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United States District Court, N.D. California

February 10, 2004.

JUAN A. MERCED, Petitioner,

The opinion of the court was delivered by: CHARLES BREYER, District Judge


Petitioner Juan A. Merced ("Merced") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Merced was convicted by a jury for attempted premeditated murder of a peace officer involving the personal use of a firearm and being a post — convicted felon in possession of a firearm. After finding true allegations that Merced had eight prior felony convictions, the trial court sentenced Merced to state prison for a total term of sixty — five years to life. The California Court of Appeal affirmed the judgment. The California Supreme Court denied review. Upon receipt of Merced's petition, the court issued an order to show cause why a writ of habeas corpus should not be granted. Respondent filed an answer to the order to show cause, and petitioner filed a timely traverse. Having reviewed the memoranda submitted by the parties, the Court DENIES petitioner's writ of habeas corpus. Page 2


  Merced was first tried in February and March 1999. His first trial was declared a mistrial after the jury was unable to reach a unanimous verdict. Merced was retried beginning in June 1999. At his second trial, Merced was convicted on the attempted murder and possession of a firearm charges. At the beginning of the second trial, the parties stipulated that all rulings on pretrial motions in the first trial would be apply in the second trial. None of the petitioner's claims for habeas relief arise out of the first trial. Therefore, except for that part of the record relating to the first trial court's denial of Merced's pretrial motion to strike his prior convictions, this Court was not required to review the first trial.

 I. Uncontested Testimony

  On September 24, 1996, Officer Christopher Crabtree was on patrol. He noticed a black male, around twenty — five to thirty years — old, five — feet — ten — inches to six feet tall, about 200 pounds wearing a thick blue puffy jacket and a blue cap, walking with another man near Niles Market in Oakland. A bottle in one hand and a cup in the other, the man appeared to be drinking. Crabtree saw him brush up against a lady with small children. He stopped and got out of his patrol car to investigate. He asked the man for identification. The man handed him a Gold Star check — cashing card with a name, "Juan Merced," and a picture. Crabtree radioed police dispatch that he was "Code Four," indicating he did not need assistance. Then, seeing the man reach under his shirt, Crabtree grabbed at the area where the man was reaching. He felt a gun. Failing to wrest it away, Crabtree backed up and reached for his own gun. As he did so, the man said "Don't do it, motherfucker" several times, pointed his gun at Crabtree, and pulled the trigger. The gun misfired. Crabtree sought cover behind his patrol car. The man fired at him, grazing his head. They exchanged gunfire — and the man fled. Crabtree saw him run down 23rd Avenue and turn left on East 15th Street, but then lost sight of him. He went back to his car. He picked up the check — cashing card, which was laying on the ground where he had dropped it. He radioed in the name on the card, "Juan Merced," and a description of the suspect.

  Shortly after hearing shots, Sophia Jones, who lived in an apartment building at 2312 Page 3 East 15th Street, saw Merced run into her building. A friend, Tamika Madison, who had been in Jones' apartment on the second floor, came out and told Jones that Merced wanted her and that he had a gun. The police subsequently surrounded the building. Officer Mark Neely was shown the Gold Star check — cashing card by another officer. He, then, entered the building. He went to Jones' apartment on the second floor and knocked on the door. A shirtless Merced answered. He told Neely his name was Reggie Freeman. When the officer asked him if he knew "Juan Merced," he said "Juan" was his brother. After comparing the photograph on the card to Merced, Officer Neely arrested him. The officer also picked up a shirt, which matched the description of clothing that the man who shot Officer Crabtree had been described as wearing. During a subsequent search of the apartment, officers found a single. 38 caliber bullet laying on a child's bed and a. 38 caliber revolver in a closet. The revolver contained five spent casings and one live cartridge with a dent in the primer. Subsequent tests determined that a bullet retrieved from Officer Crabtree's car had been fired from the gun found in the apartment. A gunshot residue test of Merced's hands indicated that he had either apparently fired a weapon, or handled a weapon that had gunshot residue on it, or was near a weapon that was discharged that deposited the gunshot residue on his hands.

  Maletia Luckett lives on the third floor of the same building as Jones. On September 24, she heard gunshots. At the time, she was in her apartment with her boyfriend, Phillip Williams, and his fourteen year — old brother, Joel Williams. A few minutes after she heard the gunshots, she left her apartment and went downstairs. She saw Merced sitting in front of Jones' apartment on the second floor. He was perspiring and looking worried. He was wearing a dark sweatshirt with his ponytail laying in the hood. After looking outside for her son, Luckett returned to her apartment. As she went upstairs, she saw Merced again. He was still outside of Jones' apartment. Police subsequently came to Luckett's apartment. They entered and searched it. Phillip and Joel Williams were handcuffed and taken to the police station for questioning. They were tested for gunshot residue and released. Traces of gunshot residue were found on Joel's hands. No traces were found on Phillip's hands. At Page 4 Merced's trial, Luckett testified that Joel was in the bathroom in her apartment at the time she heard the gunshots.

  While Merced was in jail, he sent a letter to his wife. The letter was intercepted by the Alameda County Sheriffs's Department. It read:

Hello Luv. I need you to find or get a male to read the following to that misfit who is testifying on me. Don't make the call from the house and give no names! Be sure to destroy this when finished. (Home No. . . . /Work No. . . .)
Listen up, there is a guy who works at Niles Market that is lying on this black guy that is in jail on a cop shooting. If the black guy goes to jail or is convicted we will get the entire family!! When you go to trial you had better tell the jury that the black guy didn't shoot the cop, a Mexican did!!
Luv, read it just like that: I used the term black instead of Afrikan because it's common knowledge that I use it ("Afrikan"). Do this from a pay phone that's not close or near the house. Be sure to flush/burn this paper when you finish, and baby, let this punk know that we aint bull shitte!! Use a male that I've never spoke with over the phone and make sure you can trust him. Luv You.
II. Contested Eyewitness Testimony

  The prosecution presented three eyewitnesses who identified Merced as the man who shot Officer Crabtree. First, Emiliano Valenzuela testified that, just as he was leaving Niles Market, he heard shots and saw a man carrying a gun running away. Later that day, he picked a picture of Merced out of a photo lineup. At Merced's preliminary hearing, Valenzuela could not identify Merced in the courtroom. At trial, he testified that after the shooting (but before the photo lineup) he had seen the police take Merced out of the apartment building in handcuffs. Second, the day after the incident, Officer Crabtree picked Merced's photo out of a photo lineup. At trial, he testified that he was "absolutely positive" Merced was the man who pulled the gun on him. Finally, Mick Hara, the manager of Niles Market, testified that, shortly before the shooting, he saw Merced and another man buy brandy in his store; that he later saw the appellant talking to Officer Crabtree; and that, after hearing shots, he saw Merced, with a gun, running away from the scene. On the day of the shooting, Hara picked Merced's photo out of a photo lineup shown to him by the police. At trial, he testified that although he had at first indicated he was "75 percent" certain that the Page 5 person in the photo he picked out was the right man, he became "a hundred percent" certain. Hara also described a watch that Merced was wearing. Both Crabtree and Hara described the shooter as having had a distinctive ponytail.

  The prosecution also called Wanda Brannon, a branch manager for Gold Star Check Cashing. She testified that a check — cashing card had been issued to Juan Merced. Based on the data card and customer maintenance record for that card, she said it had never been reported lost or stolen.

  The defense challenged the eyewitness identifications of Merced. Crabtree and Hara picked Merced's picture out of the photo lineup after viewing his picture on the check — cashing card. The defense contended, without offering any substantiation, that Merced had lost his card. On the day of the shooting, Crabtree told another officer that the person who shot him was a "light — skinned male Hispanic or even Puerto Rican." At trial, Hara described the suspect as appearing light — skinned and gave inconsistent testimony about the color of the suspect's shirt.

  Carles Buie testified for the defense. Buie watched the shooting from a phone booth forty feet away. He said he did not get a clear view of the shooter's face, but the shooter was "definitely taller than the defendant." Under cross — examination, Buie, who does not wear glasses, reluctantly acknowledged that he needs glasses to see far away. He also admitted having been convicted of three prior felonies. The defense also elicited testimony from Sophia Jones that a person by the name of "Boogie," who was "tall, not really slim, kind of big boned, long hair, high yellow — light skin complected" and had a "long pony tail braid," hung out on 23rd Avenue. In closing, the defense noted that "the defendant (Merced) is not light complected." Conflicting testimony was also presented concerning the color and type of shirt the shooter was wearing and whether it was the shirt that police found in Jones' apartment at the time of Merced's arrest.

 III. The Verdict

  The jury asked to see Merced's Gold Star check — cashing card, the data card and customer maintenance record for that card, two photo lineups used to identify Merced, and Page 6 three pictures of Joel Williams.

  The jury found Merced guilty of attempted premeditated murder of a peace officer involving the personal use of a firearm and being a post — convicted felon in possession of a firearm. The trial judge sentenced Merced to consecutive sentences of twenty — five years to life for attempted murder of a peace officer plus a ten — year aggravated term for use of a firearm; twenty — five years for being a felon in possession of a gun; and a five — year term for having a felony prior felony conviction. In total, Merced was sentenced to sixty — five years to life.

  Petitioner appealed his conviction to the California Court of Appeal, which affirmed in December 2001. He then appealed to the California Supreme Court, which denied his petition for review.


  This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).

  The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." Id. § 2254(d).

  "Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Page 7

  "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state — court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.

  The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. See Id. at 412; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Clark, 331 F.3d at 1069.


 I. Exclusion of Prospective Juror

  Petitioner claims that his Fifth, Sixth, and Fourteenth Amendment rights to Due Process and a Fair Trial were violated when the trial court excused prospective juror Andrew Black based on his statement that he believed in the concept of jury nullification.

  Question No. 64 on the jury questionnaire asked: "Is there any matter that has not been covered by this questionnaire that you feel you should mention at this time that might affect your ability to be a fair and impartial juror in this case?" Black answered: "I recognize and believe injury nullification where appropriate." The trial court subsequently asked Black: "If you are selected on this jury, and if I instructed you as to the law that implies [sic: applies] in the state of California and it went against your conscience for whatever reason, is it reasonable for me to assume that you would not follow the law as I dictate it to you?" Black answered: "It's reasonable for you to assume that." Based on that answer, the trial court excused Black. The trial court explained: ". . . he's not inclined to follow the Court's instructions that he must follow if he's selected as a juror. He has a right not to, but I have a Page 8 right not to let him sit if he's going to engage injury nullification." Reporter's Transcript ("RT"), 93-94. Defendant objected. Id — at 95.

  On appeal, petitioner renewed his objections. The Court of Appeal noted that the California Supreme Court had recently "held that a juror may be removed from a jury if it appears `in the record "as a demonstrable reality" that the juror is refusing to deliberate or follow the law in an effort to exercise the naked power known as jury nullification. . . ." People v. Merced, No. A088418, slip op. at 5 (Cal. Ct. App. Dec. 2. 2001) (citing People v. Williams, 25 Cal.4th 441, 461 (2001) and People v. Cleveland, 25 Cal.4th 466, 474-475 (2001)). Petitioner argued that the "demonstrable reality" standard should have been applied in reviewing the trial court's decision to excuse prospective juror Black. The Court of Appeal found "[t]here is nothing in either People v. Williams or People v. Cleveland that suggests the Supreme Court intended to impose the `demonstrable reality standard' upon both situations [the excusal of a juror during trial and the excusal of a prospective juror before trial], thus overturning the well — established rule that the excusal of a prospective juror for cause will be overturned only if abuse of discretion is found." Merced, slip op. at 6. The Court of Appeal held that, in excusing Black, the trial court did not abuse its discretion:

The trial court here could have viewed Mr. B.'s answer — "It's reasonable for you to assume that" — as fair warning that the prospective juror might not follow the law as instructed by the court. That answer, on top of Mr. B.'s volunteered belief in jury nullification, was more than an adequate basis on which the court could decide that seating Mr. B. would present an unacceptable risk that yet a third trial might be required. Mr. B.'s answer is more than an adequate basis for finding no abuse of discretion. The same result is allowed under the federal standard, i.e., "that a prospective juror may be excused if the juror's voir dire responses convey a `definite impression' [citation] that the juror's views "would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'"
Id. (quoting People v. Holt. 15 Cal.4th 619, 650-651 (1997).

  The California Court of Appeal rejected, "as fraught with practical perils," Id. at 7, petitioner's argument that, because Black's response was not sufficiently unambiguous to identify him as a potential nullifier in this specific case, the trial court was obligated to follow up and explore Black's views with respect to the particulars of the case. The Court of Appeal also suggested that doing so would be contrary to law: Page 9


[T]o give a prospective juror a thumbnail sketch of the case — based on evidence not yet heard and often not known to the court at that time — and then ask whether that scenario would cause the person to nullify is in plain effect asking a juror to prejudge the case. That is not only contrary to statute and entrenched practice . . . it amounts to misconduct for a sitting juror.
Id. at 7 (citations omitted).

  On habeas review, this Court is restricted to considering whether the Court of Appeal's ruling was contrary to, or involved an unreasonable application of, clearly established federal law. Liberally construed, Merced offers three grounds for his claim that the exclusion of juror Black violates his federal rights to Due Process and a Fair Trial.

  A. Jury Nullification

  Petitioner argues that because a court may not instruct a criminal jury that they do not have the power of nullification, "it must follow that the court also does not have the authority to remove from the jury any prospective jurors who state during voir dire that they are aware of the power of nullification." Petition ("Pet.") at 12.

  The Supreme Court has clearly established that "it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence." Sparf v. United States, 156 U.S. 51, 102 (1895). "Nullification is, by definition, a violation of a juror's oath to apply the law as instructed by the court — in the words of the standard oath administered to jurors in the federal courts, to `render a true verdict according to the law and the evidence.'" United States v. Thomas. 116 F.3d 606, 614 (2d Cir. 1997) (quoting the Federal Judicial Center, Benchbook For U.S. District Court Judges 225 (4th ed. 1996)). Trial courts have the duty to forestall or prevent jurors from engaging in nullification "whether by firm instruction or admonition or, where it does not interfere with guaranteed rights or the need to protect the secrecy of jury deliberations, . . . by dismissal of an offending juror from the venire or the jury." Id. at 616.

  Petitioner relies on United States v. Sepulveda. 15 F.3d 1161 (1st Cir. 1993) to support his argument. However, Sepulveda did not suggest that trial judges do not have the power to instruct juries that they do not have the power to nullify. To the contrary, in Sepulveda the First Circuit noted that "[t]he applicable rule is that, although jurors possess Page 10 the raw power to set an accused free for any reason or for no reason, their duty is to apply the law as given to them by the court." Id. at 1190.

  Based on Black's answers to the questionnaire and the direct question during voir dire, it was reasonable for the trial judge to fear that, if seated, Black might not follow the Court's instructions and the law. Therefore, the Court of Appeal's holding that, in deciding to exclude Black from the jury, the trial court was acting within its discretion is not contrary to, or an unreasonable application of, established federal law.

  B. Right to a Diverse Jury

  Petitioner argues, alternatively, that excusing a prospective juror who was black and believed in the doctrine of jury nullification deprived him "of the diversity which the Constitution recognizes as an important element of the right to trial." Pet. at 13.

  The selection of a jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial. Taylor v. Louisiana, 419 U.S. 522, 528 (1975). The representative cross section requirement is violated by the systematic exclusion of women, Id. at 531, and racial minorities, Smith v. Texas, 311 U.S. 128, 130 (1940), from juries. However, it is axiomatic that a criminal defendant is "not entitled to a jury of any particular composition." Taylor, 419 U.S. at 538; see also United States v. Rosenthal, 266 F. Supp.2d 1068, 1082-83 (N.D. Cal. 2003) (noting that a defendant is no more entitled to a jury that holds a particular viewpoint than one that is all white or all Catholic). "Nothing in Taylor . . . suggests that the right to a representative jury includes the right to be tried by jurors who have explicitly indicated an inability to follow the law and instructions of the trial judge." Lockett v. Ohio, 438 U.S. 586, 596-97 (1978).

  While noting that the prospective juror who was excused was African-American, Pet at 13, petitioner does not argue that race was a factor in his exclusion. Nor does he offer any evidence to suggest that African-Americans were otherwise excluded from serving on his jury. The Court, therefore, finds that there is no valid basis for a claim that Black's exclusion violated petitioner's constitutional right to a representative jury. Page 11

  C. Right to an Impartial Jury

  In his traverse, petitioner restates his claim as follows: "Petitioner does not argue that he had a right to a nullifying juror or jury, but rather, that he had a right to Mr. Black as a fair and impartial juror who was qualified to sit on his jury, and as to whom no just cause for dismissal appears in the record, because his comments about jury nullification were general and theoretical, and not related to petitioner's case." Traverse ("Trav.") at 3.

  The right to jury trial guarantees the accused "a fair trial by a panel of impartial, `indifferent jurors.' " Nebraska Press Association v. Stuart, 427 U.S. 539, 551 (1976) (citing In re Murchison, 349 U.S. 133, 136 (1955)); Dyer v. Calderon. 151 F.3d 970, 973 (9th Cir. 1998). A juror is considered to be impartial "only if he can lay aside his opinion and render a verdict based on the evidence presented in court." Patton v. Yount, 467 U.S. 1025, 1037 n.12 (1984). Because the Constitution lays down no particular tests and procedure to ascertain impartiality, courts have "broad discretion and duty . . . to see that the jury as finally selected is subject to no solid basis of objection on the score of impartiality." Frazier v. United States, 335 U.S. 497, 511 (1948); United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997) (the trial judge has the authority and responsibility, either sua sponte or upon counsel's motion, to dismiss prospective jurors for cause). Because determinations of impartiality may be based in large part upon demeanor, the Ninth Circuit typically reviews a court's findings regarding actual juror bias for manifest error or abuse of discretion. See United States v. Alexander, 48 F.3d 1477, 1484 (9th Cir. 1995).

  The trial judge did not, on his own initiative, inquire into the prospective jurors' beliefs about jury nullification. Instead, Black volunteered his belief in jury nullification in response to an open — ended question asking about matters "that affect your ability to be a fair and impartial juror." Given that fact, the trial judge had an understandable reason to be concerned that Black's views on jury nullification might limit his ability to be fair and impartial. Moreover, petitioner does not provide any other evidence that would suggest the trial judge conducted the juror selection process in a way that excluded fair and impartial jurors. Nor does petitioner argue that the jury that was actually seated was not fair and Page 12 impartial There is, thus, no basis for habeas relief on this claim.

 II. Jury Instructions

  Petitioner claims that the trial court violated his federal constitutional rights by committing four instructional errors. First, petitioner argues that an instruction that pinpointed specific evidence of consciousness of guilt lessened or shifted the prosecutor's burden of proof. Second, petitioner argues that the trial court erred in failing to instruct, sua sponte, the jury that Officer Crabtree had attempted to intimidate defense witness Buie. Third, petitioner argues that the trial court erred in failing to give, sua sponte, an instruction on third — party culpability. Finally, petitioner claims that by giving the instruction on consciousness of guilt, while failing to give instructions on witness intimidation and third party culpability, the trial court violated a constitutional right to absolute equality between prosecution and defense injury instructions.

  To obtain federal collateral relief for instructional error, a petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. Estelle v. McGuire, 502 U.S. 62, 72 (1991); Cupp v. Naughten, 414 U.S. 141, 147 (1973). The instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. Estelle, 502 U.S. at 72. The court must inquire whether there is a "reasonable likelihood" that the jury has applied the challenged instruction in a way that violates the Constitution. Id. A determination that there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution establishes only that an error has occurred. See Calderon v. Coleman, 525 U.S. 141, 146 (1998). If an error is found, to grant habeas relief the court also must determine that the error "`had substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

  A. Consciousness of Guilt Instruction

  At the request of the prosecution, the trial court instructed the jury on consciousness of guilt as follows: Page 13


If you find that the defendant attempted to suppress evidence against himself in any manner, such as by the intimidation of a witness, by removing his clothing, or by concealing a gun, this attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt and its weight and significance, if any, are for you to decide.
RT at 2156.

  At trial, the defense objected to this instruction. The objection was overruled. Petitioner argues that the instruction "improperly pinpointed particular evidence in the case, to the advantage of the prosecution." Pet. at 14.

  On appeal, petitioner contended that the California Supreme Court had ruled in People v. Wright 45 Cal.3d 1126 (1988), that "a defense pinpoint instruction is improperly argumentative if it directs the jury's attention to specific evidence and `implies the conclusion to be drawn from that evidence.'" Appellant's Opening Brief ("App. Br.") at 21 (quoting People v. Harris, 47 Cal.3d 1047, 1098, n.31 (1989). Therefore, in petitioner's view, the prosecution must not be entitled to instructions that pinpoint evidence. App. Br. at 23. After noting that Merced's interpretation of Wright had been repudiated by the California Supreme Court in People v. Jackson, 13 Cal.4th 1164, 1223-24 (1996), the California Court of Appeal rejected his argument.

  In his habeas petition, petitioner now argues that the instruction violated federal constitutional law because "it tended to lighten the prosecution's burden of proof by placing the trial court's imprimatur on matters that should have simply been the subject of prosecutorial argument." Pet. at 17.

  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). This constitutional principle prohibits the state from using evidentiary presumptions in a jury charge that have the effect of relieving the state of its burden of persuasion beyond a reasonable doubt of every essential element of a crime. See Yates v. Evatt, 500 U.S. 391, 400-02 (1991) (instructions that "malice is implied or presumed" from the willful, deliberate, Page 14 and intentional doing of an unlawful act and from the use of a deadly weapon are constitutionally impermissible); Carella v. California, 491 U.S. 263, 265-66 (1989) (instructions that a person "shall be presumed to have embezzled" a vehicle if it is not returned within 5 days of the expiration of the rental agreement and that "intent to commit theft by fraud is presumed" from failure to return rented property within 20 days of demand are constitutionally impermissible).

  In this case, the consciousness of guilt instruction given by the trial court was not contrary to, or an unreasonable application of, federal constitutional law. The instruction was permissive, not mandatory. See Francis v. Franklin, 471 U.S. 307, 314 (1985) (permissive inference does not relieve the state of its burden of persuasion because it still requires the state to convince the jury that the suggested conclusion should be inferred base (on the predicate facts proved). It identified actions by the defendant that the jury could reasonably determine to be evidence of consciousness of guilt. The instruction did not lessen the burden on the prosecution to persuade the jury that the defendant did, in fact, take those actions. Moreover, the instruction included the admonition that conduct suggesting consciousness of guilt "is not sufficient by itself to prove guilt and its weight and significance, if any, are for you to decide." The trial court also gave the jury separate instructions on reasonable doubt including:

. . . each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt.
A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt.
RT at 2154, 2161.

  At trial, the defense had an opportunity to challenge the evidence presented that the defendant intimidated a witness, removed clothing, and hid a gun. It did, in fact, vigorously challenge the prosecution's claim that Merced wore the shirt found in Jones' apartment. Page 15 Thus, when viewed in the context of the instructions as a whole and the trial record, it was not unreasonable for the Court of Appeal to find that the consciousness of guilt instruction given by the trial court did not shift the burden of proof. There is, therefore, no reasonable likelihood that the jury applied the instruction in a way that violated the U.S. Constitution.

  B. Failure to Instruct on Witness Intimidation and Third Party Culpability

  Petitioner also argues that the trial court erred by failing to give, sua sponte, two instructions: an instruction on witness intimidation, and an instruction on third party culpability.

  A state trial court's refusal to give an instruction does not alone raise a ground cognizable in a federal habeas corpus proceeding. Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). The error must so infect the trial that the defendant was deprived of the fair trial guaranteed by the Fourteenth Amendment. Id. Whether a constitutional violation has occurred will depend upon the evidence in the case and the overall instructions given to the jury. Duckett v. Godinez, 67 F.3d 734, 745 (9th Cir. 1995). Due process does not require that an instruction be given unless the evidence supports it. Hopper v. Evans, 456 U.S. 605, 611 (1982); Miller v. Stagner, 757 F.2d 988, 993 (9th Cir. 1985), amended, 768 F.2d 1090 (9th Cir. 1985). The omission of an instruction is less likely to be prejudicial than a misstatement of the law. Walker v. Endell, 850 F.2d 470, 475 (9th Cir. 1987) (citing Henderson v. Kibbe, 431 U.S. 145, 155 (1977)). Thus, a habeas petitioner whose claim involves a failure to give a particular instruction bears an "especially heavy burden." Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (quoting Henderson. 431 U.S. at 155). The significance of the omission of such an instruction may be evaluated by comparison with the instructions that were given. Murtishaw v. Woodford, 255 F.3d 926, 971 (9th Cir. 2001) (quoting Henderson. 431 U.S. at 156).

  It is well established that a criminal defendant is entitled to adequate instructions on the defense's theory of the case. Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 2000) (error to deny defendant's request for instruction on simple kidnaping where such instruction was supported by the evidence). "However, `[i]t is not reversible error to reject a defendant's Page 16 proposed instruction on his theory of the case if other instructions, in their entirety, adequately cover that defense theory.'" United States v. Del Muro, 87 F.3d 1078, 1081 (9th Cir. 1996) (quoting United States v. Dees, 34 F.3d 838, 842 (9th Cir. 1994)).

  1. Witness Intimidation Instruction

  Petitioner argues that the trial court erred in failing to instruct the jury that Officer Crabtree had attempted to intimidate defense witness Buie. Petitioner's first trial ended with a hung jury. After that trial, Crabtree confronted Buie and angrily told him that he "blew the case for me." RT at 1855-56. At the second trial, Buie testified about this incident. He also testified that he had reported it to Crabtree's supervisor and the court. RT at 1857. In his appeal, petitioner argued that the trial court should have instructed the jury that, prior to trial, Officer Crabtree attempted to intimidate defense witness Buie. He suggested that an "appropriate instruction" would have been: "If you find that Officer Crabtree attempted to suppress evidence by confronting and/or intimidating Carles Buie in this case, you may draw an inference adverse to the prosecution. Such an adverse inference may be sufficient by itself to raise a reasonable doubt as to the defendant's guilt." App. Br. at 33; Pet. at 23.

  The California Court of Appeal held that "[t]he trial court had no sua sponte duty to reframe the instruction as defendant implies; the court was only required to consider it upon request by defendant." Merced, slip op. at 13 (citing People v. Johnson. 3 Cal.4th 1183, 1235-36 (1992)). Since the defendant did not request such an instruction at trial, the Court of Appeal found no error.

  In his petition, petitioner renews his argument that California law entitled the defense to such an instruction. He contends that California Evidence Code section 413 authorizes the trier of fact to consider a party's "willful suppression of evidence" in determining what inferences to draw in a given case. Pet. at 21. Petitioner argues further that California trial courts have a wide range of discretion to fashion sanctions when the prosecution destroys or attempts to destroy evidence. Id. (citing People v. Zamora. 28 Cal.3d 88, 99 (1980); People v. Wimberly, 5 Cal.App.4th 773, 793 (1992); and People v. Sassounian, 182 Cal.App.3d 361, 395 (1986)). Page 17

  The three cases petitioner cites do establish that California trial courts have a wide range of discretion to fashion sanctions when the prosecution destroys or attempts to destroy evidence. But those cases are not inconsistent with the Court of Appeal's holding that, under California law, a defendant is only entitled to such an instruction if he requests it. See Johnson, 3 Cal.4th at 1236 (citing People v. Crandell, 46 Cal.3d 833, 870 (1988)).

  Even if the alleged failure to instruct had involved a misapplication of state law, that would not be a sufficient basis for federal habeas relief. See Gilmore v. Taylor, 508 U.S. 333, 342 (1993) (quoting Estelle, 502 U.S. at 62 (noting that outside of the capital context, the Supreme Court has never said that the possibility of a jury misapplying state law gives rise to federal constitutional error)).

  Petitioner argues that the failure to instruct the jury on the alleged attempt to suppress evidence raises a federal constitutional issue because the willful destruction or suppression of evidence is a violation of petitioner's rights. Pet. at 23. Assuming arguendo that petitioner's claim was not waived by his failure to object at trial, it still fails. Neither the petition for habeas relief nor the trial record support a finding that Crabtree's comments constituted a willful attempt by the prosecution to suppress Buie's testimony. Moreover, in contrast with Zamora, Wimberly, and Sassounian, no records were destroyed before Merced's trial. After his encounter with Crabtree, Buie still testified — and he told the same story in the second trial that he told during the first trial.

  Petitioner further suggests that because Buie testified that he had informed Crabtree's supervisors and the trial court about Crabtree's actions, and neither the police nor the court took any action on Buie's complaint, a reasonable juror might have concluded that the court did not regard Crabtree's actions as serious or that Buie was not telling the truth. Pet. at 23-24. This speculation is not supported by the record. In contrast, the record does include other grounds — especially Buie's felony record (RT at 1859) and his attempt to deny that he needed glasses to see long distances (RT at 1862-6) — for the jury to have doubted Buie's credibility.

  Thus, when viewed in the context of the entire trial, there is not a reasonable Page 18 likelihood that the trial court's failure to instruct the jury regarding Crabtree's alleged attempt to intimidate Buie so infected the trial as to deny him his constitutional right to a fair trial.

  2. Third Party Culpability Instruction

  Petitioner argues that the trial court erred in failing to give, sua sponte, an instruction on third party culpability. At trial, the defense suggested that two other individuals might have been the man who shot Officer Crabtree. In the case of Joel Williams, the only evidence the defense offered was a positive gunshot residue test. RT at 1779. In the case of a man identified only as "Boogie," the only evidence offered by the defense was Sophia Jones' testimony that Boogie frequented the area of the shooting, RT at 764, that his build and complexion were similar to the description of the shooter given by Buie, RT at 764-65, and that she saw Boogie sometime before the shooting. RT at 765. Based on this evidence, petitioner suggests that the trial court had a duty, sua sponte, to instruct the jury on third party culpability. In his petition, he suggests that an appropriate instruction would have been the following:

Evidence has been offered that a third party is the perpetrator of the charged offense. It is not required that the defendant prove this fact beyond a reasonable doubt. In order for the defendant to be entitled to a verdict of acquittal, it is only required that such evidence raise a reasonable doubt in your minds of the defendant's guilt.
Pet. at 25.

  Petitioner argues that the trial court's failure to issue such an instruction may have led one or more jurors to believe that, rather than merely needing to raise a reasonable doubt as to Merced's guilt, the defense had the burden to prove third party culpability by at least a preponderance of the evidence. Pet. at 26.

  The California Court of Appeal rejected Merced's argument on two grounds. First, it determined that the suggested instruction would have been a "pinpoint instruction"; and it found that "[p]inpoint instructions are not included in a trial court's sua sponte duties of instruction but must be requested." Merced, slip op. at 14 (citing People v. Mayfield, Page 19 14 Cal.4th 668, 778 (1997). Second, it found that the absence of the instruction was not prejudicial. The court explained:

The jury knew from his closing arguments that defendant was presenting a misidentification defense and claiming that "Boogie" or Joel Williams was the actual culprit. The trial court instructed the jury with CALJIC No. 2.90 that the prosecution had to prove defendant's guilt beyond a reasonable doubt. The jury was instructed with CALJIC No. 2.91 that, "The burden is on the People to prove beyond a reasonable doubt that the defendant is the person who committed the crime with which he is charged. If after considering the circumstances of the identification and any other evidence in this case you have a reasonable doubt whether the defendant was the person who committed the crime, you must give the defendant the benefit of the doubt and find him not guilty." Any error in these circumstances would be harmless.

  On habeas review of jury instructions, this Court must first determine whether there is a "reasonable likelihood" the jury applied the instructions in a way that prevented consideration of constitutionally relevant evidence. Coleman, 525 U.S. at 146. Viewed in the context of the instructions and trial as a whole, the California Court of Appeal did not err in rejecting petitioner's claim.

  At trial, petitioner's defense rested on a theory of misidentification. To support that theory, the defense argued that the eyewitness identifications made by Hara and Crabtree were tainted because they saw Merced's picture on his check — cashing card, RT at 524-25, 1017, 1021; that while Merced was black, Crabtree and Buie had described the shooter as having had a light complexion and being Hispanic, RT at 1730, 1896; and that Buie described the shooter as taller and thinner than Merced, RT at 1849. In his closing, defense counsel argued: "You know, it has to be . . . taken for granted that whoever the shooter is looks similar to Mr. Merced. I mean no one is coming in here to set him up. So your question in the jury room is it Merced or is it someone that looks very similar to Mr. Merced." RT at 2061.

  Since the fact that Officer Crabtree was shot was undisputed, the misidentification defense necessarily implied third party culpability. But the actual evidence and the theory of third party culpability presented by the defense were limited. In closing, the defense suggested, without having offered any evidence, that the gunshot residue may have been Page 20 deposited on Joel Williams' hands by a third party who handed him a gun that had been fired. RT at 2084-85. The defense also suggested that "Boogie," who might have resembled Buie's description of the shooter, and may have been seen in the vicinity of Niles Market, might have had something to do with the shooting. RT at 2091.

  To find error sufficient to grant habeas relief, this Court would have to conclude that the trial court's failure to instruct on third party culpability made it "reasonably likely" that the jury ignored constitutionally relevant evidence. The trial record does not support such a finding. As the California Court of Appeal found, the trial court's instructions as a whole more than adequately instructed the jury on the need to find the defendant guilty beyond a reasonable doubt. In addition, the trial court gave detailed instructions on eyewitness identification. RT at 2162-63. There is no reasonable basis to believe that if the jury had been given the proposed instruction, it would have changed the way the jury considered the defense's evidence and arguments that the shooter might have been "Boogie," Joel Williams, or someone else who might have handed a gun to Joel Williams.

  Since the trial court's failure to instruct the jury on third party culpability did not constitute error, it is not necessary to review the California Court of Appeal's holding that the trial court had a duty, sua sponte, to give such an instruction.

  C. Instructional Impartiality

  In his traverse, petitioner suggests that the "core" of his argument is "that, under the United States Constitution, there must be absolute impartiality as between the people and the defendant in the matter of instructions." Trav. at 4.

  The petitioner relies for authority on People v. Moore, 43 Cal.2d 517, 526-27 (1954) ("There should be absolute impartiality as between the People and defendant in the matter of instructions"); Reagan v. United States, 157 U.S. 301, 310 (1895) ("The court should be impartial between the government and the defendant"); and, by analogy, Wardius v. Oregon, 412 U.S. 470, 475 (1973) ("discovery must be a two — way street"). While the petitioner states what would seem to be a general principle of fairness, there is no decision of the United States Supreme Court that establishes the dicta in Moore and Reagan as federal law. There Page 21 is, therefore, no basis to find that the Supreme Court has established the constitutional right to instructional impartiality that the petitioner seeks to assert. Moreover, this Court has determined that the California Court of Appeal correctly found no errors in the instructions given by the trial court in this case.

 III. Prosecutor's Comment on Failure to Refute Test Results

  Petitioner argues that his right to be convicted only on proof beyond a reasonable doubt was violated when the trial court allowed the prosecutor to comment in closing argument on the defense's failure to rebut expert testimony on gunshot residue tests and ballistics analysis of the gun and bullets. Pet. at 29. Alternatively, he argues that permitting such comments "chills the exercise of appellant's right to counsel." Pet. at 33.

  At trial, the prosecutor elicited testimony that the gunshot residue kits were available to the defense for analysis, RT at 1767-68, that the reports and findings of the prosecution's ballistic expert were available to the defense, RT at 1526, and that prosecution reports had been forwarded to the lab where Michelle Fox, who testified for the defense, and Charles Morton, who was consulted by the defense, worked, RT at 1527. The defense moved for a mistrial on the ground that allowing evidence about the availability of the gunshot residue kits for testing violated Due Process by shifting the burden of proof. RT at 1965-66. The motion was denied.

  In his closing argument, the prosecutor argued:

Now, the gun and the slug are totally uncontradicted evidence. You know that when Ron Nicholas analyzed that gun and that slug that was recovered from the car that he took the photos of those ballistics comparisons or those firearms comparisons, gave them to Michele Fox, who was his [the defense's] witness, who — and then Ron Nichols got it back from Charles Morton at Forensic Analytical.
And you can bet that if there was something wrong with that evidence you would have heard about it. So it is undisputed that that slug that was found in police car 1314 was fired from the gun defendant hid in apartment five.
. . .
  I was talking about the gun that the defendant hid matching the slug from the car that Chris Crabtree was driving, and I left off by saying that — you know, that the photos from that ballistics comparison was sent to Forensic Analytical, to Michele Fox or given to her, and returned by Charles Morton to Ron Nichols. And you know darn well that if there was a problem with that Page 22 exam that [the defense attorney] would have brought it to your attention.

 RT at 2017-18.

  At the request of the defense, the trial court gave the following instruction:

The fact, if established, that the defense has the opportunity to conduct a laboratory test on any physical evidence in this case does not relieve the People from their continuing burden of proving that the defendant is guilty of the crimes charged beyond a reasonable doubt.
RT at 2159.

  The California Court of Appeal found that the prosecutor's comments were "neither comment upon, nor adverse instruction about, defendant's failure to take the stand." Merced, slip op. at 15. The Court of Appeal explained:

The net effect of the instruction and the prosecutor's argument was not an express or implied reference to the defendant's silence, nor a shifting of the burden as defendant claims, but fair comment concerning the state of the evidence. Griffin [V. California, 380 U.S. 609 (1965)] does not "extend to bar prosecution comments based upon the state of the evidence or upon the failure of the defense to introduce material evidence or call anticipated witnesses."
Id. — at 16 (quoting People v. Bradford, 15 Cal.4th 1229, 1339 (1997). With regard to petitioner's burden shifting argument, the Court of Appeal noted that the trial court "expressly" instructed the jury that the defense's failure to test physical evidence did not reduce the prosecution's burden of proof. Id. at 16.

  On habeas review, this Court is restricted to considering whether the Court of Appeal's ruling was contrary to, or involved an unreasonable application of, clearly established federal law.

  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. Winship, 397 U.S. at 358. The Fifth Amendment "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Griffin, 380 U.S. at 615. However, "courts have long maintained a distinction between comments about the lack of explanation provided by the defense and comments about the lack of explanation furnished by the defendant." Page 23 United States v. Mayans, 17 F.3d 1174, 1185 (9th Cir. 1994). A prosecutor may comment on a "defendant's failure to present exculpatory evidence, as long as it is not phrased to call attention to defendant's own failure to testify." United States v. Mende, 43 F.3d 1298, 1301 (9th Cir. 1995) (citing United States v. Lopez-Alvarez, 907 F.2d 583, 595-96 (9th Cir. 1992)). "A prosecutor's comment on a defendant's failure to call a witness does not shift the burden of proof, and is therefore permissible, so long as the prosecutor does not violate the defendant's Fifth Amendment rights by commenting on the defendant's failure to testify." United States v. Cabrera, 201 F.3d 1243, 1250 (9th Cir. 2000). "The test we use to determine whether there is a Griffin violation is whether the language used was manifestly intended or was of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify." United States v. Tam, 240 F.3d 797, 805 (9th Cir. 2001).

  The California Court of Appeal's interpretation of Griffin was not contrary to, or an unreasonable application, of federal law. The prosecutor's comments did not refer to the defendant's failure to testify. They referred only to the defense's failure to call an expert witness to rebut the ballistic and gunshot residue evidence presented by the prosecution. Moreover, the trial court specifically instructed the jury that the fact that the defense had an opportunity to test the physical evidence did not relieve the prosecution of its "continuing burden of proving that the defendant is guilty of the crimes charged beyond a reasonable doubt."

  The petitioner argues, alternatively, that allowing the prosecutor to comment on the defense's failure to call expert witnesses chills the petitioner's right to counsel. However, petitioner cites no legal authority for this claim. The Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. Crane v. Kentucky, 476 U.S. 683, 690 (1986). The Supreme Court has established a limited right to expert assistance. Ake v. Oklahoma, 470 U.S. 68, 83-87 (1994) (where the state presents evidence of a defendant's future dangerousness in a capital sentencing proceeding, due process entitles a defendant to the assistance of a psychiatrist). Some courts have suggested that the right to counsel includes the right to expert assistance. E.g. Bush v. McCollum, 231 F. Supp. 560, Page 24 565 (D.C.Tex. 1964) (the right to counsel is meaningless if the lawyer is unable to make an effective defense because he has no funds to provide the specialized testimony which the case requires). But petitioner does not claim that he was denied an opportunity to present expert testimony. Nor is there any evidence in the record that he was deterred from seeking expert advice or presenting expert testimony because of the possibility that the prosecution might comment on the failure of those experts to testify. To the contrary, the defense did retain experts on ballistics and gunshot residue and chose not to call them as witnesses. The California Court of Appeal's holding, therefore, was not contrary to, or an unreasonable application of, established federal law.

  IV. Prior Convictions

   Petitioner argues that his prior felony convictions, which established the predicate offense for his conviction for possession of a firearm and the basis for his consecutive sentences, were constitutionally invalid because the trial court, in his prior case, accepted his guilty pleas without properly determining that a factual basis existed for each plea.

   On November 13, 1986, pursuant to a plea agreement with the prosecuting attorney, Merced pled guilty to eight felony counts. Clerk's Transcript ("Cl. Tr.") at 641. Merced was represented by counsel. In exchange for his plea, two kidnaping for robbery allegations were reduced to simple kidnaping counts, an allegation of assault to commit rape was dismissed, the sentence for one robbery charge was suspended, and Merced was advised that the aggregate sentence he would receive would be fifteen years. Before sentencing, the judge asked Merced if he was aware of the specific rights he was waiving by pleading guilty; and if he understood that "as a result of your plea to these serious felony offenses in this case, if you were to be convicted of these or any other serious felony offense, in the future, . . . the sentence in your future case would be increased by a period of five years." Cl. Tr. at 643-44. After Merced answered affirmatively to these inquiries, the following colloquy took place:

THE COURT: Is there a factual basis for each of the pleas and the admissions in this matter?
   MISS ROUNDEY [Counsel for the Defendant]: Yes, Your Honor. THE COURT: Is it so stipulated? Page 25


MISS FAMULNER [Prosecuting Attorney]: Yes, Your Honor.
Cl. Tr. at 645.

   Before accepting the plea to the individual charges, the judge made the following further inquiries:

THE COURT: Is anybody threatening you or forcing you to enter any of these pleas as this time?
THE DEFENDANT: No, Your Honor.
THE COURT: Are you doing this freely and voluntarily?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Has anybody made any promises to you to get you to plead today other than what we have said right here in open court?
THE DEFENDANT: No, Your Honor.
Cl. Tr. at 646. After this exchange, the defendant pled guilty to each of the charges.

   Prior to sentencing, the Alameda County Probation Department submitted a report to the court indicating that "the defendant denied committing all of the offenses against him." Cl. Tr. at 655. On January 14, 1987, the court sentenced Merced pursuant to the plea agreement. Cl. Tr. at 657-63. Merced was represented by counsel. At sentencing, petitioner was not asked whether there was a factual basis for his pleas. Petitioner entered no objection to his sentence and did not appeal. He served his sentence and was released.

   Before his first trial, petitioner filed a motion to strike his prior convictions. The motion was denied. By stipulation, the rulings on pretrial motions filed in the first trial (which ended in a hung jury) were controlling in the second trial.

   The California Court of Appeal rejected petitioner's challenge to his prior convictions on two grounds. First, following People v. McGuire, 1 Cal.App.4th 281 (1991), it held that a stipulation by counsel satisfied the requirement in California Penal Code section 1192.5 that before accepting guilty pleas the trial court "shall . . . cause an inquiry to be made of the defendant to satisfy itself . . . that there is a factual basis for the plea." Merced, slip op. at 17. Second, it found that "[a] defendant's failure to object at the time of sentencing estops raising any problems under Penal Code 654 to the sentence imposed pursuant to a plea bargain." Id. Page 26 (citing People v. Hester, 22 Cal.4th 290, 294-95 (2000)).

   The constitutional requirement for a valid guilty plea is that "the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31 (1970). Federal Rule of Criminal Procedure 11(b)(3) requires that `[b]efore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea." But the requirements in Rule 11 "are not binding on a state court to the extent they are not grounded in the Constitution." United States v. Newman, 912 F.2d 1119, 1123 (9th Cir. 1990). In general, state courts are not required by the Constitution to ensure that a factual basis for a guilty plea even exists. See Matthew v. Johnson, 201 F.3d 353, 368 (5th Cir. 2000).

   Petitioner argues that a factual basis inquiry is constitutionally required where, as in this case, the defendant protests his innocence. His claim is based on footnote 10 in Alford:

Because of the importance of protecting the innocent and of insuring that guilty pleas are a product of free and intelligent choice, various state and federal court decisions properly caution that pleas coupled with claims of innocence should not be accepted unless there is a factual basis for the plea; and until the judge taking the plea has inquired into and sought to resolve the conflict between the waiver of trial and the claim of innocence.
In the federal courts, Fed. Rule Crim. Proc. 11 expressly provides that a court "shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea."
400 U.S. at 38 (citations omitted). This cautionary dicta does not create established federal law. See Williams, 529 U.S. at 412 ("clearly established federal law" refers to Supreme Court holdings not dicta). Moreover, petitioner's argument ignores Alford's clear statement that "[a]n individual accused of crime may voluntarily, knowingly, and understandably consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime." 400 U.S. at 37.

   In this case, petitioner's only claim to innocence was made in a pre-sentencing probation report. Petitioner did not make such a claim at either his plea hearing or his sentencing hearing. As the Court of Appeal noted, petitioner pled guilty in exchange for a "far less severe punishment" than he might have otherwise faced. Merced, slip op. at 17. Page 27 He was represented by counsel throughout his plea and sentencing. The trial judge fulfilled his responsibility to ensure that his waiver of rights and pleas were voluntary and knowing — and petitioner makes no claim that his plea was not voluntary and knowing. Thus, the Court of Appeal's finding that the trial court did not err by failing to strike petitioner's prior convictions is not contrary to, or an unreasonable application of, established federal law.


   For the foregoing reasons, the petition for a writ of habeas corpus is hereby DENIED.



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