerprints and the weakest areas in the physical evidence could have been exposed. He states that the victim had been wearing an ankle monitor at the time of the offense, and had defense counsel obtained GPS tracking evidence for the days of October 5-7 rather than just for the date of October 6, he could have shown a pattern in the victim's movements.

In this case, no ballistics evidence was used nor were any bullet casings tested. Thus, there was no ballistic or forensic evidence for defense counsel to challenge. Petitioner's contention that testing would have been beneficial to the defense is mere speculation. James v. Borg, 24 F.3d 20, 26 (9th Cir.1994). He does not present any evidence in support of this contention. In fact, the casings were discovered four days after the shooting and they had been discovered "in the dirt, . . . exposed to the elements . . . the dirt . . . and the heat." (Doc. 61-11 at 73.) Defense counsel could reasonably have concluded that testing would have been pointless, or even detrimental to his client had prints been discovered and found to match Petitioner. Accordingly, Petitioner fails to show that counsel erred or that he was prejudiced in any manner.

Likewise, Petitioner's claim that counsel should have retained a GPS tracking expert to show a possible margin of error of 20 to 50 feet is meritless. Even if counsel had retained such an expert and the expert had testified that GPS tracking has a margin of error of 20 to 50 feet, the victim was still within the area he had stated. Moreover, at all relevant times, the tracking information corresponded to the movements he had described. Counsel could have reasonably determined that expert testimony pointing out such a small margin of error would have only strengthened the prosecution's case. In addition, Petitioner cannot demonstrate prejudice since the jury was aware that GPS tracking information had a margin of error. As noted by Respondent, an officer at trial testified that "there is a degree of accuracy sometimes that occurs on [GPS] devices. Usually it's within three meters so it could be . . . anywhere around there." (Doc. 61-12 at 22-23.) Petitioner fails to show that counsel erred, or that he suffered any prejudice.

e. Analysis — Failure to Interview and Call Defense Witnesses

Next, Petitioner claims defense counsel was ineffective in failing to interview and call any of seventeen potential defense witnesses. He states counsel should have attempted to speak with them "in order to find out exactly what specific information they could provide, and if that information could be relevant and helpful to the defense's position." (Doc. 30 at 119.) Petitioner fails to present sufficient facts or evidentiary support to rebut the presumption that counsel rendered effective assistance. Petitioner's contention that these seventeen potential witnesses could have helped the defense is pure conjecture. To carry his burden, Petitioner "must name the witness, demonstrate that the witness was available to testify and would have done so, set out the content of the witness's proposed testimony, and show that the testimony would have been favorable to a particular defense." Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009). Petitioner has failed to do so by providing any affidavits or declarations from the putative witnesses. Moreover, counsel's reasons not to call these witnesses are completely unknown. It is unknown whether counsel attempted to contact them, what the results were, and what counsel thought about them. Without any supporting evidence, Petitioner's allegation is pure speculation.

Petitioner also faults counsel for failing to call five potential witnesses who were willing to testify concerning the .22-caliber gun, as well as Petitioner's work schedule. However, the charge concerning Petitioner's possession of the .22-caliber firearm was dropped. Knowledge of Petitioner's work schedule would have done nothing to contradict the evidence that Petitioner was identified as the perpetrator. Thus, Petitioner cannot show prejudice.

f. Analysis — Failure to Investigate

Petitioner claims defense counsel was ineffective in failing to investigate the facts and circumstantial evidence in the case to fully prepare for trial. He contends counsel could have retained an investigator to assist him in contacting witnesses for the defense. In particular, Petitioner points to the victim's first statement to officers in which he stated that the suspect had a spiderweb tattoo on his forehead. In subsequent statements, the victim denied the suspect had a spiderweb tattoo. He claims defense counsel failed to properly investigate the case by locating a white male with a spiderweb tattoo on his face.

Petitioner fails to show that counsel acted unreasonably. Detective Castaneda testified that it would be "next to impossible" to narrow down a search for an individual with a spiderweb tattoo. (Doc. 61-11 at 48.) In addition, the victim's statements concerning the tattooed individual shared little in common with the actions of which Petitioner was accused. Defense counsel could reasonably have determined that locating this individual would require too much effort when those efforts could better be focused on more important issues.

In any case, Petitioner fails to show prejudice. Even if defense counsel had located such an individual, it would have done nothing to challenge the evidence against Petitioner. The victim's description of events was detailed and corresponded with the GPS tracking information. (Doc. 60-1 at 5.) When the victim was shown a photo lineup, he became emotional and began to tear up. (Doc. 60-1 at 4.) The victim circled Petitioner's photograph and signed it. (Doc. 60-1 at 4.) Physical and eyewitness testimony further corroborated the victim's account. (Doc. 60-1 at 4-5.) Finally, a note was discovered in Petitioner's possession during a bus transport of inmates including Petitioner and the victim. (Doc. 60-1 at 5.) The note said: "Hey bro. I need you to write me a letter saying that . . . Det Castaneda made you say all that, that he coered [sic] and intimidated you." (Doc. 60-1 at 5.) Petitioner's name, booking number, and pod number were written on the back of the note with the message, "we will get paid" with two dollar signs. (Doc. 60-1 at 5.) There is no reasonable probability that the outcome would have been different if defense counsel had attempted to locate the tattooed individual.

g. Analysis — Failure to File Motion to Dismiss Count 2

Next, Petitioner raises several claims concerning defense counsel's actions with respect to count 2. He first faults counsel for failing to move to dismiss count 2, kidnaping for ransom, when there was no evidence to support the charge at the preliminary hearing. He further claims that if counsel had moved to dismiss count 2, he would not have been found guilty of the lesser included offense of felony false imprisonment. Finally, Petitioner contends counsel failed to object to an instruction on felony false imprisonment. None of the arguments merit relief.

Respondent is correct that Petitioner is not in custody to challenge the kidnaping charge since he was not convicted on that count. 28 U.S.C. § 2254(a) provides: "The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." This "in custody" requirement has been interpreted to mean that federal courts lack jurisdiction unless the petitioner is "under the conviction or sentence under attack at the time his petition is filed." Maleng v. Cook, 490 U.S. 488, 490-491 (1989) (per curiam); Resendiz v. Kovensky, 416 F.3d 952, 955 (9th Cir. 2005). Although Petitioner is in custody to challenge the underlying convictions, he is not in custody to challenge charges that were dismissed or not found true. A successful challenge would not provide relief because Petitioner is not serving time for that count.

Petitioner's argument that he would not have been found guilty of false imprisonment if counsel had objected to the kidnaping count also lacks merit. Cal. Penal Code § 739 permits the prosecutor to charge the defendant with "either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed." The prosecutor was free to charge Petitioner on the kidnaping count because there was in fact evidence at the preliminary hearing to support the charge. At the preliminary hearing, Detective Castaneda testified that the victim agreed to leave with Petitioner, who was holding a gun, to obtain drugs or money to repay Ms. Robinson's debt. (Doc. 61-1 at 58.) Castaneda stated that Petitioner told Ms. Robinson that he had kidnapped the victim and was going to kill him unless he got his money. (Det. 61-1 at 60-61.) During the time Petitioner drove the victim around, Petitioner had his firearm out and pointed at the victim. (Det. 61-1 at 61-62.) Thus, Petitioner fails to show that he suffered any prejudice since a motion to dismiss the charge would have been denied, and regardless, he was not found guilty of kidnaping by ransom.

Petitioner's contention that counsel failed to object to the instruction on felony false imprisonment was discussed in Ground One, supra. As the Court stated, Petitioner has not shown that counsel erred by failing to object since the state court determined that under California law, the jury was properly instructed on felony false imprisonment. He has also not shown any prejudice since an objection would have been futile. Substantial evidence existed to support the charge, and the trial judge had an obligation to instruct on the charge.

h. Analysis — Failure to Meet with Client

Petitioner next alleges counsel was ineffective because he failed to meet regularly with him to establish a working attorney-client relationship thereby allowing Petitioner to participate in his defense. Petitioner claims he requested that counsel visit him more frequently to discuss his defense, but counsel refused to do so.

Petitioner's claim is conclusory in that he fails to state what counsel could have done had he made more visits to Petitioner. Moreover, as noted by Respondent, a review of the four Marsden hearing transcripts reveals that counsel was very familiar with Petitioner's case and had gone over the evidence and various defense strategies with Petitioner. (Doc. 60-1 at 9-14.) Petitioner fails to show counsel rendered ineffective assistance. He further fails to show prejudice since he does not establish the outcome would have been different had counsel made more frequent visits.

i. Analysis — Failure to Keep Petitioner Updated

Petitioner contends that counsel failed to keep him updated on significant and relevant developments in the case. Instead of personally keeping Petitioner apprised, he passed messages to Petitioner using notes. Again, Petitioner's claim is conclusory. He fails to state what counsel could have done better had he personally discussed developments rather than passing him notes. He fails to show how the outcome would have been any different.

j. Conclusion

In no instance does Petitioner establish that counsel's performance fell below an objective standard of reasonableness. Nor does he demonstrate that he suffered any prejudice such that the outcome would have been different but for counsel's alleged errors. Strickland, 466 U.S. at 694. A fairminded jurist could agree with the state court decision rejecting this claim, and thus it should be denied.

4. False Evidence

Petitioner next claims that the prosecutor knowingly used false testimony to obtain his conviction in violation of his constitutional rights. He notes that Ruvidia Robinson told Detective Castaneda that she had been with Petitioner during the two weeks prior to the shooting and that she had stolen Petitioner's drugs. Petitioner states he was in custody during that time so her testimony was clearly false. He claims Detective Castaneda was well aware that Petitioner was in custody during that time and he still prepared his report knowing she was lying. Detective Castaneda further testified to her false statements at the second preliminary hearing. Petitioner claims the prosecutor knew Detective Castaneda testified falsely.

Petitioner raised this claim on state habeas review. In the last reasoned decision, the Kern County Superior Court rejected the claim as follows:

Petitioner contends his conviction is the product of false testimony.

(Doc. 60-1 at 22-23.)

a. Legal Standard

A petitioner is entitled to habeas corpus relief if the prosecutor's misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). To constitute a due process violation, the prosecutorial misconduct must be "of sufficient significance to result in the denial of the defendant's right to a fair trial." Greer v. Miller, 485 U.S. 756, 765 (1987) (quoting United States v. Bagley, 473 U.S. 667 (1985)). Any claim of prosecutorial misconduct must be reviewed within the context of the entire trial. Id. at 765-66; United States v. Weitzenhoff, 35 F.3d 1275, 1291 (9th Cir. 1994). The Court must keep in mind that "[t]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor" and "the aim of due process is not punishment of society for the misdeeds of the prosecutor but avoidance of an unfair trial to the accused." Smith v. Phillips, 455 U.S. 209, 219 (1982). If prosecutorial misconduct is established, and it was constitutional error, the error must be evaluated pursuant to the harmless error test set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993). See Thompson, 74 F.3d at 1577 (Only if constitutional error is established "would we have to decide whether the constitutional error was harmless.").

"[A] conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103 (1976); Napue v. Illinois, 360 U.S. 264 (1959). So must a conviction obtained by the presentation of false evidence. See United States v. Bagley, 473 U.S. 667, 678-80 nn.8-9 (1985). In Napue, the Supreme Court held that the knowing use of false testimony to obtain a conviction violates due process regardless of whether the prosecutor solicited the false testimony or merely allowed it to go uncorrected when it appeared. Id. at 269. The Court explained that the principle that a State may not knowingly use false testimony to obtain a conviction — even false testimony that goes only to the credibility of the witness — is "implicit in any concept of ordered liberty." Id. To prevail on such a due process claim, "the petitioner must show that (1) the testimony (or evidence) was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (3) the false testimony was material." United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003), cert. denied, 540 U.S. 1208 (2004). Nevertheless, simple inconsistencies in testimony are insufficient to establish that a prosecutor knowingly permitted the admission of false testimony. United States v. Zuno-Arce, 44 F.3d 1420, 1423 (9th Cir.1995). "Discrepancies in . . . testimony . . . could as easily flow from errors in recollection as from lies." Id.

b. Analysis

The claim is meritless for numerous reasons. On its face, the claim fails because it was defense counsel, not the prosecutor, who elicited Detective Castaneda's testimony concerning Robinson's statements. At the second preliminary hearing, defense counsel asked Detective Castaneda when the last time she spoke to Petitioner was, and Castaneda stated she had told him she had been with Petitioner for the two weeks before the incident. (Doc. 61-1 at 92.) Defense counsel then asked Castaneda if he was aware that Petitioner had been in custody up until two days before the incident. (Doc. 61-1 at 93.) Likewise, at trial, defense counsel elicited the same testimony. He asked Castaneda if Robinson had told him she had been hanging out with Petitioner for two weeks before the incident and Castaneda responded that she had. (Doc. 61-11 at 64.) Defense counsel then asked Castaneda if he was aware at the time of those statements that Petitioner had actually been in custody up until two days prior to the incident, and Castaneda responded that he wasn't aware of that fact at the time. (Doc. 61-11 at 65.) Thus, the prosecutor did not knowingly solicit any false testimony. Moreover, it is clear defense counsel elicited the testimony to undermine Robinson's credibility and was not elicited by the prosecutor to obtain a conviction.

There is also no evidence that Detective Castaneda's testimony was false. Assuming Robinson's statements were false, Petitioner fails to show that Castaneda knew her statements at the time to be false. He stated he did not check Petitioner's custody records at the time and he was not aware when Petitioner had previously been in custody. Petitioner claims Castaneda had been in contact with Petitioner's parole agent prior to his interview of Robinson and therefore knew Petitioner was on parole; however, there is no evidence that Castaneda knew how long Petitioner had been out of custody. Thus, there is no evidence that Castaneda knew that Robinson lied to him.

There is also no question that Robinson's statements were immaterial to the prosecution in obtaining a conviction. In fact, Robinson's false statements to Castaneda were favorable to the defense, which is why defense counsel brought attention to them. There is no reasonable likelihood that the alleged false testimony could have affected the judgment of the jury for the benefit of the prosecution. Agurs, 427 U.S. at 103. For the foregoing reasons, Petitioner fails to show that the state court rejection of his claim was contrary to, or an unreasonable application of, controlling Supreme Court authority.

5. Right to Confrontation

Next, Petitioner claims his right to confrontation was violated when Robinson's statements were introduced at trial without allowing him the opportunity for cross-examination. The Kern County Superior Court rejected the claim in the last reasoned state court decision, as follows:

(Doc. 60-1 at 21-22.)

a. Legal Standard

The Sixth Amendment's Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . ." U.S. Const ., Amend. VI. The Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant . . . had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 53-54 (2004); Davis v. Washington, 547 U.S. 813, 821 (2006). The Confrontation Clause applies only to "`witnesses' against the accused, i.e., those who `bear testimony.'" Crawford, 541 U.S. at 51 (citation omitted); Davis, 547 U.S. at 823-24. "`Testimony,' in turn, is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact." Crawford, 541 U.S. at 51 (citation and some internal punctuation omitted); Davis, 547 U.S. at 824. Nevertheless, the Confrontation Clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Crawford, 541 U.S. at 59 n. 9. Additionally, a Confrontation Clause violation is subject to harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). A Confrontation Clause violation is harmless, and does not justify habeas relief, unless it had substantial and injurious effect or influence in determining the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).

b. Analysis

Here, the state court applied the correct legal standard under the Sixth Amendment by applying Crawford, 541 U.S. 36, and Giles v. California, 554 U.S. 353, 358 (2008). Thus, the only question remaining is whether the state court's adjudication is objectively unreasonable. The Court concludes that it is not.

First, the Confrontation Clause is not implicated because the testimonial statements were introduced by Petitioner, not against him. Crawford, 541 U.S. at 51. Second, even if there was error, Petitioner is not entitled to relief because the statements did not have a "substantial and injurious effect or influence on the jury's verdict." Brecht, 507 U.S. at 637. Defense counsel demonstrated that the statements could not be true because Petitioner was in custody when Robinson alleged she was with him. In addition, as previously discussed, the evidence against Petitioner was strong.

Therefore, Petitioner is not entitled to habeas relief because the state court decision was not contrary to or an unreasonable application of clearly established Supreme Court precedent. Even if error occurred, it could have had no effect on the jury's verdict. The claim should be denied.

6. Cumulative Error

In his final claim, Petitioner alleges the combined effect of the individual errors violated his constitutional rights. Petitioner presented this claim in his state habeas proceedings, but the state courts did not provide a reasoned decision. Where a state court decides a claim on the merits but provides no reasoning for its decision, the federal habeas court conducts "an independent review of the record ... to determine whether the state court [was objectively unreasonable] in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2002). "[A]lthough we independently review the record, we still defer to the state court's ultimate decisions." Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

"Multiple errors, even if harmless individually, may entitle a petitioner to habeas relief if their cumulative effect prejudiced the defendant." Ceja v. Stewart, 97 F.3d 1246, 1254 (9th Cir. 1996) (citing Mak v. Blodgett, 970 F.2d 614, 622 (9th Cir. 1992)); see also Karis v. Calderon, 283 F.3d 1117, 1132 (9th Cir. 2002). However, the Ninth Circuit has also recognized that where there is no single constitutional error, nothing can accumulate to the level of a constitutional violation. See Rup v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996). In this case, no errors occurred, and hence, there can be no cumulative error. Even if errors occurred, a reasonable factfinder could have found that the cumulative effect of the alleged errors did not prejudice Petitioner.

IV. RECOMMENDATION

Based on the foregoing, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be DENIED with prejudice on the merits.

This Findings and Recommendation is submitted to the United States District Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy of this 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." Replies to the Objections shall be served and filed within ten court days (plus three days if served by mail) after service of the Objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.