ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

EDWARD M. CHEN, District Judge.

I. INTRODUCTION

Taquan L. Maldonado filed this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his state court conviction for first degree murder. Respondent has filed an answer to the petition and Mr. Maldonado has filed a traverse. For the reasons discussed below, the Court denies the petition.

II. BACKGROUND

The California Court of Appeal described the evidence at trial:

People v. Maldonado, California Court of Appeal No. A134796, opinion filed April 28, 2014 ("Cal. Ct. App. Opinion") at 2-6.

Following the jury trial in Alameda County Superior Court, Mr. Maldonado was convicted of first degree murder and found to have personally used a deadly and dangerous weapon in the commission of the offense. He was sentenced to 26 years to life in prison on February 24, 2012.

Mr. Maldonado appealed. The California Court of Appeal affirmed his conviction in April 2014, and the California Supreme Court denied his petition for review in August 2014. Mr. Maldonado also filed petitions for writ of habeas corpus in the California Court of Appeal and California Supreme Court, which were summarily denied. Docket No. 13-21; Docket No. 13-22 at 72. Mr. Maldonado later filed another pro se petition for writ of habeas corpus in the California Supreme Court, which was summarily denied. See Docket No. 13-22 at 158.

Mr. Maldonado then filed his federal petition for writ of habeas corpus. The Court ordered Respondent to show cause why the petition should not be granted. Respondent has filed an answer to the petition, and Mr. Maldonado has filed a traverse. The matter is now ready for decision.

III. JURISDICTION AND VENUE

This Court has subject matter jurisdiction over this action for a writ of habeas corpus under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the petition concerns the conviction and sentence of a person convicted in Alameda County, California, which is within this judicial district. 28 U.S.C. §§ 84, 2241(d).

IV. 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).

The Antiterrorism And Effective Death Penalty Act of 1996 ("AEDPA") amended § 2254 to impose new restrictions on federal habeas review. A petition may not be granted with respect to any claim that was adjudicated 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).

"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 (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).

"Under the `unreasonable application'" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. "A federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was `objectively unreasonable.'" Id. at 409.

The state-court decision to which § 2254(d) applies is the "last reasoned decision" of the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005). "When there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst, 501 U.S. at 803. The presumption that a later summary denial rests on the same reasoning as the earlier reasoned decision is a rebuttable presumption and can be overcome by strong evidence. Kernan v. Hinojosa, 136 S.Ct. 1603, 1605-06 (2016). Although Ylst was a procedural default case, the "look through" rule announced there has been extended beyond the context of procedural default and applies to decisions on the merits. Barker, 423 F.3d at 1092 n.3. In other words, when the last reasoned decision is a decision on the merits, the habeas court can look through later summary denials to apply § 2254(d) to the last reasoned decision.

Section 2254(d) generally applies to unexplained as well as reasoned decisions. "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 562 U.S. 86, 99 (2011). When the state court has denied a federal constitutional claim on the merits without explanation, the federal habeas court "must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the U.S. Supreme] Court." Id. at 102.

V. DISCUSSION

Several of the habeas claims in this action involve the differences between first degree murder and voluntary manslaughter. In California, the crime of voluntary manslaughter is a lesser included offense of the crime of murder. People v. Beltran, 56 Cal.4th 935, 942 (2013).

"Murder is the unlawful killing of a human being . . . with malice aforethought." Cal. Penal Code § 187(a). Malice aforethought may be express or implied. Id. at § 188. Express malice is "an intent to kill" and implied malice exists "`when a person willfully does an act, the natural and probable consequences of which are dangerous to human life, and the person knowingly acts with conscious disregard for the danger to life that the act poses.'" A killing with express malice formed willfully, deliberately, and with premeditation constitutes first degree murder." Beltran, 56 Cal. 4th at 941-42 (citation omitted).

"Manslaughter is the unlawful killing of a human being without malice." Cal. Penal Code § 192. If the killing without malice is done "upon a sudden quarrel or heat of passion," it is voluntary manslaughter. Id. at § 192(a). "Heat of passion is a mental state that precludes the formation of malice and reduces an unlawful killing from murder to manslaughter." Beltran, 56 Cal. 4th at 942. Voluntary manslaughter based on a heat-of-passion theory has both a subjective and an objective component. See People v. Moye, 47 Cal.4th 537, 549 (Cal. 2009). For the subjective component, the defendant must actually, subjectively, kill the victim in the heat of passion, that is, anger, rage, or any violent, intense, high-wrought or enthusiastic emotion, except revenge. See People v. Breverman, 19 Cal.4th 142, 163 (Cal. 1998). The objective component requires that the defendant's passion have an objectively reasonable basis. That is, there must be evidence that the victim provoked the defendant, and that conduct was "sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." Moye, 47 Cal. 4th at 550. The provocation need not be such that it would prompt an ordinary person of average disposition to kill someone, but only that it "would render an ordinary person of average disposition `liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.'" Beltran, 56 Cal. 4th at 957 (quoting People v. Logan, 175 Cal. 45, 49 (1917)).

A. Sufficiency of the Evidence

Mr. Maldonado argues that the evidence was insufficient to support the first degree murder conviction. He contends that he was guilty of, at most, voluntary manslaughter. Among other things, he argues that he was "too drugged on methamphetamine" to form the mental state necessary for first degree murder. Docket No. 6 at 10.

This claim was not presented on direct appeal and was instead presented only in Mr. Maldonado's pro se petition for writ of habeas corpus to the California Supreme Court. Because the California Supreme Court summarily rejected the challenge to the sufficiency of the evidence, the federal habeas court "must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the U.S. Supreme] Court." Harrington, 562 U.S. at 102.

The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). A court reviewing a conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt, but rather determines 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." 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 may a court conclude that the evidence is insufficient. See Jackson, 443 U.S. at 324. The "prosecution need not affirmatively `rule out every hypothesis except that of guilt,'" and the reviewing federal court "`faced with a record of historical facts that supports conflicting inferences 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.'" Wright v. West, 505 U.S. 277, 296-97 (1992) (quoting Jackson, 443 U.S. at 326).

"Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors `draw reasonable inferences from basic facts to ultimate facts.'" Coleman v. Johnson, 566 U.S. 650, ___, 132 S.Ct. 2060, 2064 (2012) (per curiam) (citing Jackson, 443 U.S. at 319). "[O]n habeas review, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge" unless "the state court decision was objectively unreasonable." Id. at 2062 (internal quotation marks omitted).

The Jackson standard is applied to a crime as that crime is defined by state law. Jackson, 443 U.S. at 324 n.16. Under California law, murder is the unlawful killing of a human being with malice aforethought. Cal. Penal Code § 187(a). A murder that is "willful, deliberate, and premeditated" is first degree murder. Id. at § 189. California courts have identified three common indicators that a killing was deliberate and premeditated: (1) planning activity, (2) motive, and (3) a particular or exacting manner of killing. People v. Anderson, 70 Cal.2d 15, 27 (Cal. 1968). The Anderson factors are not elements of the crime, and not all three factors need to be present to sustain a finding of premeditation and deliberation. People v. Garcia, 78 Cal.App.4th 1422, 1427 (2000). Instead, the Anderson factors are guidelines to aid a reviewing court in determining whether the elements of premeditation and deliberation are present, i.e., "whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse." People v. Perez, 2 Cal.4th 1117, 1125 (1992).

Here, the evidence was sufficient to support the jury's verdict that Mr. Maldonado committed first degree murder. The identity of the killer was not seriously disputed at trial, and the focus was instead on Mr. Maldonado's mental state at the time Ms. Moore was killed.

All three Anderson factors — planning activity, manner of killing, and motive — that tend to show deliberation and premeditation were present. Evidence was presented that Mr. Maldonado had to walk at least 20 feet to the kitchen to retrieve the knife, and walk another 20 feet back to the bedroom, where he stabbed Ms. Moore. RT 830. This evidence supported a finding of premeditation and deliberation as it tended to show some planning and time for reflection before the fatal wound was inflicted. There also was evidence that two days before he killed her, Mr. Maldonado threw a kitchen knife out of the car as he left her home, which supported an inference that he had been thinking about killing her then. Mr. Maldonado stabbed Ms. Moore with a 9-inch knife that he plunged into her chest, near her heart, to a depth of about 8 inches. The pathologist testified that a person can survive for up to 30 minutes after being wounded in the manner Ms. Moore was, and that she probably would have survived if she had received medical treatment sooner. Stabbing her in the general area of her heart and then delaying in seeking help for her — while also taking the time to hide the murder weapon in the floor vent — supported an inference that Mr. Maldonado acted with a plan and intent that Ms. Moore die. There was evidence showing a motive for Mr. Maldonado to kill Ms. Moore: Ms. Moore recently had an abortion and was going to leave Mr. Maldonado, RT 519, 572, 616-17, and he was upset by these events.

The evidence of prior domestic violence by Mr. Maldonado toward Ms. Moore permitted the jury to conclude that Mr. Maldonado "was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit murder." CT 471 (CALCRIM 852). That domestic violence evidence included evidence that Mr. Maldonado threw a cell phone at her face, RT 184; gave her a black eye, RT 401-02; punched her in the back, leaving a grapefruit-sized bruise, RT 555-56; and slapped her in the face, RT 642-43.

Several items tended to show consciousness of guilt.1 Mr. Maldonado hid the knife he used to stab the victim. And Mr. Maldonado fabricated a story that Ms. Moore was injured by a shard from a mirror she fell into. Mr. Maldonado offered that version of events to the 9-1-1 operator, the police, and his relatives. It was not until the knife was found two months later that he changed his story.

Mr. Maldonado urges that the evidence was insufficient because he "was too drugged on methamphetamine to form" the mental state required for first degree murder. Docket No. 6 at 10. The evidence of his drug use on the day of the killing was very weak, as Mr. Maldonado did not testify and no physical or medical evidence showed that he had methamphetamine in his system. Mr. Maldonado nonetheless urges that there was some support for intoxication, as his drug use was "corroborated" by police officer Gary Rodgers `testimony that, upon arriving at the scene of the killing, he (officer Rodgers) found Mr. Maldonado to be very excited, hysterical and distraught. Mr. Maldonado also notes that officer Rodgers observed some marks on Mr. Maldonado's body (but does not explain how those showed methamphetamine use) and notes that the police found other illegal drugs when they searched Mr. Maldonado. This evidence does not undermine the sufficiency of the evidence to support the first degree murder conviction. Mr. Maldonado's symptoms, which he contends were consistent with him being "too drugged on methamphetamine," Docket No. 6 at 10, also were consistent with him being upset about having just killed his girlfriend, having delayed in summoning help, and having hidden the knife he used to stab her. Because the record supports conflicting inferences, the federal habeas court must presume "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. Even if some evidence — i.e., the marks on Mr. Maldonado's body, Mr. Maldonado's agitated state, and Mr. Maldonado's possession of other drugs — suggested that he had consumed drugs, the jury implicitly rejected the inference that he was "too drugged on methamphetamine" to form the mental state necessary for first degree murder. Cf. People v. Barnett, 17 Cal.4th 1044, 1156 (Cal. 1998) ("By finding defendant guilty of first degree murder, . . . the jury reached the factual conclusion that defendant acted with malice aforethought, deliberation, and premeditation, and necessarily rejected the argument that . . . taking of methamphetamine interfered with his ability to form these requisite mental states."); People v. Castillo, 16 Cal.4th 1009, 1018 (Cal. 1997) (upholding first degree murder conviction where "the evidence of defendant's intoxication was equivocal at best" and defendant "did not claim PCP use until after he first denied any involvement in the crime").

Mr. Maldonado also argues that he "had like a dream that Katrina [Moore] was arguing" with him, then chased him with a knife, then they struggled "and during the struggling, Ms. Moore was stabbed." Docket No. 6 at 10. But Mr. Maldonado does not dispute that there was absolutely no evidence of this dream presented at trial. Evidence not presented at trial does not factor into the sufficiency-of-the-evidence analysis.

The California Supreme Court's rejection of Mr. Maldonado's due process challenge to the sufficiency of the evidence was not an unreasonable application of, or contrary to, any holding of the U.S. Supreme Court. Mr. Maldonado is not entitled to the writ of habeas corpus on this claim.

B. Refusal To Instruct On Voluntary Intoxication

During the discussions of jury instructions, defense counsel requested an instruction on intoxication. The trial judge determined that there was no evidence that Mr. Maldonado was actually intoxicated on the day of the killing and refused to give the instruction. RT 1200-01. Mr. Maldonado contends that his right to due process was violated by the trial court's refusal to instruct the jury on voluntary intoxication.

This claim was not presented on direct appeal and instead was presented in Mr. Maldonado's pro se petition for writ of habeas corpus to the California Supreme Court, which denied it without discussion. Because the California Supreme Court summarily rejected the claim, and there is no reasoned decision from a lower state court, the federal habeas court "must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the U.S. Supreme] Court." Harrington, 562 U.S. at 102.

To obtain federal habeas relief for an error in the jury instructions, a petitioner must show that the error "so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72 (1991). Due process does not require that an instruction be given unless the evidence supports it. See Hopper v. Evans, 456 U.S. 605, 611 (1982) (lesser-included offense instruction required in capital case only when the evidence warrants such an instruction). If a constitutional error is found in the jury instructions, the federal habeas court also must determine whether that error was harmless by looking at the actual impact of the error. Calderon v. Coleman, 525 U.S. 141, 146-47 (1998).

In California, "[e]vidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought." Former Cal. Penal Code § 22(c) (amended and renumbered as § 29.4 effective January 1, 2013). A defendant is entitled to an instruction on voluntary intoxication "only when there is substantial evidence of the defendant's voluntary intoxication and the intoxication affected the defendant's `actual formation of specific intent.'" People v. Williams, 16 Cal.4th 635, 677 (Cal. 1997). In Williams, the court determined there was not substantial evidence of intoxication warranting the instruction where the evidence was that one witness testified the defendant was "`probably spaced out' on the morning of the killings," and that defendant had made comments "in the recorded interview with police that around the time of the killings he was `doped up' and `smokin' pretty tough then.'" Id. The Williams court found "no error. Assuming this scant evidence of defendant's voluntary intoxication would qualify as `substantial, `there was no evidence at all that voluntary intoxication had any effect on defendant's ability to formulate intent." Id. at 678.

Here, the California Supreme Court reasonably could have determined that Mr. Maldonado's right to due process was not violated by the refusal to give a voluntary intoxication instruction because he had not shown his entitlement to such an instruction under state law. Under state law, Mr. Maldonado had to show two things to be entitled to the instruction. First, he had to show substantial evidence of voluntary intoxication. The evidence of actual voluntary intoxication was slim and speculative. As the trial court observed at the jury instruction conference, the one witness who testified about Mr. Maldonado's intoxication was merely relaying hearsay from Mr. Maldonado that he was injected by the victim and passed out, but that was not enough to show actual intoxication at the time of the killing: "[w]ithout any evidence to indicate, in fact, what he was injected with, whether or not he was intoxicated, whether or not he suffered some effects of intoxication, there is nothing in the record." RT 1202.2 Second, Mr. Maldonado had to show that the "intoxication affected the defendant's `actual formation of specific intent.'" Williams, 16 Cal. 4th at 678. Mr. Maldonado does not dispute respondent's assertion that there was absolutely no evidence presented on this second point. Mr. Maldonado did not testify at trial, and the only other person present at the time of the killing was the victim. No physical or medical evidence was presented showing that Mr. Maldonado had methamphetamine in his system at the time of the stabbing. The trial court's refusal to give a jury instruction on voluntary intoxication did not violate Mr. Maldonado's right to due process because he was not legally entitled to such an instruction under state law.

Mr. Maldonado argues that the testimony of police officer Rodgers provided evidence that Mr. Maldonado was voluntarily intoxicated. But officer Rodgers did not testify that Mr. Maldonado was intoxicated; instead, officer Rodgers merely testified to facts that Mr. Maldonado contends are consistent with intoxication. Officer Rodgers testified that Mr. Maldonado was "excited, hysterical, concerned, distraught," RT 742, when he (Rodgers) arrived at the scene. Although Mr. Maldonado argues this showed intoxication, the agitation that Mr. Maldonado exhibited was also consistent with the stress of his girlfriend dying or with him having just murdered his girlfriend. Insofar as it showed actual intoxication, this evidence was quite weak. Officer Rodgers also testified that, upon searching Mr. Maldonado, he had found four "lupium" pills, which the officer described as a prescription narcotic. RT 747. Mr. Maldonado's possession of unconsumed lupium pills did nothing to show that he was intoxicated on methamphetamine or another substance at the time of the killing. Mr. Maldonado also points to evidence about methamphetamine found in Ms. Moore's body, but her use of drugs did not establish his use of drugs. Viewed individually or cumulatively, these bits of evidence do not amount to "substantial evidence" of Mr. Maldonado's "voluntary intoxication," and there was absolutely no evidence that the purported "intoxication affected [his] `actual formation of specific intent," so as to satisfy the criteria for giving an instruction on voluntary intoxication. Williams, 16 Cal. 4th at 677. Since he did not satisfy the criteria for a voluntary intoxication defense, the evidence did not warrant the instruction. Cf. Hopper, 456 U.S. at 611 (lesser-included offense instruction should be given if the evidence would permit a jury rationally to find the defendant guilty of the lesser offense).

Mr. Maldonado also reports that he does not remember exactly what happened, but he "had like[] a dream that he was running from Katrina [Moore]," who was chasing him with a knife, and he "had like[] a dream that he had a struggl[e] with Katrina [Moore] and [he] guess[es] during the struggling Katrina was stabbed." Docket No. 6 at 17. He then argues "[t]hat is what petitioner thinks that really happened. Petitioner was too drugged on methamphetamine to remember what really occurred near the stabbing of Katrina." Id. His current version of what occurred provides no support for the jury instruction on voluntary intoxication because he did not testify at trial, and there was no other evidence presented of this dream-like recollection. Evidence not presented at trial does not support the defendants' right to a jury instruction. Mr. Maldonado is not entitled to relief on his instructional error claim.

C. Prosecutor's Misstatement of the Law In Rebuttal Closing Argument

Mr. Maldonado claims that the prosecutor engaged in misconduct by misstating the law on heat-of-passion voluntary manslaughter. In California, heat-of-passion voluntary manslaughter requires that the provocation be such as would cause an ordinary person "to act rashly and without due deliberation," and not that the provocation be such as would cause an ordinary person to kill. The prosecutor focused on Mr. Maldonado's particular conduct and expressed the standard the first (correct) way a few times, and the second (incorrect) way several times during her rebuttal closing argument. The latter amounted to prosecutorial misconduct in Mr. Maldonado's view. Mr. Maldonado further urges that his trial counsel provided ineffective assistance in not objecting to the misstatements of the law.

1. Background

Four of the five misstatements occurred in quick succession during the prosecutor's rebuttal argument. The prosecutor gave as an example of heat of passion the situation where a person walks into his bedroom to find his significant other in bed with another person and immediately grabs a gun on the side of the bed and shoots them. RT 1395-96.

RT 1396-97 (emphasis added). The fifth misstatement of the law occurred later in the rebuttal argument when the prosecutor discussed that Ms. Moore was trying to end her relationship with Mr. Maldonado in the days leading up to her death. The prosecutor urged: "And would an average person react the way that he did because someone's trying to break up with them? No. It's not in the heat of passion." RT 1401 (emphasis added).

The prosecutor did, however, state the law of heat of passion correctly at several other places in her rebuttal argument. The prosecutor reviewed the jury instruction on manslaughter in her rebuttal argument. RT 1393-94. She read the part of the instruction that covered the heat of passion requirements: "One, the defendant was provoked; two, as a result of the provocation the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; three, the provocation would have caused a person of average disposition to act rashly and without due deliberation, that is from passion rather than judgment." RT 1394 (emphasis added). The prosecutor also read the part of the instruction that stated: "In deciding whether the provocation was sufficient, consider whether a person of average disposition in the same situation and knowing the same facts would have reacted from passion rather than judgment." RT 1394 (emphasis added). After reading the instruction, the prosecutor stated: "So what you're asking yourself in a manslaughter, is [sic] the victim's actions equal provocation that would cause an ordinary person to act rashly in response? It's the victim's actions." RT 1394-95 (emphasis added).

The California Court of Appeal rejected Mr. Maldonado's claim of prosecutorial misconduct. The state appellate court noted that the People conceded that the prosecutor committed misconduct by focusing on whether a "reasonable person of average disposition would have killed under the circumstances." Cal. Ct. App. Opinion at 16 (internal quotation marks omitted). "`[P]rovocation is not evaluated by whether the average person would act in a certain way: to kill. Instead, the question is whether the average person would react in a certain way: with his reason and judgment obscured.'" Cal. Ct. App. Opinion at 15 (quoting People v. Beltran, 56 Cal.4th 935, 949 (Cal. 2013)). Although error had been conceded, the prosecutorial misconduct claim was forfeited on appeal "because trial counsel did not request an admonishment or object to any of the challenged remarks," as was required under California law to preserve the issue for appeal. Cal. Ct. App. Opinion at 16. The California Court of Appeal then determined that Mr. Maldonado's alternative claim of ineffective assistance of counsel did not save him.

Cal. Ct. App. Opinion at 16-17 (alterations in source).

2. Analysis

A defendant's due process rights are violated when a prosecutor's comments render a trial fundamentally unfair. See Darden v. Wainwright, 477 U.S. 168, 170, 181, 183 (1986); Smith v. Phillips, 455 U.S. 209, 219 (1982) ("the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.") Even if prosecutorial misconduct occurred, habeas relief is not available unless the constitutional error had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).

Mr. Maldonado's federal constitutional claim of prosecutorial misconduct is procedurally barred. A federal court will not review a question of federal law decided by a state court if the decision rests on a state law ground that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729 (1991). The procedural default doctrine forecloses federal review of a state prisoner's federal habeas claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule. See id. at 729-30. The Ninth Circuit has recognized and applied the California contemporaneous objection rule in affirming denial of a federal petition for procedural default where there was a complete failure to object at trial. See Vansickel v. White, 166 F.3d 953, 957-58 (9th Cir. 1999); see e.g., Inthavong v. Lamarque, 420 F.3d 1055, 1058 (9th Cir. 2005) (federal habeas challenge to the admission of a confession was barred because state appellate court ruled the claim was procedurally defaulted due to failure to challenge the admission of the confession at trial); Paulino v. Castro, 371 F.3d 1083, 1092-93 (9th Cir. 2004) (barring review of jury-instruction-error claim because no contemporaneous objection); Vansickel, 166 F.3d at 957-58 (barring review of challenge to denial of peremptory challenges because no contemporaneous objection). Mr. Maldonado's failure to object during trial to the prosecutor's misstatements of the law resulted in a procedural default that, unless excused, precludes federal habeas consideration of his prosecutorial misconduct claim.

A procedural default will be excused where a petitioner shows cause for the default and resulting prejudice. Trial counsel's ineffectiveness may excuse a procedural default, but attorney error short of constitutionally ineffective assistance of counsel does not constitute cause and will not excuse a procedural default. See McCleskey v. Zant, 499 U.S. 467, 494, 502 (1991). Thus, to establish cause on the ground of ineffective assistance of counsel, a petitioner must show that (1) counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment, and (2) the deficient performance prejudiced the defense. Loveland v. Hatcher, 231 F.3d 640, 644 (9th Cir. 2000) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)).

Mr. Maldonado argues here (as he did in the California Court of Appeal) that his trial attorney was ineffective for failing to make an objection during the prosecutor's rebuttal argument. Mr. Maldonado does not show ineffective assistance of counsel because he fails to show prejudice under Strickland. The jury instructions correctly stated the law of heat of passion; and the instructions informed the jury to follow the law as the trial court explained it, even if the attorneys' comments conflicted with the court's instructions. See CT 436 (CALCRIM 200) ("You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions.") Mr. Maldonado has provided no reason to depart from the normal presumption that jurors follow the court's instructions. See Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985). Further, as the state appellate court explained, the evidence of voluntary manslaughter was weak and the evidence of first degree murder was well-supported by the evidence. Due to the combined effect of the strength of the evidence against Mr. Maldonado, the correct jury instructions on the law of heat of passion, and the trial court's reminder to jurors that the court's statement of the law controlled notwithstanding any conflict with counsel's argument, Mr. Maldonado has not shown any prejudice from his counsel's failure to object to the prosecutor's misstatements of the law of heat of passion. Mr. Maldonado thus has not shown ineffective assistance of counsel that would provide cause to overcome the procedural default of his prosecutorial misconduct claim.

Lastly, even if the procedural default had been overcome, the prosecutorial misconduct claim would fail on the merits for essentially the same reasons that there was not ineffective assistance of counsel to excuse the default. That is, in light of the legally correct jury instruction on heat of passion, the court's reminder to jurors that the court's version of the law controlled, the strength of the evidence of first degree murder, and the paucity of evidence to show that Mr. Maldonado stabbed Ms. Moore in the heat of passion, the alleged prosecutorial misconduct did not have a "`substantial and injurious effect or influence in determining the jury'es verdict.'" Brecht, 507 U.S. at 638 (1993). Mr. Maldonado is not entitled to the writ on this claim.

D. Due Process Claim — Evidence of Prior Episodes of Domestic Violence

Mr. Maldonado contends that the admission of evidence, under California Evidence Code section 1109, of his prior episodes of domestic violence against Ms. Moore violated his right to due process because the evidence tended to show that he had a propensity to commit crimes. See Docket No. 6 at 52-53; Docket No. 14 at 32-33. The California Court of Appeal rejected the claim without discussion, except to note that numerous California courts had rejected due process challenges to evidence admitted under California Evidence Code section 1109. Cal. Ct. App. Opinion at 19 n.5.

Due to the summary rejection of the claim by the state court, the federal habeas court "must determine what arguments or theories supported or . . . could have supported, the state courtes decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the U.S. Supreme] Court." Harrington, 562 U.S. at 102. Here, the absence of clearly established Supreme Court precedent is fatal to the claim.

In order to violate due process, the allegedly wrongful admission of evidence must be "so extremely unfair that its admission violates `fundamental conceptions of justice.'" Dowling v. United States, 493 U.S. 342, 352 (1990) (quoting United States v. Lovasco, 431 U.S. 783, 790 (1977) (due process was not violated by admission of evidence to identify perpetrator and link him to another perpetrator even though the evidence also was related to crime of which defendant had been acquitted); see, e.g., Gimenez v. Ochoa, 821 F.3d 1136, 1145 (9th Cir. 2016) (petitioner who showed that a vigorous debate had sprung up as to the validity of the "triad-only" theory of shaken baby syndrome in the years since his murder conviction, "failed to show that permitting the prosecution's experts to testify based on a triad-only theory of [shaken baby syndrome] was `so extremely unfair that it[] . . . violated fundamental conceptions of justice.'"). Mr. Maldonado does not identify any vice in the evidence other than that it tended to show his propensity to commit crimes, and does not meet the demanding standard of showing the evidence to be so extremely unfair that its admission violates fundamental conceptions of justice.

Most importantly, the United States Supreme Court has never held that the introduction of propensity or other allegedly prejudicial evidence violates due process. See Estelle v. McGuire, 502 U.S. 62, 68-70 (1991). In fact, Estelle v. McGuire specifically left open the question regarding propensity evidence. See id. at 75 n.5 ("we 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").

In Estelle v. McGuire, the defendant was on trial for murder of his infant daughter after she was brought to a hospital and died from numerous injuries suggestive of recent child abuse. The defendant told police the injuries were accidental. Evidence was admitted at trial that the coroner discovered during the autopsy older partially healed injuries that had occurred 6-7 weeks before the child's death. Id. at 65. Evidence of the older injuries was introduced to prove "battered child syndrome," which "exists when a child has sustained repeated and/or serious injuries by nonaccidental means." Id. at 66. The state appellate court had held that the proof of prior injuries tending to establish battered child syndrome was proper under California law. Id. In federal habeas proceedings, the Ninth Circuit found a due process violation based in part on its determination that the evidence was improperly admitted under state law. Id. at 66-67. The U.S. Supreme Court first held that the Ninth Circuit had erred in inquiring whether the evidence was properly admitted under state law because "`federal habeas corpus relief does not lie for errors of state law.'" Id. at 67. The Supreme Court then explained:

Estelle v. McGuire, 502 U.S. at 70 (omission in original).

The cited case, Spencer v. Texas, 385 U.S. at 563, held that the admission of evidence of prior convictions did not violate due process. The Supreme Court explained in Spencer that, although there may have been other, perhaps better, ways to adjudicate the existence of prior convictions (e.g., a separate trial on the priors after the trial on the current substantive offense resulted in a guilty verdict), Texas' use of prior crimes evidence in a "one-stage recidivist trial" did not violate due process. Id. at 563-64. "In the face of the legitimate state purpose and the long-standing and widespread use that attend the procedure under attack here, we find it impossible to say that because of the possibility of some collateral prejudice the Texas procedure is rendered unconstitutional under the Due Process Clause as it has been interpreted and applied in our past cases." Id. at 564.

Estelle v. McGuire also cited to Lisenba v. California, 314 U.S. 219, 228 (1941), in support of the conclusion that the introduction of the battered child syndrome evidence did not so infuse the trial with unfairness as to deny due process of law. See Estelle v. McGuire, 502 U.S. at 75. In Lisenba, the Supreme Court rejected a claim that the admission of inflammatory evidence violated the defendant's due process rights. The evidence at issue in Lisenba was live rattlesnakes and testimony about them to show they had been used by the defendant to murder his wife. "We do not sit to review state court action on questions of the propriety of the trial judge's action in the admission of evidence. We cannot hold, as petitioner urges, that the introduction and identification of the snakes so infused the trial with unfairness as to deny due process of law. The fact that evidence admitted as relevant by a court is shocking to the sensibilities of those in the courtroom cannot, for that reason alone, render its reception a violation of due process." Lisenba, 314 U.S. at 228-29.

These three Supreme Court cases declined to hold that the admission of prejudicial or propensity evidence violates the defendant's due process rights. No Supreme Court cases since Estelle v. McGuire have undermined the holdings in these three cases. In other words, there is no Supreme Court holding that the admission of prejudicial or propensity evidence violates due process. When the U.S. Supreme Court "cases give no clear answer to the question presented, let alone one in [the petitioner's] favor, `it cannot be said that the state court unreasonabl[y] appli[ed] clearly established Federal law. `. . . Under the explicit terms of § 2254(d)(1), therefore, relief is unauthorized." Wright v. Van Patten, 552 U.S. 120, 126 (2008) (alterations in original) (quoting Carey v. Musladin, 549 U.S. 70, 77 (2006), and 28 U.S.C. § 2254(d)(1)).

Circuit courts have recognized that the United States Supreme Court has never held that the introduction of propensity or other allegedly prejudicial evidence violates due process. See Foy v. Gipson, 609 F. App'x 903 (9th Cir. 2015) (no habeas relief on claim that admission of propensity evidence (i.e., that defendant assaulted another woman after he assaulted victim in this case) violated defendant's right to due process because Estelle v. McGuire's reservation of the question whether propensity evidence violates due process "forecloses the conclusion that the state court's decision was contrary to, or an unreasonable application of, clearly established federal law); Munoz v. Gonzales, 596 F. App'x 588 (9th Cir. 2015) (even if admission of evidence of prior auto theft was improperly admitted to show propensity, habeas relief foreclosed because Estelle v. McGuire reserved the question whether propensity evidence violated due process); Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (denying habeas relief upon finding that trial court's admission of irrelevant pornographic materials was "fundamentally unfair" under Ninth Circuit precedent but not contrary to, or an unreasonable application of, clearly established Federal law under § 2254(d)); Alberni v. McDaniel, 458 F.3d 860, 865 (9th Cir. 2006) (denying habeas relief on claim that due process was violated by admission of evidence of defendant's past violent actions and explosive temper to show propensity due to Estelle v. McGuire's reservation of the question whether propensity evidence violates due process); Moses v. Payne, 555 F.3d 742, 760 (9th Cir. 2009) (because balancing test for excluding evidence was creation of Ninth Circuit law and Supreme Court had not directly considered whether trial court's exercise of discretion to exclude evidence violated defendants' constitutional right to present evidence, state court's failure to use Ninth Circuit's balancing test is not contrary to or an unreasonable application of clearly established Supreme Court precedent).

"[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." Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). Bearing in mind the extremely general nature of the Supreme Court's articulation of a principle of "fundamental fairness" — i.e., evidence that "is so extremely unfair that its admission violates `fundamental conceptions of justice'" may violate due process, Dowling, 493 U.S. at 352, — the California Court of Appeal's rejection of Mr. Maldonado's due process claim was not contrary to or an unreasonable application of clearly established federal law as set forth by the Supreme Court. See generally Holley, 568 F.3d at 1101 (denying writ because, although Supreme Court "has been clear that a writ should be issued when constitutional errors have rendered the trial fundamentally unfair, it 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." (internal citation omitted)).

Moreover, in this circuit, the admission of prejudicial evidence may make a trial fundamentally unfair and violate due process "[o]nly if there are no permissible inferences the jury may draw from the evidence." Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). "Evidence introduced by the prosecution will often raise more than one inference, some permissible, some not; we must rely on the jury to sort them out in light of the court's instructions. 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.' Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose." Jammal, 926 F.2d at 920 (internal citation and footnote omitted).3

Here, the jury could draw the inference of a propensity to commit a murder from the evidence of the prior domestic violence. The jurors were instructed that, if they decided that Mr. Maldonado committed the uncharged domestic violence, they "may, but are not required to, conclude from that evidence that [Mr. Maldonado] was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit murder, as charged here." CT 471 (CALCRIM 852). The instruction merely permitted, but did not require, the jury to use the evidence of prior domestic violence upon finding that the domestic violence had occurred. Id. Because the inference was permissible, the state appellate court did not unreasonably apply Supreme Court precedent in holding that the admission of the evidence of prior episodes of Mr. Maldonado's domestic violence toward Ms. Moore did not violate due process. See Jammal, 926 F.2d at 920.

Finally, Mr. Maldonado argues that the prosecutor engaged in misconduct in arguing to the jury that the jury could use Mr. Maldonado's prior acts of domestic violence to show his intent in this case. See Docket No. 6 at 8-9. But as explained in the preceding paragraphs, California Evidence Code section 1109 allows the use of prior acts of domestic violence to prove propensity and the U.S. Supreme Court has never held that the use of propensity evidence violates due process. See also United States v. LeMay, 260 F.3d 1018, 1031 (9th Cir. 2001) (Federal Rule of Evidence 414, which allows evidence of prior sexual offenses to show a propensity to commit the charged sexual offense in federal criminal cases, does not violate due process). The prosecutor did not commit misconduct violative of due process by arguing the prior acts of domestic violence.

E. Ineffective Assistance of Trial Counsel Claims

The Sixth Amendment's right to counsel guarantees not only assistance, but effective assistance, of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The benchmark for judging any claim of ineffectiveness is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Id. In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, a petitioner must establish two things. First, he must demonstrate that counsel's performance was deficient and fell below an "objective standard of reasonableness" under prevailing professional norms. Id at 687-88. Second, he must establish that she was prejudiced by counsel's deficient performance, i.e., that "there is at 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.

A "doubly" deferential judicial review is appropriate in analyzing ineffective assistance of counsel claims under § 2254. See Cullen v. Pinholster, 563 U.S. 170, 202 (2011). 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, 562 U.S. at 105.

1. Failing To Identify Provocation by the Victim And Argue Provocation Over Time

Mr. Maldonado contends that trial counsel provided ineffective assistance by failing to argue "a viable theory of heat of passion voluntary manslaughter, when such a theory existed based on the evidence." Docket No. 6 at 22. His "viable theory" was that he had been provoked "based on multiple events, with the major events occurring over two or three days prior to the homicide, influenced by Katrina [Moore]'s previous pattern of mercurial behavior." Id. at 28-29. Those major events were Ms. Moore's abortion and efforts to break off their relationship followed by reconciliation.

The California Court of Appeal rejected Mr. Maldonado's claim on both prongs of the test under Strickland v. Washington, 466 U.S. 668 (1984).4 The appellate court determined that "trial counsel did identify situations where Moore provoked" Mr. Maldonado. Cal. Ct. App. Opinion at 8. For example, Mr. Wilson testified overhearing Mr. Maldonado complaining on the day of the killing that Ms. Moore kept "bring[ing] up something old[,]" and there had been testimony that Ms. Moore was controlling, had a history of fighting with her partners, and had slapped Mr. Maldonado in anger. Id. (alterations in source). Defense counsel argued that Ms. Moore's very high methamphetamine and amphetamine levels on the day of her death "could explain why she was `agitated and having issues with'" Mr. Maldonado. Id. "[C]ounsel's decision to focus on the day of Moore's death—rather than the weeks and months leading up to that date—was a reasonable tactical choice" to avoid the jury focusing on Mr. Maldonado's "increasingly possessive and violent behavior." Id. at 8-9. The court noted that counsel reasonably could have chosen not to focus on provocation based on a series of events over time because that theory was "relatively weak in light of testimony supporting a cooling off period, specifically: (1) Wilson's testimony that appellant and Moore did not argue the evening before her death; (2) appellant and Moore made breakfast together on the morning of June 5, 2010; and (3) Moore seemed `fine' that morning." Id. at 9.

The California Court of Appeal rejected the claim for the additional reason that Mr. Maldonado had not shown prejudice, as required for relief under Strickland. Cal. Ct. App. Opinion at 9-10.

Cal. Ct. App. Opinion at 9-10.

As the last reasoned decision from a state court, the California Court of Appeal's decision is the decision to which § 2254(d) is applied. See Ylst, 501 U.S. at 803-04; Barker, 423 F.3d at 1091-92. Mr. Maldonado is entitled to habeas relief only if the California Court of Appeal's decision was contrary to, or an unreasonable application of, clearly established federal law from the U.S. Supreme Court, or was based on an unreasonable determination of the facts in light of the evidence presented.

Mr. Maldonado does not meet that demanding standard because the California Court of Appeal's rejection of his claim was a reasonable application of Strickland. The California Court of Appeal reasonably determined that there was no deficient performance because arguing that Mr. Maldonado was provoked by a series of events would have been a risky strategy that counsel reasonably avoided.5 Focusing on events in the days preceding the killing posed a high risk that the jury would see Mr. Maldonado's behavior as premeditated and deliberate, and that he finally decided to kill Ms. Moore to prevent her from being with anyone but him. Trial counsel also may have been concerned about focusing the jury's attention on the weeks and months leading up to her death because that evidence included evidence that Mr. Maldonado had been physically violent toward her on several occasions; Mr. Maldonado had repeatedly called her and left desperate messages; Mr. Maldonado had chased after her on her way to the abortion clinic; and Mr. Maldonado had discarded a knife as he departed from her home just days before her death. Further, the "provocations" that Mr. Maldonado identifies — the abortion and the victim's pattern of breaking-up and then making-up with him — had been followed by reconciliation-type conduct by the couple, thereby suggesting that Mr. Maldonado was not actually provoked by those events. And there had been a cooling-off time period after the earlier events. "`[I]f sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter.'" Moye, 47 Cal. 4th at 550.

"[C]ounsel has wide latitude in deciding how best to represent a client, and deference to counsel's tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage." Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003). It was not unreasonable for the state appellate court to conclude that counsel's decision to forego a theory of provocation based on a series of events was well within that wide latitude of choices as to how to best represent Mr. Maldonado.

The state appellate court did incorrectly state that counsel identified certain situations where Ms. Moore provoked Mr. Maldonado. As Mr. Maldonado points out, evidence was presented, but there was no argument by defense counsel, that Mr. Wilson heard Mr. Maldonado complaining that Ms. Moore kept "`bring[ing] up something old,'" and that Ms. Moore "had a history of fighting with her partners, and had slapped [Mr. Maldonado] when she was angry." Cal. Ct. App. Opinion at 8. The California Court of Appeal was, however, correct in noting that trial counsel argued that Ms. Moore "had `a very high level of methamphetamine and amphetamine' in her system when she died, which he argued could explain why she was `agitated and having issues with' appellant." id.; see RT 1366-67. Notwithstanding its misstatement as to what counsel had argued, the state appellate court's reasoning that counsel did not engage in deficient performance was sound because as noted above the provocation evidence was weak and could well have supported the first degree murder.

Moreover, Defense counsel did not merely make an unsupported assertion of heat of passion and sit down; instead, his closing argument blended efforts to poke holes in the prosecution's case with efforts to urge for an accidental or heat of passion killing. Counsel's multifaceted approach appears to be an effort to make the best of the situation where the defendant had killed someone and had little evidence to reduce his culpability to less than murder. Defense counsel repeatedly emphasized his theme that the prosecution could not say with certainty what had occurred in the last ninety minutes of the victim's life. See RT 1331, 1341, 1350, 1355, 1370.6

Although he did not specify the provocation by Ms. Moore, defense counsel tried to convince the jury that manslaughter was a preferred verdict over murder because the stabbing occurred during the "heat of an argument." RT 1346 ("no way willful deliberate murder can be shown in this particular case where it occurs in the situation where they are in the heat of an argument right now"); 1347 ("This obviously happened in the heat of an argument and in the heat of passion"); 1348 ("I think it is a manslaughter, because it happened in the heat of an argument, in the heat of passion."); 1349 ("I think you can kind of assume that there was a lot of intense emotion there that obscured his reasoning or judgment"). And after reading the portion of the instruction that stated that heat of passion "`can be any violent or intense emotion that causes a person to act without due deliberation and reflection,'" counsel said, "And that's, I think, the key thing," i.e., that the "defendant must have acted under the direct and immediate influence of provocation." RT 1349. Counsel continued with the observation that "we know at this time in that room they were fighting or had been fighting at some point. We don't know exactly when, but we know that was the case." RT 1350. Defense counsel also suggested that heat of passion existed. He did not identify the particular provocation by the victim that prompted the rash act by defendant, but that was consistent with his theme that the specifics of the incident were unknown. Counsel also urged that the drug use of Ms. Moore and Mr. Maldonado was a factor in the killing. RT 1368. Counsel urged that Ms. Moore had been heavily using drugs that day, which was significant because "when she used drugs she became a little more agitated at times," and "that would be possibly one of the reasons why she would have been agitated and having issues with Mr. Maldonado." RT 1366, 1367. Defense counsel also suggested the possibility that Mr. Maldonado was on drugs and "had passed out and woke up with Katrina [Moore] laying in his arms dying." RT 1367, 1369. The state appellate court's determination that counsel's approach in the closing argument did not amount to deficient performance was a reasonable application of Strickland.

The state appellate court's determination that the prejudice prong of Strickland had not been satisfied also was a reasonable determination. As the California Court of Appeal explained, the evidence of first degree murder was strong and evidence in support of a lesser offense was weak. The evidence that strongly pointed toward first degree murder included the following: Mr. Maldonado had a motive to murder, i.e., Ms. Moore had had an abortion and was trying to leave him; Mr. Maldonado had a history of physically abusing her; he had the opportunity for reflection as he retrieved a knife from the kitchen to return to the bedroom to stab her; he plunged the knife eight inches into her chest; he fabricated a story that she had been wounded by shards from a mirror when she fell into the mirror; and he hid the murder weapon. And the evidence in support of a theory that Mr. Moore had been provoked by Ms. Moore over time or on that particular day was weak. The state appellate court reasonably determined there was no reasonable probability of a different result if counsel had argued provocation based on multiple events occurring over time.

2. Failure To Request Jury Instructions Elaborating on Provocation

Mr. Maldonado contends that his trial counsel was ineffective for failing to request a pinpoint instruction that "adequate provocation can result from a series of events over time." Docket No. 6 at 42.

Several instructions that were given touched upon provocation.

Cal. Ct. App. Opinion at 11-12.

The California Court of Appeal rejected the ineffective assistance of counsel claim on both prongs of the Strickland test. Counsel made a reasonable tactical choice to focus on the day of death rather than events leading up to the day of death because of the weakness of evidence supporting a defense of provocation from a series of events over time. Id. at 12. No prejudice occurred from counsel's failure to request the pinpoint evidence because the jury instructions given did mention that "`sufficient provocation may occur over a short or long period of time' and because substantial evidence supported the first degree murder conviction and the evidence supporting voluntary manslaughter was weak." Id. at 12.

As the last reasoned decision from a state court, the California Court of Appeal's decision is the decision to which § 2254(d) is applied. See Ylst, 501 U.S. at 803-04; Barker, 423 F.3d at 1091-92. Mr. Maldonado is entitled to habeas relief only if the California Court of Appeal's decision was contrary to, or an unreasonable application of, clearly established federal law from the U.S. Supreme Court, or was based on an unreasonable determination of the facts in light of the evidence presented.

The state appellate court's rejection of the claim on both prongs of the Strickland test was a reasonable application of Strickland. As explained in Section E.1, above, counsel's failure to pursue a theory of provocation based on a series of events was a reasonable tactical choice because the same evidence that might show such provocation had a greater tendency to show first degree murder. Since the theory of provocation based on a series of events was not being pursued, an instruction highlighting that provocation may occur over a long period of time was not necessary.

Moreover, the conclusion that Mr. Maldonado did not establish prejudice was a reasonable conclusion by the California Court of Appeal. A jury instruction that was given did state the basic point that "sufficient provocation may occur over a short or long period of time," CT 468 (CALCRIM 570), even if it did not inform the jury that the cumulative effect of distinct events occurring over time could be considered. Also, for the reasons discussed in the preceding section (§ E.1), Mr. Maldonado has not shown a reasonable probability that the result of the proceeding would have been different had such an instruction been requested. That is, the evidence of provocation was weak and the evidence of first degree murder was strong.

3. Misstatement of Distinction Between Murder and Voluntary Manslaughter

Trial counsel stated during his closing argument: "[N]ow . . . the real difference between murder and manslaughter is did he intend to kill her. And that if he in fact had an intent to kill her, then why would he not just have let her die? Why would he call the police if his intent before this happened was to kill her? That doesn't make any sense." RT 1370. Mr. Maldonado argues that this was legally wrong because "[t]he real difference between murder and manslaughter is whether the defendant acted in response to provocation which would have caused a reasonable person to act rashly from passion, rather than from judgment." Docket No. 6 at 36-37. Mr. Maldonado argues that counsel's misstatement amounted to ineffective assistance of counsel.

Cal. Ct. App. Opinion at 10-11.

As the last reasoned decision from a state court, the California Court of Appeal's decision is the decision to which § 2254(d) is applied. See Ylst, 501 U.S. at 803-04; Barker, 423 F.3d at 1091-92. Again, Mr. Maldonado is entitled to habeas relief only if the California Court of Appeal's decision was contrary to, or an unreasonable application of, clearly established federal law from the U.S. Supreme Court, or was based on an unreasonable determination of the facts in light of the evidence presented.

The state appellate court's rejection of the claim on the prejudice prong of the Strickland test was a reasonable application of Strickland. Even if counsel had correctly stated the law, there was no reasonable probability of a different result. The misstatement was but a small part of a long closing argument, the evidence of first degree murder was strong and the evidence of heat of passion was weak, and counsel stated the standard correctly elsewhere in his argument. RT 1349 (reading voluntary manslaughter instruction). Additionally, after counsel made the misstatement, he then drew the jury's attention back to the trial court's instructions on the difference between first degree murder, second degree murder, and manslaughter. RT 1371. Counsel argued:

RT 1371-72.

"[A]rguments of counsel generally carry less weight with a jury than do instructions from the court." Boyde v. California, 494 U.S. 370, 384-85 (1990). Mr. Maldonado does not dispute that the jury instructions on murder and voluntary manslaughter were correct under California law. See CT 465-468 (CALCRIM 520, 521, 522, 570). The court also properly instructed the jury that the arguments of counsel are not evidence. CT 440 (CALCRIM 220). In light of the substantial evidence supporting the first degree murder verdict, the generally-proper argument from defense counsel, the legally correct instructions given to the jury, and the weakness of the voluntary manslaughter evidence, the California Court of Appeal's conclusion that any deficient performance did not result in prejudice was not objectively unreasonable.

4. Failure To Request Modification of CALCRIM No. 852

At the request of both parties, the jury was given an instruction on prior acts of domestic violence. The instruction provided, in relevant part: "The People presented evidence that the defendant committed domestic violence that was not charged in this case. [¶] . . . [¶] If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit murder, as charged here." CT 471 (CALCRIM 852) (emphasis added). Mr. Maldonado contends that counsel was ineffective in not requesting that the instruction be modified to include voluntary manslaughter. That is, he contends that counsel should have sought to have the instruction modified to provide that his prior acts of domestic violence would allow the jury to conclude that he was likely to commit murder or voluntary manslaughter.

The California Court of Appeal rejected the claim for lack of a showing of prejudice under Strickland. "The modification to CALCRIM No. 852 would not have affected the significant amount of evidence supporting the first degree murder conviction. Additionally and perhaps most importantly, the prior domestic violence evidence did not tend to show appellant acted in the heat of passion. To the contrary and as appellant concedes, the `significant pattern of domestic violence. . . increased the likelihood,' the jury would find he premeditated and deliberated before killing Moore." Cal. Ct. App. Opinion at 13-14 (3ellipses in original; footnote omitted).

As the last reasoned decision from a state court, the California Court of Appeal's decision is the decision to which § 2254(d) is applied. See Ylst, 501 U.S. at 803-04; Barker, 423 F.3d at 1091-92. As noted above, Mr. Maldonado is entitled to habeas relief only if the California Court of Appeal's decision was contrary to, or an unreasonable application of, clearly established federal law from the U.S. Supreme Court, or was based on an unreasonable determination of the facts in light of the evidence presented.

The state appellate court's rejection of the claim on the prejudice prong of the Strickland test was a reasonable application of Strickland. As the state court explained, Mr. Maldonado's prior violence against Ms. Moore was not particularly probative as to whether he acted in a heat of passion on the date of the killing. Moreover, given the substantial evidence supporting the first degree murder verdict, it was reasonable for the California Court of Appeal to conclude there was no reasonable probability of a different result if counsel had requested that the prior domestic violence instruction be modified.

5. Failure To Further Object To Some Domestic Violence Evidence

Mr. Maldonado contends that counsel was ineffective in that he failed to object that some evidence of prior domestic violence sought to be admitted under California Evidence Code section 1109 was inadmissible because it was hearsay and section 1109 does not establish a hearsay exception. Docket No. 6 at 48, 51.

Pursuant to California Evidence Code section 1109, evidence of Mr. Maldonado's past episodes of domestic violence toward Ms. Moore was admitted at trial. The prosecutor moved in limine to admit evidence of several prior acts of domestic violence committed by Mr. Maldonado against Ms. Moore. This evidence included some hearsay statements from Ms. Moore. Defense counsel made a hearsay objection to the evidence, but the trial court did not sustain that objection. RT 43-46, 81, 89-90. Mr. Maldonado faults counsel for failing to make the further objection that California Evidence Code section 1109 did not create a hearsay objection. After the in limine hearing, the trial court determined that five incidents were admissible:

Cal. Ct. App. Opinion at 18-19.

The California Court of Appeal "assume[d] for the sake of argument the court erred by admitting the challenged evidence," but concluded that any error was harmless even if the evidence had been excluded. Cal. Ct. App. Opinion at 20. The error was harmless because "there was ample evidence from which the jury could determine appellant killed Moore with premeditation and deliberation including evidence that appellant: (1) had a motive to kill Moore; (2) walked to and from the kitchen to retrieve the murder weapon; (3) hid the murder weapon and fabricated a story about how Moore was stabbed; and (4) left Moore threatening voicemails." Id. Further, as Mr. Maldonado had conceded, even with exclusion of Ms. Moore's alleged hearsay statements of what had occurred, the jury still would have heard the non-hearsay evidence of past domestic violence. The California Court of Appeal did not separately discuss the ineffective-assistance-of-counsel claim related to the domestic violence evidence.

Because the state appellate court rejected the ineffective assistance of counsel claim without discussion, this Court "must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the U.S. Supreme] Court." Harrington, 562 U.S. at 102.

The state appellate court reasonably could have determined that the ineffective-assistance claim failed on the prejudice prong of a Strickland analysis. That is, the state court reasonably could have concluded that there was no reasonable probability of a different result if counsel had further argued his hearsay objection. Even if the objection had been sustained and the jury did not learn of Ms. Moore's statements about Mr. Maldonado's acts of domestic violence, the jury nonetheless would have learned (from testimony other than witnesses relaying Ms. Moore's hearsay statements) that Mr. Maldonado "threw a cell phone at Moore, split open her lip, broke her car window with his hand because he was `mad,' and gave Moore a black eye." Cal. Ct. App. Opinion at 20. The jury would have learned of multiple instances of past violence by Mr. Maldonado against Ms. Moore, even without her explanations and rationalizations about that violence. As noted above, Maldonado had conceded that, even with exclusion of Ms. Moore's alleged hearsay statements of what had occurred, the jury still would have heard the non-hearsay evidence of past domestic violence. Further, the other evidence of first degree murder was strong, as discussed in § E.1, above. The California Court of Appeal's rejection of Mr. Maldonado's ineffective-assistance claim was not contrary to or an unreasonable application of Strickland.

6. Failure to Inquire Whether Mr. Maldonado Wanted To Testify

Mr. Maldonado contends that his trial counsel was ineffective in not calling him to testify as a witness. During a mid-trial conference about the jury instructions, at which Mr. Maldonado was present, trial counsel said that Mr. Maldonado would not be testifying at trial. RT 1201. Mr. Maldonado did not protest then and did not protest when the defense rested without him testifying. RT 1201, 1261.

This claim was not presented on direct appeal and instead was presented only in Mr. Maldonado's pro se petition for writ of habeas corpus to the California Supreme Court, where it was rejected without discussion. Because the California Supreme Court summarily rejected the claim, the federal habeas court "must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the U.S. Supreme] Court." Harrington, 562 U.S. at 102.

"The Strickland standard is applicable when a petitioner claims his attorney was ineffective by denying him his constitutional right to testify." Matylinsky v. Budge, 577 F.3d 1083, 1097 (9th Cir. 2009); see Gulbrandson v. Ryan, 738 F.3d 976, 989 (9th Cir. 2013). That is, the petitioner must show both deficient performance and prejudice under Strickland to obtain relief on a claim that his attorney was ineffective in not putting the petitioner on the witness stand.

The California Supreme Court reasonably could have determined that trial counsel's decision not to call Mr. Maldonado to testify was not deficient performance because Mr. Maldonado did not indicate to counsel or the trial court that he wanted to testify. "Although the ultimate decision whether to testify rests with the defendant, he is presumed to assent to his attorney's tactical decision not to have him testify. . . . [I]f the defendant wants to testify, he can reject his attorney's tactical decision by insisting on testifying, speaking to the court, or discharging his lawyer. Thus, waiver of the right to testify may be inferred from the defendant's conduct and is presumed from the defendant's failure to testify or notify the court of his desire to do so." United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993); United States v. Pino-Noriega, 189 F.3d 1089, 1095 (9th Cir. 1999). Here, Mr. Maldonado remained silent when his attorney reported to the court that Mr. Maldonado would not be testifying and remained silent when counsel rested the defense without Mr. Maldonado testifying. There is no evidence that he demanded that counsel let him testify. Also, Mr. Maldonado advanced no such claim on appeal. The California Supreme Court reasonably could have determined that counsel did not engage in deficient performance because, by not informing his attorney of his desire to testify and by remaining silent when counsel announced to the court that Mr. Maldonado would not testify, Mr. Maldonado assented to the attorney's decision not to call him as a witness. Mr. Maldonado does not contend he was given bad advice by counsel to not testify.

The California Supreme Court also reasonably could have determined that trial counsel's decision not to call Mr. Maldonado to testify was not deficient performance and did not result in prejudice because Mr. Maldonado would have been a poor witness for the defense. Any positive testimony he could have provided would have been greatly outweighed by the damage done to the defense during cross-examination. See Matylinsky, 577 F.3d at 1097 (state court was not unreasonable in finding no prejudice from counsel's failure to allow defendant to testify because the testifying defendant "would have been subjected to damning cross-examination on his prior convictions" and jury would have observed the defendant's "general disinterested nature" and effort to blame his wife for instigating the fight that led to her death); Gulbrandson, 738 F.3d at 989 ("counsel could have reasonably concluded that Gulbrandson's testimony would have harmed the defense because it could have `alienated him in the eyes of the jury," given the defendant's statements indicating that his conduct was a justifiable response to his wife's efforts to reap the profits from a business he had developed and defendant's statements that his wife was argumentative, hostile and disrespectful to him on the night he beat and stabbed her to death).

The story Mr. Maldonado wanted to tell the jury was of little value to the defense as he claims not to remember what actually happened in the crucial moments. Mr. Maldonado states: "Before the incident, petitioner had like a dream that Katrina [Moore] was arguing with petitioner. Then Katrina was chasing petitioner with a knife. And then Katrina and petitioner had a struggle, and during the struggling, Katrina was stabbed." Docket No. 6 at 10; Docket No. 14 at 10; see also Docket No. 13-22 at 127 ("petitioner wanted to tell the jury that during his dream due to the methamphetamine consumption, he thought that before the stabbing, he and Katrina were arguing and Katrina was hitting petitioner all over his body. And after that, Katrina was chasing him with the knife. And the[n] they had a struggle[] and [it] was during that struggle that Katrina was stabbed."); Docket No. 13-22 at 125 ("Petitioner was too drugged on methamphetamine to remember what really occurred near the stabbing of Katrina"). Even at this late date, Mr. Moore doesn't make it clear whether his version is that he stabbed Ms. Moore due to a drug-induced dream that he needed to kill her to avoid being killed, or that he has a fuzzy dreamlike recollection of the stabbing and events leading up to it, or something else. The jury would be highly likely to reject Mr. Maldonado's incomplete and jumbled story, especially because the story does not explain how Ms. Moore came to have the very deep knife wound: Mr. Maldonado neither acknowledges that he stabbed her, nor does he take the position that she stabbed herself. The knife had been plunged into her chest about eight inches, RT 909, and Mr. Maldonado does not explain how such a deep wound would have occurred during his struggle with Ms. Moore. Not only was his story incomplete and jumbled, being on the witness stand would have opened him up to substantially damaging cross-examination. The prosecution would have shown through cross-examination that any alleged drug-induced state was inconsistent with Mr. Maldonado having the presence of mind to try to hide the knife before seeking help — an especially damaging area because the pathologist testified the victim might have survived had Mr. Maldonado summoned aid for her more quickly. See RT 912-14. And the prosecution would have cross-examined him at length about his made-up story that Ms. Moore had been cut with a shard of the mirror that broke when she fell into it, and the fact that he only abandoned that story after the knife was found in the floor vent. Mr. Maldonado would have been subjected to cross-examination about what appeared to be an effort to fabricate a defense in conversations with his relatives. Mr. Maldonado also would have been subjected to intense cross-examination about the several incidents of domestic violence, as to which he would have a very difficult time putting himself in a positive light. With these numerous downsides and almost no upside to Mr. Maldonado testifying, the California Supreme Court reasonably could have determined that counsel did not engage in deficient performance and no prejudice resulted when counsel chose not to put Mr. Maldonado on the witness stand.

Taking a "`highly deferential'" look at counsel's performance," through § 2254(d)'s already "`deferential lens,'" Cullen v. Pinholster, 563 U.S. at 190, it cannot be said that the California courts' rejection of any of the several ineffective assistance of counsel claims was contrary to or an unreasonable application of Strickland. Mr. Maldonado is not entitled to relief on any of his ineffective assistance of counsel claims.

F. Cumulative Error Claim

Mr. Maldonado contends that the cumulative effect of several errors in his case support habeas relief.

In some cases, although no single trial error is sufficiently prejudicial to warrant relief, the cumulative effect of several errors may still prejudice a defendant so much that his conviction must be overturned. See Alcala v. Woodford, 334 F.3d 862, 893-95 (9th Cir. 2003).

Here, only a few claims were rejected solely on the ground that the error was harmless or that Strickland prejudice was not found. Those claims were the claims that (a) counsel misstated the distinction between murder and manslaughter (see § E.3); (b) counsel failed to seek modification of CALCRIM 852 on the use of domestic violence to show propensity to commit manslaughter as well as murder (see § E.4); and (c) counsel failed to object that California Evidence Code section 1109 did not provide an exception to the hearsay rule (see § E.5). In each of these three claims, deficient performance was found or assumed to exist, and the claim was rejected on the prejudice prong of Strickland.

This Court has considered the cumulative impact of these three alleged deficiencies of counsel because "`prejudice may result from the cumulative impact of multiple deficiencies.'" Harris v. Wood, 64 F.3d 1432, 1438 (9th Cir. 1995) (quoting Cooper v. Fitzharris, 586 F.2d 1325, 1333 (9th Cir. 1978) (en banc)). In other words, in a case with multiple instances of deficient performance, there may be a reasonable probability that, absent the various deficiencies, the outcome of the trial might well have been different. To consider the overall impact, one considers only the instances where deficient performance has been found and does not consider instances where deficient performance has not been found. In other words, lots of non-mistakes cannot be added together to find prejudice. Here only the three claims identified in the preceding paragraph were rejected solely on the prejudice prong and not also on the deficient performance prong. Even when viewed in the aggregate, these three instances of purportedly deficient performance did not result in prejudice. That is, there is no reasonable probability that the result of the proceeding would have been different if counsel had not misstated the distinction between murder and manslaughter, had not failed to seek modification of CALCRIM 852, and had not failed to object that California Evidence Code section 1109 did not provide an exception to the hearsay rule. Regardless of these errors, the inescapable facts are that the heat of passion evidence was very, very weak and the nonhearsay evidence amply showed substantial prior domestic violence by Mr. Maldonado against Ms. Moore. There was substantial evidence of a premeditated and deliberate stabbing by Mr. Maldonado.

Mr. Maldonado is not entitled to relief under the cumulative error doctrine.

G. Ineffective Assistance of Appellate Counsel

Finally, Mr. Maldonado argues that appellate counsel was ineffective in that counsel failed to raise on direct appeal his arguments that: (1) the evidence was insufficient to support the verdict, (2) the trial court erred in refusing to instruct on voluntary intoxication, and (3) trial counsel was ineffective in failing to call Mr. Maldonado as a witness. See Docket No. 6 at 6-21.

This claim for ineffective assistance of appellate counsel was presented only in Mr. Maldonado's pro se petition for writ of habeas corpus to the California Supreme Court. Because the California Supreme Court summarily rejected the claim, the federal habeas court "must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the U.S. Supreme] Court." Harrington, 562 U.S. at 102.

The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right. See Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of appellate counsel are reviewed according to the standard set out in Strickland v. Washington, 466 U.S. 668, 686 (1984). A defendant must show that appellate counsel's advice fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, he would have prevailed on appeal. Miller v. Keeney, 882 F.2d 1428, 1434 & n.9 (9th Cir. 1989). Appellate counsel does not have a constitutional duty to raise every nonfrivolous issue requested by a 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, 882 F.2d at 1434; see also Jones, 463 U.S. at 751-52.

Mr. Maldonado is not entitled to habeas relief on his claim that appellate counsel provided ineffective assistance of counsel. This Court has concluded that the omitted claims lack merit. Appellate counsel's decision not to include the nonmeritorious claims in the appellate brief is a classic example of effective appellate advocacy. The 90-page appellate brief was quite long without the unmeritorious claims, so it was a wise strategy to omit them— especially the challenge to the sufficiency of the evidence. Further, because the claims were not meritorious, there was no reasonable probability that Mr. Maldonado would have prevailed on appeal if the claims had been presented in the direct appeal. Mr. Maldonado is not entitled to the writ on this claim. H. No Certificate of Appealability

A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case in which "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a certificate of appealability is DENIED.

VI. CONCLUSION

For the foregoing reasons, the petition for writ of habeas corpus is DENIED on the merits. The Clerk shall close the file.

IT IS SO ORDERED.