The opinion of the court was delivered by: Marilyn L. Huff, District Judge
ORDER ADOPTING REPORTS AND RECOMMENDATIONS AND DENYING PETITION
Petitioner Christopher Leon Baker, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Respondent answered the petition on November 15, 2004. (Doc. No. 10.) On February 17, 2005, Petitioner filed a traverse and supporting memorandum. (Doc. Nos. 19, 20.) On July 1, 2005, Petitioner filed a supplement to his traverse regarding DNA testing results ("Suppl. Traverse"). (Doc. No. 25.) Respondent filed a supplemental answer on July 26, 2005. (Doc. No. 27.) The Magistrate Judge issued her first report and recommendation ("R&R1") proposing denial of the petition on November 17, 2005.
(Doc. No. 28.) Petitioner filed his objections to R&R1 on January 10, 2006.*fn2 (Doc. No. 30.) Respondent did not file a reply to Petitioner's objections. On April 21, 2006, the Court ordered Respondent to apprise the Court of the results of additional DNA testing. (Doc. No. 31.) Respondent filed a copy of the report on supplemental DNA testing on June 20, 2006. (Doc. No. 35.) On July 20, 2006, the Court granted in part Petitioner's objections to R&R1 and granted his request to expand the record to include supplemental DNA testing. (Doc. No. 36.) Further, the Court referred the matter back to the Magistrate Judge to issue an additional report and recommendation in light of the expanded record. (Id.)
After the Magistrate Judge ordered further briefing regarding the most recent DNA testing results, Petitioner filed a supplemental brief in support of his petition ("Suppl. Brief") on August 29, 2006. (Doc. No. 39.) On October 25, 2006, Respondent filed a second supplemental answer to the petition. (Doc. No. 44.) The Magistrate Judge ordered a second round of additional briefing, and Respondent filed a supplemental memorandum of points and authorities on February 9, 2007. (Doc. No. 49.) Petitioner filed a second supplemental brief on April 11, 2007 ("2nd Suppl. Brief"). (Doc. No. 53.) The Magistrate Judge issued a supplemental Report and Recommendation ("R&R2") proposing denial of the petition on June 15, 2007. (Doc. No. 54.) Petitioner has not filed any objections to R&R2.
For the reasons stated below, the Court ADOPTS the Reports and Recommendations and DENIES Petitioner's petition. Further, the Court DENIES Petitioner's request for an evidentiary hearing.
On January 20, 2000, the government filed a twelve count information in San Diego Superior Court (Superior Court Case No. SCD 146719), charging Petitioner and co-defendant Deandre Maurice Lambert with conspiracy (California Penal Code ("PC") § 182(a)(1)) (count one), forcible rape (PC § 261(a)(2)) (count two), forcible rape while acting in concert (PC §§ 261(a)(2) and 264.1) (count three), sodomy by use of force (PC § 286(c)(2)) (count four), sodomy while acting in concert (PC § 286(d)) (count five), attempted rape by foreign object (PC §§ 289(a)(1) and 664) (count six), robbery (PC § 211) (counts seven and eight),*fn3 burglary (PC § 459) (count nine), receiving stolen property (PC § 496(a)) (count ten), possession of a firearm by a felon (PC § 12021(a)(1)) (count eleven), and resisting an officer (PC § 148(a)(1)) (count twelve).*fn4 (Lodgment 1, Clerk's Transcript, Vol. 1 ("CT1") at 12-24.)
On February 1, 2000, a jury convicted Petitioner of conspiracy to commit first degree robbery, rape, burglary, forcible rape, forcible rape while acting in concert, sodomy by use of force, sodomy while acting in concert, attempted rape by foreign object, attempted robbery of Elizabeth J., first degree robbery of Nikolas S., residential burglary, receiving stolen property, possession of firearm by felon, and resisting an officer. (Lodgment 2, Clerk's Transcript, Vol. 2 ("CT2") at 205-06.) The superior court sentenced Petitioner to a term of thirty-five years to life plus twenty-six years on September 28, 2000. (CT2 at 397-99.)
On May 31, 2001, Petitioner appealed his conviction to the California Court of Appeal. (Lodgment 11.) On the same day, Petitioner also filed a petition for writ of habeas corpus in the California Court of Appeal, along with a request that the Petition be consolidated with his pending appeal. (Lodgment 12.) The appellate court consolidated Petitioner's appeal with his habeas petition before denying the habeas petition and affirming the conviction on April 24, 2002. (Lodgment 15, People v. Baker, D036645.) On May 10, 2002, Petitioner appealed the appellate court's decision to the California Supreme Court. (Lodgment 16.) The court denied review on July 10, 2002. (Lodgment 17, People v. Baker, S107022.)
Petitioner filed a second habeas petition in state superior court.*fn5 (Lodgment 18.) The petition was denied on July 11, 2003. (Lodgment 19, In re Baker, HC 17426, SCD 146719.) On August 11, 2003, Petitioner filed a habeas petition in state appellate court. (Lodgment 20.) The state appellate court denied the petition on September 10, 2003, adopting the state superior court's order. (Lodgment 21, In re Baker, D042686.) Petitioner filed a habeas petition in the California Supreme Court on October 14, 2003. (Lodgment 22.) The California Supreme Court denied his petition on June 30, 2004, stating in full: "Petition for writ of habeas corpus is DENIED." (Lodgment 23, In re Baker, S119680 (citing In re Clark 5 Cal.4th 750 (1993); In re Miller, 17 Cal.2d 734 (1941).)
The following facts are taken from the California Court of Appeal opinion in People v. Baker, D036645 (Cal. Ct. App. Apr. 24, 2002):
At approximately 12:30 a.m. on July 26, 1999, Elizabeth J., a 20-year-old college student, arrived at the apartment of her boyfriend Nikolas S. In the Mission Beach area of San Diego. Elizabeth parked her car in the driveway. Nikolas was in the process of making dinner and was using a butcher knife to prepare the meal.
After about 20 to 30 minutes, Elizabeth returned to her car for a video movie and her overnight bag. While at the car, she noticed a black Lexus drive by. The Lexus had dark tinted windows and shiny wheel rims. The car was going about 15 to 20 miles per hour in a northward direction. Deandre Lambert was the driver. Defendant and appellant Christopher Leon Baker was the passenger. Both men looked at Elizabeth in a way that she felt was odd. She returned to the apartment and entered through the kitchen door.
Fifteen to twenty minutes later, appellant and Lambert entered the apartment through the kitchen door. Appellant kept his hand under his shirt. He said he had a gun under the shirt and stated: "I have a gun. Don't make me shoot you." Elizabeth believed him. Nikolas believed it was a gun. Appellant followed Elizabeth, Nikolas and Lambert into the livingroom. He was holding the large knife Nikolas had used to prepare dinner. He waved the knife in the air and threatened Elizabeth and Nikolas with it.
Appellant told Elizabeth and Nikolas to "get down." One of the men yelled: "Who else is here? Who else is home?" Appellant then picked Elizabeth up by the pants and asked: "Where's the money? Where's the money?"
Lambert approached Nikolas and threatened to shoot him. He hit him on the side of the head with his fist. Lambert and appellant made the couple lie on the living room floor for about two minutes during which time they threatened to shoot and cut them. They then took the couple into Nikolas's bedroom where Elizabeth was made to bend over on the bed and Nikolas was forced to kneel down.
As they continued to ransack the bedroom, appellant and Lambert demanded money, guns, and drugs. Lambert struck Nikolas on the side of the head three or four times. Nikolas told appellant and Lambert about a box in the closet which contained about $100 in bills and Italian lire from a trip to Italy. He saw appellant take this money and then go through his wallet. He later discovered $20 had been taken from the wallet.
Elizabeth told appellant and Lambert she had no money but did have marijuana in her overnight bag in the kitchen. Appellant shoved and wrestled her into the kitchen but when she produced a small amount of the drug, he became upset and said: "Oh, you want to play games? Well, you know, let's play games." He demanded she remove all of her clothing, which she did.
Appellant took Elizabeth into Nikolas's roommate's room and made her lie down on the bed as he and Lambert searched the room. Lambert had previously made Nikolas put his head under his bed so he could not see what was happening.
When Lambert left the room, appellant demanded Elizabeth spread her legs. He attempted to insert a plastic bottle of foot spray in her vagina. He stopped because the bottle was too large. He left the room and returned a minute later, again demanding she spread her legs. He put his penis in her vagina, hurting her "very bad." This lasted a minute or two. She told him she needed to go to the bathroom. He stated: "Well, go pee. Go pee or else I'll cut you."
Lambert came into the room and told appellant there was no money and they should leave. Lambert's voice was getting louder. Appellant tried to put his penis in Elizabeth's anus and partially succeeded. She screamed and appellant and Lambert left.
Elizabeth curled up in a ball on the bed until she and Nikolas were sure appellant and Lambert were gone. She then went into the bathroom and noticed there was blood on her legs. She bled throughout the night.
Nikolas called 911 and gave a description of the intruders and their car.
About sundown the evening before, appellant had arrived at a party about a mile from Nikolas's apartment. He arrived as a passenger in a black Lexus sedan with shiny wheel rims and tinted windows. Lambert had not been invited to the party but had been dating Terri Hazzard, the person giving the party.
Between 1:30 and 2:00 a.m., Jason Riley, who was waiting for a girl he had arranged to see at the Hazzard party, noticed a black Lexus sedan in the parking lot. He was not sure the car had been there when he left earlier for the liquor store. About 10 minutes later, appellant, who had been standing with a shorter man, approached Riley and asked for a ride. Riley knew him slightly. They left in Riley's girlfriend's black Mazda sedan. Riley drove down Mission Bay Drive to Interstate 8.
As Riley and appellant reached the on ramp to Interstate 8, they were spotted by San Diego Police Officer David Achenbach, who had heard the descriptions of the suspects and their vehicle from Nikolas's home invasion. He called for backup support and pulled along side the Mazda. He could clearly see appellant. As the Mazda pulled onto Interstate 805 south, one of the police officers activated his car's overhead lights to stop Riley. Riley took the first exit and stopped the car. He surrendered but appellant ran down the sidewalk between two buildings. A neighborhood search began and lasted about an hour. A red baseball cap and fanny pack appellant was wearing were found on a walkway between the two buildings. The fanny pack contained $21 in assorted change, a loaded pistol stolen earlier that year and a watch belonging to Nikolas's roommate.
At about 2:30 a.m. James Pfeiffer was working on his trucks at his North Park home when he saw police all over the area. He allowed police to come up to his roof to look around. He then went into his house. As he prepared to get ready for bed, his wife heard something and his dog "just went nuts." Pfeiffer went outside to check on the noise and encountered appellant standing on a stairway. Appellant told him "Shut up. Give me your phone and I'll give you 50 bucks." Pfeiffer responded "I'll be right back." He returned with a shotgun. Appellant was arrested. The time of the arrest was 2:50 a.m. Appellant told the police his name was Randy Smith. When searched, he had in his possession two $20 bills, three $5 bills, two $1 bills, three silver dollars, four 50 cent pieces, five Susan B. Anthony dollars and an Italian 50 lire piece. Five $20 bills were found in his sock. Nikolas's roommate later identified several of the 50 cent pieces, some silver dollars and Susan B. Anthony coins as those taken from his room.
Police located Hazzard's Lexus. Appellant's prints were on the driver's side of the trunk lid. Lambert's were on the driver's side door handle and passenger side of the trunk lid.
On the afternoon of July 27, appellant telephoned Terri Hazzard. When she asked why he had taken her car, he did not answer. He did, however, want to know what happened when police came to her residence. (Lodgment 15 at 1-5.)
Petitioner asserts three claims in his federal petition. He claims: (1) the trial court violated his Sixth and Fourteenth Amendment rights when it denied his request for appointment of new counsel pursuant to People v. Marsden, 2 Cal. 3d 118, 123-24 (1970) (holding that, although the right to discharge court-appointed counsel and substitute new counsel is within the discretion of the trial court, defendant is entitled to new counsel if the defendant's right to counsel would be substantially impaired by continuing with the original attorney); (2) the trial court violated his Sixth and Fourteenth Amendment rights when it denied his request to represent himself pursuant to Faretta v. California, 422 U.S. 806 (1975) (holding that defendant has a Sixth Amendment right to conduct his own defense, provided he knowingly and intelligently waives his right to counsel); and (3) that he received ineffective assistance of counsel because his attorney: (a) failed to adequately investigate and present his case, including his decision not to request DNA testing, (b) opposed Petitioner's requests for a new attorney and to represent himself, and (c) failed to call Elizabeth J.'s attending physician to rebut the testimony of the Sexual Assault Response Team ("SART") nurse.*fn6 Additionally, in his supplemental briefing, Petitioner asserts that post-conviction DNA results substantiate his ineffective assistance claims and show that he is innocent of the crimes of which he was convicted.
A. Review of Magistrate Judge's Report and Recommendation
The district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). If a party objects to any portion of the report, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made." Id. The Court reviews de novo the magistrate judge's conclusions of law. Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983) overruled on other grounds by United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003).
B. Scope of Review of 28 U.S.C. § 2254 Petition
Title 28, United States Code, § 2254(a) sets forth the following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application 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) (West Supp. 2003).
This action is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214. Under 28 U.S.C. § 2254(d), as amended by the AEDPA:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State ...