ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

GONZALO P. CURIEL, District Judge.

I. INTRODUCTION

Petitioner Ronald Duane Dunham, a state prisoner proceeding pro se with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition" or "Pet."), challenges his conviction for various financial crimes in San Diego Superior Court case no. SCD246838. The Court has read and considered the Petition, [ECF No. 1], the Answer and Memorandum of Points and Authorities in Support of the Answer [ECF No. 27-1], the Traverse [ECF No. 39], the lodgments and other documents filed in this case, and the legal arguments presented by both parties.1 For the reasons discussed below, the petition is DENIED.

II. FACTUAL BACKGROUND

This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); see also Parle v. Fraley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from these facts, are entitled to statutory presumption of correctness). The state appellate recounted the facts as follows:

(Lodgment No. 83, ECF No. 28-83 at 4-14.)

III. PROCEDURAL BACKGROUND

On December 9, 2014, the San Diego County District Attorney's Office filed a Sixth Amended Information charging Ronald Duane Dunham with seven counts of grand theft, a violation of California Penal Code § 487(a) (counts one, four, six, nine, twelve, sixteen and eighteen), six counts of theft from an elder, a violation of California Penal Code § 368(d) (counts two, five, seven, ten, thirteen and nineteen), seven counts of making a false in connection with the sale of a security, a violation of California Corporations Code §§ 25401 and 25540 (counts three, eight, eleven, fourteen, fifteen, seventeen and twenty), and one count of perjury by declaration, a violation of California Penal Code § 118(a). (Lodgment No. 88, ECF No. 28-88 at 5-16.) As to counts one through twenty, the information alleged that the prosecution was commenced within the statute of limitations, within the meaning of California Penal Code § 803(c). (Id.) As to counts one through three, six through nine, and eighteen through nineteen, the information also alleged that Dunham stole in excess of $50,000. (Id.) And as to counts four, five, sixteen and seventeen, the information alleged that Dunham stole in excess of $150,000. (Id.) Finally, the information alleged that Dunham had stolen in excess of $500,000 in the course of his criminal conduct, within the meaning of California Penal Code § 186.11 and that Dunham was ineligible for probation if convicted of theft in excess of $100,000. (Id.)

Following a jury trial, Dunham was convicted of all counts and the jury found all allegations to be true. (Lodgment No. 9, ECF No. 28-9 at 192-210.) Dunham was sentenced to a prison term of 12 years. (Id. at 212-17.)

Dunham appealed his conviction to the California Court of Appeal for the Fourth Appellate District. (Lodgment Nos. 80-82, ECF Nos. 28-80 - 28-82.) Two of the three justices upheld Dunham's convictions in counts 2-3, 5, 7-8., 10-11, 13-17, 19-21, and reversed his convictions and true findings on the enhancement allegations in counts 1, 4, 6, 9, 12, and 18. (Lodgment No. 83, ECF No. 28-83.) A third justice would have reversed all the convictions because the verdict forms did not correctly ask the jury whether the prosecution was timely. (Id. at 66-74.) Dunham filed a petition for rehearing in the state appellate court, which was denied. (Lodgment Nos. 84-85, ECF Nos. 28-84 - 28-85.) Thereafter he filed a petition for review in the California Supreme Court, which was denied without citation of authority. (Lodgment Nos. 86-87, ECF Nos. 28-86 - 28-87.)

Dunham filed a pro se Petition for Writ of Habeas Corpus in this Court on May 4, 2018. (ECF No. 1.) Respondent filed an Answer and Memorandum of Points and Authorities in Support of Answer on December 24, 2018. (ECF Nos. 27, 27-1.) Dunham filed a Traverse on March 5, 2019. (ECF No. 39.)

IV. DISCUSSION

Dunham's petition contains eleven grounds for relief. Ground one argues the unanimity instruction given to the jury was incorrect. (Pet., ECF No. 1 at 5-6, 42-48.) Ground two contends there was an error with the verdict forms which resulted in an ambiguous verdict. (Id. at 7-8, 39-42.) Grounds three through six allege there was insufficient evidence presented to establish the prosecution was commenced within the statute of limitations period and to support Dunham's convictions for theft by false pretenses, embezzlement and securities fraud. (Id. at 8-12, 34-38, 48-51, 56-63.) In ground seven Dunham alleges evidence of uncharged acts was improperly admitted. (Id. at 12-13, 63-67.) Ground eight contends the jury instructions failed to define specific terms. (Id. at 13, 52-56.) Ground nine alleges there was insufficient facts to support an allegation contained in the information. (Id. at 14, 73-74.) Dunham argues in ground ten that the prosecutor committed misconduct. (Id. at 14-15, 73-74.) Ground eleven alleges trial counsel was ineffective. (Id. at 16, 74-75.)

Respondent argues that claims three and nine fail to state a federal constitutional question, grounds two, seven, eight, nine and ten are procedurally defaulted, and parts of grounds two, three, seven and nine are unexhausted. (Answer, ECF No. 27-1 at 1-77.) Respondent also contends the claims fail on the merits. (Id. at 77-241.)

A. Procedural Default

The Ninth Circuit has held that because procedural default is an affirmative defense, in order to establish a claim is procedurally defaulted, Respondent must first "adequately [plead] the existence of an independent and adequate state procedural ground . . . ." Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003). In order to place the defense at issue, Dunham must then "assert[] specific factual allegations that demonstrate the inadequacy of the state procedure . . . ." Id. The "ultimate burden" of proving procedural default, however, belongs to the state. Id. If the state meets its burden under Bennett, federal review of the claim is foreclosed unless Dunham can "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991).

A state procedural rule is "independent" if the state law basis for the decision is not interwoven with federal law. Michigan v. Long, 463 U.S. 1032, 1040-41 (1983); Harris v. Reed, 489 U.S. 255, 265 (1989). A ground is "interwoven" with federal law if the state has made application of the procedural bar depend on an antecedent ruling on federal law such as the determination of whether federal constitutional error has been committed. See Ake v. Oklahoma, 470 U.S. 68, 75 (1985). "To qualify as an `adequate' procedural ground, a state rule must be `firmly established and regularly followed.'" Walker v. Martin, 562 U.S. 307, 316 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 60 (2009).) All cases cited by a state court must be independent and adequate to bar federal review of the claims. Washington v. Cambra, 208 F.3d 832, 834 (9th Cir. 2000).

The "cause" prong is satisfied if Dunham can demonstrate some "objective factor" that precluded him from raising his claims in state court, such as interference by state officials or constitutionally ineffective counsel. McClesky v. Zant, 499 U.S. 467, 493-94 (1991). "Prejudice [sufficient to excuse procedurally barred claims] is actual harm resulting from the alleged error." Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998). The Supreme Court has limited the "miscarriage of justice" exception to petitioners who can show that "a constitutional violation has probably resulted in one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995). In Wood v. Hall, 130 F.3d 373, 379 (9th Cir. 1997), the Ninth Circuit held that "actual innocence" means factual innocence, not simply legal insufficiency; a mere showing of reasonable doubt is not enough.

1. Grounds Two, Seven, Eight and Ten

In ground two, Dunham argues that "[t]here was no clear jury determination that Counts 1-20 were timely prosecuted" because the special verdict forms given to the jury erroneously asked the jury to determine whether the victims had or had no actual or constructive knowledge of the crime within four years of the date prosecution commenced. (Pet., ECF No.1 at 7-8, 39-42.) In ground seven, he contends the admission of uncharged acts rendered his trial unfair. (Id. at 12-13, 63-67.) In ground eight, he argues the failure to define specific terms in the jury instructions violated his due process rights. (Id. at 13, 52-56.) And in ground ten, he contends the prosecutor committed misconduct in various ways. (Id. at 14-15, 69-73.) Respondent argues that the claims are procedurally defaulted because the state appellate court found that counsel failed to object in the trial court, and the claims were therefore forfeited. (Answer, ECF No. 27-1 at 52-59.)

In Melendez v. Pliler, 288 F.3d 1120 (9th Cir. 2002), the Ninth Circuit concluded that California's contemporaneous objection rule has been consistently applied "when a party has failed to make any objection to the admission of evidence." Id. at 1125, citing Garrison v. McCarthy, 653 F.2d 374, 377 (9th Cir. 1981). In addition, as Respondent notes, the Ninth Circuit has found California's contemporaneous objection rule functions as a bar to both evidentiary and non-evidentiary issues. See Drayton v. Castro, 2009 WL 689713 at *2 (9th Cir. 2009)2 (concluding petitioner's claim regarding an ambiguous verdict that was resubmitted to the jury was procedurally defaulted because petitioner did not object to it at the time and therefore waived the claim); see, e.g., Reno v. Davis, 2017 WL 4863071 at *10 (C.D. Cal. 2017); Schmitz v. Lizarraga, 2016 WL 2855066 at *9 (E.D. Cal. 2016). Accordingly, Respondent has "adequately [plead] the existence of an independent and adequate state procedural ground . . . ." Bennett, 322 F.3d at 586. Dunham has not asserted any "specific factual allegations that demonstrate the inadequacy of the state procedure . . . ." and federal review of the claim is therefore foreclosed unless Dunham can "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. Dunham claims counsel's ineffectiveness is cause for the default, but ineffective assistance of counsel can constitute cause only if it is in itself a constitutional violation. Edwards v. Carpenter, 529 U.S. 446, 452 (2000). As discussed below in sections IV(C)(9), Dunham has not established that counsel was ineffective. Nor has he established either actual prejudice or a fundamental miscarriage of justice because as discussed in section IV(C)(3), (5), (6), and (8), below, the claims are meritless.

2. Ground Nine

Ground nine concerns California Penal Code § 186.11. Under that section, a defendant is subject to an enhanced sentence based upon the amount of money stolen from the victims. Cal. Penal Code § 186.11(a)(2) (West 2018). The statute also permits the district attorney to freeze a defendant's funds and preserve them for restitution to victims. (Id.) Dunham claims the allegation was not properly pled in the information and that the sentence enhancement he received was therefore unlawful. He also contends the court improperly awarded restitution to third party claimants. (Pet., ECF No. 1 at 14, 73-74.)

Respondent contends this claim is procedurally defaulted because the state appellate court determined that he could have, but did not, raise the claim in the trial court or on appeal, citing In re Seaton, 34 Cal.4th 193, 200 (2004). (Answer, ECF No. 27-1 at 59-61.) Seaton cites In re Dixon, 41 Cal.2d 756, 759 (1953). As Respondent notes, the Supreme Court concluded in Johnson v. Lee, 578 U.S. ___, 136 S.Ct. 1802, 1804 (2016) that the Dixon rule is independent and adequate. Accordingly, Respondent has "adequately [plead] the existence of an independent and adequate state procedural ground . . . ." Bennett, 322 F.3d at 586. Dunham has not asserted any "specific factual allegations that demonstrate the inadequacy of the state procedure . . ." and federal review of the claim is therefore foreclosed unless Dunham can "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. Dunham claims counsel's ineffectiveness is cause for the default, but ineffective assistance of counsel can constitute cause only if it is in itself a constitutional violation. Edwards, 529 U.S. at 452. As discussed below in section IV(C)(9), Dunham has not established that counsel was ineffective. Nor has he established either actual prejudice or a fundamental miscarriage of justice because as discussed in section IV(C)(7) below, the claim is meritless.

B. Exhaustion

Respondent argues that some of Dunham's claims are unexhausted because they were not "fairly presented" to the California Supreme Court. Respondent states as follows:

(Answer, ECF No. 27-1 at 63-75.)

As to Dunham's claim regarding CALCRIM No. 3410, Respondent contends Dunham raised this claim for the first time in the petition for review he filed in the California Supreme Court. (Id.) As Respondent notes, a petitioner does not properly exhaust a claim when he presents that claim for the first time to the state's highest court on discretionary review. Casey v. Moore, 386 F.3d 896, 918 (9th Cir. 2004). Respondent also argues that although Dunham raised the federal constitutional grounds for grounds two, three, seven and nine in the petition for review he filed in the California Supreme Court, he did not raise the federal constitutional grounds for those claims in the briefs he filed in the California Court of Appeal on direct review. (Id. at 66-72.) Respondent correctly points out that under the California Rules of Court, the California Supreme Court "will not normally consider any issue on petition for review that could have been but was not timely raised in the briefs filed in the Court of Appeal. (Id. at 63-72.)

Accordingly, the above identified claims that are asserted in grounds two, three, seven, and nine are unexhausted. Because no state remedies are still available to Dunham, however, the claims are technically exhausted but procedurally defaulted unless Dunham can show cause and prejudice. Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). Dunham has not offered any cause for the default and, as discussed below in sections IV(C)(3), (5) and (7), he has not established prejudice because the claims are meritless. See Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (stating that a Court may deny a petition which contains unexhausted claims if it is "perfectly clear that the applicant does not raise even a colorable federal claim").

C. Merits

Dunham contends in ground one that the jury was improperly instructed that they need not unanimously agree on the theory of theft nor on the particular acts or omissions that constituted the securities fraud counts. (Pet., ECF No. 1 at 5-6.) In ground two, he argues the verdict forms were erroneous and therefore the verdict was invalid. (Id. at 7-8.) Ground three argues that insufficient evidence was presented that the crimes were prosecuted within the statute of limitations. (Id. at 8-9.) In ground four, Dunham contends insufficient evidence was presented to establish he was guilty of theft by false pretenses. (Id. at 9-10.) Dunham argues in ground five that there was insufficient evidence presented that he was guilty of embezzlement. (Id. at 10-11.) In ground six he claims there was insufficient evidence presented that he was guilty of securities fraud. (Id. at 11-12.) Ground seven contends that admission of uncharged acts violated his right to a fair trial. (Id. at 12-13.) In ground eight, Dunham argues that the jury instructions improperly failed to define specific terms. (Id. at 13.) Ground nine contends that his sentence pursuant to California Penal Code § 186.11 was unauthorized due to an error in the charging document, and that the restitution orders made pursuant to that section were also unauthorized. (Id. at 14.) Dunham argues in ground ten that the prosecutor committed misconduct, and in ground eleven that his trial counsel was ineffective. (Id. at 14-16.) In addition to the procedural default and exhaustion arguments, Respondent contends the state court's denial of the claims was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Answer, ECF No. 27-1 at 77-241.)

1. Standard of Review

This Petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320 (1997). Under AEDPA, a habeas petition will not be granted with respect to any claim adjudicated on the merits by the state court unless that adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002). In deciding a state prisoner's habeas petition, a federal court is not called upon to decide whether it agrees with the state court's determination; rather, the court applies an extraordinarily deferential review, inquiring only whether the state court's decision was objectively unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004).

A federal habeas court may grant relief under the "contrary to" clause if the state court applied a rule different from the governing law set forth in Supreme Court cases, or if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. See Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant relief under the "unreasonable application" clause if the state court correctly identified the governing legal principle from Supreme Court decisions but unreasonably applied those decisions to the facts of a particular case. Id. Additionally, the "unreasonable application" clause requires that the state court decision be more than incorrect or erroneous; to warrant habeas relief, the state court's application of clearly established federal law must be "objectively unreasonable." See Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The Court may also grant relief if the state court's decision was based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2).

Where there is no reasoned decision from the state's highest court, the Court "looks through" to the last reasoned state court decision and presumes it provides the basis for the higher court's denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991). If the dispositive state court order does not "furnish a basis for its reasoning," federal habeas courts must conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by Andrade, 538 U.S. at 75-76); accord Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Clearly established federal law, for purposes of § 2254(d), means "the governing principle or principles set forth by the Supreme Court at the time the state court renders its decision." Andrade, 538 U.S. at 72.

2. Unanimity Instructions (Ground One)

Dunham contends in ground one that the jury was given two improper non-unanimity instructions. (Pet., ECF No. 1 at 5-6, 42-48.) The first instruction told the jury that they did not need to unanimously agree on the theory of guilt for the theft counts, counts 1, 4, 6, 9, 12, 16 and 18. (Lodgment No. 7, ECF No. 28-7 at 136.) The second instruction told the jury that for the counts charging misrepresentation or omission of a material fact in the sale of a security they did not need to unanimously agree on the acts or omissions Dunham engaged in so long as they all agreed beyond a reasonable doubt that Dunham had committed some material act or omission in the sale of a security. Dunham contends these instructions violated his federal due process right to a fair trial. (Pet., ECF No. 1 at 5-6, 42-48.)

Dunham raised this claim in the petition for review he filed in the California Supreme Court. (Lodgment No. 86, ECF No. 28-86.) Because the California Supreme Court denied the petition without citation of authority, (Lodgment No. 87, ECF No. 28-87), this Court must "look through" to the state appellate court's opinion denying the claim to determine whether the denial was contrary to, or an unreasonable application of, clearly established Supreme Court law. Ylst, 501 U.S. at 805-06. That court wrote:

(Lodgment No. 83, ECF No. 28-83 at 48-52.)

Criminal defendants in California have a right to a unanimous verdict of guilt. Cal. Const., art. 1, § 16; People v. Engelman, 28 Cal.4th 436, 442 (2002). The Supreme Court has held, however, that there is no federal constitutional right to a unanimous verdict. Apodaca v. Oregon, 406 U.S. 404, 406 (1972). Nor is there a "general requirement that the jury reach agreement on the preliminary factual issues which underly the verdict." Schad v. Arizona, 501 U.S. 624, 631-32, 645 (1991). In the absence of clearly established Supreme Court law supporting Dunham's claim, therefore, the state court's denial of the claim cannot be contrary to, or an unreasonable application of, clearly established Supreme Court law. 28 U.S.C. § 2254(d)(1); Carey v. Musladin, 549 U.S. 70, 77 (2006).

Moreover, to the extent Dunham claims the state court's denial of this claim was a violation of state law, he is not entitled to relief because federal habeas relief is not available for a state court's interpretation of state law. Estelle v. McGuire, 502 U.S. 62, 67 (1991). Even if Dunham could challenge the unanimity instructions on state law grounds, the state appellate court's denial of Dunham's claim is consistent with California law. A unanimity instruction must be given in California "if the prosecution presents evidence of multiple acts to prove a single count." CALCRIM No. 3500 (2006), Bench Notes, citing People v. Russo, 25 Cal.4th 1124, 1132 (2001). However, "when a charge is prosecuted under different legal theories, the jury need not agree unanimously on which theory applies." People v. Grimes, 1 Cal. 5th 698, 727 (2016):

Id.; see also Russo, 25 Cal. 4th at 1134-35 (stating that "the jury must agree on a `particular crime' . . . [b]ut unanimity as to exactly how the crime was committed is not required.")

Dunham was charged with a specific crime in each count. The jury was instructed on the theories for each count, theft by false pretenses for counts 1, 4, 6, 9, 12, and 18, theft by embezzlement for counts 4 and 5, theft from an elder adult for counts 2, 5, 7, 10. 13, and 19, and misrepresentation or omission of a material fact in the sale of a security for counts 3, 8, 11, 14, 15, 17 and 20. (Lodgment No. 7, ECF No. 28-7 at 132-36.)3 They were correctly told that they need not unanimously agree on the "form of theft" (the legal theory) for the theft counts and need not unanimously agree on the acts omissions committed by Dunham for the securities fraud counts. Thus, the instructions were consistent with California law. (Lodgment No. 83, ECF No. 28-83 at 53.)

Even if the unanimity instructions were erroneous, instructional error can form the basis for federal habeas corpus relief only if it is shown that "`the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.' [citation omitted]." Clark v. Brown, 450 F.3d 898, 904 (9th Cir. 2006) (citing Cupp v. Naugh'ten, 414 U.S. 141, 146 (1973); Henderson v. Kibbe, 431 U.S. 145, 154 (1977). The allegedly erroneous jury instructions cannot be judged in isolation, however. Estelle, 502 U.S. at 72. Rather, they must be considered in the context of the entire trial record and the instructions as a whole. Id. Dunham's claim of error in the unanimity instruction as to counts 1, 4, 6, 9, 12, and 18 (instructing the jury they need not agree on the theory of theft) is moot as the state appellate court reversed Dunham's convictions on those counts. (Lodgment No. 83, ECF No. 28-83 at 65.) As to the other theft and securities fraud counts, the jury was instructed that in order to convict Dunham of those crimes, they were required to find the elements of those crimes beyond a reasonable doubt, that each count was a separate crime that required them to consider and separately and for which they were required to return a separate verdict, and their verdicts must be unanimous. (Lodgment No. 7, ECF No. 28 - 7 at 104, 148, 156.) Given the totality of the instructions, "the ailing instruction by itself [did not] so infect[] the entire trial that the resulting conviction violates due process.' [citation omitted]." Clark, 450 F.3d at 904.

The state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Bell, 535 U.S. at 694. Nor was it based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2). Accordingly, Dunham is not entitled to relief as to this claim.

3. Verdicts on Timely Prosecution (Ground Two)

In ground two, Dunham argues his federal constitutional rights were violated when the court resubmitted an ambiguous verdict on the timeliness of the prosecution to the jury. (Pet., ECF No. 1 at 7-8, 39-42.) Respondent contends there is no clearly established Supreme Court law which prohibits a judge from resubmitting an ambiguous jury verdict to the jury for clarification, and, in the alternative, the state court reasonably rejected the claim. (Answer, ECF No. 27-1 at 92-102.)

Dunham raised this claim in the petition for review he filed in the California Supreme Court. (Lodgment No. 86, ECF No. 28-86.) That court denied the petition without citation of authority. (Lodgment No. 87, ECF No. 28-87.) Accordingly, this Court must "look through" to the state appellate court's denial of the claim to determine whether it was contrary to, or an unreasonable application of, clearly established Supreme Court law, or was based on an unreasonable determination of the facts. Bell, 535 U.S. at 694; 28 U.S.C. § 2254(d). That court addressed the claim as follows:

B. Instructions and Verdict Forms

. . . .

(Lodgment No. 83, ECF No. 28-83 at 28-36.)

As Respondent correctly notes, there is no clearly established Supreme Court law which holding that resubmitting an ambiguous verdict to a jury violates a defendant's due process rights. See Drayton v. Castro, 319 Fed. Appx. 632, 634-35 (9th Cir. 2009). The Ninth Circuit has stated that a trial judge may ask a jury to clarify its verdict when the verdict is ambiguous or inconsistent. Skains v. California, 386 Fed. Appx. 620, 622-23 (9th Cir. 2010). But there is also no federal constitutional right to a consistent verdict. Ferriz v. Giurbino, 432 F.3d 990, 992 (9th Cir. 2005); United States v. Powell, 469 U.S. 57, 65 (1984) (holding that the Constitution tolerates inconsistent verdicts). In the absence of clearly established Supreme Court law supporting Dunham's claim, the state court's denial of the claim is not contrary to, or an unreasonable application of, clearly established Supreme Court law. 28 U.S.C. § 2254(d)(1); Musladin, 549 U.S. at 77.

A trial judge may not, however, coerce a verdict from a jury. "Coercion can occur when, for example, a . . . court tells a jury that it must reach a decision, [citation omitted] a . . . court polls a jury before it reaches a verdict, [citation omitted omitted], or a special verdict form `reformulate[s] the elements of the crime,' United States v. Reed, 147 F.3d 1178, 1181 (9th Cir.1998)." United States v. McCaleb, 552 F.3d 1053, 1057-58 (9th Cir. 2009). Whether a trial judge's inquiry amounts to coercion is to be reviewed "in its context and under the circumstances." Lowenfield v. Phelps, 484 U.S. 231, 237 (1988); Parker v. Small, 665 F.3d 1143, 1147 (9th Cir. 2011).

In Dunham's case, the record supports a conclusion that the trial judge did not coerce the jury into a decision. When the verdicts were read, they found Dunham guilty of the charges and that the victims and/or law enforcement had actual or constructive knowledge of the offense within four years of the prosecution; the prosecutor then sought a chambers conference. (Lodgment No. 29, ECF No. 28-29 at 130-34.) It was at this point that it became clear to the court and counsel that the language in the verdict form was ambiguous and confusing because it did not determine whether the prosecution had begun within the statute of limitations. (Id.) At the conclusion of the discussion, the trial judge decided she would ask the jury to clarify their verdicts:

(Lodgment No. 29, ECF No. 28-29 at 135-36.)

The judge did not tell the jury they had to change their verdicts. Rather, she advised them that the verdicts indicated the jury had concluded the prosecution was outside the statute of limitations and that if they needed to clarify their verdicts they should do so. (Id.) Considering the judge's comments in their "context and under the circumstances," the state court's conclusion that the resubmission of the verdicts to the jury and the judge's comments were appropriate was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Bell, 535 U.S. at 694. Nor was it based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2).

Even if federal constitutional error did occur, Dunham has not established the error had a substantial an injurious effect on the outcome. Brecht v. Abrahamson, 507 U.S. 619, 622 (1993). After the jury came back with their clarified verdicts, the judge polled the jurors specifically on the question of whether the prosecution was timely. (Lodgment No. 29, ECF No. 28-29 at 139-40.) Each juror confirmed that they found the prosecution was timely. (Id.) There is no evidence to support a conclusion that the outcome would have been different absent the alleged error. Brecht, 507 U.S. at 622.

Dunham also complains about a specific error in the jury instruction associated with count 15. (Pet., ECF No. 1 at 8, 41-42.) The instruction incorrectly listed the date of prosecution for that count as June 21, 2013. The correct date was December 2, 2014. (Pet., ECF No. 8, 39-42.) On this question, the appellate court found as follows:

(Lodgment No. 83, ECF No. 28-83 at 35-36.)

Errors of federal constitutional dimension are reviewed in state court under the standard of Chapman v. California, 386 U.S. 18 (1967), which requires a court to determine whether the error was harmless beyond a reasonable doubt. Chapman, 386 U.S. at 24. When a petitioner challenges a state court's determination under Chapman on federal habeas corpus review, a federal court must review the state court's harmlessness determination under AEDPA's standard:

Davis v. Ayala, 576 U.S. ___, 135 S.Ct. 2187, 2199 (2015).

As the state court noted, by finding count 15 was timely prosecuted on the incorrect date of June 21, 2013, the jury necessarily concluded that David and Joyce did not have actual or constructive knowledge of the offense as of June 21, 2013, four years before June 21, 2009. From June 21, 2009 until February 2, 2013, David received tax documents from Dunham that showed his GCREF shares were worth around $90,000. (Lodgment No. 22, ECF No. 28-22 at 20-22.) David told Detective Brown that he began to think there was a problem with his investment in February of 2011. (Id. at 24.) He testified that in February of 2013, he still believed he had about $86,000 in his GCREF investment. (Id. at 25.) Based on the facts adduced at trial, the state appellate court reasonably concluded that the error in the date on the jury instructions was harmless beyond a reasonable doubt. There was sufficient evidence in the record for the jury to have concluded that David and Joyce did not have actual or constructive notice of the fraud until February of 2011. Four years from February 1, 2011 is February 1, 2015, placing the correct December 2, 2014 filing date for count 15 well within the four-year statute of limitations.

For the forgoing reasons, the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Bell, 535 U.S. at 694. Nor was it based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2). Federal habeas corpus relief is unavailable for this claim.

4. Sufficiency of the Evidence (Grounds Three Through Six)

Dunham contends in grounds three through six that the evidence supporting his convictions was insufficient for several reasons. In ground three he claims there was insufficient evidence that all twenty counts were prosecuted within the statute of limitations. In ground four he argues there was insufficient evidence presented to support his convictions for grand theft and elder theft because there was insufficient evidence of theft by false pretenses (counts 1, 2, 6, 7, 9, 10, 12, 13, 16, 18, and 19). In ground five he contends there was insufficient evidence to support his conviction for embezzlement. And in ground six he claims there was insufficient evidence supporting his conviction for securities fraud. (Pet., ECF No. 1 at 8-12, 48-63.) Respondent argues the state court's resolution of these claims was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Answer, ECF No. 27-1 at 131-86.)

The Due Process Clause of the Constitution guarantees defendants the right to be convicted only upon proof of every element of a crime beyond a reasonable doubt. Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005) (citing In re Winship, 397 U.S. 358, 364 (1970)). On federal habeas corpus review of a conviction on sufficiency of evidence grounds, however, a petitioner "faces a heavy burden" to establish a due process violation. Id. The Ninth Circuit has described a petitioner's burden as follows:

Maquiz v. Hedgpeth, 907 F.3d 1212, 1217 (9th Cir. 2018).

While circumstantial evidence can be sufficient to support a conviction, "[s]peculation and conjecture cannot take the place of reasonable inferences and evidence . . . ." Id. at 1218; Juan H., 408 F.3d at 1279; United States v. Lewis, 787 F.2d 1318, 1323 (9th Cir. 2000) ("mere suspicion or speculation cannot be the basis for logical inferences"). A federal habeas court must "mindful of `the deference owed to the trier of fact and, correspondingly, the sharply limited nature of constitutional sufficiency review.'" Juan H., 408 F.3d at 1274 (quoting Wright v. West, 505 U.S. 277, 296-97 (1992)). Deference under AEDPA, however, "does not imply abandonment or abdication of judicial review." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). In determining whether sufficient evidence has been presented, the Court refers to the elements of the crime as defined by state law. See Jackson, 443 U.S. at 324, n.16; Juan H., 408 F.3d at 1276.

Dunham raised his sufficiency of the evidence claims in the petition for review he filed in the California Supreme Court. (Lodgment No. 86, ECF No. 27-42.) The California Supreme Court denied the petition without citation of authority. (Lodgment No. 87, ECF No. 28-87.) Accordingly, this Court must "look through" to the state appellate court's opinion denying the claim to determine whether the denial was contrary to, or an unreasonable application of, clearly established Supreme Court law. Ylst, 501 U.S. at 805-06.

a. Sufficiency of the Evidence — Statute of Limitations (Ground Three)

Dunham contends there was insufficient evidence presented to establish the charges against him were brought within the four-year statute of limitations. (Pet., ECF No. 1 at 8-9, 39-42.) He claims the state appellate court made unreasonable factual determinations regarding whether the victims had constructive notice of Dunham's crimes prior to the four-year statute of limitations. The state appellate court addressed this claim as follows:

1. Legal Principles

2. The Record and Analysis

(Lodgment No. 83, ECF No. 28-83 at 36-41.)

"The Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged." United States v. Gaudin, 515 U.S. 506, 511 (1995). The standard of proof the prosecution must meet and a jury must apply is proof beyond a reasonable doubt. Sullivan v. Louisiana, 508 U.S. 275, 277 (1993). In California, however, the statute of limitations is not an element of the offense and it need only be proven by a preponderance of the evidence. People v. Meza, 198 Cal.App.4th 468, 476 (2011). "Although the right to maintain the action is an essential part of the final power to pronounce judgment, that right `constitutes no part of the crime itself.'" Id., quoting People v. Linder, 139 Cal.App.4th 75, 84-85 (2006). This Court must defer to California's definition of the elements of the crime. Jackson, 443 U.S. at 324, n. 16; Juan H., 408 F.3d at 1276. Because the statute of limitations is not an element of the crimes of which Dunham was convicted, Dunham's claim does not warrant federal habeas relief unless the state court's construction of the law is "untenable or amounts to a subterfuge to avoid federal review of a constitutional violation," Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir. 1989), or is "so arbitrary and capricious as to constitute an independent due process . . . violation." Richmond v. Lewis, 506 U.S. 40, 50 (1992) quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). There is no evidence in the record to support such a conclusion. Accordingly, the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Bell, 535 U.S. at 694. It was also not based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2). Dunham is not entitled to relief as to this claim.

b. Sufficiency of the Evidence — Grand Theft, Elder Theft, Embezzlement and Securities Fraud (Grounds Four, Five and Six)

In ground four, Dunham argues there was insufficient evidence presented to support his convictions for grand theft in counts 1, 6, 9, 12, 16 and 18, and elder theft in counts 2, 7, 10, 13 and 19, embezzlement in count 5, and securities fraud in counts 3, 8, 11, 14, 15, 17, and 20. (Pet., ECF No. 1 at 8-12, 48-63.) On direct appeal, the state appellate court reversed the grand theft counts 1, 6, 9, 12, and 18, and thus this Court need not address those counts. (See Lodgment No. 83, ECF No. 28-83 at 65.) As to the elder theft, embezzlement and securities fraud counts, the state appellate court addressed the claims as follows:

(Lodgment No. 83, ECF No. 28-83 at 22-28.)

i. Elder Theft and Grand Theft by False Pretenses (Ground Four)

In California, theft by false pretenses requires the prosecution to establish: "(1) the defendant made a false pretense or representation to the owner of property; (2) with the intent to defraud the owner of that property; and (3) the owner transferred the property to the defendant in reliance on the representation." People v. Williams, 57 Cal.4th 776, 787 (2013) (quoting People v. Wooten, 44 Cal.App.4th 1834, 1842 (1996) (internal quotation marks omitted)). Dunham claims there was insufficient evidence presented to support his convictions for elder theft and grand theft by false pretenses because his statements about his real estate expertise, his connections to Wall St., his claim that he learned real estate from his family's business, and the value of the Cherokee Village lots were not "intentional, relied-upon misrepresentations," nor was his failure to disclose ALC's involvement in Cherokee Village a material misrepresentation. (Pet., ECF No. 1 at 9-10, 52-60.)

Background Facts

Dunham became interested in Cherokee Village in about 2004. (Lodgment No. 13, ECF No. 28-13 at 84.) He traveled to Arkansas and met with Ron Rhodes of American Land Company (ALC), the entity selling lots in Cherokee Village. (Id. at 50.) ALC was marketing lots that had been repossessed for failing to pay property taxes and splitting the proceeds with the Suburban Improvement District (SID) for Cherokee Village. (Id. at 50-51.) The SID was the entity responsible for maintaining the amenities at Cherokee Village. (Id. at 45.) ALC would get 95% of the lot proceeds and the SID would get 5%. (Id. at 51.) ALC sold Cherokee Village lots on eBay and on its website. (Id. at 63-64.)

Dunham became a dealer for ALC in 2004 and sought to purchase 1,000 lots; there were 8,500 lots available at the time. (Id. at 89-90, 98.) Dunham wanted ALC to agree to give him the exclusive rights to sell SID lots, to stop marketing lots on eBay and to enter into to a non-compete agreement. (Id. at 106-09.) He also wanted ALC to agree on a minimum price for lots. (Lodgment No. 16, ECF No. 28-16 at 21.) ALC refused to agree to any of Dunham's requests. (Id.) Dunham's plan was to control all of the available lots in Cherokee Village and then build a real estate development of homes which would increase the value of the lots. (Id. at 122-23.) Despite his failure to obtain ALC's agreement to the conditions that would make his plan possible, Dunham began marketing his plan for Cherokee Village. (Id. at 22-23, 123-24.) ALC continued to sell Cherokee Village lots on eBay for substantially less than Dunham was selling his lots. (Id. at 127.)

Doug Fisher and Purvey Martin were paid agents of Dunham. (Lodgment No. 17, ECF No. 28-17 at 59-60; Lodgment No. 18, ECF No. 28-28 at 201-02.) Doug Fisher met Dunham in 2005 at a presentation Dunham was giving to a group of insurance agents. (Lodgment No. 17, ECF No. 28-17 at 7.) Fisher learned from others at the presentation that Dunham had "invested his entire life in real estate," and Dunham told Fisher he learned the real estate business from his father beginning when he was a child. (Id. at 10, 19.) Dunham impressed Fisher with his Newport Beach office and beachfront home in Laguna Beach that Dunham said was worth $14 million. (Id. at 14, 21.) Dunham also told Fisher that he owned a brokerage firm on Wall St. and that he had done 4,000 real estate deals. (Id. at 22-23.)

Dunham told Fisher about the Cherokee Village lots, explaining that they were a good investment and would go up in price significantly over time. Fisher believed Dunham because of the successful real estate and brokerage background he thought Dunham had. (Id. at 10-11.) Fisher bought 10 lots for $4,000 each in January of 2005. (Id. at 14.) At some point, Dunham told Fisher his investment had grown by 90% and that the lots were now worth $7,500. (Id. at 26.) Later in 2005, Dunham told Fisher that he and his "crew" planned to build 650 homes on the lots and, after a marketing campaign featuring Ed McMahon ran, the lots would be sold for $15,000 each. (Id. at 39.) Fisher then bought an additional 44 lots for $7,500 each. (Id. at 37.) Fisher did not know about ALC or Dunham's attempts to get ALC to agree to set a price for the lots, to stop selling lots on eBay or a non-competition agreement. (Id. at 47-56.)

Martin was also an insurance agent who met Dunham at an investment seminar. (Lodgment No. 18, ECF No. 28-18 at 193.) At some point, Dunham told Martin about Cherokee Village and that there was "a lot of promise from investing [Cherokee Village] lots" because he "could get the lots at such a low price and that he was going to put together a plan whereby we would be able to get the land to appreciate in a good amount of time." (Id. at 195.) Martin attended a seminar put on by Dunham which was designed to sell Cherokee Village lots. (Id. at 195-96). Martin also heard Dunham's plan to have Ed McMahon shoot a commercial promoting Cherokee Village as a retirement destination which Dunham said would drive the property values up. (Id. at 195-98.) Martin bought four lots for $3,000 each. (Id. at 199.) Martin did not know about ALC or Dunham's attempts to get ALC to agree to set a price for the lots, to stop selling lots on eBay or a non-competition agreement, and he would not have bought the lots or recommended them to his friends had he known. (Id. at 211-15.)

False Pretense or Representation to the Owner of the Property

"[A] false pretense may consist in any act, word, symbol, or token calculated and intended to deceive. It may be either express or implied from words or conduct." People v. Randono, 32 Cal.App.3d 164, 174 (1973) (citing People v. Brady, 275 Cal.App.2d 984, 996 (1969)). "The circumstances connected with the transaction, the entire conduct of the defendant, and his declarations to other persons may be looked to . . . for the requisite, corroborative evidence that the false pretense was made, if the conviction rests primarily on the testimony of a single witness. People v. Hartley, 248 Cal.App.4th 620, 627 (2016) (quoting People v. Miller, 81 Cal.App.4th 1427, 1441 (2000) (internal quotation marks omitted). "A single false material representation is sufficient to constitute the offense of obtaining property by false pretenses." People v. Schmitt, 155 Cal.App.2d 87, 108 (1957) (citing 12 Cal. Jur. 469-470 and People v. Cravens, 79 Cal.App.2d 658, 664 (1947)).

Fisher began giving financial advice to Beverly D. in 2005. He told her he knew Dunham well and that Dunham was a "big investor [who] bought and sold lots of properties" and that Dunham had been "very successful." (Lodgment No. 20, ECF No. 28-20 at 152, 154.) Fisher also told Beverly D. that Dunham "was building this big area of homes, beautiful lots," and that Beverly D. could "get in on the ground floor at a reasonable price for these lots, and I would only have to keep them for a year." (Id. at 153.) Beverly D. was told she would make "several thousand dollars more than [she] paid." (Id. at 164.)

Raymond M. met Fisher in 2006 at a "financial meeting." (Lodgment No. 21, ECF No. 28-21 at 73.) Fisher told Raymond M. about the Cherokee Village project at the end of 2005 or beginning of 2006. (Id. at 75.) Fisher told Raymond M. that Dunham was in charge of the project and Dunham was "very smart, made a lot of money, and had a beautiful house worth [$12 million]." (Id. at 76.) Fisher was very excited about the project and told Raymond M. that he had bought lots in the project as well. (Id.) The project was going to be "like a resort area" and that "it would double in price in one year." (Id.) The lots were priced at $7,500 each and could be sold in a year for $15,000. (Id. at 77.) The lots would be sold by Dunham as part of the project. (Id. at 77-78.) Because he did not know, Fisher did not tell Raymond and Caroline M. that ALC was selling lots on eBay for whatever price they could get, that ALC had refused to agree to a non-compete agreement with Dunham, or that ALC had refused to agree to a sales price for the lots. (Id. at 106-07.)

Jay and Marilyne A. met Fisher when he sold them an annuity. (Lodgment No. 21, ECF No. 28-21 at 7.) In 2005 or 2006, Fisher suggested they invest in Cherokee Village. (Id. at 7-8.) Fisher told them it was a good investment and that he would sell them for a profit for them in the next five to ten years. (Id. at 9-10.) Fisher described the development that would be built on the lots as a retirement destination. (Id. at 12-13.) Fisher told them Ed McMahon was going to star in a commercial for the project and that McMahon had already built a home there. (Id. at 13.) Fisher also told them Dunham was in charge of the project and that Dunham was "very well-versed in this type of real estate" and the he had done these types of projects before. (Id. at 18-19.) Jay and Marilyne A. were never told about ALC, their relationship to the SID, that the ALC was selling Cherokee Village lots on eBay, and that Dunham had tried and failed to secure an agreement with ALC to set a minimum price for the lots, stop selling lots on eBay and not compete with Dunham. (Id. at 36-37.)

David and Joyce M. and Martin were friends. (Lodgment No. 21, ECF No. 28-21 at 169.) Sometime in 2005, Martin told David and Joyce M. about Cherokee Village and that the man in charge, Dunham, was a "genius in real estate," that he "always had made money" and had "lived in the east and sold and made money there." (Id. at 170.) Martin suggested they invest in Cherokee Village and David and Joyce M. met with Dunham to discuss the purchase. (Id. at 171.) Dunham told them they were buying the lots at or below market price and that he would be able to market the properties and "bring some money back." (Id. at 196.) Dunham told David and Joyce M. that the market for the lots was going to increase and eventually [they] could sell them for a profit." (Id. at 197.) No one told David and Joyce M. about ALC, their relationship to the SID, that the ALC was selling Cherokee Village lots on eBay, and that Dunham had tried and failed to secure an agreement with ALC to set a minimum price for the lots, stop selling lots on eBay and not compete with Dunham. (Lodgment No. 22, ECF No. 28-22 at 32-22.)

James W. knew Martin from church and had profitably invested with him once. (Lodgment No. 23, ECF No. 28-23 at 148-50.) Martin told James W. about Cherokee Village sometime in 2006. (Id. at 153.) Martin suggested James W. invest in Cherokee Village through Gold Coast Real Estate Fund (GCREF). Martin told James W. GCREF had purchased 1,000 lots at under value prices and that they were going to develop the property and increase the lots' value. (Id. at 158.) They planned to build homes on 100 lots which would make adjoining lots more valuable. (Id. at 159.) Martin also told James W. GCREF had raised $10 million dollars. (Id. at 158.) James W. was told he would get a 10% return on his investment. (Id. at 161.) Martin told James W. that he would be working with Dunham on GCREF, that Dunham had been in real estate his whole life and had "done very well for himself" and his clients and that he and Dunham had done multiple real estate deals together. (Id. at 163.) Webb understood that he did not own Cherokee Village lots but rather an interest in GCREF which owned the lots. (Id. at 164.) James W. invested in GCREF because he believed it would provide enough income to support him and his wife while they built churches in New Zealand. (Id. at 161.) Because he did not know himself, Martin did not tell James W. about ALC, their relationship to the SID, that the ALC was selling Cherokee Village lots on eBay, and that Dunham had tried and failed to secure an agreement with ALC to set a minimum price for the lots, stop selling lots on eBay and not compete with Dunham. (Lodgment No. 24, ECF No. 28-24 at 64-66.)

Herbert T. met Dunham in the late 70's or early 80's. (Lodgment No. 20, ECF No. 28-20 at 9.) He invested with Dunham several times. In 2004, Dunham told Herbert T. about Cherokee Village. (Id. at 23, 29.) Dunham told Herbert T. he had exclusive rights to the lots in Cherokee Village, that Ed McMahon was going to be a spokesperson for the project, that he was going to build "state of the art eco-friendly houses [and] a large retirement community," and the value of the property would therefore increase significantly. (Id. at 23-24.) Herbert T. was never told about ALC, that ALC had access to continuous supply of foreclosed lots they could sell, that ALC was selling Cherokee Village lots on eBay, and that Dunham had tried and failed to secure an exclusive marketing agreement, a non-competition agreement, and an agreement with ALC to set a minimum price for the lots. (Id. at 52-56.)

Viewing the evidence in the light most favorable to the prosecution, as required under Jackson, a rational jury could conclude from this evidence that Dunham, personally and through his agents Fisher and Martin, made false pretenses and representations to Beverly D., Ray and Caroline M., Jay and Marilyne A., David and Joyce M., the James and Allison W. and Herbert T. Maquiz, 907 F.3d at 1217. Contrary to what Dunham told Fisher, Martin and the victims, he was not a wildly successful real estate investor. At the civil deposition he sat for as part of the civil case against him, which was introduced at trial, Dunham testified that he had previously invested only twice before in the purchase of blocks of real estate, and that he had spent 90% of his time in the preceding 30 years working in insurance. (Lodgment No. 13, ECF No. 28-13 [CD of Dunham's civil deposition]. In addition, Fisher and Martin falsely told Beverly D., Raymond M. and David and Joyce M. that they were purchasing the lots at or below market price. Beverly D. purchased her lots for $7,600. (Lodgment No. 20, ECF No. 28-20 at 163-64.) Raymond M. purchased his lots for $7,500. (Lodgment No. 21, ECF No. 28-21 at 77-78.) David and Joyce M. bought 13 lots for $50,000 for an average of $3,800 per lot. (Lodgment No. 21, ECF No. 28-21 at 196.) According to Cherokee Village real estate agent Ron Rhodes, from 2002 until 2008 Cherokee Village lots were selling for between $3,000 and $3,500. (Lodgment No. 13, ECF No. 28-13 at 68.) Moreover, Dunham knew that he could not generate a return on his victims' investments within a year, as he told Duncan, Moore, and Webb and that he could not make his plan to increase the value of the lots by developing Cherokee Village into a retirement home destination, as he told Beverly D., Raymond and Caroline M., Jay and Marilyne A., David and Joyce M., James and Allison W. and Herbert T., if he could not control the price of the lots. And he knew he could not control the price because ALC could undercut him at any time. ALC had a continuous supply of lots they were selling on eBay and he had tried and failed to secure a price guarantee, a non-competition agreement and an exclusive marketing agreement for the lots with ALC. (Lodgment No. 18, ECF No. 28-18 at 209, 212-13.)

Intent to Defraud

"The intent to defraud is a question of fact, to be determined from all the facts and circumstances of the case." People v. Frankfort, 114 Cal.App.2d 680, 697 (1954). A defendant's intent to defraud the owner may be established by circumstantial evidence but must be more than simple non-performance of a promise. Hartley, 248 Cal. App. 4th at 627 (2016) (citing People v. Ashley, 42 Cal.2d 246, 264 (1954)).

Dunham falsely told his agents Fisher and Martin he had a brokerage on Wall St. and was a successful real estate developer who had done over 4,000 real estate deals. This induced Fisher and Martin to buy Cherokee Village lots themselves, and then market them to the victims. A rational jury could conclude Dunham wanted Fisher and Martin to pass the false information he had told them on to the victims in order to entice them to invest in Cherokee Village. Through Fisher and Martin, Dunham told the victims he could increase the value of their lots by successfully developing a retirement destination while knowing ALC continued to sell Cherokee Village lots on eBay and that he did not have a non-competition agreement, minimum price agreement, or exclusive marketing deal with ALC. Dunham specifically told Herbert T. that he had exclusive rights to market Cherokee Village lots. A rational jury could conclude Dunham did so because he intended to defraud the victims of their money.

In addition, testimony at trial established that Fisher, Martin and Dunham told the victims that Ed McMahon was going to star in a nationwide commercial to market the project. (Lodgment No. 18, ECF No. 28-18 at 207.) Testimony from Ed McMahon's son, however, established that Dunham resisted paying the $800,000 required for the nationwide marketing campaign that would go along with the McMahon commercial. (Lodgment No. 23, ECF No. 28-23 at 85-88.) A rational jury could conclude from this evidence that Dunham never intended to spend the money necessary for a nationwide marketing campaign and falsely represented McMahon's involvement in the Cherokee Village project in order to induce investors to invest in the Cherokee Village project and defraud them of their money. Moreover, an auditor from the California Department of Business Oversight, Lisa Medina, testified about Dunham's use of shell corporations to shuttle money to his personal accounts and hide it from the victims. Medina testified that the money from Duncan, the Moores and the Ayers was deposited into an account titled "The Ronald D. Dunham Trust," and Dunham paid personal expenses from that account. (Lodgment No. 26, ECF No. 28-26 at 10-13.) Dunham claimed at trial the reason Cherokee Village failed was because of the 2008 recession. On October 24, 2008, however, the Dunham trust account held $1,924,602.38, and none of that money was returned to investors. (Id. at 12.) This is additional evidence of Dunham's intent to defraud.

Reliance

While "the false pretense or representation must have materially influenced the owner to part with his property, . . . [it] need not be the sole inducing cause." People v. Ashley, 42 Cal.2d 246, 259 (1954). Moreover, "the express testimony of a victim of false pretense that he was induced to part with his money by the fraudulent statements of the accused is not essential. It is sufficient if the inference of his reliance could have been drawn from all the evidence." Frankfort, 114 Cal. App. 2d at 699 (quoting People v. Gordon, 71 Cal.App.2d 606, 624 (1945)).

When asked whether she would have still purchased the Cherokee Village lots had she known these facts, Beverly D. testified that she could not answer the question. (Lodgment No. 20, ECF No. 28-20 at 168.) However, Beverly D. also testified that she invested in Cherokee Village because she trusted Fisher and because she was impressed by the wealth and experience Fisher told her Dunham had. (Id. at 156, 158-59, 168.) Viewing the evidence in a light most favorable to the prosecution, a rational jury could conclude that Beverly D. "transferred the property in reliance on [Dunham's false] representation." Williams, 57 Cal. 4th at 787; see also Ashley, 42 Cal. 2d at 264.

A rational jury could also conclude that Raymond and Caroline M. transferred their property to Dunham in reliance on his misrepresentations. Raymond M. testified that "[n]ormally I did not do anything like this, never took chances, never went out of my comfort zone, because we never really had very much, so money was very important to us." (Lodgment No. 21, ECF No. 28-21 at 74.) He was looking for an investment that made money because he and his wife were supporting their mothers who were in senior citizen facilities. (Id.) Specifically, Raymond M. testified that Fisher had offered them a different investment prior to Cherokee Village and they had turned it down because they needed a quicker turnaround on their investment. (Id. at 75.) Thus, a rational jury could conclude that Dunham's false promise that Cherokee Village lots would double in value in a year was one of the main reasons Raymond and Caroline M. invested.

Marilyne A. testified that if she had known about ALC's activities at Cherokee Village, she would not have invested in the project. (Lodgment No. 21, ECF No. 28-21 at 36-38.) There was also sufficient evidence for a rational jury to conclude that David and Joyce M. and James and Allison W. relied on Dunham's and Martin's representations of the viability of Cherokee Village as a successful investment. David M. testified that he probably would not have invested in Cherokee Village had he known about ALC. (Lodgment No. 22, ECF NO. 28-22 at 35.) Joyce M. testified they were investing the money in Cherokee Village as a means to generate income for their "old age," and the jury could have found that David and Joyce M. would not have invested in Cherokee Village if it had been portrayed as the risky investment it was. (Lodgment No. 21, ECF No. 28-21 at 170.) James W. testified he invested in GCREF in order to generate enough income to live on while he and his wife built churches for charity and that he would likely not have invested in GCREF if he had known about ALC. (Lodgment No. 23, ECF No. 28-23 at 61; Lodgment No. 24, ECF No. 28-24 at 65-66.) Finally, Herbert T. testified he would not have invested in Cherokee Village had he known ALC was selling lots on eBay and had access to thousands of foreclosed lots. (Lodgment No. 18, ECF No. 28-28 at 213.)

In sum, the California appellate court's conclusion that there was sufficient evidence to support Dunham's elder theft convictions was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Bell, 535 U.S. at 694. Nor was it based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2). Dunham is not entitled to relief as to this claim.

ii. Embezzlement (Ground Five)

"The elements of embezzlement are `1. An owner entrusted his/her property to the defendant; 2. The owner did so because he/she trusted the defendant; 3. The defendant fraudulently converted that property for his/her own benefit; [and] 4. When the defendant converted the property, he/she intended to deprive the owner of its use.'" People v. Fenderson, 188 Cal.App.4th 625, 636-37 (2010). "The offense of embezzlement contemplates a principal's entrustment of property to an agent for certain purposes and the agent's breach of that trust by acting outside his authority in his use of the property." People v. Sisuphan, 181 Cal.App.4th 800, 813-14 (2010). "If the relation is that of creditor and debtor merely, an appropriation by the latter does not constitute embezzlement." People v. Wooten, 44 Cal.App.4th 1834, 1845 (1996) (quoting People v. Petrin, 122 Cal.App.2d 578, 581 (1954) (internal quotation marks omitted)). Dunham contends there was insufficient evidence establishing a relationship of trust between he and Duncan and that because Duncan did not explicitly limit his use of the funds, he could not have misused them by using them for personal expenses. (Pet., ECF No. 1 at 10-11, 60-63.)

Dunham had convinced Fisher he was an extremely successful real estate businessman and Fisher trusted Dunham enough to invest in Cherokee Village lots. (Lodgment No. 17, ECF No. 28-17 at 10-37.) Fisher in turn convinced Duncan to trust Dunham by telling her that he "was very impressed with what Mr. Dunham was doing," and that Dunham was "a big investor and he bought and sold lots of properties." (Lodgment No. 20, ECF No. 28-20 at 154-56.) According to Fisher, Dunham had made "investments . . . with big properties and that he had been very successful in real estate. (Id.) After Fisher had convinced Duncan to purchase Cherokee Village lots, Fisher took Duncan to meet with Dunham at his impressive Newport Beach office. (Id. at 169.) At the meeting, Dunham convinced Duncan to trust him by appearing to be looking out for her interests. He told her she needed more tax deductions and that she could get some by taking money out of her house. (Id. at 170.) Dunham suggested she take out a $350,000 mortgage on her home, but Duncan was "a little overwhelmed" by Dunham's suggestion and "hemmed and hawed a while." (Id.) Dunham further encouraged Duncan's trust by writing down the value of all her assets, including her home, car, furnishings, household goods, and by telling her she was worth "a million dollars" and could afford the $350,000 mortgage. (Id. at 170, 172.) Duncan eventually agreed, obtained the $350,000 mortgage, gave the money to Dunham to invest, and signed a 2-year promissory note for the money that listed a 12% interest rate. (Id. at 173-75.) Viewing the evidence in a light most favorable to the prosecution, as this Court is required to do under Jackson, a rational jury could conclude that Duncan took out a $350,000 mortgage on her home and gave the money to Dunham to invest because she trusted him with her money.

Dunham also argues there was insufficient evidence he fraudulently converted Duncan's property to his own use because Duncan did not explicitly limit his use of the funds. (Pet., ECF No. 1 at 60-63.) Duncan testified she gave the money to Dunham to invest in Gold Coast Real Estate and other investments which would generate a profit within two years. (Lodgment No. 20, ECF No. 28-20 at 176, 182.) The evidence established, however, that Dunham used Duncan's money for his own personal expenses. Lisa Medina, the auditor from the California Department of Business Oversight, testified that on October 24, 2006, $350,000 from Duncan was deposited into the Ronald D. Dunham Trust account. (Lodgment No. 26, ECF No. 28-26 at 11.) Dunham used that account to pay mortgage payments, alimony, child support and taxes. (Id. at 10.) In 2008, Medina testified Dunham had access to bank accounts worth over $1.9 million dollars. (Id. at 12.) When Duncan asked Dunham to repay the note in 2008, however, he said he did not have the money. (Id. at 178.) A rational jury could conclude from this evidence that Dunham fraudulently converted Duncan's investment money to his own personal use.

iii. Securities Fraud (Ground Six)

Dunham also contends the evidence was insufficient to support his convictions on the securities fraud counts that involved the Cherokee Village lots because the lots were not "securities" and because there was insufficient evidence to establish he made material misrepresentations or omissions. (Pet., ECF No. 1 at 11-12, 48-52.) Respondent contends the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Answer, ECF No. 27-1 at 172-86.)

Dunham raised this claim in the petition for review he filed in the California Supreme Court. (Lodgment No. 86, ECF No. 27-42.) The California Supreme Court denied the petition without citation of authority. (Lodgment No. 87, ECF No. 28-87.) Accordingly, this Court must "look through" to the state appellate court's opinion denying the claim to determine whether the denial was contrary to, or an unreasonable application of, clearly established Supreme Court law. Ylst, 501 U.S. at 805-06. That court analyzed the claim as follows:

. . . .

(Lodgment No. 83, ECF No. 28-83 at 20, 25-28.)

"[California] Corporations Code sections 25401 and 25540 `criminalize the sale or purchase of securities by means of oral or written communications which either contain false or misleading statements or omit material facts . . . ." People v. Black, 8 Cal. App. 5th 889, 899 (2017), quoting People v. Simon, 9 Cal.4th 493, 496 (1995). California courts have defined the inquiry into whether something is a security under California law as follows:

Id. at 899-900.

In order for the jury to have convicted Dunham of securities fraud, they had to find: (1) Dunham made "an untrue statement of material fact or omitted to state a material fact necessary in order to make the statement made . . . not misleading"; and (2) he "did so by written or oral communications in connections with the offer or sale of a security"; and (3) at the time he offered the security, Dunham either knew his statements or omissions were false, was "criminally negligent in failing to know or discover that a representation or omission" was false, or knew or was criminally negligent "in failing to discover that an omitted fact was material. (Lodgment No. 7, ECF No. 28-7 at 137.) Dunham contends there was insufficient evidence presented to permit the jury to conclude that the Cherokee Village lots were "securities" within the meaning of the statute because the promises he made regarding development of Cherokee Village were too vague to qualify as "managerial efforts." (Pet., ECF No. 1 at 11-12, 48-52, 170-71, 253-57.) Further, he claims he did not make any material untrue facts or omissions. (Id.)

Untrue Statement or Omission of a Material Fact

As discussed in section IV(C)(4)(b)(i) of this Order, there was sufficient evidence to support the jury's conclusion that Dunham's statements, which were made either directly by Dunham or through his agents Fisher and Martin, regarding his real estate development experience, the potential for profits from the development and his failure to disclose ALC's role — including ALC's sales of Cherokee Village lots on eBay, their refusal to enter into a non-compete agreement or agree on a sales price with Dunham, and their virtually inexhaustible supply of Cherokee Village lots ensured by their contract with the SID — constituted misrepresentations and omissions. Dunham did not have the real estate experience he claimed he had and each of the victims testified they did not know about ALC or its role in the Cherokee Village lot sales. (Lodgment No. 20, ECF No. 28-20 at 23-24, 52-56, 152-154, 164; Lodgment No. 21, ECF No. 28-21 at 9-10, 13, 18-19, 36-37, 76-78, 106-07, 170-71, 196, 197; Lodgment No. 22, ECF No. 28-22 at 32-34; Lodgment No. 23, ECF No. 28-23 at 158-59, 161, 163-64, 166.)

In addition, there was sufficient evidence presented to support the jury's conclusion that the untrue statements and omissions were material. The jury was instructed that "[a] fact is `material' if there is a substantial likelihood that, under all the circumstances, a reasonable investor would consider it important in reaching a decision." (Lodgment No. 7, ECF No. 28-7 at 138.) Fisher and Martin told the victims that the Cherokee Village project would be successful in large part because Dunham was a successful real estate developer with a lot of experience. (Lodgment No. 20, ECF No. 28-20 at 20-25, 152-54; Lodgment No. 21, ECF No. 28-21 at 76, 18-19, 170.) Jurors could conclude from this testimony that a reasonable person would consider Dunham's purported real estate development acumen as a vital fact to their decision whether to invest. In addition, a rational jury could conclude from the evidence that Dunham's failure to tell the victims about ALC's role in the Cherokee Village lots was a material omission because ALC's access to an unlimited supply of lots, their resultant ability to undercut any sale price of the Village lots, and their continued sale of lots on eBay would have been important to anyone purchasing Cherokee Village lots at the time.

Dunham contends the Private Placement Memorandum (PPM) given to the GCREF investors (counts 15 and 17) disclosed the risk factors involved in the purchase of shares in the fund. (Pet., ECF No. 1 at 11-12, 48-52, 170-71.) But as Respondent notes, none of the information about ALC or its role in Cherokee Village lots was disclosed in the "risk factors" section of the PPM. (Lodgment No. 61, ECF No. 28-61.) A rational jury could conclude that the lack of information about ALC, either oral though Fisher and Martin or written through the PPM, was a material omission.

Whether the Lots Were "Securities"4

The jury in Dunham's case was instructed with the Howey test. (Lodgment No. 7, ECF No. 28-7 at 143.) The instruction read, in pertinent part, as follows:

(Lodgment No. 7, ECF No. 28-7 at 143.)

Dunham argues there was insufficient evidence for the jury to conclude the Cherokee Village lot purchases were securities because the expected profits from the investment were not "derived from the managerial efforts of others." (Pet., ECF No. 1 at 11-12, 48-52.) He contends they were simply purchases of individual lots by individual investors. As discussed in section IV(C)(4)(b)(i) above, all of the victims testified they were told they were purchasing lots or interests in GCREF in order to be part of and profit from a future retirement development, that Dunham would oversee the development, and that Dunham had the experience to make the development a success and that the lots would increase in value over time as the project took shape. (Lodgment No. 20, ECF NO. 28-20 at 152-53, 23-24; Lodgment No. 21, ECF No. 28-21 at 9-19, 75-77, 170-97; Lodgment No. 23, ECF No. 28-23 at 153-59.) None of the victims, with the possible exception of Jay and Marilyne A. who testified they considered using one of the lots they owned for a retirement home, planned to develop their lots themselves. (Lodgment No. 20, ECF No. 28-20 at 24, 153; Lodgment No. 21, ECF No. 28-21 at 9-10, 79, 173; Lodgment No. 23, ECF No. 28-23 at 158-59.) The evidence also established Dunham himself thought of the lot purchases as "common enterprise" that he was managing. After the victims purchased the lots, Dunham held events at which plans for the development and a marketing campaign were described. (Lodgment No. 20, ECF NO. 28-20 at 25-26, 161-63; Lodgment No. 21, ECF No. 28-21 at 26-29, 88-89, 74-75, 174.) Taken together, a rational jury could conclude from the evidence presented that the Cherokee Village lots were not simply independent real estate transactions but rather a security within the meaning of the statute. See e.g., SEC v. Schooler, 905 F.3d 1107, 1113 (9th Cir. 2018) (general partnership interest in real estate constituted a security).

Knowledge of Falsity

As discussed in section IV(C)(4)(b)(i) of this Order, Dunham knew the statements and omissions he made were false. Despite his representations, Dunham knew he was not a wildly successful real estate investor who had been involved in thousands of real estate deals. He also knew about ALC's role in Cherokee Village and that his development ideas would not be successful given ALC's continued sale of lots on eBay, its access to an unlimited supply of lots that could be sold for less than Dunham's, and ALC's refusal to agree to a non-compete agreement or a set price for lots.

The state court's application of Jackson was not objectively unreasonable because "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319; Bell, 535 U.S. at 694. Nor was it based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2). Dunham is not entitled to relief as to this claim.

5. Admission of Evidence (Ground Seven)

Dunham argues in ground seven that his federal constitutional rights to a fair trial were violated when the trial court admitted uncharged acts evidence. (Pet., ECF No. 1 at 12-13, 63-67.) Specifically, Dunham contends the trial court should not have admitted testimony from Giles Sensenbrenner, Steven Dickson, John Nicholson and Charles Shipp. (Id.) He also contends the jury was improperly instructed with regard to this evidence. (Id.)

Dunham raised this claim in the petition for review he filed in the California Supreme Court. (Lodgment No. 86, ECF No. 27-42.) The California Supreme Court denied the petition without citation of authority. (Lodgment No. 87, ECF No. 28-87.) Accordingly, this Court must "look through" to the state appellate court's opinion denying the claim to determine whether the denial was contrary to, or an unreasonable application of, clearly established Supreme Court law. Ylst, 501 U.S. at 805-06. That court wrote:

(Lodgment No. 83, ECF No. 28-83 at 43-48.)

A state court's erroneous evidentiary ruling cannot form the basis for federal habeas relief unless federal constitutional rights are affected. Whelchel v. Washington, 232 F.3d 1197, 1211 (9th Cir. 2000) (citing Lincoln v. Sunn, 807 F.2d 805, 816 (9th Cir. 1987)). "While a petitioner for federal habeas relief may not challenge the application of state evidentiary rules, he is entitled to relief if the evidentiary decision created an absence of fundamental fairness that `fatally infected the trial.'" Ortiz-Sandoval v. Gomez, 81 F.3d 891, 897 (9th Cir. 1996) quoting Kealohapauole v. Shimoda, 800 F.2d 1463, 1465 (9th Cir. 1986). "[A] trial court's ruling does not violate due process unless the evidence is `of such quality as necessarily prevents a fair trial.'" Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir. 1998) (internal quotation marks omitted). Admission of evidence violates 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). If a due process error is found, the Court must then determine if it had a "substantial and injurious effect in determining the jury's verdict." Brecht, 507 U.S. at 622.

As Respondent notes, there is no clearly established Supreme Court law which holds that prejudicial evidence is inadmissible or violates due process. Indeed, the Supreme Court expressly reserved deciding that issue in Estelle, 502 U.S. at 75, n.5; see Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008); Alberni v. McDaniel, 458 F.3d 860, 864 (9th Cir. 2006). The Ninth Circuit has noted:

Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (citing Williams v. Taylor, 529 U.S. 362, 375 (2000) and Carey, 549 U.S. at 77).

In any event, even if the uncharged acts evidence was improperly admitted it did not have a substantial and injurious effect on the verdict. Brecht, 507 U.S. at 638. As discussed above in section IV(C)(4), there was sufficient, if not overwhelming, evidence supporting the elder theft and securities theft counts independent of the uncharged acts evidence. Accordingly, the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Bell, 535 U.S. 685, 694. Nor was it based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2). Dunham is not entitled to relief as to this claim.

6. Jury Instructions (Ground Eight)

In grounds eight and nine, Dunham contends the jury was improperly instructed in two different ways. He claims the jury instructions should have contained definitions for the term "obligation" in the theft by false pretense instructions and the word "trust" in the embezzlement instructions. (Pet., ECF No. 1 at 13, 52-56.) Respondent contends Dunham is not entitled to federal habeas corpus relief because jury instructions are generally a matter of state law. (Answer, ECF No. 27-1 at 199-200.) In the alternative, Respondent argues the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Id. at 200-04.)

Dunham raised this claim in the petition for review he filed in the California Supreme Court. (Lodgment No. 86, ECF No. 31-35.) The California Supreme Court denied the petition without citation of authority. (Lodgment No. 87, ECF No. 28-87.) Accordingly, this Court must "look through" to the state appellate court's opinion denying the claim to determine whether the denial was contrary to, or an unreasonable application of, clearly established Supreme Court law. Ylst, 501 U.S. at 805-06. That court wrote:

(Lodgment No. 83, ECF No. 28-83 at 53.)

Instructional error can form the basis for federal habeas corpus relief only if it is shown that "`the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.' [citation omitted]." Clark v. Brown, 450 F.3d 898, 904 (9th Cir. 2006) (citing Cupp v. Naugh'ten, 414 U.S. 141, 146 (1973)); Henderson v. Kibbe, 431 U.S. 145, 154 (1977). To establish a due process violation, "the defendant must show both that the instruction was ambiguous and that there was "`a reasonable likelihood'" that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt." Waddington v. Sarausad, 555 U.S. 179, 190 (2009) (quoting Estelle v. McGuire, 502 U.S. 62, 72 (1991)). A petitioner who seeks to establish a due process violation as a result of an instruction that accurately states the elements of the crime carries an "especially heavy burden." Waddington, 555 U.S. at 190 (quoting Henderson v. Kibbe, 431 U.S. 145, 155 (1977) (internal quotation marks omitted)).

"A defendant . . . is not entitled to an instruction with wording of his own choosing." United States v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010) (citing United States v. Ferris, 719 F.2d 1405, 1408 (9th Cir.1983)). Thus, "the question before us is not whether the instruction [the defendant] posed was correct, but whether the instruction actually given was misleading or inadequate to guide the jury's decision." Id. (citing United States v. Tatoyan, 474 F.3d 1174, 1179 (9th Cir. 2007)). As the state court noted, the instructions given for the theft by false pretense and embezzlement counts were standard CALCRIM jury instructions. (See Lodgment No. 7, ECF No. 28-7 at 132-34 [CALCRIM Nos. 1804 and 1806].) They accurately described the elements of the offenses and the jury was instructed that in order to find Dunham guilty they were required to find those elements were proven beyond a reasonable doubt. See Fenderson, 188 Cal. App. 4th at 636; Hartley, 248 Cal. App. 4th at 627; Cal. Penal Code § 484, 503; Lodgment No. 7, ECF No. 28-7 at 104 [CALCRIM No. 220]. The words "obligation" and "trust" are common terms the jury was fully capable of understanding and applying without further guidance. Accordingly, the state court denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Yarborough, 540 U.S. at 4. Nor was it based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2). Dunham is not entitled to relief as to this claim.

7. Notice of the California Penal Code § 186.11 Allegation (Ground Nine)

In ground nine, Dunham contends he did not receive sufficient notice of the

California Penal Code § 186.11 allegation because it was not contained in the sixth amended information, the final information filed against him. (Pet., ECF No. 1 at 14, 73-75, 181-82, 311-18.) He contends his federal constitutional right to have adequate notice of the charges against him was violated. (Id.) He also contends any restitution order that resulted from the § 186.11 charge was improper as a result. (Id.)

Dunham raised this claim in the petition for review he filed in the California Supreme Court. (Lodgment No. 86, ECF No. 31-35.) The California Supreme Court denied the petition without citation of authority. (Lodgment No. 87, ECF No. 28-87.) Accordingly, this Court must "look through" to the state appellate court's opinion denying the claim to determine whether the denial was contrary to, or an unreasonable application of, clearly established Supreme Court law. Ylst, 501 U.S. at 805-06. As to the restitution portion of the claim, the Court has determined it is technically exhausted but procedurally defaulted, and, in any event, meritless. (See Section IV(B) of this Order.) The state appellate court analyzed the claims as follows:

(Lodgment No. 83, ECF No. 28-83 at 60-62.)

"The Sixth Amendment guarantees a criminal defendant the fundamental right to be informed of the nature and cause of the charges made against him so as to permit adequate preparation of a defense." Gautt v. Lewis, 489 F.3d 993, 1002 (9th Cir. 2007) (citing U.S. Const. amend. VI and Cole v. Arkansas, 333 U.S. 196, 201 (1948)). Although the information need not need cite to a specific statute, "the substance of the information . . . must in some appreciable way apprise the defendant of the charges against him so that he may prepare a defense accordingly." Id. at 1004; see also Givens v. Housewright, 786 F.3d 1378, 1380 (9th Cir. 1986). "An information is not constitutionally defective if it states `the elements of an offense charged with sufficient clarity to apprise a defendant of what to defend against.'" James v. Borg, 24 F.3d 20, 24-25 (9th Cir. 1994). Miller v. Stagner, 757 F.2d 988, 994 (9th Cir. 1985) (quoting Russell v. United States, 369 U.S. 749, 763-64 (1962) [citations omitted]).

Every charging document filed in Dunham's case contained the § 186.11 allegation in the charge summary section of the information. (Lodgment No. 3, ECF No. 28-3 at 21-47, Lodgment No. 4, ECF No. 28-4 at 613-38; Lodgment No. 5, ECF No. 28-5 at 63-74; Lodgment No. 7, ECF No. 28-7 at 21-32, 77-99.) In addition, the facts underlying the § 186.11 charge — the victims' names, the date of the offenses, the minimum dollar amount stolen — was also contained in the sixth amended information. (Id.) Moreover, counsel did not express surprise at or object to the § 186.11 jury instruction, indicating he was well aware that the allegation was part of the charges against Dunham. (Lodgment No. 9, ECF No. 28-9 at 175.) The state appellate court's denial of this claim, therefore, was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Bell, 535 U.S. 694. Nor was it based on an unreasonable determination of the facts. 28 U.S.C. § 2254. Dunham is not entitled to relief as to this claim.

As to Dunham's claims regarding restitution, Respondent is correct that challenges to restitution orders are not cognizable in federal habeas corpus proceedings. Bailey v. Hill, 599 F.3d 976, 979-84 (9th Cir. 2010). Accordingly he is not entitled to relief as to his restitution claim.

8. Prosecutorial Misconduct (Ground Ten)

Dunham claims the prosecutor committed "pervasive misconduct," and cites four kinds of misconduct he alleges the prosecutor committed during closing argument: misstatements of law, improper comments about the jury's deliberations, denigration of defense counsel, and improper hypotheticals. (Pet., ECF No. 1 at 14-15, 69-73.) He also contends that the cumulative effect of the misconduct rendered his trial fundamentally unfair. (Id.) Respondent argues the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Answer, ECF No. 27-1 at 215-33.)

In order to find a prosecutor's actions amount to misconduct, "[i]t is not enough that the prosecutor's remarks [or actions] were undesirable or even universally condemned." Darden v. Wainwright, 477 U.S. 168, 181 (1986). Rather, a prosecutor commits misconduct when his or her actions "`so infect . . . the trial with unfairness as to make the resulting conviction a denial of due process.'" Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974).) "[T]he appropriate standard of review for such a claim on writ of habeas corpus is `the narrow one of due process, and not the broad exercise of supervisory power.'" Id. (quoting Donnelly, 416 U.S. at 642.) "[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982). "Counsel are given latitude in the presentation of their closing arguments, and courts must allow the prosecution to strike hard blows based on the evidence presented and all reasonable inferences therefrom." Ceja v. Stewart, 97 F.3d 1246, 1253 (9th Cir. 1996) (citing United States v. Baker, 10 F.3d 1374, 1415 (9th Cir. 1993)). "Prosecutorial misconduct which rises to the level of a due process violation may provide the grounds for granting a habeas petition only if that misconduct is deemed prejudicial under the "harmless error" test articulated in Brecht v. Abrahamson, 507 U.S. 619, 637-38 [citations omitted] (1993)." Shaw v. Terhune, 380 F.3d 473, 478 (9th Cir. 2004).

Dunham raised these claims in the petition for review he filed in the California Supreme Court. (Lodgment No. 86, ECF No. 31-35.) The California Supreme Court denied the petition without citation of authority. (Lodgment No. 87, ECF No. 28-87.) Accordingly, this Court must "look through" to the state appellate court's opinion denying the claim to determine whether the denial was contrary to, or an unreasonable application of, clearly established Supreme Court law. Ylst, 501 U.S. at 805-06.

i. Misstatements of Law — Burden of Proof

Dunham contends the prosecutor in his case made several misstatements of law during closing argument. He claims the prosecutor made several comments that improperly shifted the burden of proof to the defense and missated the law with regard to the securities fraud counts. The state appellate court concluded that the claims were waived and, in the alternative, they did not amount to misconduct:

(Lodgment No. 83, ECF No. 28-83 at 54-56.)

"Prosecutors may comment on the failure of the defense to produce evidence to support an affirmative defense so long as it does not directly comment on the defendant's failure to testify." Cook v. Schriro, 538 F.3d 1000, 1020 (9th Cir. 2008) (citing Lockett v. Ohio, 438 U.S. 586, 595 (1978)). The prosecutor's first comment fell within this ambit, as he did not refer to Dunham's failure to testify but rather noted the defense had not produced evidence to support its claim that Dunham had not defrauded the victims but rather had simply fallen victim to the recession. The second comment was in direct response to the defense attorney's closing argument in which he attacked the prosecution for failing to subpoena records to support their claim that ALC continuously sold Cherokee Village lots on eBay:

(Lodgment No. 28, ECF No. 28-28 at 218-219.)

"In order to make an appropriate assessment, the reviewing court must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo." United States v. Young, 470 U.S. 1, 12 (1985). Here, defense counsel called the jury's attention to the prosecution's failure to present evidence of ALC's sales, and the prosecutor did not commit misconduct in responding to that argument. The state appellate court correctly concluded that the prosecutor's remarks were in response to defense counsel's closing argument, particularly since the prosecutor explicitly told the jury that Dunham was presumed innocent, the prosecutor had the burden to prove Dunham guilty beyond a reasonable doubt, and that Dunham had "no obligation to prove anything." (Lodgment No. 29, ECF No. 28-29 at 51.)

ii. Misstatements of Law — Securities Fraud

Next, Dunham contends the prosecutor misstated the law of securities fraud in two ways. First, he claims the prosecutor told the jury they need only find that Dunham had made a material omission and disregarded the requirement that "the omission render the sales pitch misleading." (Lodgment No. 80, ECF No. 28-80 at 128-29.) During the two instances Dunham complains of, the prosecutor explained what a material omission was. During the first instance, he told the jury that in order to convict Dunham they had to find he told a "material lie," or a "material omission." (Lodgment No. 28, ECF No. 28-28 at 121.) He also told them Dunham had to know the lie or omission was "important." (Id.) During the second instance, he told the jury a lie or omission was material if "under all the circumstances a reasonable investor would consider it important. Did you get all the facts? Are you an informed investor? Do you feel comfortable giving up your life savings to this guy? Do you feel like you got all the information you needed?" (Id. 121-22.) The state appellate court addressed this claim as follows:

(Lodgment No. 83, ECF No. 28-83 at 54-56.)

The prosecutor did not misstate the law. He accurately described the materiality requirement of the crime. (See Lodgment No. 7, ECF No. 28-7 at 137.) Moreover, in the context of this case, a reasonable juror would interpret the prosecution's statement that the material lie or omission had to be "important" to mean the lie or omission would affect a person's decision had they known about it. This is consistent with the jury instructions given to the jury. In any event, even if the prosecutor's statement was confusing or misleading, the jury had a correct instruction for the securities fraud offense which they could refer to during deliberations and were also instructed that they were to refer to the written instructions they were given as the correct statement of the law, not the statements of the attorneys. (Id. at 101.) Jurors are presumed to follow the instructions given to them. Richardson v. Marsh, 481 U.S. 200, 206 (1987).

Dunham also argues the prosecutor misstated the law regarding when a transaction is an "investment contract" for purposes of the definition of a security because he told the jury it did not matter whether the victims maintained possession and control of the lots. (Pet., ECF No. 1 at 5, 69-70, 178-79.) The instruction defining a security included language directing the jury to "look through the mere form to the substance of the transaction" to determine whether the transactions were securities as opposed to a simple land deal. The prosecutor was within the scope of argument to suggest that the form of the transaction — the sale of lots — obscured its actual substance, which was an "investment . . . made in a common enterprise [w]ith the expectation of profit . . . [and] derived from the managerial efforts of others." (See Lodgment No. 7, ECF No. 28-7 at 143.) "Counsel are given latitude in the presentation of their closing arguments, and courts must allow the prosecution to strike hard blows based on the evidence presented and all reasonable inferences therefrom." Ceja, 97 F.3d at 1253.

iii. Misstatements of Law — Unanimity Instruction

Dunham contends the prosecutor improperly argued the prosecutor referred to statements made by Dunham at the La Costa seminar and during his civil deposition, which occurred after the victims purchased Cherokee Village lots and GCREF shares, as supporting the element of false representation for the elder theft counts or misrepresentation of a material fact for the security fraud counts. The prosecutor pointed to those statements, however, as evidence supporting corroborating what Fisher and Martin believed about Dunham and what they communicated to the victims at the time of their purchase:

(Lodgment No. 28, ECF 28-28 at 130-31.)

As Respondent notes, the La Costa presentation and the civil deposition were evidence corroborating Fisher's testimony that he told the victims Dunham was a real estate genius based on lies Dunham told him. As such, the prosecutor's statements were an appropriate comment on the evidence and reasonable inference that could be drawn from the evidence. Ceja, 97 F.3d at 1253.

iv. Misstatements of Law — Circumstantial Evidence

Next, Dunham claims the prosecutor misstated the law regarding circumstantial evidence by stating as follows:

(Lodgment No. 28, ECF No. 28-28 at 162.)

The prosecutor attempted to explain, albeit inartfully, that only reasonable conclusions could be drawn from circumstantial evidence. Upon the objection being sustained, he then correctly described the circumstantial evidence instruction. The error does not rise to the level of misconduct. Darden, 477 U.S. at 181.

v. Misstatements of Law — Constructive Notice for the Statute of Limitations

Dunham argues the prosecutor misstated the law regarding constructive notice for the statute of limitations instruction. The prosecutor stated:

(Lodgment No. 28, ECF No. 28-28 at 199-200.)

The jury instruction for the statute of limitations read, in pertinent part, that in order to convict Dunham, the jury had to find that "the prosecution began within 4 years of the date the crimes were discovered or should have been discovered." (Lodgment No. 7, ECF No. 7 at 154.) It further told the jury that "[a] crime should have been discovered when the victim was aware of facts that would have alerted a reasonable diligent person in the same circumstances to the fact that a crime may have been committed." (Id.) Taking the prosecutor's comments in context there was no misstatement of law and thus no misconduct. Darden, 477 U.S. at 181; Smith, 455 U.S. at 219.

vi. Misstatements of Law — Enhancements

The California Penal Code § 12022.6 enhancement alleged against Dunham required the jury to find that the loss suffered by the victims was more than $65,000. Cal. Penal Code § 12022.6(a)(1) (repealed Jan. 1, 2018). Dunham claims the prosecutor misstated the law when he told the jury that in order to find the § 12022.6(a)(1) allegation true, they had to determine whether Dunham took or caused a loss of more than $65,000. (Lodgment No. 28, ECF No. 28-28 at 112.) Dunham contends the penal code section states the jury must determine whether he took and caused a loss of more then $65,000. Id.

"Section 12022.6, subdivision (a) states: `When any person takes, damages, or destroys any property in the commission or attempted commission of a felony . . . [and] the loss exceeds sixty-five thousand dollars ($65,000), the court . . . shall impose an additional term of one year." People v. Denman, 218 Cal.App.4th 800, 810 (2013). As the jury instruction states, the elements of the crime are:

(Lodgment No. 7, ECF No. 28-7 at 150.)

Assuming the prosecutor misstated the law, the jurors were nonetheless properly instructed on the elements of the enhancement. (Id.) They were told they were to follow the written instructions and not the statements of the attorneys regarding the law. (Id. at 101.) Jurors are presumed to follow the instructions they are given. Richardson, 481 U.S. 206. No due process violation occurred.

vii. Comments About Jury Deliberations

Dunham also points to comments the prosecutor made about jury deliberations as misconduct. Specifically, he contends the comments communicated to the jury that they had to reach a verdict, which in turn infringed on the jury's deliberative process. (Pet., ECF No. 1 at 14-15, 69-73.) The state appellate court addressed this claim as follows:

(Lodgment No. 83, ECF No. 28-83 at 56-57.)

The first instance of the prosecutor infringing on the jury's deliberation process occurred when he was explaining to the jury what they needed to decide with regard to material facts:

(Lodgment No. 28, ECF No. 28-28 at 128.)

While the prosecutor should not have discussed the juror's deliberation process, it is clear from the record that the comments were in the context of explaining a particular jury instruction to the jury. The prosecutor quickly returned to actual text of the instruction and the jury was also given that instruction before deliberations. Under these circumstances, the state appellate court's conclusion that the comments did not constitute misconduct was not an unreasonable application of Supreme Court law. Bell, 535 U.S. at 694.

The second instance Dunham complains of occurred when the prosecutor was discussing the need to take deliberations seriously:

(Id. at 167-68.)

The prosecutor's remarks were given in the context of reminding the jury the instructions tell them not to go outside what was presented in court and to only consider the evidence in order not to risk a mistrial. Though the prosecutor's remarks could have been clearer, upon objection he immediately returned to the language of CALCRIM No. 200 and 3550. (See Lodgment No. 7, ECF No. 28-7 at 101 ("It is up to you, exclusively, to decide what happened, based only on the evidence that has been presented to you in this trial. Do not let bias, sympathy, prejudice or public opinion influence your decision.. . . You must follow the law as I explain it to you, even if you disagree with it."), at 155 ("You should try to agree on a verdict if you can . . . . Your role is to be an impartial judge of the facts, not to act as an advocate for one side or the other.").) The state court's determination that this did not amount to prosecutorial misconduct was not an unreasonable application of Supreme Court law.

The third instance Dunham complains of occurred during the prosecutor's discussion of the different elements of each crime and the need for the jurors to consider each count separately:

(Id. at 169-70.)

The state court's determination that the prosecutor did not commit misconduct was reasonable. Bell, 535 U.S. at 694. As with the preceding instances, when an objection was sustained, the prosecutor returned to the jury instructions he was attempting, inelegantly, to explain. (See Lodgment No. 7, ECF No. 28-7 at 148 [CALCRIM No. 3515] ("Each of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one.").) Moreover, the prosecution's statement that the jury's goal is to have a verdict is echoed in the final instruction, entitled "Pre-Deliberation Instructions," which tells the jury that they "should try to agree on a verdict if you can." (Id. at 155.)

"It is . . . improper for the prosecutor to state that the duty of the jury is to find the defendant guilty." United States v. Sanchez, 176 F.3d 1214, 1224 (9th Cir. 1999). It is also improper for a judge to coerce jurors by telling them they must reach a verdict. Jenkins v. United States, 380 U.S. 445, 446 (1965). But neither of these scenarios are present in Dunham's case. The prosecutor's statements could be characterized as inelegant or sloppy characterizations of the law and jury instructions, but they do not rise to a due process violation. Darden, 477 U.S. at 181.

viii. Comments Denigrating Defense Counsel

Dunham also argues the prosecutor committed misconduct when he made denigrating comments about and laughed at defense counsel. (Pet., ECF No. 1 at 14-15, 69-73.) The California Court of Appeal analyzed the claim as follows:

(Lodgment No. 83, ECF No. 28-83 at 57-58.)

A prosecutor may not attack defense counsel's ethics or integrity "absent specific evidence in the record." Williams v. Borg, 139 F.3d 737, 745 (9th Cir. 1998) (citing United States v. Frederick, 78 F.3d 1370, 1380 (9th Cir. 1996)); Bruno v. Rushen, 721 F.2d 1193, 1195 (9th Cir. 1983). But as noted above, "counsel are given latitude in the presentation of their closing arguments, and courts must allow the prosecution to strike hard blows based on the evidence presented and all reasonable inferences therefrom." Ceja, 97 F.3d at 1253-54. Here, the prosecutor's remarks were well within the latitude afforded counsel during closing arguments because they were made in reference to the application of the law to the facts and were not "ad hominem" attacks on defense counsel's integrity or ethics. See Sassounian v. Roe, 230 F.3d 1097, 1106 (9th Cir. 2000) (declining to find prejudice where the prosecutor implied that defense counsel fabricated evidence, the judge sustained objections to the misconduct and instructed the jury that the attorneys' arguments did not constitute evidence, and the misconduct was limited to a few incidents during trial); Williams, 139 F.3d at 744-45 (finding no prejudicial misconduct when prosecutor referred to defense's closing argument as "trash"). As to the prosecutor laughing during defense counsel's argument, such behavior is clearly inappropriate and the prosecutor acknowledge that it was and apologized. (Lodgment No. 29, ECF No. 28-29 at 45.) But even if such behavior rose to the level of a due process violation, it did not have a substantial and injurious effect on the jury's verdict. Brecht, 507 U.S. at 622. It was a brief moment in a lengthy trial and during a lengthy closing argument.

ix. Hypotheticals

Dunham contends the prosecutor's use of particular hypotheticals to illustrate how to apply jury instructions was "gratuitously inflammatory." (Pet., ECF No. 1 at 15, 69-73.) The prosecutor used rape as an example to illustrate circumstantial evidence, child molestation to illustrate the idea that Dunham omitted material facts about Cherokee Village and GCREF, and the mafia to illustrate agency liability. (Lodgment No. 28, ECF No. 28-28 at 119-20, 135, 161; Lodgment No. 29, ECF No. 28-29 at 143-44.) The state appellate court concluded there was no misconduct:

(Lodgment No. 83, ECF No. 28-83 at 58.)

As the state court found, the prosecutor's comments were used to illustrate specific jury instructions and did not link the defendant to rape and child molestation. Even if the comments were misconduct, they did not have a substantial and injurious effect on the outcome of the trial. Brecht, 507 U.S. at 622. In the context of the trial and closing arguments as a whole, the comments were brief and, as the state court noted, no reasonable juror would have interpreted the remarks as casting Dunham in the same light as a rapist, child molester or mafioso. The state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Bell, 535 U.S. at 694. Nor was it based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2).

x. Violation of Court's Order on Uncharged Acts

Finally, Dunham alleges the prosecutor violated the state court's order regarding uncharged acts evidence. (Pet., ECF No. 1 at 15, 69, 72, 180.) The trial judge ruled pretrial that the uncharged acts could be admitted as evidence of Dunham's intent but not as evidence of a common scheme or plan pursuant to California Evidence Code 1101(b). (Lodgment No. 12, ECF No. 28-12 at 17-18.) The judge instructed the prosecutor to "craft the instruction to reflect the ruling," and told the prosecutor he could not argue the uncharged acts were evidence of a common scheme or plan. (Id. at 18.) The jury instructions that went to the jury, however, told the jury they could consider the uncharged acts as evidence of Dunham's intent to defraud the victims and as evidence that Dunham had a common scheme or plan `to commit the alleged offenses. (Lodgment No. 7, ECF No. 28-7 at 129.) The prosecutor also argued to the jury that they could use the uncharged acts as evidence of Dunham's intent to defraud and as evidence of a common scheme or plan. (Lodgment No. 28, ECF No. 28-28 at 178-87.) The state appellate court denied the claims as follows:

(Lodgment No. 83, ECF No. 28-83 at 58.)

The prosecutor's argument regarding Dunham's intent to defraud and the uncharged acts evidence is almost 10 pages long. (Lodgment No. 28, ECF No. 28-28 at 178-87.) The prosecutor's reference to the incorrect jury instruction was one line in a lengthy argument that focused the jury's attention on Dunham's intent to defraud. There is no evidence the incorrect jury instruction's inclusion was anything other than an inadvertent error, and, as the state court noted, defense counsel did not object to either the instruction or the argument. (Id. at 179.) Even if the prosecutor's conduct rises to the level of a due process violation, it did not have a substantial and injurious effect on the outcome of the trial. Brecht, 507 U.S. at 622. Under these circumstances, the state court's denial of this claim was neither contrary to, nor an unreasonable application of clearly established Supreme Court law. Bell, 535 U.S. at 694. Nor was it based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2).

xi. Cumulative Prosecutorial Misconduct

Dunham contends the cumulative effect of the prosecutorial misconduct in his case violated his due process right to a fair trial. (Pet., ECF No. 14-15, 180-81.) The state appellate court addressed this claim as follows:

(Lodgment No. 83, ECF No. 28-83 at 59.)

The Ninth Circuit has stated "[t]he Supreme Court has clearly established that the combined effect of multiple trial errors may give rise to a due process violation if it renders a trial fundamentally unfair, even where each error considered individually would not require reversal." Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (citing Chambers v. Mississippi, 410 U.S. 284, 298 (1973)); see also Whelchel, 232 F.3d at 1212; United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996) (stating that where no single trial error in isolation is sufficiently prejudicial to warrant habeas relief, "the cumulative effect of multiple errors may still prejudice a defendant"). Where "there are a number of errors at trial, `a balkanized, issue-by-issue harmless error review' is far less effective than analyzing the overall effect of all the errors in the context of the evidence introduced at trial against the defendant." Frederick, 78 F.3d at 1381 (quoting United States v. Wallace, 848 F.2d 1464, 1476 (9th Cir. 1988)). Cumulative error warrants habeas relief only where the combined effect of the errors had a "substantial and injurious effect or influence on the jury's verdict." Parle, 505 F.3d at 927 (quoting Brecht, 507 U.S. at 637).

This Court has found that none of the claims Dunham has presented amounted to constitutional error. Because no errors occurred, no cumulative error is possible. Hayes v. Ayers, 632 F.3d 500, 523-24 (9th Cir. 2011) (stating that "[b]ecause we conclude that no error of constitutional magnitude occurred, no cumulative prejudice is possible"). Accordingly, the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law, and Petitioner is not entitled to relief for his cumulative error claim. Williams, 529 U.S. at 412-13.

9. Ineffective Assistance of Counsel (Ground Eleven)

In claim eleven, Dunham argues that as to the claims the state appellate court concluded were forfeited, trial counsel's failure to object or ask that the jury be admonished, and thereby forfeiting those claims, constituted ineffective assistance of counsel. (Pet., ECF No. 1 at 16-17, 74-75.) Dunham raised this claim in the petition for review he filed in the California Supreme Court. (Lodgment No. 86, ECF No. 28-86.) Because that court denied the petition without citation of authority, this Court must "look through" to the state appellate court's opinion denying the claim as the basis for its analysis. That court wrote:

(Lodgment No. 83, ECF No. 28-83 at 64-65.)

To establish ineffective assistance of counsel, a petitioner must first show his attorney's representation fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 688 (1984). "This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. He must also show he was prejudiced by counsel's errors. Id. at 694. Prejudice can be demonstrated by showing "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.; see also Fretwell v. Lockhart, 506 U.S. 364, 372 (1993).

Further, Strickland requires "[j]udicial scrutiny of counsel's performance . . . be highly deferential." Strickland, 466 U.S. at 689. There is a "strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Id. at 686-87. The Court need not address both the deficiency prong and the prejudice prong if the defendant fails to make a sufficient showing of either one. Id. at 697. "The standards created by Strickland and § 2254(d) are both `highly deferential,' and when the two apply in tandem, review is `doubly' so." Harrington v. Richter, 562 U.S. 86, 105 (2011) (citations omitted). As the Supreme Court has stated, "[w]hen § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.

The state appellate court found the following claims were forfeited because trial counsel failed to object: (1) errors in the verdict forms (ground one); (2) errors in the jury instructions on theft (ground eight); (3) a violation of the pleading requirements for the California Penal Code§ 186.11 allegation (ground nine); and (4) prosecutorial misconduct (ground ten). The state appellate court nonetheless addressed those claims on the merits and found no reversible error. (See Lodgment No. 83, ECF No. 28-83.) Having found no error as to those claims, the state court determined Dunham was not prejudiced by counsel's failure to object. (Id. at 64-65.) That conclusion is consistent with Strickland, and, in light of the court's finding that the underlying claims lacked merit, the denial of this claim was therefore neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Bell, 535 U.S. at 694. Nor was it based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2). Dunham is not entitled to relief as to his ineffective assistance of counsel claims.

V. CONCLUSION

After considering the Petition, the Answer and Memorandum of Points and Authorities in Support of the Answer, the Traverse, the lodgments and other documents filed in this case, as well as the legal arguments presented by both parties, and for all the foregoing reasons, the petition is DENIED.

Rule 11 of the Rules Following 28 U.S.C. § 2254 require the District Court to "issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11, 28 U.S.C. foll. § 2254 (West Supp. 2013). A COA will issue when the petitioner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253; Pham v. Terhune, 400 F.3d 740, 742 (9th Cir. 2005). A "substantial showing" requires a demonstration that "`reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.'" Beaty v. Stewart, 303 F.3d 975, 984 (9th Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Here, the Court concludes Dunham has not made the required showing, and therefore a certificate of appealability is DENIED.

IT IS SO ORDERED.