ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

EDWARD M. CHEN, District Judge.

I. INTRODUCTION

Craig Richard Chandler filed this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his conviction from Santa Clara County Superior Court. Respondent has filed an answer to the petition. For the reasons discussed below, the petition is denied.

II. BACKGROUND

The California Court of Appeal described the facts of the offenses and the evidence presented at trial:

People v. Chandler, No. H040429, 2015 WL 7726506, at *1-8 (Cal. Ct. App. Nov. 30, 2015) ("Chandler") (footnotes omitted). After deliberating less than six hours following the 20-day trial, the jury returned the verdicts. Id. at 8.

Following the jury trial in Santa Clara County Superior Court in 2013, Mr. Chandler was convicted of five counts of committing a lewd or lascivious act on a child under the age of 14 years, with sentence enhancement allegations for multiple victims. See Cal. Penal Code §§ 288(a), 667.61(b), (e). In November 2013, Mr. Chandler was sentenced to five consecutive terms of 15 years to life in prison.

Mr. Chandler appealed. The California Court of Appeal affirmed his conviction and the California Supreme Court denied his petition for review. Mr. Chandler also filed an unsuccessful petition for writ of habeas corpus in the California Supreme Court.

Mr. Chandler then filed this action, seeking a federal writ of habeas corpus. He alleges the following claims for relief in his federal petition: (1) he was deprived of his Sixth Amendment right to effective assistance of counsel; (2) he was denied his Sixth Amendment right to the assistance of counsel at the police station; (3) prosecutorial misconduct deprived Mr. Chandler of his right to due process; (4) his federal constitutional rights to present a defense and to due process were violated by the exclusion of evidence of his explanation when the "principal warned him not to blindfold and be alone with students with the door closed," Docket No. 1 at 48; and by the exclusion of the principal's typewritten notes, id. at 51; (5) the trial court's refusal to allow the defense to introduce pork rinds as an exhibit violated his Sixth Amendment right to confront and cross-examine a witness; (6) the admission of evidence that Mr. Chandler "previously offered to massage and photograph a female adult teacher's feet" violated his Fourteenth Amendment right to due process, id. at 60; and (7) the cumulative effect of the foregoing errors supports federal habeas relief.

Respondent has filed an answer. Mr. Chandler 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 Santa Clara 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). "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. When confronted with an unexplained decision from the last state court to have been presented with the issue, "the federal court should `look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning." Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). 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).

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, and there is no lower state court decision to "look through" to, 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

A. Ineffective Assistance Of Counsel Claims

1. The DNA Expert

a. Background

Mr. Chandler contends that his trial counsel, Mr. Madden, provided ineffective assistance of counsel in that he failed to elicit from the prosecution's DNA expert certain allegedly helpful information on cross-examination that earlier had been elicited during the preliminary hearing.

At trial, the prosecution's DNA expert, Ms. Cardosa, testified that she found stains containing Mr. Chandler's sperm and DNA on two chairs from the classroom. Mr. Chandler contends that his trial counsel should have developed two pieces of information from Ms. Cardosa about the DNA evidence. First, Ms. Cardosa testified at trial that she did not test for saliva in the samples obtained from the stains on the two chairs. "She agreed that saliva contains epithelial cells, and when she was looking for spermatozoa she did look for epithelial cells; however, she found no `intact epithelial cells.' Cardosa found only one body fluid—semen—in both of the stains tested" and no other DNA. Chandler, at *10. Mr. Chandler argues that his attorney failed to adequately cross-examine Ms. Cardosa to elicit evidence that Ms. Cardosa had testified at the preliminary hearing that, if a female had been orally copulated and then spit out semen, a DNA examiner would expect to find the female's DNA in the samples containing semen. Second, Ms. Cardosa testified at trial that the stains did not appear to be transfer stains. Mr. Chandler argues that his attorney failed to adequately cross-examine Ms. Cardosa to elicit evidence that Ms. Cardosa had testified at the preliminary hearing that she could not determine if the stain on one chair was a transfer stain instead of a direct deposit from the source. At the preliminary hearing, Ms. Cardosa had testified that it was possible for someone with semen on his or her hand to transfer the semen to the chair while moving a chair and that she could not tell whether one stain on the chair was a transfer stain.

Mr. Chandler argues that the deficient cross-examination was exacerbated by trial counsel's limp closing argument about the DNA evidence which was confined to argument that (1) the stains on the two chairs "contain semen, no other bodily fluid, and it's Mr. Chandler's semen," and (2) Ms. Cardosa had said that one stain "did not appear to be a transfer stain, but scientists would never make an absolute statement that it wasn't a transfer stain." RT 1652.

Mr. Chandler contends that, because the prosecutor theorized that Mr. Chandler had made the girls orally copulate him and had ejaculated in some of their mouths, "the most inculpating evidence was the presence of defendant's semen, sperm, and DNA on two of the chairs." Docket No. 1 at 39. He also argues that the stain-transfer information was critical because the defense theory was that Mr. Chandler transferred the stains to the chair after his sexual encounter with Annie Doe, the mother of a student. Docket No. 1 at 42.

The California Court of Appeal rejected Mr. Chandler's ineffective-assistance-of-counsel claim when he presented it on appeal:

Chandler, at *11-13 (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 Wilson, 138 S. Ct. at 1192. Mr. Chandler 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.

b. Analysis

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 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.

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, 562 U.S. at 105.

The California Court of Appeal's rejection of Mr. Chandler's ineffective assistance of counsel claim was not contrary to, or an unreasonable application of, Strickland. That court correctly identified the Strickland standard and reasonably applied it.1 Although a different attorney representing Mr. Chandler at the preliminary hearing had elicited testimony at preliminary hearing that the DNA expert had found no epithelial cells mixed with the semen, and attorney Madden did not elicit the same information at trial, that difference alone does not show ineffective assistance. There are "`countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.'" Harrington, 562 U.S. at 106 (quoting Strickland, 466 U.S. at 689).

It was not an unreasonable application of Strickland for the California Court of Appeal to conclude that the methods used by attorney Madden reflected reasonable tactical decisions. Attorney Madden reasonably could have decided not to elicit testimony that the DNA expert would expect to find epithelial cells mixed with semen in a stain that had been caused by a female spitting the ejaculate out of her mouth because there was no evidence that connected the semen found on the chairs to any particular act of lewd conduct charged against Mr. Chandler. None of the victims had testified to spitting out ejaculate in a way that would have caused it to end up on a chair in the classroom. Attorney Madden did elicit on cross-examination a crucial point that the semen was not mixed with any other bodily fluid or DNA, thereby showing the absence of any DNA evidence that definitively confirmed any particular lewd act against a child. The jury was given no evidence to suggest, and the prosecutor did not argue, that the semen stains were the result of one or more victims spitting out Mr. Chandler's ejaculate.

The California Court of Appeal also did not unreasonably apply Strickland in determining that counsel did not engage in deficient performance because he made a reasonable tactical decision that there was nothing to gain by impeaching Ms. Cardosa with her prior testimony that one of the stains could have been a transfer stain. As the appellate court explained, it did not really matter to the case whether the stain was a transfer stain (e.g., if Mr. Chandler had touched semen and then touched the chair with his hand) or was a direct deposit (e.g., if Mr. Chandler's ejaculate landed on the chair). The presence of Mr. Chandler's semen on chairs in his classroom was bad for the defense regardless of whether the semen was deposited directly or was transferred there by touching. Although Mr. Chandler suggests the semen came from his encounter with Annie Doe, that is sheer speculation because her testimony was only that he ejaculated inside of her and did not explain how the semen got on the chairs. Mr. Chandler did not testify or offer any explanation how his semen got on the chairs.

The California Court of Appeal's rejection of the claim for lack of prejudice also was not an unreasonable application of Strickland. The undeveloped evidence — that there were no female epithelial cells as would be expected if a female spit out ejaculate and that the expert earlier testified that one stain might be a transfer stain — was not very probative on any issue actually in dispute. Contrary to Mr. Chandler's assertion, the DNA evidence was far from the most inculpatory evidence against him. Mr. Chandler was found guilty based on the strength of the testimony of the five girls, whose credibility was bolstered by their independent descriptions of similar conduct by Mr. Chandler. Mr. Chandler's behavior after being told by a detective not to return to school also was incriminating — as he returned to his classroom unusually early the next day and was in the classroom with the door locked before being told to leave. It was not an unreasonable application of Strickland's prejudice prong for the California Court of Appeal to conclude that there was no reasonable probability of a different result if counsel had cross-examined Ms. Cardosa to develop information on the absence of epithelial cells and the possibility of a transfer stain.

Mr. Chandler is not entitled to the writ on this claim because he has not shown that 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.

2. Failure To Object To A Dozing Juror

Mr. Chandler urges that his trial counsel provided ineffective assistance by failing to object to a juror who fell asleep during the trial. Mr. Chandler presents undated declarations from his mother and her acquaintance who allegedly saw the dozing juror. Mr. Chandler's mother declares:

Docket No. 9-8 at 291. Ms. Lucido declares that she "witnessed a juror sleeping during testimony at the trial." Id. at 292.

Mr. Chandler presented this claim for ineffective assistance of counsel in a petition for writ of habeas corpus to the California Supreme Court. That court summarily denied relief.

Because the state court denied the federal constitutional claim on the merits without explanation, 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.

There are several theories that could have supported the California Supreme Court's rejection of this claim of ineffective assistance of counsel. The California Supreme Court reasonably could have determined that it was a reasonable tactical decision by counsel not to object to the sleeping juror because counsel thought the juror's inattention during the prosecution's case was favorable to the defense, or because counsel wanted to avoid antagonizing or embarrassing the juror. Moreover, there is no evidence that counsel was alerted to the sleeping juror before he woke up. There also is no evidence that the juror fell asleep during the more than 20-day trial other than on this one 30-minute occasion. The California Supreme Court also may have determined that Mr. Madden reasonably determined that objecting to or moving to dismiss the juror who dozed would be futile because falling asleep did not necessarily render the juror incompetent. "[T]he failure to take a futile action can never be deficient performance." Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996). The presence of a sleeping juror during trial does not, per se, deprive a defendant of the right to due process, a fair trial, or an impartial jury. See United States v. Springfield, 829 F.2d 860, 864 (9th Cir. 1987), abrogated on other grounds by United States v. Benally, 843 F.3d 350, 353 (9th Cir. 2016) (no violation of due process or the right to a fair trial and impartial jury when juror slept through part of testimony); see also United States v. Olano, 62 F.3d 1180, 1189 (9th Cir. 1995) ("[T]he presence of all awake jurors throughout an entire trial is not an absolute prerequisite to a criminal trial's ability to reliably serve its function as a vehicle for determination of guilt or innocence. A single juror's slumber thus is not per se plain error.") (internal quotation marks omitted).2 Because the juror had fallen asleep briefly and only once, and the prosecution testimony that he missed was not identified, the California Supreme Court reasonably could have determined that Mr. Chandler failed to show that counsel's performance was deficient and fell below an "objective standard of reasonableness" under prevailing professional norms. Strickland, 466 U.S. at 687-88. Given the "doubly" deferential standard that results when both Strickland and § 2254(d) apply in tandem, habeas relief is not available because "there is [a] reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 562 U.S. at 105.

The California Supreme Court also reasonably could have rejected Mr. Chandler's ineffective-assistance-of-counsel claim due to the lack of any showing by Mr. Chandler of a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Here, as in many claims, Mr. Chandler just points to the perceived mistake and makes no effort to show how the error worked to his detriment. There is no evidence as to what the juror missed during his brief slumber and therefore no evidence on which to find that counsel's failure to object to his slumber prejudiced Mr. Chandler.

Mr. Chandler is not entitled to the writ on this claim because he has failed to show that the California Supreme Court's rejection of the claim was contrary to, or an unreasonable application of, any clearly established precedent from the U.S. Supreme Court.

3. Failure To Present Evidence About Mr. Chandler's Innocence

a. Failure To Develop "Promised" Evidence

Mr. Chandler next contends that his trial counsel was ineffective in that he did not present evidence about Mr. Chandler's innocence, despite promising to do so in his opening statement and in statements to Mr. Chandler. Docket No. 1 at 44. Trial counsel allegedly failed to present evidence that Mr. Chandler was a good teacher, that he was a popular teacher, that he had dyslexia, that he was motivated to develop the Helen Keller lesson plan after observing incidents of students being bullied, and that the Helen Keller lesson plan (i.e., a lesson in which students are blindfolded in class and asked to taste or feel something) was a valid and mainstream lesson plan for children in the second and third grade. Id.

Defense counsel began his opening statement by painting a favorable picture of Mr. Chandler as a family man and a devoted teacher. RT 10-13. After describing Mr. Chandler's early years, defense counsel stated:

Chandler, at *13 (alterations in original).

The California Court of Appeal determined that the failure to present evidence mentioned in the above-quoted portion of defense counsel's opening statement did not result in prejudice, even if one assumed there was deficient performance.

Chandler, at *14-15.

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 Wilson, 138 S. Ct. at 1192. Mr. Chandler 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 California Court of Appeal's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law from the U.S. Supreme Court, and was not based on an unreasonable determination of the facts in light of the evidence presented. Much of the evidence that Mr. Chandler faults counsel for not presenting was simply irrelevant. Whether Mr. Chandler was in general a good and popular teacher or had dyslexia was irrelevant. The California Court of Appeal also determined that information about whether a Helen Keller lesson plan was a mainstream lesson for a classroom setting was irrelevant. The Helen Keller lesson plan was the only point on which defense counsel actually arguably "promised" to present a witness. Augmented RT 12 (arguing that the Helen Keller lesson plan is a "completely valid mainstream story or lesson to teach to children of this age" as "will be confirmed by" either the old principal or the new principal). Moreover, defense counsel did elicit testimony from principal Vijayendran that the Helen Keller lesson was commonly taught at the second- or third-grade level. RT 752-53. In any event, the general information about a classroom lesson plan was of virtually no probative value in evaluating Mr. Chandler's conduct when he was alone with the blindfolded victims. Contrary to Mr. Chandler's assertion, defense counsel did not promise in his opening statement that the principal would testify that it was appropriate to do Mr. Chandler's particular implementation of a Helen Keller lesson plan that involved blindfolding children and putting objects in their mouths and rubbing objects on their bodies, let alone doing this with a child who was alone in the classroom with Mr. Chandler.

Mr. Chandler suggests that some jurors may have held it against him that evidence promised to them was not presented. The alleged failure of counsel to deliver on the promised evidence also was not prejudicial because there really was not much of a "promise" in the above-quoted opening remarks of counsel (other than that a principal would confirm that a Helen Keller lesson was an age-appropriate lesson). The trial judge did not tell the jurors that opening statements were promises of evidence to come, and simply invited the attorneys to make "opening remarks." See Augmented RT 3, 10. The prosecutor also did not describe her opening remarks as promised evidence and, at the end of trial, did not argue in her closing argument that the defense had failed to deliver any evidence promised in the opening statement. Defense counsel did not begin his opening remarks with a promise to present evidence and mentioned only that he would speak briefly "about what I think the evidence will show." Augmented RT 10. The beginning of defense counsel's opening remarks — the part that Mr. Chandler zeroes in on and that is quoted above — painted a favorable picture of Mr. Chandler as a family man and devoted teacher. See Augmented RT 10-13. The language of defense counsel's opening remarks was not such that jurors would have been thinking of broken promises twenty trial days later when they began deliberations.

The California Court of Appeal's determination that Mr. Chandler failed to show prejudice as a result of counsel's failure to present all the evidence he mentioned in his opening statement was not contrary to, or an unreasonable application of, Strickland's prejudice prong.

b. Other Alleged Failings Of Trial Counsel

Since asserting the claim on direct appeal that trial counsel failed to present evidence allegedly promised in the opening statement, Mr. Chandler has added several new subclaims to his ineffective assistance of counsel claim regarding the presentation of evidence. He contends that defense counsel also failed to produce evidence to demonstrate the physical impossibility of the alleged actions, failed to adequately prepare and examine the defense expert, failed to impeach witnesses, failed to raise a Brady claim, failed to object to the restitution fine, and failed to impeach Jane Doe IV's prior inconsistent statements.

These subclaims were first presented to the California Supreme Court in a petition for writ of habeas corpus. Docket No. 9-8 at 253. The California Supreme Court rejected the claim without discussion. Docket No. 9-8 at 294.

Because the state court denied the federal constitutional claim on the merits without explanation, 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.

These new subclaims can be quickly dispatched because Mr. Chandler provides such slight argument and information that none of them could support habeas relief. First, he contends that counsel failed to produce evidence to contradict the victims' testimony "by demonstrating how or why this kind of act could not have been accomplished based on the physical evidence provided in court." Docket No. 1 at 44. But Mr. Chandler does not state what the physical impossibility was or identify the evidence that would have allowed counsel to make such a demonstration. Second, Mr. Chandler claims that trial counsel inadequately prepared and handled the expert witness. But Mr. Chandler does not specify what evidence counsel gave to the expert that was incorrect or provide any evidence as to what the expert would have stated if he had interviewed the victims, been present for their testimony, or been subject to redirect examination. See Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997) ("[s]peculation about what an expert could have said is not enough to establish prejudice"). Third, Mr. Chandler claims that trial counsel failed to impeach witnesses with testimony from other witnesses. He does not identify the particular witnesses that further investigation by counsel would have revealed, submit their declarations to show what they would have testified to, or demonstrate a reasonable probability that their testimony would have changed the result of the proceeding. See Matylinsky v. Budge, 577 F.3d 1083, 1096-97 (9th Cir. 2009) (petitioner's general statement that 41 witnesses would have testified to his good character failed to show that counsel's decision to call just a few character witnesses was unreasonable); Davis v. Woodford, 384 F.3d 628, 650 (9th Cir. 2004) (rejecting claim that counsel should have called 15 witnesses because allegations about the additional information they might provide were conclusory). Fourth, Mr. Chandler claims that counsel did not adequately impeach Annie Doe, the woman with whom he had sex in the classroom about her reporting of the incident, a dog, and text messages. Attorney Madden did impeach her with information that she had told a defense investigator that she had sex with Mr. Chandler in her apartment and had not told the defense investigator that she had been raped in Mr. Chandler's classroom. RT 1425-26. Attorney Madden reasonably could have chosen not to impeach Annie Doe (who had been called as a defense witness) about the claimed presence of a dog in the classroom because the dog's presence was unimportant. Defense counsel reasonably could have chosen not to ask Annie Doe about text messages because there was evidence that Mr. Chandler's phone did not show text messages from her. Fifth, Mr. Chandler claims that counsel failed to raise a Brady claim based on the prosecutor's disclosure a month before trial of a police report made by Annie Doe. As explained in section C.1 below, there was no merit to a Brady claim because the disclosure of the report a month before trial gave the defense ample time to make use of the report. Not making the meritless motion was not ineffective assistance. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (trial counsel not ineffective for failing to file a meritless motion); Rupe, 93 F.3d at 1445 ("the failure to take a futile action can never be deficient performance."). Sixth, Mr. Chandler claims that counsel failed to object to or make a statement about the restitution fine. But Mr. Chandler does not show what that statement/objection should have been, or why it would have made any difference to the outcome. Seventh, Mr. Chandler contends that counsel failed to impeach Jane Doe IV's prior inconsistent statements. He errs. Dr. Lynn Doe was questioned about Jane Doe IV's prior statements and the inconsistencies between those statements and the statements she made to Dr. Lynn Doe. RT 866-869. Mr. Chandler also fails to show that there was a reasonable probability of a different outcome if counsel had conducted further impeachment of Jane Doe IV with her prior inconsistent statements. The California Supreme Court reasonably could have rejected each of these claims on both Strickland prongs. Mr. Chandler is not entitled to the writ on any of these claims of ineffective assistance of counsel.

4. Counsel's Failure To Allow Mr. Chandler To Testify

Mr. Chandler argues that trial counsel was ineffective in that he failed to prepare Mr. Chandler to testify, which he alleges led him to waive his right to testify. Docket No. 1 at 47.

The trial court informed Mr. Chandler twice on the record that it was his decision whether or not to testify. After the defense finished with its other witnesses, the court stated out of the presence of the jury that Mr. Chandler was the only remaining potential witness. The court explained:

RT 1537. Mr. Chandler responded affirmatively. RT 1538. The trial court then allowed Mr. Chandler a long weekend to think about the decision. RT 1538-39. Four days later, the court stated that defense counsel had represented that Mr. Chandler decided not to testify. Mr. Chandler responded that that was correct. RT 1545. The court asked, "So it's your decision not to testify at this time?" Mr. Chandler responded, "Yes." RT 1545.

Mr. Chandler first presented his claim that counsel was ineffective in leading him not to testify in his petition for writ of habeas corpus filed in the California Supreme Court. Docket No. 9-8 at 253. The California Supreme Court rejected the claim without discussion. Docket No. 9-8 at 294.

Because the state court denied the federal constitutional claim on the merits without explanation, 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.

A criminal defendant has a fundamental right to testify in his own behalf. See Rock v. Arkansas, 483 U.S. 44, 51-53 (1987). The right that "stems from several provisions of the Constitution, including the Fourteenth Amendment's Due Process Clause, the Sixth Amendment's Compulsory Process Clause, and the Fifth Amendment's privilege against self-incrimination." United States v. Pino-Noriega, 189 F.3d 1089, 1094 (9th Cir. 1999). Waiver of the right 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. See United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993). A defendant who wants to reject his attorney's advice and take the stand may do so by insisting on testifying, speaking to the court or discharging his lawyer. See id.

The Strickland standard applies to a claim that an attorney provided ineffective assistance by dissuading a defendant from testifying. See Matylinsk, 577 F.3d at 1097; Medley v. Runnels, 506 F.3d 857, 861 (9th Cir. 2007).

The record shows that Mr. Chandler was aware of his right to testify during trial and affirmatively chose not to testify. The question is whether counsel was ineffective in not preparing him to testify, which allegedly led Mr. Chandler to choose not to testify.

The California Supreme Court reasonably could have determined that Mr. Chandler's claim failed on the deficient performance prong under Strickland. First, the California Supreme Court could have determined that it was a reasonable tactical decision for counsel to recommend against testifying because Mr. Chandler was subject to impeachment with his prior criminal conviction. The trial court earlier had ruled that Mr. Chandler could be impeached with his misdemeanor attempted burglary conviction if he testified. See RT 405, 408. "[T]he decision not to place [a defendant] on the stand in light of his prior criminal history is a judgment call of trial counsel which seldom, if ever, will support a challenge of ineffective assistance of counsel." Jones v. Cain, 227 F.3d 228, 231 (5th Cir. 2000); see also Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000) (Dows' three prior convictions gave counsel a "very good reason for suggesting that Dows not testify"). Second, the California Supreme Court could have determined that it was a reasonable tactical decision to recommend against testifying because Mr. Chandler's physical appearance or demeanor caused concern for counsel. According to Mr. Chandler, when he asked counsel to prepare him to testify, counsel "told me it didn't matter, that if I looked nervous or showed signs of sweating the jury would think I was lying and I would go away for life. I left extremely upset and angry." Docket No. 9-8 at 266. Mr. Chandler being "extremely upset and angry" at the negative news from counsel reinforces the reasonableness of counsel's concern about his demeanor. Defense counsel reasonably could have wanted to prevent the jury from seeing Mr. Chandler becoming upset and angry, or sweating or looking nervous during a cross-examination.

The California Supreme Court also reasonably could have determined that Mr. Chandler's claim failed on the Strickland prejudice prong. Mr. Chandler fails to specify what the preparation would have consisted of and accomplished for his testimony. He also completely fails to describe the substance of his intended testimony so as to show that his testimony would have had any impact on the result of the trial.3

Mr. Chandler has not shown that the California Supreme Court's rejection of his claim that counsel failed to prepare him to testify amounted to ineffective assistance of counsel was contrary to, or an unreasonable application of, clearly established Supreme Court authority. He is not entitled to the writ on this claim.

B. Claim of Denial Of Assistance Of Counsel

Mr. Chandler contends that his Sixth Amendment right to counsel was violated because he asked for an attorney at the police station, his attorney was denied access to him at the police station, and the police did not tell Mr. Chandler that his attorney was at the police station while they questioned him.4

Mr. Chandler provides the following account of his initial arrest: On January 9, 2012, Mr. Chandler was arrested at his home and taken to the San Jose Police Department, where he was put in an interview room and handcuffed to a desk. He was "admonished verbally of his rights," although he did not sign any form. Docket No. 1 at 56. "When asked if [he] wish[ed] to have an attorney, [Mr. Chandler] answered by saying, `Okay . . . I think . . . my Dad is a police officer, he said to do that.'" Docket No. 1 at 56 (ellipses in original). Detective Pierce, who was conducting the interrogation, "made no effort to clarify what [Mr. Chandler] had responded to with regards to the right to an attorney" and began questioning him. Id. Unbeknownst to Mr. Chandler, attorney Chris Schumb (who had been hired by Mr. Chandler's wife) arrived at the police station and requested to see Mr. Chandler, but was not allowed to see Mr. Chandler. About ninety minutes later, Mr. Schumb sent a fax to the police department demanding access to Mr. Chandler, at which point Mr. Chandler was released from custody. Id. at 57-58.

Mr. Chandler was formally charged a few days later in a felony complaint that was filed on January 13, 2012. CT 518.

Mr. Chandler did not testify at trial and does not dispute that none of the statements he made to the police were admitted at trial. See Docket No. 13 at 13. Indeed, he contends that the prosecutor "made every effort to make sure that the defendant's arrest and interrogation, on January 9, 2012, would not be discussed in front of the jury." Docket No. 1 at 64.

Mr. Chandler first presented his Sixth Amendment claim in a petition for writ of habeas corpus to the California Supreme Court. That court denied relief on the claim without discussion.

Because the state court denied the federal constitutional claim on the merits without explanation, 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 Sixth Amendment right to counsel attaches "only at or after the time that adversary judicial proceedings have been initiated against [a defendant]." Kirby v. Illinois, 406 U.S. 682, 688 (1972). Kirby "forecloses application of the Sixth Amendment to events before the initiation of adversary criminal proceedings." United States v. Ash, 413 U.S. 300, 303 n.3 (1973). Adversary judicial proceedings are initiated by way of formal charge, preliminary hearing, indictment, information, or arraignment. See United States v. Gouveia, 467 U.S. 180, 188 (1984); Brewer v. Williams, 430 U.S. 387, 398 (1977). In Gouveia, the Supreme Court observed that it had "never held that the right to counsel attaches at the time of arrest." 467 U.S. at 190. The rule has not changed. See generally Rothgery v. Gillespie County, 554 U.S. 191, 198 (2008) ("We have, for purposes of the right to counsel, pegged commencement to the `initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.'").

A suspect's Sixth Amendment rights are not violated by the failure of the police to let his attorney see him during an interrogation that takes place before adversary criminal proceedings have begun. See Moran v. Burbine, 475 U.S. 412, 429 (1986).5 Moran held that the failure of the police to inform the suspect of the attorney's efforts to reach him did not taint the validity of the suspect's waiver of his Miranda rights because events "occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right." Moran, 475 U.S. at 422. Moran also rejected the defendant's argument that the Sixth Amendment required exclusion of his confession. Id. at 428-30. The Supreme Court explained that there simply was no Sixth Amendment right to counsel at the interrogation that followed an arrest but preceded the formal charging of the defendant: "[t]he difficulty for [defendant] is that the interrogation sessions that yielded the inculpatory statements took place before the initiation of `adversary judicial proceedings.'" Moran, 475 U.S. at 428 (citation omitted).

Here, the California Supreme Court's silent rejection of Mr. Chandler's claim was not contrary to, or an unreasonable application of clearly established Supreme Court precedent because there was no Sixth Amendment violation. The adversary judicial proceedings did not commence against Mr. Chandler until the felony complaint was filed on January 13, 2012, four days after the arrest and interrogation occurred on January 9, 2012. The California Supreme Court reasonably could have relied on Kirby and Moran to conclude that no Sixth Amendment right to counsel had attached because he was interrogated on the day of his arrest, before adversary judicial proceedings were initiated against him. See Anderson v. Alameida, 397 F.3d 1175, 1180 (9th Cir. 2005) (no right to counsel attaches at arrest). The California Supreme Court also reasonably could have relied on Moran — which held no Sixth Amendment violation under similar circumstances — to conclude that the failure of the police to allow Mr. Chandler's attorney to see him before or during the interrogation did not violate Mr. Chandler's Sixth Amendment right to counsel because the events took place at a time when the Sixth Amendment right to counsel had not yet attached. See Moran, 475 U.S. at 428.

Mr. Chandler does not assert a claim under Miranda,6 and with good reason: none of the statements he made to the police were admitted against him at trial. Miranda v. Arizona, 384 U.S. 436, 479 (1966), requires that a suspect be given certain warnings and must waive those warnings before he may be subjected to a custodial interrogation, and further holds that, "unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him." Id. at 479; see also Oregon v. Elstad, 470 U.S. 298, 306 (1985) (referring to the "Miranda exclusionary rule"). Although statements obtained in violation of Miranda must be excluded in the prosecution's case-in-chief at a later trial, they may be used to impeach the credibility of a testifying defendant. See Harris v. New York, 401 U.S. 222, 225 (1971); Jackson v. Giurbino, 364 F.3d 1002, 1009-10 (9th Cir. 2004). Miranda goes no further than requiring that the defendant's statements to police be excluded at trial. See, e.g., United States v. Patane, 542 U.S. 630, 634 (2004) (failure to give Miranda warnings does not require suppression of the physical fruits of the suspect's unwarned but voluntary statements "[b]ecause the Miranda rule protects again violations of the Self-Incrimination Clause, which, in turn, is not implicated by the introduction at trial of physical evidence resulting from voluntary statements."); Michigan v. Tucker, 417 U.S. 433, 450 (1974) (where Miranda warnings were deficient in that they did not advise suspect he had the right to free counsel if he could not afford to hire counsel, and his statements were not admitted at trial, the use of a witness discovered as a result of his statement to police did not violate Fifth, Sixth or Fourteenth Amendment).7

A Supreme Court plurality observed that, even when statements are obtained in violation of a defendant's Miranda rights, "it is not until their use in a criminal case that a violation of the Self-Incrimination Clause occurs." Chavez v. Martinez, 538 U.S. 760, 767 (2003). The Supreme Court explained that rules, such as Miranda, "designed to safeguard a constitutional right . . . do not extend the scope of the constitutional right itself." Id. at 772; see, e.g., id. (officer's failure to read Miranda warnings did not violate § 1983 plaintiff's constitutional rights and could not be grounds for a § 1983 claim because the statements were never used at a trial). The Miranda line of cases would not help Mr. Chandler because, even if he invoked his right to counsel under Miranda, his statement was not admitted as evidence at trial. The California Supreme Court reasonably could have concluded that the Miranda line of cases offered no relief to Mr. Chandler, given that Mr. Chandler's statement to the police was not introduced into evidence at trial.

The California Supreme Court's rejection of Mr. Chandler's claim of a denial of his right to counsel was not contrary to, or an unreasonable application of clearly established precedent from the U.S. Supreme Court because the criminal proceedings against him had not yet begun, and none of his statements were used against him at trial. He is not entitled to the writ on this claim.

C. Prosecutorial Misconduct Claim

Mr. Chandler asserts that the prosecutor repeatedly engaged in misconduct before and during the presentation of evidence, as well as by making misstatements of law and fact during closing argument. The particular errors alleged will be discussed in detail below.

Mr. Chandler presented his prosecutorial misconduct claim in a petition for writ of habeas corpus to the California Supreme Court. That court denied relief on the claim without discussion.

Because the state court denied the federal constitutional claim on the merits without explanation, 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 appropriate standard of review for a prosecutorial misconduct claim in a federal habeas corpus action is the narrow one of due process and not the broad exercise of supervisory power. Darden v. Wainwright, 477 U.S. 168, 181 (1986) ("it `is not enough that the prosecutors' remarks were undesirable or even universally condemned'"); 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.") Under Darden, the inquiry is whether the prosecutor's behavior or remarks were improper and, if so, whether they infected the trial with unfairness. Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005). The "Darden standard is a very general one, leaving courts `more leeway . . . in reaching outcomes in case-by-case determinations.'" Parker v. Matthews, 567 U.S. 37, 48 (2012) (omission in original) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

1. Alleged Misconduct Before And During Presentation Of Evidence At Trial

Mr. Chandler faults the prosecutor for not disclosing to the defense until May 2013 a police report that Annie Doe (who was the mother of a student) had filed with the San Jose Police Department in January 2012 in which she accused him of sexually assaulting her. The report was disclosed to the defense more than a month before the trial took place, as the trial did not begin until July 1, 2013. CT 1081. In Brady v. Maryland, 373 U.S. 83 (1963), 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. "[T]here is no Brady violation so long as the exculpatory or impeaching evidence is disclosed at a time when it still has value." United States v. Houston, 648 F.3d 806, 813 (9th Cir. 2011); see, e.g., id. (rejecting Brady claim where some evidence was disclosed "well in advance of trial" and other evidence was turned over during trial while cross-examination was ongoing); Reiger v. Christensen, 789 F.2d 1425, 1432 (9th Cir. 1986) (disclosure of fingerprint test results at pretrial conference did not violate Brady); United States v. Vgeri, 51 F.3d 876, 880 (9th Cir. 1995) (midtrial disclosure of newly learned evidence did not violate Brady because the disclosure occurred "at a time when it was of value" to defendant). Mr. Chandler fails to identify any Supreme Court authority for the proposition that disclosing a document more than a month before trial is any sort of misconduct. The California Supreme Court reasonably could have concluded that the disclosure of the impeachment evidence more than a month before trial began did not amount to prosecutorial misconduct, particularly given the complete absence of any showing that disclosure left insufficient time for the defense to make use of the report.

Mr. Chandler contends that the prosecutor engaged in misconduct by filing a motion to exclude evidence of the pork rinds that were found in Mr. Chandler's desk drawer. The defense wanted to introduce the pork rinds because they allegedly were consistent with what at least one of the girls described as having been put in her mouth. The trial court excluded the evidence. See Docket No. 1 at 63-64. (Later in this order, the Court discusses and rejects Mr. Chandler's separate argument that the exclusion of the pork rinds evidence violated his right to due process. See section E, below.) The U.S. Supreme Court has never held that it is prosecutorial misconduct to make a motion to exclude arguably inadmissible evidence.

Mr. Chandler faults the prosecutor for not calling as witnesses three teachers who allegedly would have said there was a "plausible reason to have a child blindfolded and something being placed in [her] mouth." Docket No. 1 at 64. But the prosecutor had no duty to call witnesses favorable to the defense, if such evidence existed and would have been favorable to the defense. Moreover, Mr. Chandler does not identify these teachers or provide any evidence that they would have testified that there was a plausible reason to blindfold a child and put something in her mouth when that child was alone with the teacher. The U.S. Supreme Court has never held that the prosecutor must present the defense case, if it exists.

Mr. Chandler complains that the prosecutor did not include in the prosecution case three additional students who allegedly had been in the classroom alone, blindfolded, and had things put in their mouths. Docket No. 1 at 70. The prosecutor had no duty to prosecute cases that she may have thought were weaker or that did not involve a crime.

Mr. Chandler also faults the prosecutor for not introducing police reports containing statements allegedly obtained in violation of Mr. Chandler's constitutional rights. He does not explain how the prosecutor's decision to not present the allegedly tainted evidence would itself violate his constitutional rights. The unused evidence is not shown to have had any effect on the jury.

The California Supreme Court's rejection of these claims of prosecutorial misconduct before and during the presentation of the evidence was not contrary to, or an unreasonable application of, any clearly established precedent from the U.S. Supreme Court. The California Supreme Court reasonably could have determined that these events did not make the trial "fundamentally unfair," Darden, 477 U.S. at 181.

2. Allegedly Legally Incorrect Comments During Closing Argument

a. Comment On Defense Evidence

In her rebuttal closing argument, the prosecutor argued that no boy testified that Mr. Chandler had put something in the boy's mouth while alone with the boy, and that eight boys who did testify each testified that he never had anything put in his mouth by Mr. Chandler while alone with Mr. Chandler. RT 1663. The prosecutor then argued that the defense had not produced any evidence to explain what the thing was that had been put in the five girls' mouths:

Mr. Chandler alleges that this argument amounted to an impermissible comment on his decision not to testify.

The self-incrimination clause of the Fifth Amendment "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Griffin v. California, 380 U.S. 609, 615 (1965). Although the prosecutor may not comment about a defendant's failure to testify, the prosecutor may argue about the gaps in the defense case.

United States v. Mende, 43 F.3d 1298, 1301 (9th Cir. 1995) (alteration in original) (citations omitted). "Criticism of defense theories and tactics is a proper subject of closing argument." United States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997). A prosecutor's comment in rebuttal "must be evaluated in light of the defense argument that preceded it." Darden, 477 U.S. at 179.

The defense theory was that the thing that was put in the victims' mouths was not Mr. Chandler's penis. Defense counsel argued that the victims' reports of what had been put in their mouths were influenced by the people to whom the children had talked. See RT 1627. The prosecutor's rebuttal argument was a permissible comment on the failure of the defense to call logical witnesses, such as students, who could explain what the thing was that Mr. Chandler was placing in girls' mouths when they were alone with him. "A prosecutor may, consistent with due process, ask a jury to convict based on the defendant's failure to present evidence supporting the defense theory." Menendez v. Terhune, 422 F.3d 1012, 1034 (9th Cir. 2005). The prosecutor's comments did not improperly call attention to Mr. Chandler's choice not to testify, and the comments did not shift the burden of proof to the defense. The prosecutor's argument also did not misstate the law or the facts. And the argument was preceded by the defense counsel's specific mention that Mr. Chandler had a right not to testify. RT 1623-24.

The trial court's jury instructions also support a determination that the prosecutor's arguments did not render the trial fundamentally unfair. "[A]rguments of counsel generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence, . . . and are likely viewed as the statements of advocates," whereas the latter "are viewed as definitive and binding statements of the law." Boyde v. California, 494 U.S. 370, 384-85 (1990). Here, the trial court instructed the jury that "a defendant has an absolute constitutional right not to testify" and that the jury was not to consider, for any reason, the fact that the defendant did not testify. CT 1430 (CALCRIM No. 355).

The California Supreme Court reasonably could have determined that this argument did not amount to Griffin error or make the trial "fundamentally unfair" and therefore did not violate due process. See Darden, 477 U.S. at 181.

b. Jurors To Use "Common Sense" And Be "Conscience Of The Community"

The prosecutor argued to the jury that the jurors' role was to judge the facts, and then continued:

RT 1606. As she finished her closing argument, the prosecutor stated: "You are not only the judges of the facts, you are the conscience of our community. You are the people who get to say, We condemn you. We as a society will not tolerate you." RT 1619.

Mr. Chandler argues that telling the jurors to use their "common sense" and that they were the "conscience of our community" were unduly emotional arguments and did not tell the jurors of the need to base the verdict on the evidence presented in court. Docket No. 1 at 63.

"It is expected that jurors will bring their life experiences to bear on the facts of a case." Hard v. Burlington N. Ry. Co., 870 F.2d 1454, 1462 (9th Cir. 1989); see also Head v. Hargrave, 105 U.S. 45, 49 (1881) ("far from laying aside their own general knowledge and ideas, the jury should have applied that knowledge and those ideas to the matters of fact in evidence in determining the weight to be given to the opinions expressed; and it was only in that way that they could arrive at a just conclusion."); United States v. Redlightning, 624 F.3d 1090, 1123 (9th Cir. 2010) ("While empirical evidence has shown that at times innocent people have confessed to crimes that they did not commit, a prosecutor should not be prevented from arguing in closing remarks that common sense tells us that people do not confess to crimes they did not commit."). The phrase "common sense" also is used in the Ninth Circuit's model instruction on reasonable doubt, which suggests it is not inflammatory language and does not draw away from the jury's duty to evaluate the evidence. See Ninth Cir. Manual of Model Jury Instructions § 3.5 ("A reasonable doubt is doubt based upon reason and common sense and is not based purely on speculation.").

Here, calling upon the jurors to use their common sense was not inflammatory and did not call on the jury to overlook the evidence. Additionally, the judge instructed the jury: "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." CT 1411. "[A]rguments of counsel generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence . . . and are likely viewed as the statements of advocates," whereas the latter "are viewed as definitive and binding statements of the law." Boyde v. California, 494 U.S. 370, 384-85 (1990). Mr. Chandler 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).

The prosecutor's statement that the jury was the conscience of the community also did not amount to misconduct. "[T]he general rule is that appeals for the jury to act as a conscience of the community are not impermissible, unless specifically designed to inflame the jury." United States v. Lester, 749 F.2d 1288, 1301 (9th Cir. 1984). The prosecutor's argument that the jury was the conscience of the community came at the end of a long discussion of the particular incidents of lewd touching and during the discussion in which the prosecutor argued that Mr. Chandler had selected particularly vulnerable children. The prosecutor's statement that the jury was the conscience of the community did not obviously inflame the jury, suggest that the jury was to base its decision on something other than the evidence, or pressure the jury to convict to keep the community safe from Mr. Chandler.

The jury instructions included instruction that the jury was to "decide what happened, based only on the evidence that has been presented to you in this trial," and was not to "let bias, sympathy, prejudice, or public opinion influence your decision," CT 1411. The jury also was instructed that "[i]n deciding whether testimony is true and accurate, use your common sense and experience," CT 1421, and "[i]f you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions," CT 1411.

The California Supreme Court reasonably could have determined that the argument did not make the trial "fundamentally unfair" and therefore did not violate due process. See Darden, 477 U.S. at 181.

c. Argument About The Touching Necessary For The Offense

The prosecutor argued that a lewd and lascivious act "is the touching of any part of a child's body — bare skin or through the clothing does not matter — with the intent of arousing, appealing to, or gratifying the lusts, passions, or sexual desires of himself or the child." RT 1606-07. The prosecutor explained that the jury had to unanimously agree as to the act. RT 1607. The prosecutor continued: "Any lascivious contact is sufficient. Anything. Touching an arm, touching a leg, touching a foot, if it is done with lascivious intent, with sexual intent, the crime has been proven." RT 1607.

Mr. Chandler argues that this argument was improper because it made it unnecessary for the jury "to agree that anything actually happened in the classroom, or that anything was placed in the victim's mouths of a sexual nature, they just have to believe there was some kind of touching and according to the prosecutor that will constitute the crime of lewd and lascivious behavior." Docket No. 1 at 67.

Contrary to Mr. Chandler's assertion, the prosecutor did not misstate the law. Her argument was consistent with the elements of the offense as stated in the jury instructions. The jury was instructed that, to prove an offense under California Penal Code § 288(a), the People had to prove: (1) "The defendant willfully touched any part of a child's body either on the bare skin or through the clothing" or "willfully caused a child to touch the defendant's body, either on the bare skin or through the clothing"; (2) "The defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child"; and (3) "The child was under the age of 14 years at the time of the act." CT 1434. Although the prosecution's theory was that Mr. Chandler had each victim orally copulate him, the § 288(a) offense did not actually require oral copulation for completion of the offense. More importantly, contrary to Mr. Chandler's suggestion, the prosecutor did not suggest that innocent touching would suffice: the prosecutor specifically stated that the touching had to be done "with the intent of arousing, appealing to, or gratifying the lusts, passions, or sexual desires of himself or the child." RT 1606-07; see also RT 1607 (touching "done with lascivious intent, with sexual intent").

Mr. Chandler also errs in his assertion that the argument essentially told jurors they did not agree on what happened. The prosecutor stated that the jury had to "unanimously agree that one act occurred as to each victim," and referred the jurors to the "unanimity instruction. It's in your packet." RT 1607.

The California Supreme Court reasonably could have determined that this argument did not make the trial "fundamentally unfair" and therefore did not violate due process. See Darden, 477 U.S. at 181.

3. Alleged Misstatements Of The Evidence During Closing Argument

a. The Locked Door

Mr. Chandler alleges that the prosecutor misstated the evidence when he argued that the children were touched "in a locked classroom." Docket No. 1 at 63. According to Mr. Chandler, "there was never any evidence that the classroom was locked." Id.

The prosecutor argued that Mr. Chandler's behavior was consistent with a child molester's normal desire to avoid getting caught in that he locked the door and, for plausible deniability, he had created a story (i.e., that the events in the classroom when he was alone with the child were an extension of a blindfold game that was played during a classroom session with the whole class present). The prosecutor argued: "He's in the classroom with the door locked to give him access to them, he blindfolds them so they can't see and describe what's happening to them, and he desensitized them by exposing them to a blindfold in a neutral setting; right?. . . This is someone who's actually planned that far ahead and has desensitized these children to this happening so that they won't cry, they couldn't scream out, they won't tell anybody. They don't know they have anything to tell." RT 1661-62 (emphasis added).

Although Mr. Chandler is correct that there was no direct evidence that the door to his classroom was locked while he was inside the classroom alone with the blindfolded victims, the prosecutor's comment amounted to a reasonable inference from the evidence. "The prosecutor may argue reasonable inferences from the evidence presented." Menendez v. Terhune, 422 F.3d 1012, 1037 (9th Cir. 2005); United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993) ("prosecutors must have reasonable latitude to fashion closing argument, and thus can argue reasonable inference based on the evidence."). There was evidence that the door was at least always closed when Mr. Chandler was alone in the classroom putting something in the mouth of a blindfolded victim. Jane Does II, IV and V testified the door was closed when the incidents occurred. RT 623, 809, 1085. Jane Doe I said in her recorded statement that she could hear the sound of keys when he put something in her mouth, CT 1198, 1207, and Jane Doe III described a game in which Mr. Chandler locked the door to his classroom, CT 1258. There also was testimony by other witnesses who had observed Mr. Chandler in a locked classroom, albeit no evidence that a child was inside with him at the time the door was locked. Teacher Mary Montgomery once observed a student knocking on the door to Mr. Chandler's classroom and unable to open the locked door when children were standing outside the classroom, apparently waiting for Mr. Chandler. RT 876-77. Mr. Chandler eventually opened the door and emerged from the classroom alone. RT 876. An assistant principal testified that Mr. Chandler was in his classroom with the door closed and locked early on the morning of January 10, 2012, the day Mr. Chandler was put on administrative leave. RT 897-98.

The California Supreme Court reasonably could have determined that the prosecutor's argument that the lewd conduct took place while the classroom door was locked was a reasonable inference drawn from the evidence presented at trial. A prosecutor "is granted reasonable latitude to fashion closing arguments," and is "free to argue reasonable inferences from the evidence." United States v. Gray, 876 F.2d 1411, 1417 (9th Cir. 1989). Moreover, if the jury did not find the door was in fact locked during these incidents, they were free to disregard the prosecutor's argument. The California Supreme Court reasonably could have determined that this argument did not make the trial "fundamentally unfair" and therefore did not violate due process. See Darden, 477 U.S. at 181.

b. The Cleaning Supplies And A Locked Door

Mr. Chandler contends that the prosecutor engaged in misconduct by arguing that Mr. Chandler was locked in his classroom with cleaning supplies because there was no evidence that the cleaning supplies had been recently used.

The prosecutor argued that, on the day after Jane Doe II's mother reported him to the police, "Mr. Chandler is in his classroom at least 45 minutes, probably an hour earlier than he's even been there before, in a locked classroom with cleaning supplies." RT 1612.

Contrary to Mr. Chandler's suggestion, the prosecutor did not argue that Mr. Chandler had been cleaning his classroom that morning. Even if the prosecutor was suggesting that Mr. Chandler did use the cleaning supplies, or was intending to use the cleaning supplies, it was a permissible argument about a reasonable inference to be drawn from the evidence presented at trial. The incident occurred the morning after the police investigation began. Assistant principal Lara testified that Mr. Chandler was in his classroom with the door locked at 6:45 a.m., and that Mr. Chandler took cleaning supplies out of his classroom when told that he was being placed on administrative leave. RT 895, 898-99. Mr. Chandler usually did not arrive at school until about 7:30 a.m., according to another teacher. RT 1226-28.

The California Supreme Court reasonably could have determined that the prosecutor's argument at most suggested a reasonable inference to be drawn from the evidence presented at trial. The California Supreme Court reasonably could have determined that this argument did not make the trial "fundamentally unfair" and therefore did not violate due process. See Darden, 477 U.S. at 181.

c. Whether Mr. Chandler Knew He Was Under Investigation

Mr. Chandler argues that the prosecutor improperly "allude[d] to the point that [Mr. Chandler] knew he was being investigated for child molestation and was a desperate man to return to the classroom." Docket No. 1 at 64. He does not identify where in the record this statement may be found. He argues that there was no evidence to prove that he had been advised by detective Pierce of the circumstances of the investigation. Id.

The evidence at trial included detective Pierce's statement that he had spoken to Mr. Chandler on January 9, 2012, at the police department and "told him that he should not return to school and he should contact his principal in the morning and seek further instruction." RT 1276. There was evidence that the investigation was underway on January 9, 2012. RT 1286-87. Detective Pierce testified that the authorities had interviewed 77 students, including interviewing about 40 of them on the first day of the investigation. RT 713. Jane Doe II's mother testified that she and Jane Doe II were interviewed the day she first notified the police. RT 572. There also was evidence that Mr. Chandler's booking photograph was on the news as of January 10, 2012, RT 1285-87, and that assistant principal Lara arrived at school on the morning of January 10, 2012 expecting the news media to be there because of the incidents. RT 894. It would be highly unlikely that a large-scale police investigation at a grade school would not be the talk of the school community of which Mr. Chandler was a part. A reasonable inference from the record was that Mr. Chandler was aware that the police were investigating child molestation claims against him when Detective Pierce told him at the police station not to return to the campus.

The California Supreme Court reasonably could have determined that the prosecutor's arguments suggested a reasonable inference that could be drawn from the evidence presented at trial. The California Supreme Court reasonably could have determined that this argument did not make the trial "fundamentally unfair" and therefore did not violate due process. See Darden, 477 U.S. at 181.

d. Comment On Mr. Chandler's Sexual Arousal And Interests

Mr. Chandler argues that the prosecutor used Mr. Chandler's sexual comments to Hilda Keller (a fellow teacher) and his sexual liaison with Annie Doe (a student's mother) to "paint a picture of deviant behavior" that implied that he molested the children. Docket No. 1 at 65.

The argument to which this refers is the following: The prosecutor noted that Hilda Keller (a fellow teacher) had testified that Mr. Chandler was overly sexual toward her, and had asked to take photographs of and massage her feet, making her feel highly uncomfortable. RT 1612. The prosecutor then mentioned Annie Doe's testimony about her sexual encounters with Mr. Chandler.

The prosecutor's comment that contrasted Mr. Chandler's sexual arousal in his classroom with his lack of arousal while not in the classroom was a reasonable inference from the evidence. Annie Doe had testified that Mr. Chandler was unable to perform sexually when they were at her home, but quickly ejaculated when they had sex in his classroom on another occasion. RT 1407-08, 1412, 1420. Though it was an unpleasant inference — that he was sexually aroused by the classroom setting — it was not unreasonable for the state court to determine that it was a reasonable inference drawn from the evidence.

The prosecutor's comment about Mr. Chandler's interest in Ms. Keller's feet was a permissible comment on the evidence, as it correctly reflected her testimony. It was not unreasonable for the California Supreme Court to determine that the statement urged a reasonable inference that Mr. Chandler's sexualized interest in Ms. Keller's feet supported an inference that his touching an object to Jane Doe I's feet was done with a lascivious intent. Jane Doe I had told her mother that Mr. Chandler rubbed something on her feet while she was blindfolded in the classroom alone with him. RT 677.

The California Supreme Court reasonably could have determined that the prosecutor's arguments suggested reasonable inferences that could be drawn from the evidence presented at trial. The California Supreme Court reasonably could have determined that this argument did not make the trial "fundamentally unfair" and therefore did not violate due process. See Darden, 477 U.S. at 181.

e. Mr. Chandler Waited Until Principal Left To Resume Molestations

Mr. Chandler argues that it was improper for the prosecutor to suggest that he waited to resume his misconduct until the principal who had cautioned him went on maternity leave.

The prosecutor's comment that Mr. Chandler waited until the principal went on maternity leave to resume his inappropriate contact with the girls also was a reasonable inference from the evidence. The evidence showed that Jane Doe I made a report of inappropriate touching in mid-October 2011, when principal Vijayendran was still at the school. RT 723-25. Principal Vijayendran told Mr. Chandler not to have students alone and blindfolded in the classroom with the door closed. The next reports of misconduct were made in early January 2012, shortly after principal Vijayendran had gone on maternity leave. See RT 709-711, 892.

The California Supreme Court reasonably could have determined that the prosecutor's argument suggested a reasonable inference that could be drawn from the evidence presented at trial. The California Supreme Court reasonably could have determined that this argument did not make the trial "fundamentally unfair" and therefore did not violate due process. See Darden, 477 U.S. at 181.

f. Statement That Jane Doe III's Pants Were Down

The prosecutor argued: "He told her to lick it. It felt nasty. It felt like skin. She tried to peek and saw skin with hair around it. Her pants were down. The drink came out of the thing while the thing was still in her mouth. It just tasted bad." RT 1618 (emphasis added).

Mr. Chandler argues that the prosecutor misstated the testimony when she said that Jane Doe III's "pants were down." Docket No. 1 at 68.

Respondent agrees that the prosecutor misstated the record. According to respondent, Jane Doe III had said that it was Mr. Chandler's pants rather than her pants that were pulled down, and that she had seen him pulling up his pants when she took off the blindfold. CT 1246, 1252-55, 1268.

The California Supreme Court reasonably could have determined that the prosecutor's misstatement did not render the trial fundamentally unfair. A misstatement of fact in the prosecutor's closing argument will not violate due process if it is minor or ambiguous and the jury has been instructed that arguments by attorneys are not evidence. Trilo v. Biter, 769 F.3d 995, 999-1000 (9th Cir. 2014). Although standing alone, the statement that a child's pants were down may look inflammatory, the statement did not stand out in the context of the evidence and surrounding argument about the events that occurred in Mr. Chandler's classroom while the girls were alone with him, as each had testified that he put something in their mouth (that the prosecutor argued was his penis). The prosecutor made the misstatement in the course of arguing how Mr. Chandler had committed a lewd act on Jane Doe III, and the lewd act involved his exposed penis being put in her mouth rather than making any contact with Jane Doe III's genitals, thus making her pants less relevant than his pants. Mr. Chandler also was not charged with any crime that required the touching of her genitals or that depended on her pants being down. Of course, neither his pants nor her pants being down looked good for the defense.

Additionally, the context of the statement suggests the prosecutor simply used the wrong pronoun and meant to argue that Mr. Chandler's pants were down: the preceding sentence referred to Jane Doe III's observing his skin with hair around it. The prosecutor did not repeat the mistake. There was no specific curative instruction because there was no objection from the defense. However, the jury was given a general jury instruction that "[n]othing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence." CT 1418.

The California Supreme Court reasonably could have determined that this small mistake did not make the trial "fundamentally unfair" and therefore did not violate due process. See Darden, 477 U.S. at 181.

g. Comments About Defense Expert Witness

Mr. Chandler argues that the prosecutor engaged in misconduct by disparaging the defense expert with argument that (1) challenged the correctness of the expert witness' statement that a victim described the thing in her mouth as tasting like strawberry by stating that she (the prosecutor) did not find the word "strawberry" after looking through the transcript and witness statements; and (2) attacked the amount of money the expert witness was paid for his testimony. Docket No. 1 at 70. Mr. Chandler argues that the prosecutor's misstatement of the facts "may have caused jury members to give less or no weight to the expert witness testimony." Id.

The prosecutor discussed at length the testimony of the defense expert, Dr. O'Donohue. At one point, the prosecutor criticized the expert for saying that Jane Doe II had said the thing in her mouth tasted like strawberry. The prosecutor said:

The prosecutor mentioned two more times that the defense expert had been paid $20,000. See, e.g., RT 1653 ("I want you to remember and start with the premise that this man was paid $20,000 to come and talk to you; 20K. That's an insane amount of money to give an opinion that lasted, what, three hours?"), 1662 (defense counsel "rel[ied] on the defense expert's report. For $20,000, we got to figure he could come up with something").

The prosecutor's closing argument about the word "strawberry" harkened back to a particular line of questioning of Dr. O'Donohue. At trial, Dr. O'Donohue had testified that Jane Doe II's statement about the taste of the item Mr. Chandler put in her mouth was an inconsistency in her story that made the story less believable. RT 1463. According to Dr. O'Donohue, Jane Doe II said in her first interview that the thing tasted kind of like strawberry; said in her second interview that it did not taste like strawberry; and did not mention anything about the taste in her preliminary examination testimony. RT 1463; see RT 1497. On cross-examination, the prosecutor challenged this testimony and told Dr. O'Donohue that she (the prosecutor) could not find any statement by Jane Doe II in the second interview that the item did not taste like strawberry. RT 1504-05. Dr. O'Donohue was unable to point to the place in the transcript where the word "strawberry" was used.

Although the prosecutor may not have seen the reference in her review of the transcripts, the word "strawberry" did appear in the transcript of Jane Doe II's interview. Specifically, detective Pierce had asked Jane Doe II whether there was a taste like "strawberry or anything like that," and Jane Doe II shook her head from side to side in response. See CT 1128; see also CT 1124.8 The prosecutor may have honestly missed detective Pierce's reference to the word "strawberry" during Jane Doe II's interview, so it is possible that the prosecutor did not misrepresent the facts at all — as the prosecutor had only asserted she did not find the reference when she looked for it. Even if the prosecutor had seen the reference to strawberry and ignored it, the prosecutor stating that the word "strawberry" was not present was an isolated misstatement of the record. That the use of the word "strawberry" was a minor point is suggested by the fact that defense counsel did not object during the cross-examination or conduct any redirect examination of Dr. O'Donohue to show where the reference could be found and did not object during closing argument. Moreover, the written transcript of Jane Doe II's recorded interview was sent to the jury deliberation room, where jurors could have reviewed it to see if the word "strawberry" was present. See RT 1595 (exhibits would be sent to the deliberation room). The California Supreme Court reasonably could have determined that the prosecutor's assertion that she could not find the word "strawberry" in Jane Doe II's interview transcript did not render Mr. Chandler's trial fundamentally unfair because it was a minor point and the jury was instructed that arguments by the attorneys were not evidence.

The prosecutor's references to the amount of money the expert had been paid were permissible. Both the prosecution and defense are allowed to suggest that an expert witness is biased because he received payment for his testimony. See United States v. Preciado-Gomez, 529 F.2d 935, 942 (9th Cir. 1976) ("The existence of bias or prejudice of one who has expressed an expert opinion can always be examined into on cross-examination of such expert"); Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 6:78 (3d ed. 2009) (noting that impeaching an expert by inquiring about payment for their testimony is a common and permissible tactic). California Evidence Code § 722(b) specifically allows inquiry into the area of an expert's compensation: "[t]he compensation and expense paid or to be paid to an expert by any party calling him is a proper subject of inquiry by any adverse party as relevant to the credibility of the witness and the weight of his testimony." The defense expert testified that he had been paid about $20,000 for his work in this case. RT 1494. The prosecutor's comment on the admissible evidence about the expert's fee payment did not amount to misconduct because it sought to draw the inference that the amount of fees received by the expert diminished the expert's credibility. It would not have been an unreasonable application of, or contrary to, clearly established precedent from the U. S. Supreme Court for the California Supreme Court to conclude that the prosecutor's digs about the expert witness' compensation did not render the trial "fundamentally unfair" and therefore did not violate Mr. Chandler's right to due process. See Darden, 477 U.S. at 181.

h. The Drawing

Mr. Chandler argues that the prosecutor engaged in misconduct by arguing that a drawing done by one of the victims appears to be testicles and hair because "[t]here is nothing that resembles those body parts." See Docket No. 1 at 71. The drawing is at Docket No. 9-4 at 9 (augmented CT 4).

In the course of criticizing the testimony of defense expert Dr. O'Donohue, the prosecutor stated: "[Jane Doe III] wasn't asked what she saw under the blindfold. Really? Dr. O'Donohue, were you not provided with the picture that she drew of what appears to be testicles with hair surrounding it?" RT 1654.

The prosecutor's statement sought to draw a reasonable inference from the evidence. Jane Doe III had testified that when she was blindfolded without her glasses, she was able to see below the blindfold and saw something circular. She told her cousin she thought she had seen Mr. Chandler's "weenie." RT 1017. She drew a picture for the police, with lines surrounding the circular thing representing hair. RT 1007-09. The sketch was crudely drawn and was done by a young child who was attempting to draw what she had seen when peeking from under a blindfold. The prosecutor's description of the picture was not an unreasonable inference from the evidence. Moreover, the picture had been shown to the jury earlier in the prosecutor's closing argument (see RT 1616), making it unlikely that the prosecutor's interpretation of the photo would have had much of an impact on the jury. That is, if jurors did not believe the drawing looked like a child's drawing of a penis or testicles, the jurors surely would not have drawn the inference that it was such a drawing. If Mr. Chandler's complaint is that the prosecutor identified the drawing as showing testicles rather than a penis, that would be a distinction without any meaningful difference in the context of this case because either being visible to the student was highly incriminating.

The California Supreme Court reasonably could have determined that the prosecutor's argument suggested a reasonable inference as to what was depicted in the line drawing based on the evidence presented at trial. The California Supreme Court reasonably could have determined that this argument did not make the trial "fundamentally unfair" and therefore did not violate due process. See Darden, 477 U.S. at 181.

i. Semen In The Classroom

Mr. Chandler argues that it was misconduct for the prosecutor to argue that the presence of Mr. Chandler's semen in the classroom supported the view that he had molested the girls. He argues that there was "no evidence to link the sperm in the classroom to oral copulation by these victims," or to show how long the semen had been on the chairs or how it had been deposited on the chairs. Docket No. 1 at 71-72.

The prosecutor argued that Mr. Chandler's semen was found on two chairs in the classroom:

The California Supreme Court reasonably could have determined that the prosecutor's argument suggested a reasonable inference that could be drawn from the evidence presented at trial. A teacher's semen on chairs in his classroom is not a normal thing, as the prosecutor suggested. The presence of Mr. Chandler's semen in his classroom had a tendency to support the victims' testimony (e.g., that the item placed in the victims' mouths was "gooey" and that liquid came out of it) even though there was no direct evidence linking the semen found on the chairs to a particular act of lewd conduct against any of the victims. The California Supreme Court reasonably could have determined that this argument did not make the trial "fundamentally unfair" and therefore did not violate due process. See Darden, 477 U.S. at 181.

j. Argument That A Victim Could Feel Mr. Chandler's Hands

Mr. Chandler argues that the prosecutor incorrectly argued that a victim could feel his hands at the end of the "gooey thing" as he was pushing it in and out of her mouth. Docket No. 1 at 69.

He is wrong. Jane Doe I gave a statement in which she stated that Mr. Chandler's hands were "[i]n the gooey stuff" and that he "was holding it," which she knew because she felt his hand. CT 1209. Jane Doe I also had told the principal that Mr. Chandler had wiggled her body and head back and forth after he put the thing in her mouth. RT 728. The prosecutor's argument was a fair summary of the evidence. The California Supreme Court reasonably could have determined that this argument did not make the trial "fundamentally unfair" and therefore did not violate due process. See Darden, 477 U.S. at 181.

k. Selecting Quiet And Meek Girls

Mr. Chandler argues that the prosecutor engaged in misconduct by arguing that he had selected quiet and meek girls whose parents spoke languages other than English, and that he was a sociopathic deviant. Docket No. 1 at 69-70.

The comment to which this claim refers was at the end of the prosecutor's closing argument, after she had described the evidence for each victim: "Chandler selected his victims very carefully. He chose quiet, meek girls, almost all of whom have parents who speak a language other than English. At least one child who had some special education needs. This is a selection process. This is a methodical, sociopathic deviant who chose children in the most vulnerable condition to inflict this horrific crime on." RT 1619.

The California Supreme Court reasonably could have determined that the prosecutor's argument about selecting vulnerable children suggested a reasonable inference that could be drawn from the evidence. Although the victims' meekness cannot be discerned from the written record, other evidence provided a support for the inference. Jane Doe I spoke Cantonese at home and her mother testified with a Cantonese interpreter. CT 1201; RT 671. Jane Doe III spoke in English and Spanish during her interview with police. See, e.g., CT 1276 . Jane Doe III apparently had "limited capacity," according to defense counsel's argument. RT 1627. The jurors were able to see the victims and some of the parents for themselves during trial, and the jurors could judge the witnesses' meekness and fluency in English. The California Supreme Court reasonably could have determined that the prosecutor's argument did not make the trial "fundamentally unfair" and therefore did not violate due process. See Darden, 477 U.S. at 181.

The California Supreme Court reasonably could have determined also that the argument that Mr. Chandler was a deviant and a sociopath did not make the trial "fundamentally unfair" and therefore did not violate due process. See Darden, 477 U.S. at 181. In Darden, the Supreme Court found that the prosecutor's comments referring to the defendant as an "animal" and stating he should not have been let out of his cell without a leash were offensive and improper, but held that such comments did not amount to a due process violation as they did not render the trial "fundamentally unfair," given the weight of the evidence against defendant and the court's instruction that the attorneys' arguments were not evidence. 477 U.S. at 179-80; see also Turner v. Marshall, 63 F.3d 807, 818 (9th Cir. 1995), overruled on other grounds by Tolbert v. Page, 182 F.3d 677, 685 (9th Cir. 1999) (en banc) (no due process violation arising from prosecutor's comments that perpetrator of crime was a "monster of a human being"). Here, the prosecutor made both comments while discussing what Mr. Chandler had done to the five victims and that he had chosen students less likely to make a fuss about his behavior. Given the context of the statements, neither statement was nearly as inflammatory as the remarks held not to amount to a due process violation in Darden. Additionally, as in Darden, the trial court instructed the jury that the attorneys' arguments were not evidence. CT 1418.

l. "No Plausible Reason" Comment

The prosecutor argued that a teacher, Ms. Catangay, "also gave us another interesting piece of circumstantial evidence. I asked her, As a second grade teacher, with 20 years of experience, can you think of any educational purpose for blindfolding a child in a classroom alone and putting something in their mouth? No. Unequivocally, she said no." RT 1611.

Mr. Chandler contends that this argument was improper because there were three other teachers who had stated otherwise to the police. Docket No. 1 at 44.

The prosecutor's argument was an accurate recitation of Ms. Catangay's testimony. Ms. Catangay had answered "no" when asked whether she had "ever heard of a student being in a classroom blindfolded alone with a teacher while things where [sic] being put in their mouth other than this case?" RT 1237. And Ms. Catangay had answered "no" when asked whether she could "think of any educational purpose that that would serve at all?" RT 1237.

The three other teachers did not testify, have not been identified by Mr. Chandler, and have not been shown to have had an opinion different from that of Ms. Catangay. Mr. Chandler argues that the three teachers would have testified that there was a plausible reason to have a child blindfolded and something being placed in her mouth, but omits the important qualifier that the actions occurred while the student was alone in a classroom with a teacher. He has not shown that those three unidentified teachers would have said there was a plausible educational purpose for a teacher to put something in a blindfolded girl's mouth while alone with her in the classroom. Mr. Chandler has not shown prosecutorial misconduct in this comment, which correctly reflected the state of the evidence presented at trial. The California Supreme Court reasonably could have determined that the argument did not make the trial "fundamentally unfair" and therefore did not violate due process. See Darden, 477 U.S. at 181.

m. The Cell Phone Video

Mr. Chandler argues that it was misconduct for the prosecutor to argue that a video from Mr. Chandler's cell phone showed that he was clearing out his classroom to do something with Jane Doe II because "[t]here is no evidence to support this claim." Docket No. 1 at 69.

During closing argument, the prosecutor showed the jury a video and then, in reference to the video, stated: "Right here, what's he doing? There is little [Jane Doe II] wearing the exact same scarf that she described in a classroom while Mr. Chandler is trying to get rid of the other kids and he's got a camera set up for it. He turns it on as the child walks right into the line of sight, she turns away to sit down, and it is not until other children come into that classroom that that camera goes off. All of which corroborates everything that [Jane Doe II] has told us." RT 1616.

Defense counsel later argued the following about the video:

The video is not in the record before this Court, so this Court's analysis necessarily relies on counsel's closing-argument description of the video. Counsel's comments indicate that the video showed the following in the classroom: Jane Doe II coming into the picture and doing paperwork; other students were running around in view of the camera; Mr. Chandler put his hand down to his crotch area as he turned his back on the student(s); and the filming stopped when other children came into the classroom. On this record, it would not have been unreasonable for the California Supreme Court to determine that the prosecutor's argument drew a reasonable inference from the record, as the video apparently started when Jane Doe II came into the picture, showed Jane Doe II in the same outfit she described in her statement regarding the touching by Mr. Chandler, and showed Mr. Chandler touching his crotch area. Moreover, the jury watched the video immediately before the prosecutor's comment, making it much less likely that the prosecutor's interpretation of the video had much of an impact on the jury if that argument did not correctly reflect what the jurors had just watched. And defense counsel offered a different interpretation of the video for the jurors during his closing argument — arguing that Mr. Chandler's hand motion was not lecherous — for the jury to consider.

The California Supreme Court reasonably could have determined also that the argument did not make the trial "fundamentally unfair" and therefore did not violate due process. See Darden, 477 U.S. at 181.

D. Due Process Claim Based On Exclusion Of Evidence

1. Exclusion Of Mr. Chandler's Offered Explanation After The Principal's Warning

a. Background

Before trial, the prosecution moved to admit evidence that, after [Jane Doe I] and her mother complained about Mr. Chandler in October 2011, school principal Vijayendran directed Mr. Chandler not to have children blindfolded and alone in his classroom with the door closed. The prosecutor also moved to exclude testimony by principal Vijayendran regarding Mr. Chandler's explanation when she gave him that directive. (Mr. Chandler apparently had stated that his actions were in accord with his efforts to teach a lesson about Helen Keller and empathy for disabled children. Chandler, 2015 WL 7726506, at *15.) The defense argued that evidence of Mr. Chandler's explanation was admissible pursuant to the rule of completeness in California Evidence Code § 3569 to put the principal's admonition in context. The trial court disagreed and ruled that the evidence was hearsay that was not admissible under the rule of completeness because Mr. Chandler's statement was not necessary to avoid a misleading impression of what principal Vijayendran had told Mr. Chandler. The trial court further ruled that, for purposes of the rule of completeness, the only relevant part of Mr. Chandler's response was that he had heard and acknowledged the principal's directive, and therefore she could be questioned about that. RT 546-48, 551-52.

At trial, principal Vijayendran testified: "I told him he was not to have students in his classroom alone with the door closed, blindfolded. And I told him if he had students in his room alone doing work — I highly recommended he not have students in his room alone, but that if he did, that they would be sitting at a desk working and the door should be open." RT 733. Consistent with the court's pretrial ruling, she was not asked and did not testify as to Mr. Chandler's statements in response to her directive.

The California Court of Appeal rejected Mr. Chandler's state law and federal constitutional challenges to the exclusion of the evidence. The appellate court explained that courts had interpreted the rule of completeness in California Evidence Code § 356 to allow an opponent to put in evidence the rest of the statements made by or to the declarant if the statements "`have some bearing upon, or connection with, the admission or declaration in evidence,'" but evidence that is not relevant to the conversation must be excluded. Chandler, 2015 WL 7726506, at *16 (citation omitted). The appellate court concluded that Mr. Chandler's explanation was irrelevant because "it was not needed to make Vijayendran's statements to appellant understood. Excluding appellant's explanation of what he was doing in the classroom did not result in a misleading impression of what Vijayendran . . . intended to convey or did convey." Chandler, at *16.

The California Court of Appeal also rejected the federal due process claim.

Chandler, at *17 (first set of brackets in original).

b. Analysis

The U.S. Constitution gives a criminal defendant the right to present a defense. "Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants `a meaningful opportunity to present a complete defense.'" Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citations omitted). The Compulsory Process Clause of the Sixth Amendment preserves the right of a defendant in a criminal trial to have compulsory process for obtaining a favorable witness. Washington v. Texas, 388 U.S. 14, 19 (1967). The Sixth Amendment right to present relevant testimony "may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Chambers v. Mississippi, 410 U.S. 284, 295 (1973); Taylor v. Illinois, 484 U.S. 400, 410-11 (1988) (right to compulsory process is not absolute). A defendant "`does not have an unfettered right to offer [evidence] that is incompetent, privileged or otherwise inadmissible under standard rules of evidence.'" Montana v. Egelhoff, 518 U.S. 37, 42-43 (1996) (plurality opinion) (alteration in original) (quoting Taylor, 484 U.S. at 410). Even relevant evidence may be excluded on account of certain evidentiary rules. See id. at 42. "[T]o say that the right to introduce relevant evidence is not absolute is not to say that the Due Process Clause places no limits upon restriction of that right"; rather, it means that the defendant has the heavy burden to show that the decision to exclude evidence "`offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" Id. at 42-43 (citation omitted). Even if the exclusion of evidence was a constitutional error, habeas relief is not available unless the erroneous exclusion had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).

"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, 569 U.S. 505, 509 (2013).10 In Jackson, the Supreme Court identified four cases where it had found such a violation: Holmes v. South Carolina, 547 U.S. 319 (2006); Rock v. Arkansas, 483 U.S. 44 (1987); Chambers v. Mississippi, 410 U.S. 284 (1973); and Washington v. Texas, 388 U.S. 14 1967).

In Holmes v. South Carolina, 547 U.S. 319, the Supreme Court held that a criminal defendant's right to present a defense was violated by an evidence rule under which a defendant could not introduce proof of third-party guilt if the prosecution had introduced forensic evidence that, if believed, would strongly support a guilty verdict. The constitutional problem was that the general rule (i.e., allowing a defendant to offer evidence of third-party guilt if the evidence was inconsistent with his own guilt and was not speculative) had been "radically" changed by the South Carolina Supreme Court to be contingent on the strength of the prosecution's case. Id. at 328. As a result of the state court's radical change in the rule, the rule ceased to rationally serve the end that the general rule was "designed to promote, i.e., to focus the trial on the central issues by excluding evidence that has only a very weak logical connection to the central issues." Id. at 330.

In Rock v. Arkansas, 483 U.S. 44, the Supreme Court held that Arkansas' per se rule excluding all hypnotically enhanced testimony was unconstitutional when used to restrict a defendant's right to testify. There, the Court explained that "[a] State's legitimate interest in barring unreliable evidence does not extend to per se exclusions that may be reliable in an individual case. Wholesale inadmissibility of a defendant's testimony is an arbitrary restriction on the right to testify in the absence of clear evidence by the State repudiating the validity of all posthypnosis recollections." Id. at 61.

In Chambers v. Mississippi, 410 U.S. 284, the Supreme Court held that the defendant was denied a fair trial when the state's evidentiary rules prevented him from calling witnesses who would have testified that another witness made trustworthy, inculpatory statements on the night of the crime. It was the combination of the rigid application of the State's evidence rules and the fact that the proffered evidence bore considerable assurances of trustworthiness and reliability that led to the due process violation in Chambers. See id. at 302-03. The Supreme Court specifically pointed out that its holding did not "signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures." Id.

The challenged rule in Washington v. Texas, 388 U.S. at 15, provided that principals, accomplices and accessories in the same crime could not be used as witnesses for each other. This rule violated a defendant's right to compulsory process because "the State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense." Id. at 23.

The California Court of Appeal's rejection of Mr. Chandler's claim that he was prevented from eliciting his statement to Vijayendran was not contrary to, or an unreasonable application of, these Supreme Court holdings. Mr. Chandler has not identified any Supreme Court holding that the right to present a defense or right to due process includes a right to present irrelevant evidence.11 The requirement that evidence must be relevant to be admissible is a fundamental rule of evidence, and is found in both the Federal Rules of Evidence and the California Evidence Code. See Fed. R. Evid. 402 ("Irrelevant evidence is not admissible"); Cal. Evid. Code § 350 ("No evidence is admissible except relevant evidence"). Mr. Chandler also has not identified any Supreme Court holding to the effect that an evidentiary rule that (like California Evidence Code § 356) requires the exclusion of evidence when it is not relevant to complete the statement that has been admitted into evidence violates the constitutional rights to present a defense or due process. Trial courts have wide latitude in deciding what evidence comes in. See, e.g., Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) ("trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant"); Montana v. Egelhoff, 518 U.S. at 42 (citing Federal Rule of Evidence 403 as an example of "familiar and unquestionably constitutional evidentiary rules" that "authorize the exclusion of relevant evidence."). Mr. Chandler has failed to show that either of the California rules at issue — i.e., the rule excluding irrelevant evidence, and the rule of completeness — "offend[] some `fundamental principle of justice'" such that the rules themselves violate a criminal defendant's right to due process. See Egelhoff, 518 U.S. at 43.

It is debatable whether the above-mentioned Supreme Court precedents could support a finding of a violation of the right to present a defense based on a routine application of an otherwise permissible rule. Because "fairminded jurists could disagree" on whether the U.S. Supreme Court's cases on the right to due process and the right to present a defense extend to the routine application of an otherwise permissible rule, such as the rule requiring evidence to be relevant and the rule of completeness, the California Court of Appeal's rejection of the claim would not support relief under § 2254(d). See Harrington, 562 U.S. at 101; see also id. at 103 (petitioner must show the state court's decision "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement").

Even assuming arguendo that the right to due process and the right to present a defense could be violated by the state court's application of a rule that did not itself violate a constitutional right, Mr. Chandler still would not be entitled to relief because the state court's application of the two rules was not unreasonable. The California Court of Appeal reasonably determined that Mr. Chandler had not shown that his statements in response to principal Vijayendran's warning were relevant to put her warning in context, i.e., his statements were not necessary to make her statements understood.

The state appellate court's rejection of the claim that Mr. Chandler's right to present a defense and right to due process were violated by the evidentiary ruling was not contrary to, or an unreasonable application of, clearly established federal law as set forth by the U.S. Supreme Court. Mr. Chandler is not entitled to the writ on this claim.

2. Exclusion Of The Principal's Typewritten Notes

Mr. Chandler contends that the exclusion of typewritten notes prepared by principal Vijayendran three months after she spoke to Jane Doe I violated his right to due process and his right to present a defense.

At trial, principal Vijayendran testified that she took contemporaneous notes while talking with Jane Doe I in October 2011. According to Ms. Vijayendran, the handwritten notes contained only about one-third of what they discussed. Those handwritten notes were read to the jury and admitted into evidence as an exhibit. The notes stated, among other things, that Jane Doe I "reported that appellant said he was going to put something in her mouth, and then Jane Doe I said `he put the gooey something in my mouth.'" Chandler, at *17. Ms. Vijayendran further testified that she did not recall the exact details of the conversation. On cross-examination, Ms. Vijayendran stated that she had prepared typewritten notes about three months later, in January 2012, which purported to document the October 2011 conversation with Jane Doe I. She stated that the typewritten notes were a "`different set of notes,'" which were "`done later, so they were done more from memory, but they are more detailed.' She would not say that the typewritten notes were more accurate than the handwritten notes." Chandler, at *17. On redirect examination, Ms. Vijayendran explained that she prepared the typewritten notes after Mr. Chandler was arrested in January 2012, and after the school district had asked her to prepare an account of what happened, by which time she did not have a clear recollection of some of the specific words used by Jane Doe I. Id. at *18.

The trial court refused to admit the notes under the past-recollection-recorded exception to the hearsay rule, see California Evidence Code § 1237. The court expressed concern about the reliability of the typewritten notes: the notes had been prepared from memory three months after the conversation with Jane Doe I; Ms. Vijayendran was unsure whether she had her handwritten notes to refer to when she prepared the typewritten notes; and the circumstances suggested Ms. Vijayendran had prepared the typewritten notes at a time when she needed to justify her own conduct.

On appeal, the California Court of Appeal rejected Mr. Chandler's claims that the exclusion of the evidence was improper under state law and the federal constitution, but discussed only the state law claim. See Chandler, at *18-19. The appellate court rejected the state law claim as harmless error, if there was any error at all:

Chandler, at *19.12

Because the California Court of Appeal denied the constitutional claim on the merits without explanation, 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 applicable law for this claim is the same as in the preceding section regarding the exclusion of the evidence about Mr. Chandler's statement when the principal directed him not to be alone with blindfolded children. That is, the U.S. Constitution gives a defendant a right to present a defense and to due process. The constitutional right to present relevant testimony "may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Chambers, 410 U.S. at 295. A defendant "`does not have an unfettered right to offer [evidence] that is incompetent, privileged or otherwise inadmissible under standard rules of evidence.'" Egelhoff, 518 U.S. at 42-43 (plurality opinion) (alteration in original) (quoting Taylor, 484 U.S. at 410). The defendant has the heavy burden to show that the decision to exclude evidence "`offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" Id. at 42-43.

Even if the exclusion of evidence was a constitutional error, habeas relief is not available unless the erroneous exclusion had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Brecht, 507 U.S. at 638. If a state court does not conduct a harmless error analysis, a federal habeas court must find that the error was prejudicial under Brecht before it can grant relief. See Fry v. Pliler, 551 U.S. 112, 121-22 (2007).

It is debatable whether any Supreme Court precedent could support a finding of a violation of the right to present a defense based on a routine application of an otherwise permissible rule. Because "fairminded jurists could disagree" on whether cases on the right to due process and the right to present a defense extend to the routine application of an otherwise permissible rule, such as the hearsay rule, the California Court of Appeal's silent rejection of the federal constitutional claim would not support relief under § 2254(d). See Harrington, 562 U.S. at 101; see also id. at 103 (petitioner must show the state court's decision "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement").

Moreover, even assuming arguendo that the exclusion of the evidence violated Mr. Chandler's right to due process or right to present a defense, any such error was harmless for the same reasons explained in the California Court of Appeal's decision addressing the state law claim. The key information that Mr. Chandler wanted to present to the jury via the typewritten notes was that those notes stated that Jane Doe I had said that Mr. Chandler put a "bottle" in her mouth and made her drink something. Chandler, at *18. However, as the California Court of Appeal explained, the reference to a "bottle" in Ms. Vijayendran's notes was hearsay because it purported to describe Jane Doe I's statement rather than Ms. Vijayendran's statement. Thus, "[e]ven if the notes had been read into the record, Jane I's statement would not be admissible for the truth of the matter asserted—i.e., that the object in her mouth was actually a bottle." Chandler, at *19. In any event, as the California Court of Appeal explained, because Jane Doe I was a young child who had been blindfolded and did not see the object she described as a bottle, her use of the word "bottle" to describe the object Mr. Chandler put in her mouth would not have swayed the jury given the surrounding circumstances. "[T]he conduct she described would be more consistent with sexual activity than with appellant sticking a bottle in her mouth. This is so because as a young child she would be likely to assume it was a bottle. Her age and experience would not have led her to believe it could have been something else." Id. Those circumstances included Jane Doe I's statements that the thing was "gooey" and salty-tasting liquid came out of that thing, CT 1200-01; Jane Doe I's statement that Mr. Chandler told her not to bite the gooey thing, CT 1205; Jane Doe I's statement that some of the liquid dripped on her jacket, CT 1201-02; and Jane Doe I's mother's statement that she noticed a small white spot resembling nasal mucous on the front of Jane Doe I's jacket later that day, RT 676. The exclusion of the typewritten notes that contained a hearsay statement did not have a "`substantial and injurious effect or influence in determining the jury's verdict.'" Brecht, 507 U.S. at 638. Mr. Chandler is not entitled to the writ on this claim.

E. Confrontation Clause Claim: Pork Rinds Evidence

1. Background

Mr. Chandler contends that the trial court's refusal to allow cross-examination of Jane Doe II with a bag of pork rinds violated his Confrontation Clause right to cross-examine the witness.

Jane Doe II testified that, while she was blindfolded, Mr. Chandler put a "curvy" thing in her mouth that was too big for her to close her mouth on, but she did not know what it was. See RT 615-16. On cross-examination, she agreed with defense counsel that the object "was kind of hard, but kind of soft." RT 647. She testified that no liquid came out of the object and did not recall anything tasting like strawberry. RT 647. She was unable to describe the object further, and had never seen the object because she had been blindfolded. RT 647.

During cross-examination, defense counsel wanted to mark as an exhibit a plastic bag containing about ten pork rinds and question Jane Doe II about them. RT 655. An unreported sidebar conference was held, after which cross-examination continued on an unrelated subject. Later in the day, outside the jury's presence, the trial court made a record of its ruling. The trial court had excluded the evidence pursuant to California Evidence Code § 352 and permitted the attorneys to make a record of their positions. Defense counsel stated that pork rinds, "a chip-type snack," were in the bag; he further stated that Jane II had described "objects physically consistent with those; that they are similar length, they are certainly curvy, they have certainly a roundness to them." RT 663. He also explained that Mr. Chandler had mentioned the pork rinds (as well as candy and crackers) to detective Pierce when he was interviewed and that Mr. Chandler had eaten pork rinds since childhood. Counsel argued that he believed a pork rind was "the item that was put in her mouth when she was alone with Mr. Chandler, and that she should be allowed to look at it, to hold the outside of the bag. I will not ask her to put it in her mouth and taste it. I would ask her questions such as, has she ever had something like this." RT 664. The prosecutor objected, pointing out that Jane II had been asked to describe the object in her mouth, had done so, and had said she never saw the object put in her mouth.

The trial court reaffirmed its earlier ruling excluding this evidence. The court stated that in its opinion, "the relevance . . . would only apply in this particular situation if she [were] allowed to put that particular food item in her mouth." The trial court stated that it would not require that Jane Doe II do that with the pork rinds or any other item. RT 665.

Mr. Chandler argues that the exclusion of the pork rinds evidence unfairly limited the defense's ability to effectively cross-examine Jane II, and that this violated his Sixth and Fourteenth Amendments confrontation rights.

The California Court of Appeal rejected Mr. Chandler's argument. The appellate court explained that the trial court's ruling under California Evidence Code § 352 was proper.13 Under California law, a trial court has no discretion to admit irrelevant evidence. Chandler, at *20. "`A defendant's rights to due process and to present a defense do not include a right to present to the jury a speculative, factually unfounded inference.'" Id. (quoting People v. Mincey, 2 Cal.4th 408, 442 (Cal. 1992)).

Chandler, at *20. The California Court of Appeal concluded that "the trial court did not err in preventing [defense counsel] from producing a bag of pork rinds to show to Jane II and have her feel them with her hand" because that evidence would have led only to an irrelevant, speculative, inference. Id.

2. Analysis

The Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. Delaware v. Fensterer, 474 U.S. 15, 20 (1985). Trial judges retain wide latitude to impose reasonable limits on cross-examinations based on concerns about, among other things, "harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). A defendant "can prove a violation of his Sixth Amendment rights by `showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby `to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.'" Holley v. Yarborough, 568 F.3d 1091, 1098 (9th Cir. 2009) (omission in original) (quoting Van Arsdall, 475 U.S. at 680). A showing of constitutional error under the Confrontation Clause only merits habeas relief if the error was prejudicial, that is, if it had a "substantial and injurious effect or influence in determining the jury's verdict." Id. at 1100 (9th Cir. 2009) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).

The California Court of Appeal's determination that there was no Confrontation Clause violation in the exclusion of the pork rinds evidence was not an unreasonable application of U.S. Supreme Court precedent, which itself accords trial judges "wide latitude" to impose reasonable limits on cross-examination based on concerns about questioning "that is repetitive or only marginally relevant." Van Arsdall, 475 U.S. at 679; see, e.g., Plascencia v. Alameida, 467 F.3d 1190, 1201 (9th Cir. 2006) (exclusion of cross-examination that would have provided cumulative or repetitive evidence did not violate Confrontation Clause or was harmless error); United States v. Sua, 307 F.3d 1150, 1153 (9th Cir. 2002) (Confrontation Clause not violated by exclusion of codefendant's guilty plea with dismissal of a charge when offered by defendant to establish government's belief in the codefendant's innocence (and, by inference, in defendant's innocence) based on dismissal of that charge because potential jury confusion and undue delay outweighed defendant's interest in presenting the marginally relevant evidence); Bright v. Shimoda, 819 F.2d 227, 229-30 (9th Cir. 1987) (no constitutional violation where substantial cross-examination permitted and excluded evidence was of collateral nature).

It was not unreasonable for the California Court of Appeal to determine that having Jane Doe II look at the bag of pork rinds and hold the bag of pork rinds would not have yielded any relevant evidence. The pork rinds were not relevant to Jane Doe II's potential bias or credibility, and she had consistently stated to police and on the witness stand that she had not seen or touched with her hands the object put in her mouth. It was reasonable for the appellate court to conclude that the federal constitution did not require the trial court to allow defense counsel to pursue the line of questioning that would have yielded only irrelevant speculation.

The trial court did not foreclose all examination of Jane Doe II. The defense was allowed to cross-examine Jane Doe II on the circumstances surrounding the object being put in her mouth, as well as other background information. Defense counsel probed her ability to describe the object Mr. Chandler put in her mouth and the circumstances surrounding those events; had her describe the layout of the classroom; cross-examined her about inconsistent statements (such as her testimony that she heard a zipper sound from Mr. Chandler after the object was removed from Jane II's mouth, see RT 652-55); and elicited testimony that she had been blindfolded and tasted something in front of the class on one occasion, RT 648.

Mr. Chandler is not entitled to relief on his Confrontation Clause claim because the state appellate court's determination that there was no constitutional error was not contrary to, or an unreasonable application of, any holding of the U.S. Supreme Court.

F. Admission Of Evidence Regarding Defendant's Interest In A Teacher's Feet

Mr. Chandler contends that the admission of evidence that he offered to massage and photograph another teacher's feet violated his right to due process. He urges that the evidence was irrelevant and "could have made [him] seem somehow `creepy' to the jury," and therefore have led the jury to convict him based on a character trait rather than based on sufficient evidence of his guilt. Docket No. 1 at 62.

1. Background

Before trial, the defense filed a motion to exclude evidence that Mr. Chandler had offered to massage and photograph the feet of Hilda Keller, who taught at the same school as Mr. Chandler. The court held an in limine hearing at which Ms. Keller testified that Mr. Chandler had done several things to her that she considered inappropriate for a work colleague and that she considered to be of a sexual nature, e.g., he had put his hands on her hips on one occasion, commented on her breasts on a different occasion, and had asked to massage and photograph her feet on yet another occasion. RT 503-22. Ms. Keller testified at the hearing that Mr. Chandler had entered her classroom, closed the door behind him, said he was taking a massage class, and asked to photograph and massage her feet. RT 507. She declined and led him out of the room. RT 508. When asked whether she perceived Mr. Chandler's requests to massage and photograph her feet as being made with a sexual motivation, she responded, "yes and no" — yes in light of his other inappropriate conduct and no because maybe he actually was taking a class. RT 509. Defense counsel argued that Mr. Chandler's apparent sexual interest in an adult's feet was irrelevant to a charge involving his alleged sexual interest in a child's body parts. The prosecutor responded that the evidence was not being offered as propensity evidence but instead to prove intent, i.e., "as probative of defendant's intentions `when he sees a foot,'" and here there was evidence that he had rubbed something against one blindfolded child's feet while alone with her. Chandler, 2015 WL 7726506, at *21. The trial court ruled that Ms. Keller's testimony about Mr. Chandler's offer to photograph and massage her feet, and her feelings in response thereto, would be admissible at trial because feet are unique body parts. RT 530-31. According to the trial court, that evidence was probative, given the anticipated evidence that Jane Doe IV would testify that Mr. Chandler had blindfolded her and made her touch with her feet a sticky object that felt to her like a glue stick. See RT 530-31.

At trial, Ms. Keller testified that Mr. Chandler came into her classroom, shut the door, stood for a moment, walked toward her, and talked "about how he would like to take pictures of my feet and give me a foot massage because he was taking a class, a massage therapy class, and I said no. I felt very uncomfortable at that point in time." RT 1060. Ms. Keller also testified that she was concerned at the time that the comment was sexually motivated. RT 1061.

On appeal, Mr. Chandler argued that the admission of the evidence was improper under the California Evidence Code and violated his right to due process. The California Court of Appeal rejected his arguments. First, the appellate court explained the state law rule that, although evidence of uncharged conduct generally is inadmissible to prove criminal disposition of a defendant, such evidence is admissible to prove a relevant fact, such as intent.14 Id. at *21. The admission of evidence of such uncharged conduct lies within the trial court's discretion, with the trial court weighing the probative value of the evidence against its prejudicial effect. Id. Under California law, "[t]he least degree of similarity between the uncharged act and the charged offense is required in order to prove intent." Id.

Chandler, 2015 WL 7726506, at *22.

2. Analysis

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)); see, e.g., id. (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); 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[] . . . violate[d] fundamental conceptions of justice.'") (alterations and omission in original).

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). 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 six or seven 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) (citation omitted) (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. Chandler'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") (citation omitted)).

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 (citation and footnote omitted).15

Here, Ms. Keller's testimony that Mr. Chandler asked to take pictures of her feet and massage her feet — requests that she felt were made with a sexual intent — was relevant to whether Mr. Chandler acted with a sexual intent when he had Jane Doe IV touch something with her feet while she was alone and blindfolded in his classroom with the door closed. The jury could draw the inference that Mr. Chandler acted with the same sexual intent when he touched an object to the feet of blindfolded Jane Doe IV that he had acted with when he asked to massage and photograph Ms. Keller's feet. 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 Mr. Chandler's unusual interest in feet did not violate due process. See Jammal, 926 F.2d at 920.

G. Cumulative Error Claim

Mr. Chandler contends that the cumulative effect of the errors prevented him from receiving a fair trial. In some cases, although no single trial error is sufficiently prejudicial to warrant reversal, the cumulative effect of several constitutional 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) (reversing conviction where multiple constitutional errors hindered defendant's efforts to challenge every important element of proof offered by prosecution). Here, there were not multiple federal constitutional trial errors to accumulate. Mr. Chandler therefore is not entitled to relief under the cumulative error doctrine.

H. Sealed Documents Issue

When Respondent filed his answer to the petition, he moved to file under seal more than 200 pages of transcripts of the video-recorded interviews the police had conducted with the five victims. The Court denied the motion because Respondent did not in that motion overcome the presumption favoring public access to court records. Docket No. 11. The transcripts thus did not become part of the record. In the course of evaluating the petition in this action, the Court has had to rely on materials in those transcripts because statements therein were important pieces of evidence against Mr. Chandler. In order to provide an adequate record for appeal, while at the same time giving some privacy to the child-victims (by not putting the entire transcript in the public record), the Court now directs that the clerk file as a court exhibit in the public record the pages of the transcripts that the Court has cited in this order. Specifically, the clerk shall file as a court exhibit the following pages from the clerk's transcript in the criminal case against Mr. Chandler: CT 1124, 1128, 1198, 1200-02, 1205, 1207, 1209, 1246, 1254-55, 1258, 1268, 1276.

I. 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.