ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY

RONALD M. WHYTE, District Judge.

Petitioner, a state prisoner proceeding pro se, filed an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the petition should not be granted. Respondent has filed an answer addressing the merits of the petition, and petitioner has filed a traverse. Having reviewed the briefs and the underlying record, the court concludes that petitioner is not entitled to relief based on the claims presented and DENIES the petition.

PROCEDURAL BACKGROUND

Petitioner was charged and convicted by a jury of first degree murder. The jury found true an enhancement for use of a knife as a deadly weapon, and special circumstances for commission of the offense in the course of a rape and kidnapping. On October 31, 2008, the trial court sentenced petitioner to a term of life without the possibility of parole plus one-year in state prison. On June 22, 2010, the California Court of Appeal affirmed. On September 1, 2010, the California Supreme Court denied a petition for review. On November 22, 2010, petitioner filed a petition for writ of certiorari with the United States Supreme Court which was denied on March 31, 2011. Petitioner filed several unsuccessful state habeas petitions in each level of the California state courts. Petitioner filed the instant federal habeas petition on February 14, 2013.

FACTUAL BACKGROUND

On Sunday, January 14, 1979, the victim, Virginia Correa, and her friend, Lina Martinez, went to a local club to sing in a Mariachi contest. People v. Brown, No. H033608, 2010 WL 2505626, at *1 (Cal. App. June 22, 2010). Afterward, the victim and Martinez drove to another Mariachi bar called Blocker's. Id. They left sometime around midnight. Id. They drove to a store to buy cigarettes, but could not find a store that was open, so drove back to Blocker's. Id. Martinez went inside Blocker's and returned with only two cigarettes. Id. The victim complained that two were not enough and said that she would buy more cigarettes after she dropped off Martinez. Id. Martinez never saw the victim again, and the victim never returned home. Id. at *1-*2. That night, the victim's fiancé, Jesse Vera, went to the victim's house to see her because he had been out of town for the weekend. Id. at *2. The victim's son answered the door and said that she was not home. Id. The following day, the victim's sister heard on the news that an unidentified body had been found that morning in the Sierra hills of San Jose. Id.

The victim's body was found on January 15, 1979. Id. at *1. She had been stabbed seven times in the abdomen, with some of the wounds extending through her body to the back. Id. She also had bruises on her face, arm, thighs, knees, ankles, and hands. Id. Her clothes were askew but intact and she had a large deposit of semen in her vaginal cavity. Id. The autopsy findings concluded that her death occurred between 1:00 and 2:00 a.m., and that she had engaged in sexual intercourse within a short time of her death. Id.

The victim's car was found in east San Jose one mile from an address on Capitola Avenue at which petitioner had previously reported to a government agency that his father had resided. Id. at *2. The driver's seat of the car was pushed back although the victim normally drove with the seat all the way forward. Id. Inside the car, the police found the car keys, 21 cigarette butts (17 of which were Salem brand, which was the kind the victim liked to smoke) in the ashtray, an unopened box of Marlboro cigarettes, and a gold bracelet. Id. at *1-*2.

In 2002, the victim's daughter learned that a new law regarding DNA testing had been passed. Id. at *2. She called the police to ask if DNA evidence existed in her mother's case that could be used to identify the killer. Id. Although the vaginal semen sample could not be located, police did submit the cigarette butts, pantyhose and underwear for DNA analysis. Id. A "cold hit" linked petitioner's DNA to the semen found on the victim's pantyhose and to one of the cigarettes found in the ashtray of the victim's car. Id. DNA from two unknown male donors was also found on two of the cigarettes. Id.

At trial, Danette A., the daughter of petitioner's former girlfriend, testified that she was born in 1979. Id. at *3. One night, when she was 16 years old, petitioner made her ride in the car with him while he visited several of his friends. Id. Petitioner made Danette A. drink so much liquor that she threw up, and then she smoked marijuana until she passed out. Id. At some point during the night, she woke up feeling paralyzed but was aware that one of her pant legs was off and something was touching her thigh as well as penetrating her vagina. Id. Petitioner was the only person that she heard the whole time, and at one point, petitioner told her to put her clothes on. Id. Danette A. then proceeded to pass out again. Id. When she woke up again, it was morning, and she was alone in the car. Id. She felt sore, her belt was undone, and her underwear was twisted to the side. Id. She found petitioner visiting with friends at a house across the street from where the car was parked, and they drove home. Id. Danette A. did not confront petitioner. Petitioner was later tried and acquitted of the rape charge that arose from this incident. Id.

Petitioner did not testify at trial, nor did he call any witnesses. Id. The defense theory was that petitioner may have had consensual sex with the victim after she dropped of Martinez, but that the prosecution failed to prove beyond a reasonable doubt that the victim was not killed by an unknown assailant or assailants after she had sex with petitioner. Id.

DISCUSSION

A. Standard of Review

This court may entertain a petition for 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." 28 U.S.C. § 2254(a). Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the 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). The first prong applies both to questions of law and to mixed questions of law and fact, Williams v. Taylor, 529 U.S. 362, 384-86 (2000), while the second prong applies to decisions based on factual determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. A state court decision is an "unreasonable application of" Supreme Court authority, falling under the second clause of § 2254(d)(1), if the state court correctly identifies the governing legal principle from the Supreme Court's decisions but "unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The federal court on habeas review 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." Id. at 411.

Under 28 U.S.C. § 2254(d)(2), a state court decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El, 537 U.S. at 340.

In determining whether the state court's decision is contrary to, or involved an unreasonable application of, clearly established federal law, a federal court looks to the decision of the highest state court to address the merits of a petitioner's claim in a reasoned decision. LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000).

B. Petitioner's Claims

As grounds for federal habeas relief, petitioner claims: (1) petitioner's due process rights and the Ex Post Facto Clause were violated by the State's failure to preserve the vaginal semen sample evidence, and the trial court's allowance of the State to use the destroyed evidence at trial;1 (2) petitioner's prosecution was brought outside the statute of limitations, violating the principles in Stogner v. California, 539 U.S. 607 (2003); (3) introduction of uncharged offenses violated petitioner's due process rights and the Ex Post Facto Clause; (4) the jury instructions regarding the uncharged offenses violated petitioner's due process rights; (5) trial counsel rendered ineffective assistance; (6) the prosecution failed to establish a proper "chain of custody" for evidence; (7) the trial court's denial of petitioner's discovery request and exclusion of evidence of third party culpability violated petitioner's right to present a defense and/or right to due process; (8) appellate counsel rendered ineffective assistance of counsel; (9) the evidence was insufficient to convict petitioner of murder and the personal use of a weapon; (10) the exclusion of testimony from petitioner's preliminary hearing violated his right to present a defense and/or right to due process; (11) the prosecution violated Griffin v. California, 380 U.S. 609 (1965); (12) the prosecution committed misconduct by mischaracterizing the definition of "reasonable doubt"; and (13) cumulative errors rendered the trial fundamentally unfair.

1. Failure to preserve vaginal semen sample evidence

At trial, petitioner moved to dismiss or impose sanctions on the state for its failure to preserve a vaginal semen sample that petitioner alleges was exculpatory. Petitioner argues that at the time of the crime, the standard for evaluating whether the prosecution had violated a defendant's right to due process was when there existed a "reasonable possibility" that the evidence would have been material and favorable to the defendants. See People v. Hitch, 12 Cal.3d 641, 649-50 (1974). If there was a reasonable possibility that the evidence was exculpatory, then case law under Hitch provided that the criminal defendant could receive sanctions. See id. at 652. After Hitch, however, the United States Supreme Court issued California v. Trombetta, 467 U.S. 479, 489 (1984), which set forth a different standard than the state. Specifically, Trombetta stated that in order for a defendant to receive relief on the basis that the state destroyed evidence, the "evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. at 488-89. Petitioner argues that Hitch was the applicable standard, and because the state court did not apply Hitch, the Ex Post Facto Clause and petitioner's right to due process were violated.

Petitioner raised this issue at trial, and also in his state habeas petitions. The California Superior Court, in denying petitioner's state habeas petition, rejected this claim because petitioner failed to raise the claim on appeal. (Resp. Ex. 11 at 16.) Alternatively, the Superior Court denied the claim on the merits. It concluded that defendants in criminal trials are subject to procedural rules in effect at the time of trial, rather than at the time the crime was committed. (Id. at 16-17.) Because Trombetta was procedural in nature (rather than substantive), it was applicable to petitioner's trial even though it did not issue until after the time of the crime. (Id. at 17.)

The U.S. Constitution prohibits the federal government and the states from passing any "ex post facto Law." U.S. Const., Art. I, § 9, cl. 3 (federal government); Art. I, § 10, cl. 1 (states). These clauses prohibit the government from enacting laws with certain retroactive effects: any law that (1) makes an act done before the passing of the law, which was innocent when done, criminal; (2) aggravates a crime or makes it greater than it was when it was committed; (3) changes the punishment and inflicts a greater punishment for the crime than the punishment authorized by law when the crime was committed; or (4) alters the legal rules of evidence and requires less or different testimony to convict the defendant than was required at the time the crime was committed. See Stogner v. California, 539 U.S. 607, 611-12 (2003) (citing Calder v. Bull, 3 Dall. 386 (1798)).

None of the "new" laws to which petitioner cites produces any of these effects. The Superior Court's rejection of petitioner's contention that the failure to use Hitch violated the Ex Post Facto Clause was reasonable.

In addition, petitioner argues that the failure of the state to preserve the vaginal semen sample evidence violated his right to due process. The government has a duty to preserve material evidence, i.e., evidence whose exculpatory value was apparent before it was destroyed and that is of such a nature that the defendant cannot obtain comparable evidence by other reasonably available means. See Trombetta, 467 U.S. at 489. Although the good or bad faith of the police is irrelevant to the analysis when the police destroy material exculpatory evidence, the analysis is different if the evidence is only potentially useful; that is, there is no due process violation unless there is bad faith conduct by the police in failing to preserve potentially useful evidence. Illinois v. Fisher, 540 U.S. 544, 547-48 (2004); Arizona v. Youngblood, 488 U.S. 51, 58 (1988).

Here, the trial court noted that because the vaginal semen sample evidence was not preserved, it was never tested, and thus it was not determined whether the missing evidence would have been exculpatory. (Resp. Ex. 2, RT 895-96.) After a hearing, and after having determined that there was no evidence of bad faith by law enforcement, the trial court concluded that there was not a sufficient showing of bad faith, and denied the motion.

Petitioner points to no evidence and makes no argument that the police or prosecution acted in bad faith. Negligent failure to preserve potentially useful evidence is not enough to establish bad faith and does not constitute a violation of due process. See Grisby v. Blodgett, 130 F.3d 365, 371 (9th Cir. 1997). Without any evidence of bad faith, petitioner cannot succeed on this claim.

Accordingly, the state court's rejection of petitioner's claim was not contrary to or an unreasonable application of clearly established Supreme Court law.

2. Statute of limitations

Petitioner claims that the charges of rape and kidnapping were barred by the six-year and eight-year statute of limitations period as prescribed by California Penal Code §§ 804 and 805. Petitioner further argues that the prosecution for rape and kidnapping was barred under Stogner v. California, 539 U.S. 607 (2003). See Stogner, 539 U.S. at 611-12 (prohibiting the government from enacting "ex post facto" law that: (1) makes an act done before the passing of the law, which was innocent when done, criminal; (2) aggravates a crime or makes it greater than it was when it was committed; (3) changes the punishment and inflicts a greater punishment for the crime than the punishment authorized by law when the crime was committed; or (4) alters the legal rules of evidence and requires less or different testimony to convict the defendant than was required at the time the crime was committed).

However, as respondent points out, petitioner was not charged with, nor convicted of, the substantive crime of rape or kidnapping. Rather, petitioner's sentence for first degree murder was enhanced by the jury's subsequent findings that the killing had taken place during the commission of rape and kidnapping. Moreover, because a charge of murder with special circumstances has no statute of limitations period, see Cal. Penal Code § 799; People v. Vasquez, 118 Cal.App.4th 501, 505 (2004), petitioner is not entitled to federal habeas relief on this claim. Finally, to the extent petitioner attempts to rely on Stogner, that case is inapplicable here. See Stogner, 539 U.S. at 633 (holding that "a law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution.").

Accordingly, the state court's rejection of petitioner's claim was not contrary to or an unreasonable application of clearly established Supreme Court law.

3. Admission of uncharged offense

Petitioner claims that the admission of the testimony of Danette A. under California Evidence Rule § 1108 violated his right to due process. Petitioner argues that the uncharged crime against Danette A., and the facts of the underlying charge of murder were not similar enough to be relevant, and that the testimony would confuse the jurors because petitioner was acquitted of the crime against Danette A.

"Simple errors of state law do not warrant federal habeas relief." Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). "[F]ailure to comply with the state's rules of evidence is neither a necessary nor a sufficient basis for granting habeas relief." Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). The improper admission of evidence will only provide a basis for habeas relief if "`it rendered the trial fundamentally unfair in violation of due process.'" Holley, 568 F.3d at 1101. "Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process." Jammal, 926 F.2d at 920 (emphasis omitted).

Here, even assuming that the evidence admitted by the court was purely propensity evidence and was not relevant to any other issue, AEDPA precludes federal habeas relief because the United States Supreme Court has expressly left open the question of whether the admission of propensity evidence violates due process. See Estelle v. McGuire, 502 U.S. at 62, 75 n.5 (1991) ("[W]e express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of `prior crimes' evidence to show propensity to commit a charged crime."); see also Mejia v. Garcia, 534 F.3d 1036, 1047 (9th Cir. 2008) ("[T]he United States Supreme Court has never established the principle that introduction of evidence of uncharged offenses necessarily must offend due process."). Because the Supreme Court has elected to leave this an open issue, a trial court's decision to admit propensity evidence does not violate clearly established federal law as determined by the Supreme Court. See Mejia, 534 F.3d at 1046.

To the extent petitioner argues that the use of California Evidence Rule § 1108 violates the Ex Post Facto Clause, this claim has already been foreclosed by the Ninth Circuit. See Schroeder v. Tilton, 493 F.3d 1083, 1088 (9th Cir. 2007) (relying on Supreme Court case law to reject the claim that the application of California Evidence Rule § 1108 violated the Ex Post Facto Clause and explaining that "the retroactive application of certain evidentiary rules to certain defendants might well be disadvantageous to those defendants. . . . [But] . . . they do not implicate the same kind of unfairness implicated by changes in rules setting forth a sufficiency of the evidence standard.").

Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.

4. Jury instruction regarding uncharged offense

Petitioner takes issue with the instructions given regarding the uncharged offense. Specifically, petitioner argues that the language used in CALCRIM Nos. 1191,2 1102,3 and 1047 were prejudicial and persuaded the jury that petitioner had committed a crime against Danette A., when in fact, he had been acquitted.

To obtain federal collateral relief for errors in the jury charge, a petitioner must show that "`the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.'" Estelle, 502 U.S. at 71-72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). The instructions may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. Id. Petitioner also must show actual prejudice from the error, i.e., that the error had a substantial and injurious effect or influence in determining the jury's verdict, before the court may grant federal habeas relief. Calderon v. Coleman, 525 U.S. 141, 146 (1998) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).

As an initial matter, the court notes that petitioner does not argue that the instructions as given were incorrect under state law, but that the instructions should not have been given just as evidence of the uncharged offense should not have been introduced. CALCRIM No. 1191 clearly instructs the jury that even if the jury found by a preponderance of the evidence that petitioner committed prior sexual offenses, that finding was insufficient by itself to prove beyond a reasonable doubt that petitioner committed the charge offense of murder. See, e.g., Schultz v. Tilton, 659 F.3d 941, 944 (9th Cir. 2011) (approving of the revised version of the jury instruction regarding uncharged sex offenses). Moreover, the jury was also informed that petitioner had already been acquitted of that prior offense against Danette A., and that preponderance of the evidence is a different and lower standard than beyond a reasonable doubt. As the instructions read overall, the court cannot say that, in light of the overall jury instructions, that these instructions, which correctly stated the law, so infected the entire trial that the resulting conviction violates due process. See Estelle, 502 U.S. at 72.

Given the high deference accorded to the state court, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established Supreme Court law.

5. Ineffective assistance of counsel

Petitioner alleges that he did not receive the effective assistance of counsel because: (1) the 30-year delay in bringing charges against petitioner resulted in prejudice; (2) counsel failed to bring a diminished capacity defense; (3) counsel failed to investigate or provide petitioner with a competent psychiatrist to conduct an examination on petitioner; (4) counsel filed Brady and Hitch motions after trial rather than before trial and failed to file pre-trial "writs"; (5) counsel failed to ensure petitioner's presence at all hearings; (6) counsel failed to object to and inquire about the influence a potential juror had on the other jurors; and (7) counsel failed to object to the lack of black jurors in the jury.

A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner must establish two things. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. Id. at 687-88. Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

The Strickland framework for analyzing ineffective assistance of counsel claims is considered to be "clearly established Federal law, as determined by the Supreme Court of the United States" for the purposes of 28 U.S.C. § 2254(d) analysis. See Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011). A "doubly" deferential judicial review is appropriate in analyzing ineffective assistance of counsel claims under § 2254. See id. at 1410-11. The general rule of Strickland, i.e., to review a defense counsel's effectiveness with great deference, gives the state courts greater leeway in reasonably applying that rule, which in turn "translates to a narrower range of decisions that are objectively unreasonable under AEDPA." Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). When § 2254(d) applies, "the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington v. Richter, 131 S.Ct. 770, 788 (2011).

A. Pre-indictment delay

Petitioner argues that in defense counsel's motion to dismiss for pre-indictment delay, defense counsel informed the court that he would not be able to effectively represent petitioner in light of the loss of evidence, including the loss of potentially exculpatory evidence.

Petitioner does not point to any specific instances of how counsel's performance fell below an objective standard of reasonableness in light of the information that counsel had available. Moreover, even assuming that counsel's performance was deficient, petitioner has not explained how he was prejudiced from this deficiency. Even in defense counsel's motion to dismiss for pre-indictment delay, counsel's complaints amounted to nothing more than speculation that additional investigation would lead to exculpatory or helpful information. (Pet. at 64-65; Ex. F.) Cf. United States v. Corona-Verbera, 509 F.3d 1105, 1112-14 (9th Cir. 2007) (finding no actual or non-speculative prejudice to support due process violation for pre-indictment delay when indictment was brought within the statute of limitations, and defendant failed to make a specific showing as to what lost evidence would have provided).

B. Diminished capacity defense and failure to pursue psychiatric examination

Petitioner claims that prior to trial, petitioner told counsel that petitioner did not remember the victim at all, and did not remember killing anyone. Petitioner had also told counsel that at the time of the murder, petitioner drank and abused drugs quite a bit, and would often times black out, act out of character, and get into fights. Petitioner also informed counsel that on the night of the murder, petitioner was drinking and had taken drugs, but did not remember anything that happened. Petitioner further suggested that the only viable defense he had was a "diminished capacity defense."

The Superior Court rejected this claim in petitioner's state habeas petition. The Superior Court reasoned that counsel's decision to pursue a complete innocence theory rather than a diminished capacity theory was not unreasonable. (Resp. Ex. 11 at 7.) Counsel further could have reasonably believed that because so much time had passed between the murder and the trial, neither petitioner nor any of the defense witnesses could have been able to testify truthfully and accurately about whether petitioner was in fact drunk on the night the victim was killed. (Id. at 8.) As such, the testimony would not have been useful or strong support for a diminished capacity defense. (Id.)

Here, the relevant inquiry is not what defense counsel could have done, but rather whether the choices made by defense counsel were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). Judicial scrutiny of counsel's performance must be highly deferential, and a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689. "Although courts may not indulge `post hoc rationalizations' for counsel's decisionmaking that contradicts the available evidence of counsel's actions, . . . neither may they insist counsel confirm every aspect of the strategic basis for his or her actions. There is a `strong presumption' that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than `sheer neglect.'" Harrington v. Richter, 131 S.Ct. 770, 790 (2011) (citations omitted); see also id. at 791 ("an attorney may not be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for what appear to be remote possibilities"); Cullen v. Pinholster, 131 S.Ct. 1388, 1407 (2011) ("a trial court `must indulge [the] strong presumption' that counsel made all significant decisions in the exercise of reasonable professional judgment.").

Here, petitioner sets forth two theories that are in conflict with each other. First, he says that he does not remember anything about the victim. Next, and alternatively, he states that if he did kill the victim he does not remember doing so because he was not in his right mind. Counsel reasonably could have determined that he could not present evidence of complete innocence as well as evidence of diminished capacity, and thus counsel was forced to choose one path over the other. The court cannot say that choosing the complete innocence theory was unreasonable under these facts. In addition, petitioner claims that even though defense counsel received permission to have petitioner evaluated by a competent psychiatrist, counsel failed to do so. (Pet., Ex. H.)

Even assuming that the failure to pursue a diminished capacity defense and proceed with a psychiatric examination was deficient performance, petitioner has not demonstrated prejudice. As the Superior Court noted, it was likely that petitioner and his witnesses would not have been able to testify truthfully or accurately about petitioner's state of mind at the time of the murder because it had occurred so long ago. Moreover, there is no evidence that a psychiatric examination would shed any light — positive or negative — about petitioner's mental state on the night of the murder. The failure to investigate a mental health defense is not deficient unless the petitioner can show that counsel had reason to know that petitioner's mental health might be impaired. Hoffman v. Arave, 455 F.3d 926, 932 (9th Cir. 2006), judgment vacated in part on other grounds by Arave v. Hoffman, 552 U.S. 117 (2008) (per curiam). In addition, where the petitioner cannot demonstrate that he suffered from a mental illness, but rather argues that such additional investigation might have warranted helpful information, petitioner does not satisfy the prejudice prong of Strickland. See, e.g., Gonzales v. Knowles, 515 F.3d 1006, 1015-16 (9th 2008) (where mental illness seemed unlikely, no evidentiary hearing required where petitioner could only speculate that if tests had been done and if they showed some brain damage, it might have resulted in a lower sentence if counsel had presented the evidence).

C. Timing of Brady/Hitch motions and pre-trial writs

Petitioner claims that counsel waited until after the jury had already heard evidence about the missing slides of the vaginal semen sample and potential exculpatory evidence to file a motion to exclude such evidence, sanction the prosecution for failing to preserve such evidence, and argue a Hitch motion. However, the record clearly demonstrates that defense counsel in fact did raise these issues prior to trial. (Resp. Ex. 2, RT 100-03.) Accordingly, petitioner is not entitled to relief on this claim.

Relatedly, petitioner argues that counsel promised that he would file a writ of mandamus if the trial court denied petitioner's motion to suppress. However, counsel later told petitioner that in fact he could not file a writ, but that petitioner's only remaining avenue was to file an appeal. A difference of opinion as to trial tactics does not constitute denial of effective assistance, see United States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981), and tactical decisions are not ineffective assistance simply because in retrospect better tactics are known to have been available. See Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir. 1984). Here, counsel clearly considered filing a writ prior to the conclusion of trial, but believed that the more appropriate path was to file an appeal instead. Petitioner has set forth no argument to explain why this decision was unreasonable. Moreover, petitioner does not provide any argument as to how he was prejudiced by this decision to file an appeal rather than a pre-trial writ. Accordingly, petitioner is not entitled to relief on this claim.

D. Presence at all hearings

Petitioner claims that he did not waive his right to be present when the parties were choosing jury instructions and petitioner was not present during the deposition of Sgt. Meeker, one of the original investigating officers.

The Supreme Court has recognized that "the right to personal presence at all critical stages of the trial . . . [is a] fundamental right[] of each criminal defendant." Rushen v. Spain, 464 U.S. 114, 117 (1983). This right derives from the Confrontation Clause of the Sixth Amendment and the Due Process Clauses of the Fifth and Fourteenth Amendments. Campbell v. Wood, 18 F.3d 662, 671 (9th Cir. 1994) (en banc).

The record shows that petitioner in fact was present for jury instruction selection. (Resp. Ex. 2, RT 764-74.) In addition, as respondent points out, defense counsel stipulated to the introduction of a video of Sgt. Meeker taken at Sgt. Meeker's house because he was too ill to attend court. (Resp. Ex. 1, CT 894-929.) Because the statements being admitted were out-of-court statements, and defense counsel had the opportunity for cross-examination, there is no Confrontation Clause violation. Crawford v. Washington, 541 U.S. 36, 59 (2004).

Additionally, even assuming that petitioner's absence from the interview with Sgt. Meeker was a constitutional violation, there is no evidence that petitioner's absence had a substantial or injurious effect on the jury's verdict. The relevant inquiry is "whether there has been any interference with the defendant's opportunity for effective cross-examination," or whether the defendant's presence "would have contributed to [his] opportunity to defend himself against the charges." Kentucky v. Stincer, 482 U.S. 730, 744 n.17, (1987). Again, while petitioner mentions questions that he would have liked to ask Sgt. Meeker, the potential evidence gathered from Sgt. Meeker is speculative at best. Accordingly, petitioner has not demonstrated prejudice.

E. Juror inquiry

According to petitioner, during jury selection, one of the jurors admitted to the court that she had known a member of the victim's family and could not be unbiased as a juror. Petitioner argues that counsel should have investigated and inquired into whether the other jurors were influenced by this excused juror's relationship.

The Sixth Amendment guarantee of a trial by jury requires the jury verdict to be based on the evidence presented at trial. See Turner v. Louisiana, 379 U.S. 466, 472-73 (1965). Jury exposure to extrinsic evidence deprives a defendant of the rights to confrontation, cross-examination and assistance of counsel embodied in the Sixth Amendment. See Lawson v. Borg, 60 F.3d 608, 612 (9th Cir. 1995). A petitioner is entitled to habeas relief only if it can be established that the exposure to extrinsic evidence had "`substantial and injurious effect or influence in determining the jury's verdict.'" Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir. 2000) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)).

Here, petitioner presents nothing but speculation to support his claim. This is insufficient to sustain a claim of ineffective assistance of counsel. Petitioner presents no evidence to demonstrate that counsel's failure to investigate fell below an objective reasonable standard, or that such a failure resulted in prejudice. Accordingly, petitioner is not entitled to relief on this claim.

G. Absence of black jurors

Petitioner claims that counsel should have brought to the trial court's attention that the trial court excused all of the black people on the jury for hardship, thus violating petitioner's right to have a jury that represents a fair cross-section of the community. Petitioner further argues that counsel should have brought a Wheeler/Batson challenge.

As an initial matter, petitioner conflates two separate claims.

First, a criminal defendant has a constitutional right stemming from the Sixth Amendment to a fair and impartial jury pool composed of a cross section of the community. See Holland v. Illinois, 493 U.S. 474, 476 (1990). The fair cross section requirement applies only to the larger jury pool or venire and is not applicable to petit juries. See Lockhart v. McCree, 476 U.S. 162, 173-74 (1986). In Duren v. Missouri, 439 U.S. 357, 364 (1979), the Supreme Court held that to establish a prima facie violation of the fair cross-section requirement, a defendant must show "(1) that the group alleged to be excluded is a `distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process." Petitioner provides no evidence to support factors 2 and 3. Moreover, from petitioner's own statements, it is clear that there were potential black jurors present in the larger jury pool, but the court released them based on hardship. Thus, petitioner cannot sustain a claim that counsel was ineffective for failing to challenge the notion that petitioner was denied a fair and impartial jury pool composed or a cross section of his community.

Second, the use of peremptory challenges by either the prosecution or defendant to exclude cognizable groups from a petit jury may violate the Equal Protection Clause. See Georgia v. McCollum, 505 U.S. 42, 55-56 (1992). The Supreme Court first held that the Equal Protection Clause forbids the challenging of potential jurors solely on account of their race, see Batson v. Kentucky, 476 U.S. 79, 89 (1986). However, here, petitioner is arguing that the court excused the potential black jurors on the basis of hardship. Petitioner is not challenging the prosecution's decisions to exercise his peremptory challenges against any particular race. Thus, petitioner's claim against counsel for failing to raise a Wheeler/Batson motion is inapplicable.

Accordingly, the state court's rejection of petitioner's ineffective assistance claims are not contrary to, or an unreasonable application of, clearly established Supreme Court law.

6. Chain of custody

Petitioner alleges that all the evidence that had been in the possession of the state including the subsequently lost or destroyed had not been kept in a proper "chain of custody" and thus violated petitioner's right to due process. Petitioner appears to claim that because the vaginal semen sample was missing, and was stored with the other DNA evidence, such as the victim's clothing, none of the DNA evidence should have been admitted.

As an initial matter, petitioner's contention that the admission of the available DNA evidence violated his due process rights does not entitle him to habeas relief because there are no controlling Supreme Court decisions holding that the admission of evidence based on an inadequate chain of custody violates due process. Holley, 568 F.3d at 1101 ("The Supreme Court . . . has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ."). As such, there is no clearly established Supreme Court law directly addressing this issue, and therefore the state court's decision on this issue cannot be contrary to, or an unreasonable application of, federal law. See Wright v. Van Patten, 552 U.S. 120, 125-26 (2008).

Moreover, a state court's evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process. See Pulley v. Harris, 465 U.S. 37, 41 (1984); Jammal, 926 F.2d at 919-20. Failure to comply with state rules of evidence is neither a necessary nor a sufficient basis for granting federal habeas relief on due process grounds. See Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999). The due process inquiry in federal habeas review is whether the admission of evidence was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995). Even if an evidentiary error is of constitutional dimension, the court must consider whether the error was prejudicial under Brecht v. Abrahamson, 507 U.S. 619 (1993).

Even assuming the claim is reviewable as a federal claim, habeas relief is not warranted because there were permissible inferences for the jury to draw from the evidence admitted, and the evidence did not render petitioner's trial fundamentally unfair. See Jammal, 926 F.2d at 920 ("Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must `be of such quality as necessarily prevents a fair trial.'"). Despite any possible glitch in the chain of custody, the jury could permissibly infer that petitioner's DNA was found on the victim's pantyhose as well as one of the cigarette butts.

Relatedly, petitioner also argues that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to turn over evidence of the slide case which held the vaginal semen sample, and the syringe, which contained evidence taken from the victim. In Brady, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87. For a Brady claim to succeed, a petitioner must show: (1) that the evidence at issue is favorable to the accused, either because it is exculpatory or impeaching; (2) that it was suppressed by the prosecution, either willfully or inadvertently; and (3) that it was material (or, put differently, that prejudice ensued). Banks v. Dretke, 540 U.S. 668, 691 (2004).

Here, because neither the vaginal semen sample nor the syringe were ever tested for DNA because they had been lost or destroyed, petitioner cannot demonstrate that the evidence was either favorable to him, or that it was material.

7. Right to present a defense

Petitioner argues that he was denied his right to present a defense when the trial court denied his discovery motion to have limited access to the state's DNA database, and also when the trial court excluded petitioner's evidence of third party culpability.

The constitutional right to present a complete defense includes the right to present evidence, including the testimony of witnesses. See Washington v. Texas, 388 U.S. 14, 19 (1967). But the right is only implicated when the evidence the defendant seeks to admit is "relevant and material, and . . . vital to the defense." Id. at 16. "Only rarely" has the Supreme Court held that the right to present a complete defense was violated by the exclusion of defense evidence under a state rule of evidence. Nevada v. Jackson, 133 S.Ct. 1990, 1992 (2013).

A. Discovery motion

Prior to trial, defense counsel moved to compel the discovery of limited access to the CODIS4 database so that an expert could run an empirical experiment to determine if the Random Match Probability method made sense in "cold-hit" cases such as this one. Specifically, defense counsel wished to conduct a comparative analysis of individuals in the CODIS database to determine how many others, shared the same genetic profile as petitioner. The trial court denied the motion, apparently on the basis that, as defense counsel conceded, state statutes prohibit general access to the CODIS database with the exception of his own client's records. In addition, the prosecutor argued that allowing defense counsel to access the database would violate privacy rights of those individuals in the database, and that the prosecution had already disclosed the most relevant information to defense counsel to impact a jury's confidence in the results of a random match through the Random Match Probability method. Specifically, the prosecution provided defense counsel with the number of offenders in the database when the first law enforcement search occurred to match petitioner's DNA.

However, the California courts have already concluded that the "database match probability" statistic sought by defense counsel, while relevant, does not change the rarity of a perpetrator's genetic make-up. See People v. Xiong, 215 Cal. App. 5th 1259, 1276 (2013). Stated another way, "[w]hen a suspect is located by whatever means, the frequency and probability of the perpetrator's profile remain the same." Id. at 1274. The database match probability would give the probability of a match from the CODIS database, and depending on the results, could have been helpful to petitioner to influence the jury's decision on how much weight to give the statistical probability of a match.

Nonetheless, this court finds that the state court's denial of petitioner's discovery motion was reasonable. As petitioner conceded, access to the CODIS database was prohibited by state law. There is no indication that such a law was arbitrary or without reason. Moreover, even without access to the CODIS database, defense counsel was able to cross-examine the prosecution's witnesses about the possibility of other methods of statistical analysis, the potential flaws used in petitioner's methods, and argued that the jury should not give as much weight to the DNA analysis. Thus, the denial of petitioner's discovery motion did not have a substantial or injurious effect on the jury's verdict.

B. Third party culpability

Prior to trial, the prosecution moved to exclude evidence of third party culpability with respect to a man named Sonny Strickland. Petitioner wanted to include evidence that approximately six months after the victim was killed, Sonny Strickland was at several bars in downtown San Jose, encountered a woman, Marilyn Weimer, and offered to drive her home. (Resp. Ex. 2, RT 67.) Instead of taking her home, however, he drove around and then took her up to the rural foothills overlooking that valley where the victim's body was found six months earlier. (Id.) He stopped the car about two miles away from where the victim's body was found. (Id.) A police officer happened upon the car, shone his flashlight into the car, and saw what appeared to be a woman being raped. (Id.) The woman ran out of the car screaming for help, and a hunting knife was found on the floor of the car. (Id.) Petitioner argued that the close temporal relationship, the same geographical location, and the similarity of facts that both victims were kidnapped after meeting an unknown man at a downtown San Jose bar were sufficient circumstantial evidence to present a third party culpability defense. (Id. at 67-69.)

The trial court granted the prosecution's motion to exclude the evidence regarding Sonny Strickland. (Id. at 71.) It found that there was not a sufficient nexus because, as California's case law had stated, evidence, motive, and opportunity were not sufficient by themselves to permit evidence of third party culpability. (Id.) In addition, the trial court went on to state that there was no evidence that Sonny Strickland had any connection with the victim, or with the events that occurred the night the victim was killed. (Id.)

Evidence of potential third party culpability must be admitted when, under the "facts and circumstances" of the individual case, its exclusion would deprive the defendant of a fair trial. Chambers v. Mississippi, 410 U.S. 284, 302-03 (1973). However, it is also well-established that trial judges may 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 v. South Carolina, 547 U.S. 319, 327 (2006). "A specific application of this principle is found in rules regulating the admission of evidence proffered by criminal defendants to show that someone else committed the crime with which they are charged. See, e.g., 41 C.J.S., Homicide § 216, pp. 56-58 (1991) ("Evidence tending to show the commission by another person of the crime charged may be introduced by accused when it is inconsistent with, and raises a reasonable doubt of, his own guilt; but frequently matters offered in evidence for this purpose are so remote and lack such connection with the crime that they are excluded"); 40A Am. Jur. 2d, Homicide § 286, pp. 136-138 (1999) ("[T]he accused may introduce any legal evidence tending to prove that another person may have committed the crime with which the defendant is charged. . . . [Such evidence] may be excluded where it does not sufficiently connect the other person to the crime, as, for example, where the evidence is speculative or remote, or does not tend to prove or disprove a material fact in issue at the defendant's trial" (footnotes omitted))." Id.

Here, as the trial court noted, there was no evidence even circumstantially linking Sonny Strickland to the underlying crime. Because the third party culpability evidence was speculative and did not sufficiently connect Sonny Strickland to the crime, the trial court's exclusion of such evidence was reasonable.

Accordingly, the state court's conclusion was not contrary to or an unreasonable application of clearly established Supreme Court law.

8. Insufficient evidence

Petitioner argues that there was insufficient evidence to convict him of the murder and the use of a knife. Specifically, petitioner states that the DNA evidence produced at trial showed that three men had contact with the victim on the night of the murder. However, no murder weapon was ever found, nor was there evidence that petitioner ever owned or carried a knife. Petitioner argues that the evidence merely demonstrated that petitioner had sex with the victim at some point, but not that petitioner killed the victim or used a knife to do so.

A federal court reviewing collaterally a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992). The federal court "determines only whether, `after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt, has there been a due process violation. Jackson, 443 U.S. at 324; Payne, 982 F.2d at 338. Sufficiency claims on federal habeas review are subject to a "twice-deferential standard." Parker v. Matthews, 132 S. Ct. at 2152 (2012) (per curiam). First, relief must be denied if, viewing the evidence in the light most favorable to the prosecution, there was evidence on which "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (quoting Jackson, 443 U.S. at 324). Second, a state court decision denying a sufficiency challenge may not be overturned on federal habeas unless the decision was "objectively unreasonable." Id. (quoting Cavazos v. Smith, 132 S.Ct. 2, 4 (2011)).

Here, the defense theory was that the victim had consensual sex with petitioner at some point during the night, and that someone else murdered the victim. However, the evidence showed that the victim only ever associated with Mexicans or Mexican-Americans and petitioner was not Mexican or Mexican-American. The evidence also showed that the victim was engaged and spoke about her wedding plans with Martinez approximately an hour before she was murdered. Moreover, the autopsy findings indicated that the victim had sex while she was lying down, and within a short time of her death. Specifically, the pathologist believed that the time between the sexual assault and the stabbing was only a few minutes, and the sexual activity occurred first and then the stabbing occurred while the victim was still lying down. Despite the possibility that petitioner had consensual sex with the victim, and then someone else may have come along later and sexually assaulted and killed her, a federal habeas court "must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326. In other words, in order to obtain federal habeas relief on this claim, petitioner must demonstrate that the state courts' denial of relief with respect to his insufficiency of the evidence arguments was an objectively unreasonable application of the decision in Jackson to the facts of this case. Petitioner has failed to overcome the deference due to the state court's findings of fact.

Accordingly, petitioner is not entitled to federal habeas relief on his insufficiency of the evidence claim.

9. Exclusion of testimony from preliminary hearing

Petitioner argues that at the preliminary hearing, criminalist Nancy Marte testified that the evidence bag which contained the now missing slide of the victim's vaginal semen sample was empty, and the microscope slide case was also empty. However, according to petitioner, the testimony that the microscope slide case was empty was subsequently deleted from the transcript. In addition, Marte's testimony about the actual contents inside the bag marked "exhibit seven" had also been deleted. Further, petitioner claims that the coroner, Dr. Mason, testified at the preliminary hearing that he looked at the smaller bag located within exhibit seven and its contents, made a remark about the empty slide case, as well as the other missing samples, however, those portions of Dr. Mason's testimony had also been deleted from the transcript. Finally, petitioner argues that portions of criminalist Cordelia Willis' testimony about the items missing from the "exhibit seven" bag were also deleted. Petitioner alleges that the deleted portions of the preliminary hearing transcript deprived petitioner of the opportunity to impeach or cross-examine these witnesses.

Again, the constitutional right to present a complete defense includes the right to present evidence, including the testimony of witnesses. See Washington v. Texas, 388 U.S. 14, 19 (1967). But the right is only implicated when the evidence the defendant seeks to admit is "relevant and material, and . . . vital to the defense." Id. at 16. Additionally, a violation of the right to present a defense does not occur any time such evidence is excluded, but rather only when its exclusion is "arbitrary or disproportionate to the purposes [the exclusionary rule applied is] designed to serve." Holmes, 547 U.S. at 324 (internal citation and quotation marks omitted). In addition, a court violates the Confrontation Clause only when it prevents a defendant from examining a particular and relevant topic. Fenenbock v. Director of Corrections, 692 F.3d 910, 919 (9th Cir. 2012). A petitioner meets his burden of showing a Confrontation Clause violation by showing that "[a] reasonable jury might have received a significantly different impression of [a witness'] credibility . . . had counsel been permitted to pursue his proposed line of cross-examination." Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986); Slovik v. Yates, 556 F.3d 747, 753 (9th Cir. 2009). The focus of this inquiry "must be on the particular witness, not on the outcome of the entire trial," Van Arsdall, 475 U.S. at 680, such that defense counsel's ability to impeach other witnesses "is irrelevant" to whether the trial court violated the Confrontation Clause, Slovik, 556 F.3d at 754-55.

The Superior Court denied petitioner's claim that preliminary hearing testimonies had been altered to delete mention of the missing pieces of evidence because the review of the preliminary hearing transcript did not support petitioner's claims. (Resp. Ex. 11 at 18-19.) Further, the Superior Court concluded that, pursuant to state law, claims relating to a preliminary hearing were moot once a defendant receives his trial. (Id. at 19.)

Here, even assuming a constitutional error, petitioner has not demonstrated that the error had a substantial or injurious effect on the jury's verdict. Defense counsel was able to point out to the jury that the chain of custody procedures were not as well-settled at the time the evidence was seized as they are now, and also asked the jury to question why and how the vaginal semen sample containing a large amount of sperm was lost. (Resp. Ex. 2, RT 843, 851-52.) Defense counsel stressed that because this case was based largely on forensic DNA evidence, the fact that the vaginal semen sample sample had been lost was significant in being able to determine who had sex with the victim moments before her death. (Id.) Thus, the jury knew about the missing pieces of evidence and defense counsel capitalized on those missing pieces. Accordingly, because a showing of constitutional error under the Sixth Amendment only merits habeas relief if the error was not harmless, that is, if it had a "`substantial and injurious effect or influence in determining the jury's verdict,'" Holley v. Yarborough, 568 F.3d 1091, 1100 (9th Cir. 2009) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)), even assuming that portions of the preliminary hearing testimonies had been deleted, petitioner is not entitled to habeas relief.

10. Griffin error

Petitioner argues that during closing argument, the prosecutor improperly commented on petitioner's failure to testify. The California Court of Appeal summarized the events as follows:

Brown, 2010 WL 2505626, at *6.

The California Court of Appeals then rejected petitioner's claim both on the merits and based upon harmless error.

Brown, 2010 WL 2505626, at *7-*8.

Where a prosecutor on his own initiative asks the jury to draw an adverse inference from a defendant's silence, or to treat the defendant's silence as substantive evidence of guilt, the defendant's privilege against compulsory self-incrimination is violated. See Griffin v. California, 380 U.S. 609, 615 (1965). However, such commentary by the prosecutor requires reversal only if "(1) the commentary is extensive; (2) an inference of guilt from silence is stressed to the jury as a basis for the conviction; and (3) where there is evidence that could have supported acquittal." Jeffries v. Blodgett, 5 F.3d 1180, 1192 (9th Cir. 1993) (citation omitted).

The facts in this case are similar to those in Guam v. Ojeda, 758 F.2d 403, 407 (9th Cir. 1985). In Ojeda, the prosecutor also made an indirect statement that the defendant did not testify by stating that the defense put on no witnesses to validate the theory of defense. There, the prosecutor stated, "[i]n light of that it is very difficult to believe that [the defendant] didn't know what was going on that day. There has been no testimony that he found out that the jewelry in that bag, the jewelry from those boys — he did anything other than go along with it." Id. The Ninth Circuit concluded that, "taken in context, does not evidence an intent to violate petitioner's fifth amendment privilege. The prosecutor merely commented on the general lack of testimony supporting defendant's side of the story," which the prosecutor is permitted to do. Id. In addition, the Ninth Circuit stated, "where alleged prosecutorial misconduct is limited to a single isolated statement, did not stress an inference of guilt from silence as a basis of conviction, and was followed by curative instructions, it is harmless beyond a reasonable doubt."

Similarly here, the prosecutor stated, "That particular version, there's absolutely zero, zero evidence that any of that ever happened. . . . The only possibility is because the defense said it, but the defense did not take the witness stand and testify." This comment was a general comment on the lack of testimony supporting petitioner's theory of defense, was "limited to a single isolated statement, did not stress an inference of guilt from silence as a basis of conviction, and was followed by curative instructions." Id.

Accordingly, the state court's denial of this claim was not contrary to, or an unreasonable application of, clearly established Supreme Court law.

11. Characterization of the definition of "reasonable doubt"

Petitioner claims that the prosecutor's characterization of "reasonable doubt" during closing argument was improper. During closing argument, the following occurred:

Brown, 2010 WL 2505626, at *6-*7.

The California Court of Appeal rejected petitioner's claim of prosecutorial misconduct on the basis that any error was harmless. Id. at *8-*9.

A defendant's due process rights are violated when a prosecutor's misconduct renders a trial "fundamentally unfair." Id.. Under Darden, the first issue is whether the prosecutor's remarks were improper; if so, the next question is whether such conduct infected the trial with unfairness. Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005) (citing Darden v. Wainwright, 477 U.S. 168 (1986)).

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 or she is charged. In re Winship, 397 U.S. 358, 364 (1970). The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. See Victor v. Nebraska, 511 U.S. 1, 6 (1994). So long as the trial court instructs the jury on the necessity that defendant's guilt be proven beyond a reasonable doubt, the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof. See id. at 5.

Here, one factor in determining misconduct amounted to a violation of due process is whether the trial court issued a curative instruction. When a curative instruction is issued, a court presumes that the jury has disregarded inadmissible evidence and that no due process violation occurred. See Greer v. Miller, 483 U.S. 756, 766 n.8 (1987). Here, as the California Court of Appeal stated, there is no indication that the jury was misled into applying a lesser reasonable doubt standard. The trial court admonished the jury just before defense counsel's closing statements that it should not use the prosecutor's reasonable doubt interpretation if it found that the interpretation conflicted with the court's instruction on reasonable doubt. The court then immediately re-instructed the jury on reasonable doubt. Then, the court twice reminded the jury that the instructions as given by the court override any conflicting statements made by counsel during opening and closing arguments. Accordingly, even assuming the prosecutor's interpretation of reasonable doubt was inaccurate, it did not rise to the level of a constitutional violation.

Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established Supreme Court law.

12. Ineffective assistance of appellate counsel

Petitioner claims that appellate counsel rendered ineffective assistance by failing to raise all the claims petitioner has raised in this federal petition. Appellate counsel does not have a constitutional duty to raise every nonfrivolous issue requested by defendant. See Jones v. Barnes, 463 U.S. 745, 751-54 (1983). The weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy. See Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989). Appellate counsel therefore will frequently remain above an objective standard of competence and have caused his client no prejudice for the same reason: because he declined to raise a weak issue. Id.

With respect to petitioner's claim that appellate counsel was ineffective for failing raise claims of ineffective assistance of trial counsel, to determine whether appellate counsel's failure to raise a claim of ineffective assistance of trial counsel was objectively unreasonable and prejudicial, the district court must first assess the merits of the underlying claim that trial counsel provided constitutionally deficient performance. Moormann v. Ryan, 628 F.3d 1102, 1106-07 (9th Cir. 2010). If trial counsel's performance was not objectively unreasonable or did not prejudice the petitioner, then appellate counsel did not act unreasonably in failing to raise a meritless claim of ineffective assistance of counsel, and the petitioner was not prejudiced by appellate counsel's omission. Id. Here, as explained previously, the court has concluded that trial counsel did not render ineffective assistance of counsel. With respect to the remaining claims, the court has also discussed them on the merits, supra, and have found them unavailing. Because raising these claims on appeal would have been unsuccessful, appellate counsel was not ineffective in choosing not to do so.

Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of clearly established Supreme Court law.

13. Cumulative errors

In some cases, although no single trial error is sufficiently prejudicial to warrant reversal, the cumulative effect of several errors may still prejudice a defendant so much that the conviction must be overturned. See Alcala v. Woodford, 334 F.3d 862, 893-95 (9th Cir. 2003) (reversing conviction where multiple constitutional errors hindered defendant's efforts to challenge every important element of proof offered by prosecution). Cumulative error is more likely to be found prejudicial when the government's case is weak. See id. However, where, as here, there is no single constitutional error existing, nothing can accumulate to the level of a constitutional violation. See Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011); see also United States v. Solorio, 669 F.3d 943, 956 (9th Cir. 2012) (recognizing that there can be no cumulative error when there has not been more than one error).

CONCLUSION

The petition for a writ of habeas corpus is DENIED.

The federal rules governing habeas cases brought by state prisoners require a district court that denies a habeas petition to grant or deny a certificate of appealability ("COA") in its ruling. Petitioner has failed to make a substantial showing that his claims amounted to a denial of his constitutional rights, or demonstrate that a reasonable jurist would find the denial of his claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a COA is DENIED.

The clerk shall terminate all pending motions, enter judgment, and close the file.

IT IS SO ORDERED.