ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY

CATHY ANN BENCIVENGO, District Judge.

Jeffrey Steven McCreary (hereinafter "Petitioner"), is a state prisoner proceeding pro se and in forma pauperis with a Second Amended Petition for a Writ of Habeas Corpus filed under 28 U.S.C. § 2254. (Electronic Case Filing ["ECF"] No. 19.) He challenges his San Diego Superior Court conviction for first degree murder with the personal use of a firearm, for which he was sentenced to 100 years-to-life in state prison, enhanced by two prior felony convictions. (Id. at 1-2.) He claims his federal constitutional rights were violated by the denial of his motion to substitute counsel to file a motion for a new trial (claim one), introduction of evidence he had been in prison (claim two), omission of an element of the firearm use enhancement from the verdict form (claim three), use of his prior convictions to enhance his sentence (claim four), failure to give an instruction on aiding and abetting in response to a jury question (claim five), insufficient evidence of kidnapping (claim six), failure of the prosecutor to timely disclose a witness (claim seven), ineffective assistance of trial counsel (claims eight, eleven and twelve), prosecutorial misconduct and ineffective assistance of trial counsel for failing to object (claims nine and ten), failure of the state habeas court to hold an evidentiary hearing (claim thirteen), and because he is actually innocent (claim fourteen). (Id. at 6-20.) Petitioner requests an evidentiary hearing. (Id. at 19.)

Respondent has filed an Answer and lodged the state court record. (ECF Nos. 24-25, 36.) Respondent argues habeas relief is unavailable because claims three, eight through twelve, and fourteen are procedurally defaulted, claims two, four, five, thirteen and fourteen do not present cognizable claims, and the state court adjudication of all federal claims is neither contrary to, nor involves an unreasonable application of, clearly established federal law, nor based on an unreasonable determination of the facts. (ECF No. 24 at 2-11.) Petitioner has filed a Traverse. (ECF No. 29.)

For the foregoing reasons, Petitioner's request for an evidentiary hearing is denied, the Petition is denied, and the Court declines to issue a Certificate of Appealability.

I. PROCEDURAL BACKGROUND

On March 27, 2012, Petitioner and his codefendant Destin Lee Withers were charged with murdering Denise Rodriguez. (ECF No. 25-32 at 11-12.) It was alleged both men were armed with and personally and intentionally discharged a semi-automatic handgun resulting in the victim's death. (Id.) It was further alleged Petitioner had two prior felony convictions which constituted strikes under California's Three Strikes law, and Withers had three prior felony convictions which constituted prison priors. (Id. at 12-13.)

Petitioner and Withers were jointly tried before a single jury. They both testified and named each other as the killer, and on June 13, 2014, were both found guilty of first-degree murder. (ECF No. 25-33 at 258.) The jury returned true findings that Petitioner was armed with and personally used a 9mm semi-automatic firearm, and that Withers was not armed with and did not personally use a 9mm semi-automatic firearm. (Id.)

On June 17, 2014, at a bifurcated bench trial, the court made true findings on all prior conviction allegations as to both defendants. (Id. at 260.) On January 21, 2015, a hearing was held on Petitioner's motion to substitute his appointed public defender for new counsel for the purpose of filing a new trial motion. (Id. at 264.) The court denied that motion, as well as his motions for a new trial and to strike his priors. (Id.) On January 28, 2015, he was sentenced to 25 years to life on the first-degree murder count, tripled as a result of his two prior strikes, plus a consecutive term of 25 years to life for the firearm enhancement, for a total of 100 years to life in state prison. (Id. at 263-64.)

Petitioner appealed, raising claims one though seven presented here. (ECF Nos. 25-35, 25-36 and 25-37.) The appellate court consolidated his appeal with Withers' and affirmed. (ECF No. 25-38, People v. Withers, et al., No. D067156/D067470, slip op. (Cal.App.Ct. Sept. 26, 2016).) He presented the same claims in a petition for review in the California Supreme Court (ECF No. 25-39) which was summarily denied on January 18, 2017. (ECF No. 25-40.)

Petitioner raised claims eight through twelve presented here in a habeas petition filed in the superior court on August 31, 2017 (ECF No. 25-41), and in the appellate court on October 30, 2017 (ECF No. 25-43), which were both denied on procedural grounds. (ECF No. 25-42, In re McCreary, No. NCN1500, order (Cal.Sup.Ct. Sept. 6, 2017); ECF No. 25-44, In re McCreary, No. D073026, order (Cal.App.Ct. Oct. 31, 2017).) He then raised those same claims in a state supreme court habeas petition. (ECF No. 25-45.) The petition was denied on February 14, 2018, with an order that stated: "The petition for writ of habeas corpus is denied on the merits. (See Harrington v. Richter (2011) 562 U.S. 86, citing Ylst v. Nunnemaker (1991) 501 U.S. 797, 803.)" (ECF No. 25-46, In re McCreary, No. S245567, order (Cal. Feb. 14, 2018).)

Petitioner filed a second round of state habeas petitions in the superior court on April 13, 2018 (ECF No. 25-47) and in the appellate court on May 23, 2018 (ECF No. 25-49), raising, among other claims, claim fourteen here, which were both denied on procedural grounds. (ECF No. 25-48, In re McCreary, No. HCN1519, order (Cal.Sup.Ct. Apr. 19, 2018); ECF No. 25-50, In re McCreary, No. D074018, order (Cal.App.Ct. May 25, 2018).) He raised the same claims in a state supreme court habeas petition on July 30, 2018. (ECF No. 25-51.) This action was stayed pending disposition of that petition, which was denied with an order that stated: "The petition for writ of habeas corpus is denied. (See In re Clark (1993) 5 Cal.4th 750, 767-789 (courts will not entertain habeas corpus claims that are successive).)" (ECF No. 25-52, In re McCreary, No. S250337, order (Cal. Jan. 16, 2019).)

II. FACTUAL BACKGROUND

The following facts are taken from the appellate court opinion affirming Petitioner's convictions on direct appeal.

7. Withers's retaliatory theft of Renteria's car

(ECF No. 25-38, People v. Withers, et al., No. D067156/D067470, slip op. at 5-18.)

III. PETITIONER'S CLAIMS

(1) Petitioner's rights under the Sixth and Fourteenth Amendments were violated by the denial of his motion to substitute counsel for a new trial motion. (ECF No. 19 at 6.)

(2) Petitioner's Fourteenth Amendment right to due process was violated by the inadvertent introduction of evidence he had been in prison. (Id. at 7.)

(3) Petitioner's rights under the Sixth and Fourteenth Amendments were violated because the verdict form states the jury found he personally used a firearm, whereas he was charged with and sentenced for personally and intentionally discharging a firearm, and there was no jury finding of intentionality. (Id. at 8.)

(4) Petitioner's Fourteenth Amendment right to due process was violated by the refusal of the sentencing judge to dismiss his two strike priors which arose from the same conduct on the same day twenty-three years earlier. (Id. at 9.)

(5) Petitioner's rights under the Sixth and Fourteenth Amendments were violated when the trial judge referred the jury to their instructions rather than further instructing them in response to their question whether the failure to help a victim who dies constitutes aiding and abetting murder. (Id. at 10.)

(6) Petitioner's rights under the Sixth and Fourteenth Amendments were violated because there is insufficient evidence of kidnapping. (Id. at 11.)

(7) Petitioner's Fourteenth Amendment right to due process was violated by the prosecutor's delay in disclosing Jason Ming's testimony to the defense. (Id. at 12.)

(8) Petitioner's rights under the Sixth and Fourteenth Amendments were violated by ineffective assistance of trial counsel in failing to call Roxanne Chavez to testify the murder weapon belonged to Withers and he was the shooter. (Id. at 13.)

(9) Petitioner's rights under the Sixth and Fourteenth Amendments were violated "by the prosecutor's cumulative misconduct and multiple trial errors" and trial counsel's failure to object and request the jury be admonished. (Id. at 14.)

(10) Petitioner's rights under the Sixth and Fourteenth Amendments were violated by the prosecutor's knowing use of false testimony regarding the manner of death, and by trial counsel's failure to object and request a mistrial. (Id. at 15.)

(11) Petitioner's rights under the Sixth and Fourteenth Amendments "were violated when the jury heard improper illegal prejudicial evidence of serious prior prison terms," and by his trial counsel's failure to object or request a mistrial. (Id. at 16.)

(12) Petitioner's rights under the Sixth and Fourteenth Amendments were violated by ineffective assistance of counsel when his trial attorney failed to present argument or evidence at his sentencing hearing. (Id. at 17.)

(13) Petitioner's Fourteenth Amendment right to due process was violated by the failure of the state habeas courts to hold an evidentiary hearing. (Id. at 18.)

(14) Petitioner's rights under the Fifth, Sixth and Fourteenth Amendments were violated because he is actually innocent. (Id. at 19-20.)

IV. DISCUSSION

For the following reasons, the Court finds only claim three procedurally defaulted, and that neither an evidentiary hearing nor a Certificate of Appealability are warranted. The Petition is denied because the state court adjudication of Petitioner's claims is neither contrary to, nor involves an unreasonable application of, clearly established federal law, and is not based on an unreasonable determination of the facts.

A. Standard of Review

To obtain federal habeas relief with respect to a claim which was adjudicated on the merits in state court, a federal habeas petitioner must demonstrate that the state court adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C.A. § 2254(d) (West 2019). Even if § 2254(d) is satisfied, a petitioner must show a federal constitutional violation occurred in order to obtain relief. Fry v. Pliler, 551 U.S. 112, 119-22 (2007); Frantz v. Hazey, 533 F.3d 724, 735-36 (9th Cir. 2008) (en banc).

A state court's decision may be "contrary to" clearly established Supreme Court precedent (1) "if the state court applies a rule that contradicts the governing law set forth in [the Court's] cases" or (2) "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision may involve an "unreasonable application" of clearly established federal law, "if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407. To satisfy § 2254(d)(2), a petitioner must show the factual findings relied upon by the state court are objectively unreasonable. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

B. Claim One

Petitioner alleges in claim one that his rights under the Sixth and Fourteenth Amendments were violated by the denial of his Marsden1 motion to relieve his appointed public defender after trial and appoint new counsel to file a new trial motion. (ECF No. 19 at 6.) The trial judge conducted a Marsden hearing at which Petitioner's public defender identified five issues Petitioner wanted to raise on a new trial motion: (1) trial counsel refused to call Roxanne Chavez to testify the gun belonged to Withers and he was the shooter, (2) Petitioner belatedly recognized a juror as a customer of a store where Petitioner once worked as someone who may have harbored ill will toward him, (3) the prosecutor inadvertently showed the jury an unredacted transcript of Petitioner's police interview and inadvertently played the corresponding audio for the jury where a reference was made to him having served time in prison, and although trial counsel objected she failed to ask the court to admonish the jury, (4) trial counsel did not object or seek an admonition when the prosecutor reenacted in an excessively emotional manner during closing argument what the victim was doing and saying in the back seat of the car, and (5) trial counsel failed to object to evidence regarding how quickly the victim died on the basis it conflicted with a stipulation at the preliminary hearing she died immediately when shot. (See ECF No. 25-38, People v. Withers, et al., No. D067156/D067470, slip op. at 40-41.) Petitioner said he also wished to raise claims his trial counsel had not communicated with him sufficiently to prepare him to testify and did not provide him with one of his prior statements until shortly before he was cross-examined so his testimony would not appear rehearsed. (Id. at 42.) Trial counsel said she made tactical decisions in all those respects but could not "very well file a motion to protest my own strategic decision," and she recommended that new counsel be appointed because new counsel "could possibly review the same information" and find a basis to file a new trial motion. (Id. at 41.)

Respondent answers that the state appellate court rejection of claim one, on the basis the trial court conducted an adequate hearing where it heard all grounds on which Petitioner wanted to file a new trial motion and found no basis for a new trial and no ineffective assistance of counsel, is objectively reasonable within the meaning of 28 U.S.C. § 2254(d). (ECF No. 24-1 at 31-42.)

Petitioner presented this claim to the state supreme court in his petition for review. (ECF No. 25-39 at 7-11.) That petition was summarily denied without citation of authority or a statement of reasoning. (ECF No. 25-40.) The claim was also presented to the state appellate court on direct appeal. (ECF No. 25-35 at 33-53.) The claim was denied on the merits in a written opinion affirming the conviction. (ECF No. 25-38.)

There is a presumption that "[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803-06 (1991). As no basis to rebut that presumption appears in the record, the Court will look through the silent denial by the state supreme court to the appellate court opinion on direct appeal as to claims one through seven. As to claim one, the appellate court stated:

(ECF No. 25-38, People v. Withers, et al., No. D067156/D067470, slip op. at 39-57.)

"The [Sixth] Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts." Schell v. Witek, 218 F.3d 1017, 1025-26 (9th Cir. 2000) (en banc) (internal quotation marks omitted); Morris v. Slappy, 461 U.S. 1, 13-14 (1983) (holding that the Sixth Amendment requires competent representation but does not guarantee a meaningful relationship between attorney and client). The Sixth Amendment requires an appropriate inquiry into the grounds for a Marsden motion. Schell, 218 F.3d at 1025 ("[I]t is well established and clear that the Sixth Amendment requires on the record an appropriate inquiry into the grounds for such a motion, and that the matter be resolved on the merits before the case goes forward."); Hudson v. Rushen, 686 F.2d 826, 829 (9th Cir. 1982) ("The trial court must take the time to conduct such necessary inquiry as might ease the defendant's dissatisfaction, distrust, and concern.")

Petitioner can demonstrate he was denied his Sixth Amendment right to the choice of counsel by showing: (1) he made a timely request for substitution of counsel which would not have caused undue delay or inconvenience; (2) the trial court failed to make an adequate inquiry into his complaints; and (3) the conflict between him and his attorney was so great that it resulted in a total breakdown in communication which prevented an adequate defense. United States v. Mendez-Sanchez, 563 F.3d 935, 942 (9th Cir. 2009).

Petitioner first contended at his Marsden hearing that he asked trial counsel to call Roxanne Chavez as a defense witness but counsel did not do so, although Petitioner said he could not remember if he had discussed the decision not to call Chavez with counsel. The substance of her proposed testimony was not discussed at the Marsden hearing nor on direct appeal where she was identified as a "mystery witness." (ECF No. 25-35 at 40.) Petitioner alleges in claim eight here, which was raised on state habeas, that Chavez could have testified the murder weapon belonged to Withers and Withers was the shooter. He attached to his state habeas petition an interview report with Chavez by a defense investigator dated January 13, 2015, seven months after the verdicts were received on June 13, 2014, and about a week before the January 21, 2015 Marsden hearing. (ECF No 25-41 at 28.) Chavez told the investigator that when Leila Penman asked her where Petitioner kept his gun, Chavez "responded initially by saying something to the effect of, `why would I tell you that?'" (Id.) Chavez then told Penman "that if it was in the car they would see it because [Petitioner] did not try to hide it," and said that she "believed that Withers was looking in the center console for the gun." (Id.) Defense counsel informed the court during the Marsden hearing that during trial she was prepared to call Chavez as a character witness, although she did not identify Chavez by her name at the hearing, and counsel said she did not need to do so because Petitioner's criminal record had been excluded and no character witness was required, and that because Chavez was pregnant with Petitioner's child and he was married to a different woman, calling her as a witness conflicted with a defense strategy to portray him as a family man. (ECF No. 36 at 5, 12-13.) Chavez came forward with the information about the gun after trial.

Petitioner's contention Chavez could testify the gun belonged to Withers is incorrect, as she states she was asked about Petitioner's gun and knew where he kept it. At best, Chavez' testimony would have been cumulative to Ming's testimony that Withers admitted he was "the one who got the gun." At worst, however, her testimony would have been the only evidence the gun belonged to Petitioner, something his trial counsel attempted to avoid introducing. When Ming testified he thought the gun belonged to Petitioner, his trial counsel objected; the objection was sustained and the jury was told to disregard Ming's statement. (ECF No. 25-15 at 78.) Petitioner testified at trial he did not procure the murder weapon and it did not belong to him, and although he owned a gun it was buried and never used for criminal activity. (ECF No. 25-16 at 175-201.) He told the police the murder weapon belonged to Withers. (ECF No. 25-32 at 287.) Thus, even setting aside the issue of potential bias in favor of Petitioner based on his statement that he and Chavez were having an affair and have a child together (ECF No. 19 at 36), her testimony that Withers retrieved the gun would have been cumulative, whereas her testimony Petitioner owned the gun would have been damaging to the defense.

The state court determination Petitioner did not overcome the strong presumption that the decision not to call Chavez is a reasonable tactical one is consistent with clearly established federal law. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (recognizing a strong presumption counsel took actions "for tactical reasons rather than through sheer neglect"), citing Strickland v. Washington, 466 U.S. 668, 690 (1984) (holding counsel is "strongly presumed" to make decisions in the exercise of professional judgment). Nor did it create "a probability sufficient to undermine confidence in the outcome" of the trial necessary to establish the prejudice prong of an ineffective assistance of counsel claim. Strickland, 466 U.S. at 694. He has not shown the trial court failed to make an adequate inquiry into his complaint or there was a conflict with his attorney so great it prevented the filing of a meaningful new trial motion. Mendez-Sanchez, 563 F.3d at 942.

Petitioner next contended at the Marsden hearing he belatedly recognized a juror as a customer at a store where Petitioner once worked as someone who may have harbored ill will toward him. As the appellate court noted, just prior to opening statements the prosecutor informed the court: "Over the weekend my investigator, Robert Dean, was listening to some calls that [Petitioner] made. And in the call [Petitioner] mentioned that he knew one of the jurors and that perhaps one of the jurors had been a customer of his at a Tool Mart, the retail outlet that [Petitioner] worked at." (ECF No. 25-6 at 7.) Trial counsel conferred with Petitioner off the record and then stated: "Your Honor, based on my knowledge and understanding, the person he is referring to was excused for cause. They're no longer on this jury and they are not empaneled on this jury." (Id. at 8-9.) When asked by the trial judge if that was correct Petitioner answered: "Yes, sir." (Id. at 9.) Seven months later, just prior to the Marsden hearing, trial counsel filed a posttrial motion for release of juror information in which she alleged a juror "failed to disclose his familiarity with [Petitioner] and that he had substantial contact with [Petitioner] through [Petitioner]'s employment over the course of at least three years." (ECF No. 25-33 at 102-14.) However, Petitioner did not identify the juror in any way or indicate he was a different juror than the one discussed prior to trial on direct appeal (ECF No. 25-35 at 40, 53), or in his federal Petition here (ECF No. 19 at 6). At the Marsden hearing defense counsel did say it was a different juror than the one at the beginning of trial, but she had located and interviewed the juror who denied knowing Petitioner, said he would have said something because he did not want to serve on the jury, and that she subpoenaed records from the business and they did not show they had any interaction with each other. (ECF No. 36 at 6, 12, 14-16.) The finding by the state appellate court that the trial judge made an adequate inquiry is objectively reasonable and there is no merit to Petitioner's contention he required substitute counsel in order to move for a new trial on this basis. Mendez-Sanchez, 563 F.3d at 942.

Petitioner next contended at his Marsden hearing the prosecutor inadvertently showed the jury an unredacted transcript of his police interview along with the corresponding audio where references were made to him having served time in prison, and although trial counsel objected she failed to ask the court to admonish the jury. The admission of that evidence is also the basis of claims two and eleven here where Petitioner argues the jury was called upon to decide whether he or Withers was the shooter, but he was portrayed as a tough guy who had been to prison whereas Withers' criminal history and prison record were not introduced. As discussed below in those claims, Petitioner has not established a federal constitutional violation by the admission of that evidence or in the manner it was handled by his counsel because it was fleeting, because strong evidence he was the shooter was presented, and because the jury also heard about Withers' criminal record and prison time. As quoted above, the state appellate court found trial counsel made a tactical decision to forgo requesting admonishment in order to avoid drawing further attention to evidence Petitioner had been in prison, recognized that scrutiny of counsel's performance "must be highly deferential," with a "strong presumption" that counsel's conduct fell within the wide range of professional assistance, and found Petitioner had not overcome his "heavy burden" in that respect. (ECF No. 25-38, People v. Withers, et al., No. D067156/D067470, slip op. at 55, citing Strickland, supra, 466 U.S. at p. 689.) As more fully developed in claims two and eleven below, that finding does not involve an objectively unreasonable application of clearly established federal law. See Strickland, 466 U.S. at 690 ("[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable."); see also Yarborough, 540 U.S. at 5 (recognizing a strong presumption that counsel took actions "for tactical reasons rather than through sheer neglect"), citing Strickland, 466 U.S. at 690 (holding that counsel is "strongly presumed" to make decisions in the exercise of professional judgment).

Petitioner next contended trial counsel did not object or seek an admonition when the prosecutor reenacted in an overly emotional manner during closing argument what the victim was doing and saying in the back seat of the car. At the Marsden hearing, he specifically objected to the prosecutor screaming "Don't kill me. Don't kill me. Don't shoot me." (ECF No. 36 at 7.) The prosecutor argued in closing that the forensic evidence showed the victim was shot in the back of her right shoulder as she was turned toward the car door, either because she was turning away from the gun pointed at her or was trying to open the door and escape. (ECF No. 25-23 at 101-02.) Petitioner's trial counsel argued it was more natural to presume the victim put her arms up to protect herself when the driver pointed a gun at her, and the prosecutor argued in rebuttal:

(ECF No. 25-24 at 69-70.) The prosecutor later argued the victim was "cowering in the corner screaming, please don't kill me!" (Id. at 87.)

As discussed below in claim nine where Petitioner claims the prosecutor committed misconduct in this respect and his trial counsel was deficient in failing to object, the prosecutor's argument was not objectionable because it asked the jury to draw a reasonable inference from the forensic evidence that the victim was either cowering in the corner of the backseat or attempting to open the door and escape when she was shot. "It is not misconduct for the prosecutor to argue reasonable inferences based on the record." United States v. Younger, 398 F.3d 1179, 1190 (9th Cir. 2005); see also Ceja v. Stewart, 97 F.3d 1246, 1253-54 (9th Cir. 1996) ("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."); Darden v. Wainwright, 477 U.S. 168, 181 (1986) (holding that in determining whether prosecutorial misconduct rises to the level of constitutional error, the misconduct must have "so infected the trial with unfairness as to make the resulting conviction a denial of due process.")

Even if the cold record does not reflect the scale of the emotional appeal Petitioner contends accompanied the prosecutor's argument, the jury was instructed that: "Nothing the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discussed and will discuss the case. But their remarks are not evidence. Their questions are not evidence." (ECF No. 25-23 at 36-37.) The finding by the state court that Petitioner had not overcome the presumption the jury followed that instruction is consistent with federal law. See Boyde v. California, 494 U.S. 370, 384 (1990) ("arguments of counsel generally carry less weight with a jury than do instructions from the court."); Bruton v. United States, 391 U.S. 123, 135 (1968) (holding that presumption jury follows their instructions can be rebutted if defendant shows "the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.") The finding by the state appellate court that Petitioner failed to show he needed substitute counsel to file a new trial motion in this respect is objectively reasonable.

Petitioner next contended trial counsel failed to object to evidence regarding how quickly the victim died because it conflicted with a stipulation at the preliminary hearing that she died immediately when shot. The state court rejected this aspect of claim one on the basis that any objection would have been legally insufficient because the stipulation was limited to the preliminary hearing and not binding on trial counsel. As discussed below in claim ten, the prosecutor pointed out to the jury during her initial closing argument that Withers told Detective DuGal that the victim did not die right away, which the prosecutor used to argue in closing that the defendants did not attempt to save her life after they shot her, which she argued showed they planned to kill her all along. Petitioner's defense counsel argued that although the medical examiner did not testify whether the victim died immediately upon being shot, she testified that every one of the four shots were lethal, so the jury could reasonably infer the victim died immediately upon being shot, and any action by Petitioner thereafter, including disposing of the body, had no relevance to the murder charge. (ECF No. 25-24 at 4-5, 38.) The prosecutor replied in rebuttal: "I didn't introduce the concept that she was alive and died later. Mr. Withers introduced that concept when he spoke to Detective DuGal. He's the one that said, when I got to the house, she was damn near gone." (ECF No. 25-24 at 72.) The prosecutor concluded: "The question isn't did she die immediately. The question is, what did you two do to try and save her life? Nothing. . . . And that tells you everything you need to know about their motive." (Id. at 74.) As discussed in claim ten, those comments were not objectionable because they asked the jury to draw a reasonable inference from evidence presented at trial. Petitioner has not shown the trial court failed to make an adequate inquiry or an inability to file a new trial motion. Mendez-Sanchez, 563 F.3d at 942.

Finally, Petitioner indicated he wished to raise claims in a new trial motion that his trial counsel did not communicate with him sufficiently to prepare him to testify and did not provide him with one of his prior statements until shortly before he was cross-examined so his testimony would not appear rehearsed. The trial judge elicited from trial counsel she had 24 years of experience at the office of the public defender, had conducted at least 100 criminal trials, and had discussed Petitioner's testimony with him prior to him testifying. (ECF No. 25-38, People v. Withers, et al., No. D067156/D067470, slip op. at 42.) The rejection by the state court on the basis he "failed to show a substantial impairment of his right to the assistance of counsel," and "failed to show the court abused its discretion or violated his due process right to a fair trial" (id. at 57), is objectively reasonable, as the trial court's inquiry adequately protected his due process rights. See Rushen, 686 F.2d at 829 ("The trial court must take the time to conduct such necessary inquiry as might ease the defendant's dissatisfaction, distrust, and concern.")

"As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103. "If this standard is difficult to meet, that is because it was meant to be . . . [as it] preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court decision conflicts with this Court's precedents." Id. at 102. The Court finds the adjudication of claim one by the state court is neither contrary to, nor an unreasonable application of, clearly established federal law, and is not based on an unreasonable determination of the facts. Habeas relief is denied as to claim one.

C. Claim Two

Petitioner alleges in claim two that his Fourteenth Amendment right to due process was violated when the prosecutor inadvertently allowed the jury to hear he "had done hard-core prison time, including being in race-wars and riots." (ECF No. 19 at 7.) He argues the jury was called upon to decide who shot the victim and he was unfairly portrayed as more dangerous than Withers because the jury did not "hear of my co-defendant's other murder case where the victim was also similarly shot 4 times in the chest." (Id.)

Respondent answers this claim does not present a cognizable federal claim because it alleges only a state court evidentiary error. (ECF No. 24-1 at 44-45.) Respondent alternately argues that even if it presents a federal claim, the state court reasonably denied it on the basis that the instruction to the jury to disregard what they had heard about Petitioner's prison record prevented any prejudice. (Id. at 45-47.) Finally, Respondent contends that even if a federal error occurred, it is harmless. (Id.)

Petitioner presented this claim on direct appeal. (ECF No. 25-39 at 12-13; ECF No. 25-35 at 54-62). The appellate court stated:

(ECF No. 25-38, People v. Withers, et al., No. D067156/D067470, slip op. at 57-61.)

The United States Supreme Court has held that an inquiry into whether evidence was "incorrectly admitted pursuant to California law . . . is no part of a federal court's habeas review of a state conviction." Estelle v. McGuire, 502 U.S. 62, 67 (1991). As Respondent recognizes, however, a federal due process violation can arise from a state law evidentiary ruling that is arbitrary or capricious. See Richmond v. Lewis, 506 U.S. 40, 50 (1992) (holding that a state court's application of state law does not rise to the level of a federal due process violation unless it was so arbitrary or capricious as to constitute an independent due process violation). In addition, the Ninth Circuit has held that there are circumstances under which a federal habeas petitioner can establish a federal due process violation by showing the admission of evidence was so prejudicial it rendered the trial fundamentally unfair. See Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995) ("The admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process."), citing McGuire, 502 U.S. at 67-69; Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991) ("The issue for us, always, is whether the state proceedings satisfied due process; the presence or absence of a state law violation is largely beside the point.")

To the extent Petitioner contends the admission of the evidence of his prison record unfairly tempted the jury to find he committed the instant offence because he had a propensity to commit such offenses, the state court denial is consistent with clearly established federal law. The Ninth Circuit has held that because the Supreme Court in McGuire specifically reserved ruling on the issue regarding whether introduction of propensity evidence can give rise to a federal due process violation, and has denied certiorari at least four times on that issue since McGuire was decided, the right "has not been clearly established by the Supreme Court, as required by AEDPA." Alberni v. McDaniel, 458 F.3d 860, 866-67 (9th Cir. 2006). The Ninth Circuit has observed that even though a petitioner received a fundamentally unfair trial as a result of the introduction of prejudicially irrelevant evidence, a federal habeas court applying AEDPA could not grant the writ on that basis because the Supreme Court "has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). The state court denial of this claim is not objectively unreasonable under 28 U.S.C. § 2254(d) because Petitioner has not identified any Supreme Court precedent finding a fundamentally unfair trial under those circumstances. See Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (holding that the state court could not have unreasonably applied federal law if no clear Supreme Court precedent exists).

Even if clearly established federal law recognizing fundamental unfairness as a due process violation could provide a basis for relief, no such unfairness is shown here. There is no merit to Petitioner's contention the jury heard he "had done hard-core prison time, including being in race-wars and riots." (ECF No. 19 at 7.) With respect to the second mention he was in prison, the transcript eventually given to the jury was redacted and did not contain that reference, and the audio they were exposed to was fleeting and it is not even clear the jurors saw or heard it. (ECF No. 25-18 at 35-36.) With respect to the first reference, Gallentine's brief testimony that Petitioner said: "I ain't no lame. I been to prison," the jury was instructed to ignore it, and this Court must presume the jurors followed that instruction. Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985). Petitioner can rebut that presumption if he can show "the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored." Bruton, 391 U.S. at 135. In Bruton the presumption was rebutted because jury was instructed to ignore powerfully incriminating extrajudicial statements of a codefendant which were devastating to the defense and inherently unreliable, which was compounded by the failure of the codefendant to be subject to cross-examination. Id.

Petitioner attempts to rebut that presumption by arguing it was unfair the jury did not hear about Withers' prison record and criminal history and thus Petitioner was cast as the tough guy with a prison record in front of a jury called upon to determine which one of them shot the victim. However, as the state court noted, Withers admitted on direct examination he had felony convictions for auto theft, evading the police and sale of methamphetamine. (ECF No. 25-19 at 73.) On cross-examination he admitted he had bragged about lying to the police during another murder investigation, said he "was a convict at the time," when asked if he was still a convict said: "I'm still a convicted felon, but at that point in time, I was actively involved in other criminal activity," and said that when the murder took place in this case he was awaiting sentencing for possession for sale of methamphetamine. (ECF No. 25-20 at 41-42.) The inadvertent mention of Petitioner's prison record was brief, whereas the evidence he was the shooter was strong, including Renteria's testimony Petitioner planned the shooting (ECF No. 24-13 at 132-33, 161-62), Gallentine's testimony Petitioner admitted he was the shooter (ECF No. 25-7 at 207). evidence Withers was driving and expert testimony the shots were fired by someone sitting in the front passenger seat (ECF No. 24-13 at 187, 191-92; ECF No. 25-15 at 28-29), and Jason Ming's testimony that Withers said there was a plan to kill the victim, that Withers was upset Petitioner shot her prematurely, and Withers wanted Petitioner to "man up" and take the blame for the shooting (ECF No. 25-15 at 70-72). Also, Petitioner was arrested in possession of the murder weapon, disposed of the body, and only stopped driving the car the murder took place in after Withers was arrested. In light of that evidence, and the fact that the jury heard details about Withers' prison record, convictions and criminal activity but only brief references to Petitioner having been in prison, he has not shown the brief references to his prison record rendered his trial fundamentally unfair.

The state court adjudication of claim two is neither contrary to, nor involved an unreasonable application of, clearly established federal law. Richter, 562 U.S. at 102; Wright, 552 U.S at 125-26; Lockyer, 538 U.S. at 75-76; Williams, 529 U.S. at 405-07; Bruton, 391 U.S. at 135; Holley, 568 F.3d at 1101; Alberni, 458 F.3d at 867. Nor is it based on an unreasonable determination of the facts, as Petitioner has not shown that the factual findings by the state court are objectively unreasonable. Miller-El, 537 U.S. at 340.

Finally, even if Petitioner could make such a showing, habeas relief is not available unless the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). The fleeting references to his having been in prison did not affect the jury's determination as to who shot the victim in light of Withers' admission he was a convicted felon actively involved in criminal activity awaiting sentencing on a criminal conviction at the time of the murder, as well as the strong evidence Petitioner was the shooter. Habeas relief is denied as to claim two.

D. Claim 3

Petitioner alleges his rights under the Sixth and Fourteenth Amendments were violated because the verdict form states the jury found he personally used a firearm but failed to contain a finding he intentionally discharged a firearm. (ECF No. 19 at 8.) He argues he was charged with and sentenced for personally using and intentionally discharging a firearm, and there was no finding of intentionality. (Id.)

Respondent answers this claim is procedurally defaulted based on the finding by the state court that Petitioner failed to contemporaneously object to the alleged error. (ECF No. 24-1 at 50-51.) Respondent alternately argues the state court reasonably found the jury was correctly instructed on the elements of the firearm enhancement and any defect in the verdict form did not reflect a different jury finding. (Id. at 51-52.)

Petitioner presented this claim to the state supreme court in his petition for review (ECF No. 25-39 at 13-16) which was summarily denied. (ECF No. 25-40.) It was also presented to the state appellate court on direct appeal (ECF No. 25-35 at 63-69) and denied on the merits. (ECF No. 25-38.) The Court will look through the silent denial by the state supreme court to the appellate court opinion on direct appeal, which states:

(ECF No. 25-38, People v. Withers, et al., No. D067156/D067470, slip op. at 62-63.)

i) procedural default

Respondent first contends the claim is procedurally defaulted based on the finding by the state court Petitioner failed to contemporaneously object to the alleged error in the jury verdict form. (ECF No. 24-1 at 50-51.) When a state court rejects a federal claim for a violation of a state procedural rule which is adequate to support the judgment and independent of federal law, a claim is procedurally defaulted in federal court. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). A state procedural rule is "independent" if it is not interwoven with federal law. LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). A state procedural rule is "adequate" if it is "clear, consistently applied, and well-established" at the time of the default. Calderon v. United States District Court, 96 F.3d 1126, 1129 (9th Cir. 1996). The Court may reach the merits of a procedurally defaulted claim if the petitioner shows cause for the default and prejudice as a result, or if he demonstrates the failure to review the claim would result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.

Respondent has the initial burden of pleading the existence of an independent and adequate state procedural ground. Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003). Respondent has satisfied that burden because the state court found this claim forfeited by Petitioner's failure to contemporaneously object. See id. at 581 (holding that California's contemporaneous objection rule is "independent" of federal law); Vansickel v. White, 166 F.3d 953, 957-58 (9th Cir. 1999) (affirming denial of habeas relief on procedural default grounds based on California's contemporaneous objection rule). The burden has shifted to Petitioner to show the procedural bar is not adequate and independent. Bennett, 322 F.3d at 586. Petitioner has made no such showing.2

The Court finds claim two is procedurally defaulted notwithstanding the decision by the state court to alternately reach the merits of the claim. See Harris v. Reed, 489 U.S. 255 at 264 n.10 (1989) ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.")

Petitioner may overcome the default by showing it was due to ineffective assistance of counsel, as he attempts to do in claim nine. See Murray v. Carrier, 477 U.S. 478, 488 (1986) ("[I]f the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that responsibility for the default be imputed to the State."); Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000) ("Although we have not identified with precision exactly what constitutes `cause' to excuse a procedural default, we have acknowledged that in certain circumstances counsel's ineffectiveness in failing properly to preserve the claim for review in state court will suffice. Not just any deficiency in counsel's performance will do, however; the assistance must have been so ineffective as to violate the Federal Constitution.") (citation omitted) (emphasis added). He can also overcome the default by showing he is actually innocent as he attempts to do in claim fourteen. See Schlup v. Delo, 513 U.S. 298, 327-28 (1995) (holding that a procedurally defaulted claim can be review on federal habeas where a petitioner establishes "it is more likely than not that no reasonable juror would have convicted him.")

As set forth below, claims nine and fourteen are without merit. Accordingly, Petitioner has not excused the default. Habeas relief is denied as to claim three on the basis it is procedurally defaulted.

ii) merits

The claim also fails on the merits. The trial judge read the Information to the jurors at the beginning of trial, which charged Petitioner with "intentionally and personally discharge[ing] a firearm, to wit; a semi-automatic handgun, and proximately caused great bodily injury and death to a person (other than an accomplice), within the meaning of Penal Code section 12022.53(d)." (ECF No. 25-4 at 29.) The jury was later instructed:

(ECF No. 25-23 at 71-72.)

The jury verdict read that Petitioner: "DID Personally Use a firearm to wit: 9mm Caliber semi-automatic firearm within the meaning of Penal Code section 12022.53(d)." (ECF No. 25-32 at 86.)

Thus, the jury was twice informed that California Penal Code § 12022.53(d) required intentional use of a firearm, and the verdict form specifically states they found California Penal Code § 12022.53(d) had been proven true beyond a reasonable doubt. The state court finding that Petitioner did not overcome the presumption the jury followed their instructions is consistent with clearly established federal law. Francis, 471 U.S. at 324 n.9 ("The Court presumes that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court's instructions in a criminal case and strive to understand, makes sense of, and follow the instructions given them.") Petitioner has not shown that the state court adjudication of this claim, on the basis he did not overcome that presumption, involves an unreasonable determination of the facts or is contrary to or involves an unreasonable application of clearly established federal law.

Habeas relief is denied as to claim three because it is procedurally defaulted and because the state court adjudication of the claim is objectively reasonable within the meaning of 28 U.S.C. § 2254(d).

E. Claim 4

Petitioner alleges in claim four that his Fourteenth Amendment right to due process was violated by the refusal of the trial judge to dismiss his two strike priors because they occurred within hours of each other on a single day twenty-three years earlier and were adjudicated in the same proceeding. (ECF No. 19 at 9.) Respondent answers this claim is not cognizable on federal habeas because it presents an issue of state law only. (ECF No. 24-1 at 53-54.) Respondent alternately contends to the extent it raises a federal claim the decision not to strike the prior convictions was not so arbitrary and capricious as to violate federal due process because the trial judge carefully considered Petitioner's request before finding he fell within the spirit of the Three Strikes law. (Id. at 54-55.)

Petitioner presented this claim to the state supreme court in his petition for review (ECF No. 25-39 at 16-19) which was summarily denied. (ECF No. 25-40.) It was also presented to the state appellate court on direct appeal (ECF No. 25-35 at 70-76) and denied on the merits. (ECF No. 25-38.) The Court will look through the silent denial by the state supreme court to the appellate court opinion on direct appeal, which states:

(ECF No. 25-38, People v. Withers, et al., No. D067156/D067470, slip op. at 63-67.)

As Respondent recognizes, a federal due process violation can arise from a state law ruling that is arbitrary or capricious. Richmond, 506 U.S. at 50 (holding that a state court's application of state law does not rise to the level of a federal due process violation unless it was so arbitrary or capricious as to constitute an independent due process violation); see also Hicks v. Oklahoma, 447 U.S. 343, 346 (1980) (holding that a discretionary state sentencing statute created a liberty interest protected by the Fourteenth Amendment against arbitrary deprivation by the State). "Federal courts will not review a state supreme court's interpretation of its own statute unless that interpretation is clearly untenable and amounts to a subterfuge to avoid federal review of a deprivation by the state of rights guaranteed by the Constitution." Knapp v. Cardwell, 667 F.2d 1253, 1260 (9th Cir. 1982).

In denying Petitioner's motion to strike, the trial judge stated:

(ECF No. 25-31 at 7.)

As the appellate court pointed out, the probation officer's report indicates that in addition to the two counts of armed robbery and assault with a firearm against two victims committed by Petitioner in 1989 when he was 19 years old and violated parole in 1992, he was convicted again in 1994 of being a felon in possession of a firearm and possession of stolen property and sentenced to eight years in state prison. (ECF No. 25-32 at 70-73.) He violated the terms of his parole from that sentence twice. (Id.) He was sentenced to probation in 2003 after being convicted of possession of tear gas and again in 2009 after being convicted of possession of a switchblade knife. (Id.) Less than three years later he committed the instant murder.

The finding by the appellate court that the exercise of discretion by the trial judge to refuse to strike the prior convictions is supported by the record is objectively reasonable, as the trial judge considered the specific aspects of Petitioner's serious criminal history. Petitioner has not shown the state appellate court adjudication of this claim is contrary to, or an unreasonable application of, clearly established federal law providing that arbitrary and capricious factual findings or applications of state law can rise to the level of a federal due process violation, Richmond, 506 U.S. at 50; Hicks, 447 U.S. at 346, that it involves an unreasonable determination of the facts, Miller-El, 537 U.S. at 340, or that it "is clearly untenable and amounts to a subterfuge to avoid federal review of a deprivation by the state of rights guaranteed by the Constitution." Knapp, 667 F.2d at 1260.

Habeas relief is denied as to claim four.

F. Claim 5

Petitioner alleges in claim five that his rights under the Sixth and Fourteenth Amendments were violated when the jury asked whether failing to help a victim who dies constitutes aiding and abetting murder but the trial judge merely referred them to their instructions rather than provide additional instruction. (ECF No. 19 at 10.) Respondent answers that this claim is not cognizable on federal habeas because it alleges an error of state law only, but even if it presents a federal claim the state court reasonably found no instructional error occurred in this respect, and alternately argues that any error is harmless. (ECF No. 24-1 at 55-59.)

Withers presented this claim to the state supreme court in his petition for review which was joined by Petitioner (ECF No. 25-39 at 17; ECF No. 25-54 at 21-31), and which was summarily denied. (ECF No. 25-40.) It was also presented to the state appellate court on direct appeal by Withers and joined by Petitioner (ECF No. 25-35 at 77; ECF No. 25-53 at 42-69) and denied on the merits. (ECF No. 25-38.)

The Court will look through the silent denial by the state supreme court to the appellate court opinion on direct appeal, which states:

(ECF No. 25-38, People v. Withers, et al., No. D067156/D067470, slip op. at 18-26.)

Clearly established federal law provides that in order to establish a federal due process violation by the failure to give a jury instruction, Petitioner must demonstrate that its omission "so infected the entire trial that the resulting conviction violates due process." Henderson v. Kibbe, 431 U.S. 145, 154 (1977), quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973). Where the failure to give an instruction is in issue, the burden on the petitioner is "especially heavy." Kibbe, 431 U.S. at 155. Even if the trial court's failure to give the instruction violated due process, habeas relief would still not be available unless the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637; California v. Roy, 519 U.S. 2, 5 (1996).

The jury instructions clearly stated that aiding and abetting liability for murder must be predicated if at all on actions which took place prior to the killing. As discussed in detail below in claim ten, Detective DuGal testified Withers told him the victim was still alive when they got to Withers' house, which the prosecutor used to argue it showed the defendants made no effort to assist the victim but left her in the car to die while they ate dinner. (ECF No. 24-23 at 101-04.) Petitioner's trial counsel pointed out in rebuttal that Petitioner and Withers both testified the victim died instantly upon being shot and the medical examiner gave no opinion on how long it took her to die. (ECF No. 25-24 at 4-5.) Petitioner's counsel argued that was important with respect to aiding and abetting liability because although Petitioner testified he assisted Withers in disposing of the body after the victim died, any actions taken after the victim died had nothing to do with the charge in this case, and argued Petitioner was innocent of murder because Withers pulled the trigger and Petitioner was unaware prior to that time of a plan to kill the victim. (Id. at 37-39.) Withers' attorney argued that a reasonable inference could be drawn the victim died instantly from being shot four times and disparaged the prosecutor for having raised the issue. (Id. at 66.) The prosecutor argued in rebuttal: "I didn't introduce the concept that she was alive and died later. Mr. Withers introduced that concept when he spoke to Detective DuGal. He's the one that said, when I got to the house, she was damn near gone." (Id. at 72.) The prosecutor argued this was relevant because neither defendant did anything to assist the victim after she was shot, and because they could not have known she died instantly their lack of action showed they intended the victim to die. (Id.) The prosecutor concluded: "The question isn't did she die immediately. The question is, what did you two do to try and save her life? Nothing. . . . And that tells you everything you need to know about their motive." (Id. at 74.)

Petitioner can rebut the presumption the jury followed their instruction that nothing which happened after the victim died was relevant to aiding and abetting if he can show "the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored." Bruton, 391 U.S. at 135. He has made no such showing. Although the jury did not specify whether they found him guilty under an aiding and abetting or direct participant theory of first-degree murder, they found he was the shooter. Forensic evidence showed the victim was shot four times at close range, severing her spine and an artery leading to her heart. (ECF No. 25-15 at 20.) The jury may have been considering whether Withers aided and abetted the murder by not helping the victim after she was shot, but there is no basis to find they were considering whether Petitioner's failure to help her after he shot her constituted him aiding and abetting the murder he committed. There is no indication the jury was unable to follow their instruction that nothing which happened after the victim died was material to guilt or innocence under an aiding and abetting theory, nor any indication the consequences from such an inability would have been vital to Petitioner's defense because the jury found he was the shooter. Petitioner has not carried his "especially heavy" burden of showing the omission of his requested instruction "so infected the entire trial that the resulting conviction violates due process." Kibbe, 431 U.S. at 154-55; McGuire, 502 U.S. at 62 (holding that an instructional error must render the trial unfair to support a due process claim).

Furthermore, any instructional error is harmless. The jury found Petitioner was the shooter, and strong evidence was introduced Petitioner intentionally fired the gun, including David Renteria's testimony Petitioner said he was going to "take care of it" and "Put that bitch in a corner" (ECF No. 24-13 at 132-33, 161-62), and Jason Ming's testimony that Withers said: "The bitch wasn't supposed to get shot in my backseat." (ECF No. 25-15 at 70.) Failing to instruct the jury that "the law does not impose an affirmative duty to act" in response to their question whether aiding and abetting liability can be predicated on a failure to provide aid to the dying victim, did not have a "substantial and injurious effect or influence in determining the jury's verdict" because evidence was presented Petitioner planned to kill the victim and shot her four times at point blank range. Brecht, 507 U.S. at 637; Roy, 519 U.S. at 5.

Habeas relief is denied as to claim five on the basis that the state court determination there was no instructional error is objectively reasonable within the meaning of 28 U.S.C. § 2254(d) and because any error is harmless.

G. Claim 6

Petitioner alleges in claim six there is insufficient evidence of kidnapping. (ECF No. 19 at 11.) Respondent answers that the state court reasonably found sufficient evidence of kidnapping was presented at trial. (ECF No. 24-1 at 59-62.)

Petitioner presented this claim on direct appeal (ECF No. 25-39 at 18; ECF No. 25-54 at 31-38; ECF No. 25-35 at 78; ECF No. 25-53 at 70-86.) The Court will look through the state supreme court order to the appellate court opinion on direct appeal, which states:

(ECF No. 25-38, People v. Withers, et al., No. D067156/D067470, slip op. at 26-32.)

The Due Process Clause of the Fourteenth Amendment "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). Petitioner is entitled to federal habeas corpus relief "if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324 (1979). The standards of 28 U.S.C. § 2254(d) require an additional layer of deference in applying the Jackson standard, and this Court "must ask whether the decision of the California Court of Appeal reflected an `unreasonable application of' Jackson and Winship to the facts of this case." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005), quoting 28 U.S.C. § 2254(d)(1). Federal habeas relief functions as a "guard against extreme malfunctions in the state criminal justice systems," not as a means of error correction. Richter, 562 U.S. at 103, quoting Jackson, 443 U.S. at 332 n.5.

The record supports the state court finding that the jury was provided with sufficient evidence from which they could draw a reasonable inference Petitioner kidnapped the victim. Jason Ming testified Withers told him he grabbed the victim by the arm and forced her into the car. (ECF No. 25-15 at 76-77.) Jerry Gallentine testified Withers told him the victim was screaming and yelling and trying to get out of the car when she was shot (ECF No. 25-8 at 11, 13), which is consistent with the expert forensic evidence the victim was twisted toward the door when shot in the back of her right shoulder. (ECF No. 25-15 at 28-31.) Other evidence of kidnapping included evidence there was a plan to kill the victim, including Renteria's testimony Petitioner said he was going to "take care of it" and "Put that bitch in a corner" (ECF No. 24-13 at 132-33, 161-62) and Ming's testimony Withers said: "The bitch wasn't supposed to get shot in my backseat." (ECF No. 25-15 at 70.)

The jury could have drawn a reasonable inference from that evidence Petitioner planned to kill the victim, forced her into the car, held her at gunpoint and killed her when she attempted to escape. The Court must respect the province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts, by assuming the jury resolved all conflicts in a manner that supports the verdict. Jackson, 443 U.S. at 319. Even if Petitioner is correct that a reasonable inference could be drawn from the evidence that no kidnapping occurred, that does not satisfy his burden of showing the determination by the state court is unreasonable. See Cavazos v. Smith, 565 U.S. 1, 7 (2011) (holding that Jackson "unambiguously instructs that a reviewing court `faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'"), quoting Jackson, 443 U.S. at 326; Coleman v. Johnson, 566 U.S. 650, 656 (2012) ("The jury in this case was convinced, and the only question under Jackson is whether that finding was so insupportable as to fall below the threshold of bare rationality.")

Accordingly, in light of the additional layer of deference this Court must give in applying the Jackson standard, as well as the Supreme Court's admonition that federal habeas relief functions as a "guard against extreme malfunctions in the state criminal justice systems," Richter, 562 U.S. at 103, quoting Jackson, 443 U.S. at 332 n.5, the Court finds that the state court state court adjudication of claim six does not reflect "an `unreasonable application of' Jackson and Winship to the facts of this case." Juan H., 408 F.3d at 1274. The Court also finds that the factual findings upon which the state court's adjudication of claim one rest are objectively reasonable. Miller-El, 537 U.S. at 340.

Habeas relief is denied as to claim six.

H. Claim 7

Petitioner alleges his Fourteenth Amendment right to due process was violated by the prosecutor's delay in notifying the defense of Jason Ming's existence as a witness and by his trial attorney's failure to request an instruction informing the jury of the delay. (ECF No. 19 at 12; ECF No. 25-54 at 39-44.) He argued in state court that Ming was the only witness to testify there was a plan to retaliate against the victim or whether the victim consented to go with them. (ECF No. 25-54 at 43-44.) Respondent answers that the state court reasonably found there was no discovery violation. (ECF No. 24-1 at 63-65.)

Petitioner presented this claim to the state supreme court in his petition for review (ECF No. 25-39 at 18; ECF No. 25-54 at 39-44) which was summarily denied. (ECF No. 25-40.) It was also presented to the state appellate court on direct appeal (ECF No. 25-35 at 78; ECF No. 25-53 at 87-93) and denied on the merits. (ECF No. 25-38.) The Court will look through the silent denial by the state supreme court to the appellate court opinion on direct appeal, which states:

(ECF No. 25-38, People v. Withers, et al., No. D067156/D067470, slip op. at 32-39.)

Petitioner first contends his trial was rendered unfair by the late disclosure of discovery regarding Ming as a prosecution witness. "There is no general constitutional right to discovery in a criminal case." Weatherford v. Bursey, 429 U.S. 545, 559 (1977). To the extent Petitioner contends the prosecutor violated state law in failing to timely turn over the discovery, he has not stated a cognizable federal claim. McGuire, 502 U.S. at 67 ("[F]ederal habeas relief does not lie for error of state law.") Because the evidence at issue was disclosed to the defense during trial, Petitioner has not alleged a federal constitutional violation based on withholding evidence. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999) (noting that a prosecutor's federal constitutional duty to turn over discovery is implicated only where (1) the evidence is favorable to the defense because it is exculpatory or impeaching, (2) it was suppressed by the state, either willfully or inadvertently, and (3) "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."), citing Brady v. Maryland, 373 U.S. 83, 87 (1963).

In addition, any federal error regarding the late disclosure of Ming's testimony is clearly harmless. The substance of Ming's testimony was disclosed to the defense on May 27, 2014, the day before the prosecutor rested her case-in-chief. (ECF No. 25-14 at 141-43; ECF No. 25-15 at 174.) Although Petitioner argues Ming's testimony was important, he has not identified how his defense was impacted by the late disclosure, such as being unable to find and present evidence to rebut Ming's testimony. In fact, his defense counsel indicated on the day of the disclosure she had already asked her investigators to begin working on acquiring Ming's jail records. (ECF No. 15-14 at 156-57.) Petitioner has not shown the late disclosure had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637.

Petitioner also claims his trial counsel was deficient for failing to request the jury be instructed that a failure to follow state disclosure rules "may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial," as well as identifying the evidence which was not disclosed and stating: "In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure." (See ECF No. 25-53 at 90, referencing CALCRIM No. 306.) As set forth above, the state supreme court summarily denied this claim without a statement of reasoning, and the state appellate court addressed Withers' argument that his counsel was deficient in connection to the late disclosure but did not address Petitioner's ineffective assistance of counsel claim. This Court will conduct an independent review of the record in order to determine whether the silent denial by the state supreme court of Petitioner's claim is consistent with clearly established federal law. Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir. 2011). Under that standard, Petitioner bears the burden of "showing there was no reasonable basis for the state court to deny relief." Richter, 562 U.S. at 98.

For ineffective assistance of counsel to provide a basis for habeas relief, Petitioner must show that counsel's performance was deficient. Strickland, 466 U.S. at 687. "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. Petitioner must also show that counsel's deficient performance prejudiced the defense, which requires showing that "counsel's errors were so serious as to deprive [Petitioner] of a fair trial, a trial whose result is reliable." Id. To show prejudice, Petitioner need only demonstrate a reasonable probability that the result of the proceeding would have been different absent the error. Id. at 694. A reasonable probability in this context is "a probability sufficient to undermine confidence in the outcome." Id. Petitioner must establish both deficient performance and prejudice in order to establish ineffective assistance of counsel. Id. at 687. "The standards created by Strickland and section 2254(d) are both `highly deferential' and when the two apply in tandem, review is `doubly' so." Richter, 562 U.S. at 105 (citations omitted). These standards are "difficult to meet" and "demands that state court decisions be given the benefit of the doubt." Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

Although Petitioner's trial counsel did not object to Ming's testimony (ECF No. 15-14 at 155), which implicated Withers far more than Petitioner, counsel indicated on the day of the disclosure she had already asked her investigators to begin working on acquiring Ming's jail records. (Id. at 156-57.) Withers' defense counsel objected to the admission of Ming's testimony, requested a continuance, and made a continuing motion for a mistrial based on the denial of his motion for a continuance, all of which were denied. (ECF No. 25-14 at 152-56; ECF No. 25-15 at 47.) To the extent Petitioner claims his counsel should have objected to the late disclosure, he has not explained how an objection made by his counsel would have been granted where the objections by his codefendant's counsel were denied. He claimed in state court his counsel should have requested the jury be instructed that the failure to follow state disclosure rules "may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial," identifying the evidence which was not disclosed, and stating: "In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure." (See ECF No. 25-53 at 90, referencing CALCRIM No. 306.) He has not carried his "especially heavy" burden of showing that the omission of such an instruction "so infected the entire trial that the resulting conviction violates due process," Kibbe, 431 U.S. at 154-55, as he has not shown his defense was impacted by the late disclosure. For the same reason, he has failed to show counsel was deficient, nor established prejudice by showing a reasonable probability the result of the proceeding would have been different but for any error by his trial counsel in dealing with the disclosure of Ming's testimony.

The state appellate court finding that Petitioner failed to establish deficient performance or prejudice is neither contrary to, nor an unreasonable application of, Strickland, and is not based on an unreasonable determination of the facts. Habeas relief is denied as to claim seven.

I. Claim 8

Petitioner alleges in claim eight that his rights under the Sixth and Fourteenth Amendments were violated by ineffective assistance of trial counsel in failing to contact and interview Roxanne Chavez prior to trial, who he contends could have testified the gun belonged to Withers and he was the shooter. (ECF No. 19 at 13.) Respondent answers that this claim is procedurally barred because the state habeas courts found it to be untimely. (ECF No. 24-1 at 65-69.) Respondent alternately argues that the denial of the claim by the appellate court on direct appeal, which addressed it as embedded in the Marsden claim, on the basis that counsel was not ineffective, is objectively reasonable. (Id. at 68-70.)

i) procedural default

Petitioner raised this claim in his first series of habeas petitions filed in the state superior (ECF No. 25-41), appellate (ECF No. 25-43), and supreme courts (ECF No. 25-45). The superior and appellate courts found the petition was barred as untimely, and found this claim in particular barred because it had been raised and rejected on appeal as part of the Marsden claim and no interviewing change in law or facts were presented. (ECF No. 25-42, In re McCreary, No. NCN1500, order at 2-3; ECF No. 25-44, In re McCreary, No. D073026, order at 2.) The state supreme court denied the petition with an order stating: "The petition for writ of habeas corpus is denied on the merits. (See Harrington v. Richter (2011) 562 U.S. 86, citing Ylst v. Nunnemaker (1991) 501 U.S. 797, 803.)" (ECF No. 25-46, In re McCreary, No. S245567, order at 1.)

Although the state supreme court clearly denied this claim on the merits, it is unclear whether the citations to Richter and Ylst means it also adopted the procedural bar of untimeliness imposed by the appellate court as Respondent argues (ECF No. 24-1 at 66-67) or is an indication that any presumption it was doing so was rebutted. The citation to page 803 of the Ylst opinion is a reference to the United States Supreme Court's determination that when a federal habeas court is faced with an unexplained denial by a state supreme court of a claim which has been previously addressed by a lower state court, the federal court presumes the state supreme court rested its decision on the reasoning of the lower courts. Ylst, 501 U.S. at 803. In addition, the Richter court in citing Ylst held: "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication of state-law principles to the contrary," and that "presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 99-100, citing Ylst, 501 U.S. at 803.

Respondent does not persuasively argue the state supreme court adopted the lower court's finding of untimeliness. If the California Supreme Court had not included the Richter and Ylst citations, this Court would have been obligated to read the order as being silent on the issue of timeliness. See Carey v. Saffold, 536 U.S. 214, 226 (2008) (holding that an order of the California Supreme Court denying a habeas petition "on the merits and for lack of diligence" required an inquiry into whether the claim was timely under California law because "[g]iven the variety of reasons why the California Supreme Court may have included the words `on the merits,' those words cannot by themselves indicate that the petition was timely."); Evans v. Chavis, 546 U.S. 189, 197 (2006) (holding that an order of the California Supreme Court denying a habeas petition which stated: "Petition for writ of habeas corpus is DENIED" does not automatically indicate the petition was timely under state law because "if the appearance of the words `on the merits' does not automatically warrant a holding that the filing was timely, the absence of those words could not automatically warrant a holding that the filing was timely."); Ylst, 501 U.S. at 802 (finding the Ninth Circuit erred in "applying a presumption that when a federal claim is denied without explicit reliance on state grounds, the merits of the federal claim are the basis for the judgment.") The addition of the citations to Richter and Ylst here may be an indication the state supreme court was avoiding (or rebutting) any presumption it was adopting the appellate court's procedural bars. Even if it could be construed in the opposite sense, the state appellate court observed claims eight through eleven had already been denied on the merits in connection to the Marsden claim, citing In re Waltreus, 62 Cal.2d 218, 225 (1965) for the proposition that claims eight through eleven were barred because they were raised and rejected on direct appeal, and such a citation does not support a procedural default in this Court. See Hill v. Roe, 321 F.3d 787, 789 (9th Cir. 2003) (holding that Waltreus does not preclude federal habeas review), citing Ylst, 501 U.S. at 805. Although an untimeliness bar could independently support a default notwithstanding the Waltreus bar if looking through that bar leads to a finding of untimeliness, see Forrest v. Vasquez, 75 F.3d 562, 564 (9th Cir. 1996), looking through the Waltreus bar here leads to a decision on the merits of claims eight though eleven, at least to extent they were raised on direct appeal, in particular as part and parcel to the Marsden claim. See Maxwell v. Sumner, 673 F.2d 1031, 1034-35 (9th Cir. 1982) (looking through Waltreus citation to a last reasoned state court judgment on the merits and finding no independent and adequate state procedural ground). It would only be to the extent the factual basis for claims eight through eleven as presented here fundamentally alter the claims as they were presented and addressed on direct appeal in connection to the Marsden claim that they could be procedurally defaulted, and Respondent makes no effort to draw such a distinction. See Dickens v. Ryan, 740 F.3d 1302, 1318-19 (9th Cir. 2014) (en banc) (holding that claim already addressed on the merits in state court can become procedurally defaulted "if new factual allegations either `fundamentally alter the legal claim already considered by the state court,' or `place the case in a significantly different and stronger evidentiary posture than it was when the state courts considered it.'"), quoting Vasquez v. Hillery, 474 U.S. 254, 260 (1986) and Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir. 1988).

It has been clearly established for many years that "if the decision of the last state court to which the petitioner presented his federal claims fairly appeared to rest primarily on resolution of those claims, or to be interwoven with those claims, and did not clearly and expressly rely on an independent and adequate state ground, a federal court may address the petition." Coleman, 501 U.S. at 735 (emphasis added); see also Harris v. Reed, 489 U.S. 255, 263 (1989) ("a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar.") (emphasis added). Because the state supreme court order denying claims eight through eleven cannot be described as clearly and expressly relying on a state procedural bar, the Court rejects Respondent's contention claims eight through eleven are procedurally defaulted.

ii) merits

As set forth above, claims eight through eleven were raised on habeas in the state supreme court and denied "on the merits." When a state court denies a federal claim on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record.3 Stanley, 633 F.3d at 860.

"Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Petitioner bears the burden of "showing there was no reasonable basis for the state court to deny relief." Richter, 562 U.S. at 98.

Petitioner alleges he received ineffective assistance of trial counsel in failing to contact and interview Roxanne Chavez prior to trial, whom he contends could have testified the gun belonged to Withers and he was the shooter. (ECF No. 19 at 13.) As set forth above in claim one, Petitioner attached to his state habeas petition an interview report with Roxanne Chavez by a defense investigator dated about seven months after the verdicts were received. Chavez told the investigator Penman had asked her where Petitioner kept his gun, and she "responded initially by saying something to the effect of, `why would I tell you that?'" (ECF No. 25-41 at 28.) She then told Penman "that if it was in the car they would see it because [Petitioner] did not try to hide it," and said that she "believed that Withers was looking in the center console for the gun." (Id.) Although Chavez may have been able to testify that Withers was looking for the gun, from which counsel may have argued it was in Withers' possession, Chavez's statement indicates the gun belonged to Petitioner, something his trial counsel had been successful in preventing the jury from hearing. Ming testified at trial that Withers admitted he was "the one who got the gun." (ECF No. 25-15 at 78.) Ming then testified he thought the gun belonged to Petitioner which drew an objection from his trial counsel, which was sustained and the jury told to disregard that statement. (Id.) Petitioner testified the gun did not belong to him and he told the police it belonged to Withers. (ECF No. 25-16 at 175-201; ECF No. 25-32 at 287.) Petitioner admitted at the Marsden hearing that his trial counsel was aware of Chavez prior to trial, and in fact the prosecutor asked Renteria and Penman in passing during their trial testimony relatively early in the prosecution's case-in-chief if they knew Chavez. (ECF No. 25-10 at 231; ECF No. 25-13 at 83-84.) Petitioner has not made a clear record that his trial counsel did not know of or investigate Chavez prior to trial. Rather, he states Chavez came forward with information after trial, which is what may have precipitated her interview with a defense investigator after the verdicts were announced.

However, even assuming Petitioner told trial counsel about Chavez prior to trial but counsel did not contact her until after trial, Petitioner has not shown Strickland prejudice. Petitioner states he was having an affair with Chavez and they had a child together, indicating she may have been biased in his favor. (ECF No. 19 at 36.) Petitioner denied owning the murder weapon and his trial counsel prevented the jury from hearing the gun belonged to him, so it was reasonable for counsel to prevent Chavez from so testifying. In light of the fact that avoiding Chavez's testimony the gun belonged to Petitioner was favorable to the defense and calling her to testify she "believed" Withers was looking for Petitioner's gun was cumulative to Ming's testimony that Withers said he was looking for the gun, Petitioner has not shown "a probability sufficient to undermine confidence in the outcome" of the trial sufficient to establish prejudice arising from the failure to call Chavez as a witness. See Strickland, 466 U.S. at 694 (holding that prejudice requires showing "a probability sufficient to undermine confidence in the outcome."); Richter, 562 U.S. at 105 ("The standards created by Strickland and section 2254(d) are both `highly deferential' and when the two apply in tandem, review is `doubly' so.") (citations omitted).

The Court finds, based on an independent review of the record, it was objectively reasonable for the state court to reject Petitioner's claim that his defense counsel rendered constitutionally ineffective assistance in failing to call Chavez as a trial witness. Richter, 562 U.S. at 105; Strickland, 466 U.S. at 694; see also Pinholster, 563 U.S. at 181 (holding that the standards of Strickland and 28 U.S.C. § 2254(d) are "difficult to meet" and "demands that state court decisions be given the benefit of the doubt.")

Habeas relief is denied as to claim eight.

J. Claim 9

Petitioner alleges in claim nine that his rights under the Sixth and Fourteenth Amendments were violated "by the prosecutor's cumulative misconduct and multiple trial errors," and by his trial counsel's failure to object to that misconduct and request the jury be admonished. (ECF No. 19 at 14.) He alleges the prosecutor argued: (1) the judge was biased against him, (2) she was bringing truth to the jury, (3) defense counsel lied to the jury about when the victim died, (4) that Petitioner lied during his testimony without any factual basis for doing so, and (5) the victim begged to be a mother before being shot when the evidence showed she was shot without warning. (Id. at 14, 41-42.) Respondent answers that this claim is procedurally barred because the state appellate court on habeas found it to be untimely and the state supreme court on habeas adopted that finding. (ECF No. 24-1 at 70-71.) Respondent alternately argues the state court denial of the claim is objectively reasonable because there was no prosecutorial misconduct. (Id. at 71-73.)

For the reasons set forth above in claim eight, the Court find this claim is not procedurally defaulted and will conduct an independent review of the record to determine whether the denial by the state supreme court "on the merits" is objectively reasonable.

For prosecutorial misconduct to rise to the level of federal constitutional error, the misconduct must have "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden, 477 U.S. at 181. "It is not misconduct for the prosecutor to argue reasonable inferences based on the record." Younger, 398 F.3d at 1190; see also Ceja, 97 F.3d at 1253-54 ("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.")

Petitioner first contends the prosecutor argued the trial judge was biased against him. Withers' counsel argued in closing that the deals the prosecutor gave Ming and Gallentine to testify were corrupt, and in rebuttal the prosecutor argued that in order to believe that, the jury would "also have to believe that this judge is corrupt, in on it, slimy, a dirt bag, that he's going to let these two men escape justice." (ECF No. 25-24 at 80.) There is no merit to a claim this constituted an argument the trial judge was biased against Petitioner.

Petitioner next contends the prosecutor argued she was bringing truth to the jury. Withers' defense counsel, in response to the prosecutor's argument that the government had to deal with otherwise unreliable in-custody witnesses like Ming and Gallentine for the greater good, argued it was similar to providing asylum to Nazis because they might otherwise work for the Communists or interring Japanese-Americans in camps because they might conduct sabotage. (ECF No. 25-24 at 59-62.) In rebuttal, the prosecutor said:

(ECF No. 25-24 at 69.)

A prosecutor may commit misconduct by personally vouching for the credibility of a witness or hint there is some evidence the jury does not know about. United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993) ("Vouching consists of placing the prestige of the government behind a witness through personal assurances of the witness's veracity, or suggesting that information not presented to the jury supports the witness's testimony.") The prosecutor did not commit misconduct because her argument she was bringing truth to the jury was in rebuttal to defense counsel's argument the government was overpowering his client's ability to defend himself or was in the business of oppressing people like him. Viewed in context, it is not an attempt to subvert the jury's role as the factfinder though a personal assurance of the truth of the prosecution's case or the facts presented. See United States v. Young, 470 U.S. 1, 11 (1985) ("[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial.") In light of the jury's instruction that the comments of counsel is not evidence, it did not inject unfairness into the trial. See Boyde, 494 U.S. at 384 ("arguments of counsel generally carry less weight with a jury than do instructions from the court.")

Petitioner contends the prosecutor improperly argued that his defense counsel had lied to the jury about when the victim died when the prosecutor stated: "[Petitioner's defense counsel] said that the medical examiner could have told you, like, pinpointed the minute of the death. No, she couldn't. That's — maybe on, like, "Law and Order" or TV shows they might be able to do it. But not in real life. They can't do that. And if that was a question that was something that [Petitioner's defense counsel] wanted to know, she could have asked the medical examiner." (ECF No. 25-24 at 74.) The very first question Petitioner's trial counsel asked the medical examiner was if there was an official time of death, to which the examiner answered that twelve hours had passed since the victim was found by law enforcement, the victim was pronounced dead before her office was called, there were too many variables to be exact, and her office was never asked to make that determination. (ECF No. 25-15 at 33-34.) The prosecutor's statement was correct, is supported by the trial record, and was made in rebuttal to defense counsel's argument the prosecution failed to present available evidence of the time of death. The statement is not an indication the prosecutor knew, based on information not presented to the jury, that the medical examiner could not have made such a determination, nor an accusation defense counsel lied about when the victim died. In any case, the jury was instructed that argument of counsel is not evidence, and Petitioner has not rebutted the presumption they followed that instruction. See Boyde, 494 U.S. at 384 ("[A]rguments of counsel generally carry less weight with a jury than do instructions from the court.")

Petitioner next contends the prosecutor accused him of lying during his testimony but without stating why. The prosecutor stated: "Now, the evidence absolutely suggests that [Petitioner] is the one that did the shooting. I know what his explanation is. I think it's a difficult sell to try and say that — that — what he's saying is that he's denying. And [Petitioner], the majority of his testimony, was, frankly, unbelievable." (ECF No. 25-24 at 73.) It was not misconduct for the prosecutor to make such a mild challenge to Petitioner's credibility. See Smith v. Phillips, 455 U.S. 209, 219 (1982) ("[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is whether such conduct infected the trial with unfairness.") Nor has he overcome the presumption the jury followed their instruction that argument of counsel is not evidence. Boyde, 494 U.S. at 384.

Petitioner next contends the prosecutor told the jury the victim begged to be a mother before being shot, which he argues was improper because the evidence showed she was shot without warning. As discussed in claim one, the prosecutor argued in rebuttal, when addressing an argument made by Petitioner's trial counsel that it was natural to presume the victim put her arms up to protect herself when the driver pointed a gun at her, that:

(ECF No. 25-24 at 69-70.)

The prosecutor asked the jury to draw an inference regarding what the victim may have been experiencing in the back seat of the car based on evidence presented at trial that she had been kidnapped, placed in the back seat of the car, and was turning away either cowering or trying to escape while Petitioner shot her four times. It is not unreasonable to infer the victim was terrified and begging for her life. Younger, 398 F.3d at 1190 ("It is not misconduct for the prosecutor to argue reasonable inferences based on the record."); Ceja, 97 F.3d at 1253-54 ("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.") In addition, evidence was presented at trial that the victim took her child with her while she was consuming drugs and associating with drug users. The prosecutor's comments that it did not matter what type of mother she was or would have been had she lived was based on that evidence and was not misconduct. As the prosecutor's comments were not objectionable, Petitioner has not established ineffective assistance of counsel from his trial counsel's failure to object or request admonishments.

Based on an independent review of the record, the state court adjudication of this claim is not objectively unreasonable within the meaning of 28 U.S.C. § 2254(d). Habeas relief is denied at to claim nine.

K. Claim 10

Petitioner alleges in claim ten that his rights under the Sixth and Fourteenth Amendments were violated by the prosecutor's knowing use of false testimony regarding the manner of the victim's death and by trial counsel's failure to object and request a mistrial. (ECF No. 19 at 15.) Respondent answers that this claim is procedurally barred because the state habeas courts barred it as untimely and for failure to raise it on direct appeal. (ECF No. 24-1 at 73-74.) Respondent alternately argues that the denial of the claim by the state supreme court on the merits on state habeas is objectively reasonable because the prosecutor did not present any false evidence. (Id. at 74-76.)

For the reasons set forth above in claim eight, the Court find this claim is not procedurally defaulted and will conduct an independent review of the record to determine whether the denial by the state supreme court "on the merits" is objectively reasonable.

Clearly established federal law provides that a prosecutor has a constitutional duty to correct knowingly false testimony. Napue v. Illinois, 360 U.S. 264, 269-70 (1959) (holding that due process is violated if the prosecution knowingly presents false evidence or fails to correct any falsity of which it is aware). "[A] conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103 (1976).

Petitioner has failed to identify specifically what evidence he contends was false. It appears he relies on the preliminary hearing stipulation that the victim died instantly upon being shot and on his own and Withers' testimony to that effect to contend the prosecutor violated that stipulation during closing argument when she told the jury they could draw a reasonable inference that the victim did not die immediately. The prosecutor argued that a reasonable inference to be drawn from the ballistics evidence that the victim was shot in the back of her right shoulder was that the victim was opening the door attempting to jump out when she was shot and thus shot while trying to escape. (ECF No. 24-23 at 101-02.) She pointed out that Withers told Detective DuGal the victim was still alive when they got to Withers' house, and argued it showed the defendants made no effort to assist the victim but left her in the car dead or dying while they ate dinner. (Id. at 101-04.)

Petitioner's trial counsel began her closing argument by asking the jury to "look at the time of Denise's death." (ECF No. 25-24 at 4.) She argued that Petitioner and Withers both testified the victim died instantly upon being shot and the medical examiner gave no opinion on how long it took her to die. (Id. at 4-5.) She argued the time of death was important with respect to aiding and abetting liability because although Petitioner testified that he assisted Withers by disposing of the body after the victim died, those actions had nothing to do with the charges in this case, and Petitioner was innocent of murder because Withers pulled the trigger and Petitioner was unaware prior to that time of a plan to kill the victim. (Id. at 37-39.) Withers' attorney argued that a reasonable inference from being shot four times is that the victim died instantly. (Id. at 66.) The prosecutor stated in rebuttal: "I didn't introduce the concept that she was alive and died later. Mr. Withers introduced that concept when he spoke to Detective DuGal. He's the one that said, when I got to the house, she was damn near gone." (Id. at 72.) She argued it was relevant because both defendants claimed to be the driver but neither one did anything to assist the victim after she was shot, and because they could not have known she died instantly, their lack of action showed they intended the victim to die. (Id.) She stated: "The question isn't did she die immediately. The question is, what did you two do to try and save her life? Nothing. . . . And that tells you everything you need to know about their motive." (Id. at 74.)

Petitioner has failed to show the prosecutor knowingly used false evidence to argue the victim did not die immediately upon being shot. Rather, she argued it was a reasonable inference to be drawn from the trial testimony of Detective DuGal. Because there was no basis for an objection or a mistrial, Petitioner has not shown his counsel was deficient. Nor has he established prejudice because he has not shown "a probability sufficient to undermine confidence in the outcome" of the trial arising from the failure to object. See Strickland, 466 U.S. at 694 (holding that prejudice requires showing "a probability sufficient to undermine confidence in the outcome."); Pinholster, 563 U.S. at 181 (holding that the standards of Strickland and 28 U.S.C. § 2254(d) are "difficult to meet" and "demands that state court decisions be given the benefit of the doubt.")

Habeas relief is denied as to claim ten.

L. Claim 11

Petitioner alleges in claim eleven that his rights under the Sixth and Fourteenth Amendments "were violated when the jury heard improper illegal prejudicial evidence of serious prior prison terms," and by his trial counsel's failure to object or request a mistrial. (ECF No. 19 at 16.) Respondent answers that this claim is procedurally defaulted because the state habeas courts barred it as untimely and for failure to raise it on direct appeal. (ECF No. 24-1 at 76.) Respondent alternately argues that the denial of the claim by the state appellate court as a claim subsumed into the Marsden claim is objectively reasonable. (Id. at 76-77.)

For the reasons set forth above in claim eight, the Court find this claim is not procedurally defaulted and will conduct an independent review of the record to determine whether the denial by the state supreme court "on the merits" is objectively reasonable.

As set forth above, the United States Supreme Court has held that an inquiry into whether evidence was "incorrectly admitted pursuant to California law . . . is no part of a federal court's habeas review of a state conviction." McGuire, 502 U.S. at 67. Petitioner can only establish a federal due process violation by showing the admission of the evidence was so prejudicial it rendered his trial fundamentally unfair. See Johnson, 63 F.3d at 930, citing McGuire, 502 U.S. at 67-69; see also Jammal, 926 F.2d at 919-20 ("The issue for us, always, is whether the state proceedings satisfied due process; the presence or absence of a state law violation is largely beside the point.")

As discussed above in claims one and two, Withers admitted on direct examination he had felony convictions for sale of methamphetamine, auto theft and evading the police. (ECF No. 25-19 at 73.) On cross-examination he admitted he is a convicted felon and was awaiting sentencing on a conviction for possession for sale of methamphetamine when the murder took place in this case. (ECF No. 25-20 at 41-42.) The first mention by Gallentine that Petitioner had been in prison was cured by an admonishment to the jury to disregard it. The second mention of Petitioner's prison record was inadvertent, fleeting, and perhaps not even noticed by the jury, and trial counsel made a reasonable tactical decision not to object or request an admonition in order to avoid drawing the jury's attention to it. In addition, the evidence Petitioner was the shooter was strong, including Renteria's testimony Petitioner planned the shooting (ECF No. 24-13 at 132-33, 161-62), Gallentine's testimony Petitioner admitted he was the shooter (ECF No. 25-7 at 207), evidence Withers was driving and expert testimony the shots were fired by someone sitting in the front passenger seat (id. at 187, 191-92; ECF No. 25-15 at 28-29), Petitioner disposing of the body himself, retaining possession of the murder weapon and continuing to drive the car the murder took place in until Withers was arrested, and Jason Ming's testimony that Withers said there was a plan to kill the victim, that Withers was upset Petitioner shot her prematurely, and Withers wanted Petitioner to "man up" and take the blame for the shooting (ECF No. 25-15 at 70-72). In light of the fact that the jury knew Withers had also been in prison and heard details about his convictions and criminal history, and in light of the strong evidence of Petitioner's guilt, he has not shown the brief references to the fact that he had been in prison rendered his trial fundamentally unfair.

Petitioner contends trial counsel was deficient in failing to object and request a jury admonition. His trial counsel did object and request an admonition after the first time his prison record was mentioned by Gallentine. Counsel indicated at the Marsden hearing that she decided not to do so the second time where it was not even clear any or all the jurors noticed the reference he made to being in prison during his police interview because she made a tactical decision not to call the jury's attention to the inadvertent mention of his prison record. Based on an independent review of the record, Petitioner has not overcome the "strong presumption" that his trial counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. Neither has he shown "a probability sufficient to undermine confidence in the outcome" of the trial arising from the failure to object or request a mistrial. See Strickland, 466 U.S. at 694 (holding that prejudice requires showing "a probability sufficient to undermine confidence in the outcome."); Pinholster, 563 U.S. at 181 (holding that the standards of Strickland and 28 U.S.C. § 2254(d) are "difficult to meet" and "demands that state court decisions be given the benefit of the doubt.")

Habeas relief is denied as to claim eleven.

M. Claim 12

Petitioner alleges in claim twelve that his rights under the Sixth and Fourteenth Amendments were violated by ineffective assistance of counsel when his trial attorney failed to discuss the legal significance of the probation presentence report with him, and by failing to investigate, prepare or present mitigating evidence at his sentencing hearing. (ECF No. 19 at 17.) He argues counsel should have informed the trial judge that he was once diagnosed with methamphetamine psychosis, had once pleaded not guilty by reason of insanity, and that his son died of cancer. (Id.)

Respondent answers that this claim is procedurally defaulted because the state habeas courts barred it as untimely. (ECF No. 24-1 at 78.) Respondent alternately argues that the denial of the claim by the state appellate court, on the basis Petitioner had identified no mitigating evidence counsel should have presented or explain how he would have obtained a lower sentence, is objectively reasonable. (Id. at 78-79.)

i) procedural default

Petitioner raised this claim in the state habeas courts in same manner as claims eight through eleven, and like those claims it was denied by the state supreme court "on the merits" with citations to Richter and Ylst. (ECF No. 25-41-25-46.) Unlike claims eight through eleven, however, the state appellate court recognized this claim had not been presented on direct appeal, and denied it as untimely and for failing to state a prima facie case for relief, finding Petitioner had identified no mitigating evidence counsel should have presented and did not explain how he would have obtained a lesser sentence. (ECF No. 25-44, In re McCreary, No. D073026, order at 2.)

As set forth above in claim eight, the state supreme court order is ambiguous as to whether it was denying this claim on the merits only or also adopting the appellate court's procedural bars. Unlike claims eight though eleven, however, this claim was not presented on direct appeal, and the denial of this claim on the merits by the state supreme court does not appear to prevent it from being found to be procedurally defaulted here as untimely. However, in light of the ambiguity of the state supreme court order, and because the claim clearly fails on the merits, the Court finds the interests of judicial economy counsel in favor of addressing it on the merits. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) ("Procedural bar issues are not infrequently more complex than the merits issues presented by the appeal, so it may well make sense in some instances to proceed to the merits if the result will be the same.")

ii) merits

Petitioner's trial counsel filed a post-trial motion to strike the priors, arguing Petitioner had not committed any new violent or serious offenses in the twenty-three years following his prior convictions, that he had struggled with drug addiction throughout his entire adult life, had expressed remorse, and had shown an ability to be law abiding for lengthy periods of time and a willingness to rehabilitate himself. (ECF No. 25-33 at 117-20.) To the extent Petitioner contends counsel should have been more specific regarding the details of his priors, as discussed above in claim four, the record supports a finding the trial judge considered the specific aspects of his serious criminal history as outlined in the probation report prior to denying his motion to strike the priors.

Petitioner argues his counsel should have informed the trial judge he was once diagnosed with methamphetamine psychosis, had once pleaded not guilty by reason of insanity, and that his son died of cancer. Petitioner's trial counsel informed the court just prior to sentencing that Petitioner wished to address the court, and he did so, stating that because his son died he could understand the grief of the victim's family. (ECF No. 25-31 at 5.) Petitioner was free at that time to inform the trial judge that his son's death was the result of cancer or discuss the effects of his methamphetamine use on his sanity but did not do so. In any case, the probation report states his son died of cancer, lists his history of methamphetamine use as he reported it to the probation officer, and indicates that although he took Prozac around the time of his son's death he "reported no history of psychological problems." (ECF No. 25-32 at 74.) He stated in his police interview he took Prozac for several months after his son died but had not "taken psych meds for 10 years." (Id. at 255.) Even to the extent he claims he needed the assistance of counsel to understand whether and to what extent those things were relevant at sentencing, they are in the probation report which the trial judge indicated he read, and in his police interview which the trial judge heard as it was played in open court for the jury.

Petitioner has not shown "a probability sufficient to undermine confidence in the outcome" of his sentence arising from the failure of his counsel to highlight those issues. See Strickland, 466 U.S. at 694 (holding that prejudice requires showing "a probability sufficient to undermine confidence in the outcome.") Based on an independent review of the record, the denial of his claim by the state court was not objectively unreasonable. See Pinholster, 563 U.S. at 181 (holding that the standards of Strickland and 28 U.S.C. § 2254(d) are "difficult to meet" and "demands that state court decisions be given the benefit of the doubt.") The Court finds the claim would fail even under de novo review. Habeas relief is denied as to claim eleven.

N. Claim 13

Petitioner alleges in claim thirteen that his Fourteenth Amendment right to due process was violated by the failure of the state habeas courts to hold an evidentiary hearing. (ECF No. 19 at 18.) Respondent answers that this claim is not cognizable on federal habeas because it alleges an error of state procedure and does not challenge the underlying judgment of conviction. (ECF No. 24-1 at 80.)

To present a cognizable federal habeas corpus claim under § 2254, a state prisoner must allege both that he is in custody pursuant to a "judgment of a State court," and that he is in custody in "violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The allegation that the state habeas courts did not conduct an evidentiary hearing does not satisfy the second requirement for a cognizable habeas claim. Habeas relief is denied as to claim thirteen because it does not present a cognizable claim.

O. Claim 14

Petitioner alleges in his final claim that his rights under the Fifth, Sixth and Fourteenth Amendments were violated because he is actually innocent. (ECF No. 19 at 19-20.) Respondent answers that this claim is procedurally defaulted because the state habeas courts barred it as untimely. (ECF No. 24-1 at 81.) Respondent alternately argues that a freestanding claim of actual innocence is not cognizable on federal habeas, and even if it is the claim is without merit. (Id. at 81-84.)

Petitioner raised this claim in his second series of habeas petitions filed in the state superior (ECF No. 25-47), appellate (ECF No. 25-49), and supreme courts (ECF No. 25-51). The superior court denied the petition without addressing the actual innocence claim. (ECF No. 25-48, In re McCreary, No. NCN1519, order at 1-3.) The appellate court addressed the claim and denied it as untimely and successive. (ECF No. 25-50, In re McCreary, No. D074018, order at 2-3.) The state supreme court denied the petition with an order stating: "The petition for writ of habeas corpus is denied. (See In re Clark (1993) 5 Cal.4th 750, 767-769 (courts will not entertain habeas corpus claims that are successive).)" (ECF No. 25-42, In re McCreary, No. S250337, order at 1.)

Because the state supreme court denied the claim as successive, and Respondent has provided no basis to support a finding that the state supreme court adopted the appellate court's finding of untimeliness, Respondent's contention the claim is procedurally defaulted on the basis the state supreme court found it untimely is rejected. In any case, because Petitioner contends he can overcome any procedural default by establishing actual innocence, and because the claim clearly fails on the merits, the Court will address the merits of the claim. See Schlup, 513 U.S. at 327-28 (holding that a procedurally defaulted claim can be reviewed on federal habeas where a petitioner establishes "it is more likely than not that no reasonable juror would have convicted him.")

It is an open question whether a freestanding claim of actual innocence as opposed to its use as a gateway to avoid a procedural default is cognizable on federal habeas. See Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014) ("We have not resolved whether a freestanding actual innocence claim is cognizable in a federal habeas corpus proceeding in the non-capital context, although we have assumed that such a claim is viable."), citing McQuiggin v. Perkins, 569 U.S. 383, 391 (2013) (noting that it is, as yet, unresolved whether a freestanding actual innocence claim is cognizable on federal habeas) and Herrera v. Collins, 506 U.S. 390, 417 (1993) (acknowledging the possibility that a freestanding actual innocence claim would exist in the capital context).

"The standard for establishing a freestanding claim of actual innocence is `extraordinarily high.'" Jones, 763 F.3d at 1246, quoting Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (en banc). "We have held that, at a minimum, the petitioner must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent." Id. (internal quotation marks omitted). Petitioner "must show that, in light of all the evidence, including evidence not introduced at trial, `it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" Majoy v. Roe, 296 F.3d 770, 775-76 (9th Cir. 2002), quoting Schlup, 513 U.S. at 327. This Court "must consider all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under rules of admissibility that would govern at trial." House v. Bell, 547 U.S. 518, 538 (2006) (internal quotation marks omitted). "A petitioner need not show that he is `actually innocent' of the crime he was convicted of committing; instead, he must show that `a court cannot have confidence in the outcome of the trial.'" Majoy, 296 F.3d at 776, quoting Carriger, 132 F.3d at 478, quoting Schlup, 513 U.S. at 316.

Petitioner claims he did not know the victim was going to be shot, that he had met Withers a few days earlier and did not know Withers had shot several other people including one in the same manner as the victim here, and relies primarily on his allegations of trial error identified in his federal Petition and discussed above. (ECF No. 19 at 19-20.) His new evidence includes photographs he contends show he is not tall enough to have been the shooter as described by Withers at trial, and the proffered testimony of four witnesses who did not testify at trial: (1) Roxanne Chavez who could testify Withers called her asking where Petitioner kept his gun in his car, (2) Ryan Paschini who could testify that Withers confessed to shooting the victim while Petitioner was driving and that he did it because he was jealous she had sex with one of his friends, and (3) Brian Baldino and Ricardo Michael Flores to whom Withers made "incriminating statements that placed the murder on himself and would have proved my innocence." (Id.) Petitioner presents a transcript of an interview with Ryan Paschini conducted by a District Attorney with Paschini's counsel present dated October 21, 2013, in which Paschini, seeking consideration in a pending criminal case against him, says Withers admitting killing the victim. (Id. at 112-61.) He contends Ricardo Michael Flores could testify that Withers told him while they were both in jail that he was not driving the car when the victim was shot, and that Baldino witnessed Withers kill someone and attempt to blame Baldino. (Id. at 172-73.)

As set forth above, strong evidence supported the jury's finding that Petitioner was the shooter, including his statement to Withers recorded by the police in which he admitted he was the shooter, disposed of the body and said he fixed a bullet hole in the car, the fact that he was in possession of the murder weapon when arrested and continued to drive the car in which the murder took place until shortly after Withers was arrested, Gallentine's testimony that Petitioner said he "blasted someone in the backseat," as well as evidence he and Withers planned the shooting and kidnapped the victim. In addition, evidence which was excluded at trial as a result of pre-trial motions (ECF No. 25-32 at 49, 57), and which is noted in the probation officer's report (id. at 66), showed Petitioner is associated with the Aryan Nation prison gang, that both he and Withers are associated with the Nazi Lowriders prison gang, and that according to Petitioner's statement to the police the victim may have been killed as retribution for falsely accusing gang members of injecting her with bad drugs to make her pass out and taking turns raping her. (Id. at 67.) A statement attributed to Withers that "it was only supposed to be a rape," was excluded at trial, as was evidence that the hard drive on Petitioner's computer was found to contain 617 pornographic videos, 43 percent of which involved women being raped at gunpoint, while handcuffed, by masked men and with plastic bags over their heads, which the prosecutor unsuccessfully attempted to introduce to show Petitioner and Withers were going to rape the victim in retribution for her false accusation of rape "to show her what a rape is really like." (ECF No. 25-16 at 158-62.) On the other hand, Petitioner's new evidence consists primarily of proffered testimony of additional incarcerated inmates like Ming and Gallentine looking for cooperation agreements with the prosecution to provide evidence Withers incriminated himself cumulative to the testimony of Ming and Gallentine. Even if Petitioner's new evidence weakens the case against him, the evidence remains strong he was the shooter and he aided and abetted Withers in the kidnap and murder of the victim.

After a holistic look at all the evidence, the Court is unable to find that "it is more likely than not that no reasonable juror would have convicted (Petitioner) in the light of the new evidence." Schlup, 513 U.S. at 327. Petitioner has not carried his burden of showing a court cannot have confidence in the outcome of his trial based on his new evidence. Majoy, 296 F.3d at 776; Carriger, 132 F.3d at 478. The Court finds Petitioner has not excused the procedural default of any claim based on a showing of actual innocence, and to the extent a freestanding claim of actual innocence is cognizable, habeas relief is denied as to claim fourteen.

P. Evidentiary Hearing

Petitioner requests an evidentiary hearing. (ECF No. 19 at 19.) An evidentiary hearing is not necessary where, as here, the federal claims can be denied on the basis of the state court record, and where the petitioner's allegations, even if true, do not provide a basis for habeas relief. Campbell v. Wood, 18 F.3d 662, 679 (9th Cir. 1994); see also Schriro v. Landrigan, 550 U.S. 465, 474 (2007) ("It follows that if the record refutes the applicant's factual allegation or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.") Petitioner's request for an evidentiary hearing is denied.

Q. Certificate of Appealability

The threshold for granting a Certificate of Appealability is "relatively low." Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002). "[T]he only question is whether the applicant has shown that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Buck v. Davis, 580 U.S. ___, 137 S.Ct. 759, 773 (2017). The district court "shall indicate which specific issue or issues satisfy the standard for issuing a certificate, or state its reasons why a certificate should not be granted." United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997).

The Court finds, applying that standard, that a Certificate of Appealability is not warranted. The claims and issues raised in this action are not sufficiently meritorious to deserve encouragement to proceed further, and Petitioner has not shown jurists of reason could disagree with the foregoing resolution.

V. CONCLUSION AND ORDER

For all the foregoing reasons, the Petition for a Writ of Habeas Corpus is DENIED. The Court DENIES a Certificate of Appealability.