The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Eric Sion Gregory, a state prisoner appearing pro se, has filed a petition for relief under 28 U.S.C. § 2254. Gregory is currently in custody of the California Department of Corrections and Rehabilitation incarcerated at the California Medical Facility, Vacaville, California. Respondent has filed his answer, and Gregory has filed a traverse. Gregory has also filed a motion for leave to conduct discovery (Docket No. 10), a motion for leave to request admissions (Docket No. 11), a second motion for leave to request admissions (Docket No. 20), a motion to direct Respondent to lodge additional documents (Docket No. 21), a second request for leave to conduct discovery (Docket No. 29), a request for an evidentiary hearing (Docket No. 32), and a request for "Destruction Order" (Docket No. 33). I. BACKGROUND/PRIOR PROCEEDINGS A Sacramento County Superior Court jury convicted Gregory in November 2004 of inflicting corporal injury resulting in a traumatic condition on a co-habitant (Cal. Penal Code, § 273.5(a)) and false imprisonment by violence or menace (Cal. Penal Code § 236). The jury also found true allegations that Gregory inflicted great bodily injury under circumstances involving domestic violence in the commission of both offenses (Cal. Penal Code § 12022.7(e)), and used a dangerous and deadly weapon (a crutch) in inflicting corporal injury upon his cohabitant (Cal. Penal Code § 12022(b)(1)). In a bifurcated proceeding, the trial court found Gregory had been convicted of a prior serious felony (robbery) (Cal. Penal Code § 667(a)).
On December 10, 2004, the Sacramento County Superior Court sentenced Gregory to an aggregate term of 17 years 4 months in state prison, consisting of three years (the middle term) for inflicting corporal injury, doubled for the prior strike conviction (Cal. Penal Code §§ 667(e)(1), 1170.12(c)(1)), plus four years (the middle term) for the domestic violence enhancement, plus one year for the weapons enhancement, eight months (a the middle term) for false imprisonment, doubled for the prior strike conviction, to run consecutively with the sentence imposed for inflicting corporal injury; four years for the domestic violence enhancement was stayed (Cal. Penal Code § 654.) Finally, Gregory was given five years for the prior serious felony conviction (Cal. Penal Code § 667(a)).
Gregory timely appealed his conviction to the California Court of Appeal, Third Appellate District, which affirmed his conviction in an unpublished reasoned decision.*fn2 The California Supreme Court summarily denied review without opinion or citation to authority on May 23, 2007.*fn3 On June 14, 2007, Gregory filed a petition for habeas relief in the Sacramento County Superior Court, which denied his petition in a reasoned opinion. Gregory filed subsequent petitions for habeas relief in the California Court of Appeal and California Supreme Court, which were summarily denied without opinion or citation to authority on September 20, 2007, and April 16, 2008, respectively. Gregory timely filed his petition for relief in this Court on May 5, 2008.
II. GROUNDS RAISED/DEFENSES
In his petition Gregory raises eight grounds: (1) ineffective assistance of trial counsel; (2) a violation of due process by the use of perjured testimony and suppression of the evidence; (3) conviction obtained by coercion and duress of the victim; (4) use of hearsay evidence violated a right to confrontation; (5) prosecutorial misconduct; (6) ineffective assistance of appellate counsel; (7) insufficiency of the evidence to support conviction; and (8) trial court abused its discretion in failing to strike the prior conviction.
Respondent contends that Gregory's fourth and fifth grounds are barred as procedurally defaulted. Respondent raises no other affirmative defenses.*fn4
Because Gregory filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d). Consequently, this Court cannot grant relief unless the decision of the California Court of Appeal was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn5 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn6
Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn7 When a claim falls under the "unreasonable application" prong, a state court's application of the Supreme Court precedent must be "objectively unreasonable," "not just incorrect or erroneous."*fn8 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing the state court determination was incorrect.*fn9 Finally, in a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the jury's verdict.*fn10
In applying this standard, this Court reviews the last reasoned decision by the state court,*fn11 which in this case was that of the California Court of Appeal on direct appeal and the Sacramento Superior Court in the state habeas proceedings. Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn12
To the extent that Gregory raises issues of the proper application of State law, they are beyond the purview of this Court in a federal habeas proceeding. It is a fundamental precept of dual federalism that the States possess primary authority for defining and enforcing the criminal law.*fn13 A fundamental principle of our federal system is "that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."*fn14 A petitioner may not transform a state-law issue into a federal one by simply asserting a violation of due process.*fn15 Nor may a federal court issue a habeas writ based upon a perceived error of state law unless the error is sufficiently egregious to amount to a denial of due process under the Fourteenth Amendment.*fn16
Gregory's conviction in this case arose out a series of brutal beatings of his fiancée over a span of approximately two days, including with a crutch and an attempt to strangle her with a cord. The rest of the facts are set out in detail in the decision of the California Court of Appeal and are well known to the parties, and, in the interests of brevity, are not repeated here.
Ground 1: Ineffective Assistance of Trial Counsel
Gregory contends that trial counsel's performance was deficient in nine aspects in that counsel failed to: (1) investigate DNA evidence; (2) call certain witnesses; (3) call an expert witness with respect to the medical records and the victim's injuries; (4) request jury instructions on inconsistent statements; (5) request a psychological examination of the victim; (6) object to deliberate, deceptive and false statements by the prosecution; (7) adequately investigate; (8) impeach the victim; and (9) obtain and introduce exonerating evidence.
Gregory raised this ground in his state court habeas proceedings. The Sacramento County Superior Court rejected Gregory's arguments, holding:
1. Ineffective Assistance Of Trial Counsel
Petitioner must show both (1) counsel's representation fell below an objective standard and (2) counsel's failure was prejudicial to the defendant. (In re Alvernaz (1992) 2 Cal.4th 924, 937.) The court does not second-guess trial counsel and gives great deference to counsel's tactical decisions. (In re Avena (1996) 12 Cal.4th 694, 722.)
Petitioner must demonstrate actual prejudice, meaning there is a reasonable probability that, but for the attorney's errors, the result would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 694.)
As with any petition for habeas, petitioner must state a prima facie case for relief. (In re Bower (1985) 38 Cal.3d 865, 872.) The petition should attach reasonably available documentary evidence or affidavits supporting the claim. (People v. Duvall (1995) 9 Cal.4th 464, 474.)
The petition fails to state a prima facie claim for relief.
A. Failure To Investigate
A claim counsel was ineffective in failing to obtain favorable evidence must show what evidence should or could have been obtained and what effect it would have had. (People v. Geddes (1991) 1 Cal.App.4th 448, 454.)
Petitioner asserts counsel failed to investigate a claim of third party culpability. Specifically, the victim testified she heard voices suggesting two men and a woman had beaten her. However, petitioner does explain [sic] how counsel could have further investigated this theory or what evidence would have been discovered.
B. Failure To Test The Crutch
The victim told police petitioner hit her with a crutch and testified the crutch had what appeared to be blood on it. Petitioner claims counsel should have had the crutch tested to determine whether it was blood and, if so, whether it belonged to the victim. Again, petitioner failed to explain what evidence would have been obtained had counsel tested the crutch.
C. Failure To Call Witnesses
Petitioner claims counsel should have called his former trial counsel and a defense investigator to testify the victim stated at one point she was sure petitioner did not assault her. However, in the same statement the victim said she "realized" petitioner was not the one who assaulted her because she overheard others talking as if they had assaulted her. The victim's proffered statement is hardly dispositive.
Moreover, the victim testified extensively and was cross-examined thoroughly about her inconsistent statements. It is not likely any additional testimony from petitioner's previous trial counsel or investigator regarding the victim's conflicting statements would have altered the outcome.
Petitioner claims it was necessary to call an expert witness to address the victim's medical records. Again, however, he does not explain why an expert was necessary. Nor does the petition show the records were improperly admitted.
Petitioner claims counsel failed to request a jury instruction relating to witness impeachment based on prior inconsistent statements. However, the court gave CALJIC No. 2.13. [N.2] The petition again fails to explain what further instruction should have been given or how petitioner was prejudiced.
[N.2] "Evidence that at some other time a witness made a statement or statements that is or are inconsistent or consistent with his or her testimony in this trial, may be considered by you not only for the purpose of testing the credibility of the witness, but also as evidence of the truth of the fact as stated by the witness on that former occasion . . . ."
F. Psychological Examination
Petitioner claims counsel should have requested psychological testing of the victim. No authority is cited for this proposition, or what evidence would have been produced had it been ordered.
Petitioner complains the prosecutor engaged in misconduct and his counsel failed to object: First, the prosecutor allegedly made false statements as to whether the victim told detectives petitioner did not assault her. Second, the prosecutor withheld exculpatory evidence. Third, she referred to the crutch as bloody when there was no evidence of blood. Finally, she expressed her personal opinion petitioner was guilty. None of the alleged acts constituted misconduct.
The transcript shows during argument the prosecutor said, "Ms. Jones never told Detective Killip unequivocally that Mr. Gregory didn't do this." (Page 428 of Exhibit 8.) Petitioner has not identified any testimony in which Jones testified contrary to the prosecutor's statement. [N.3]
[N.3] Although petitioner cites RT 265, the only portion of that page that refers to Ms. Jones's communication with Killip is a prefatory statement by defense counsel. It was not in direct response to a question, i.e., did Jones ever tell Killip that petitioner did not commit the crime. Petitioner also refers to exhibits as contradicting the prosecutor, but those exhibits were not admitted as evidence. Therefore, petitioner has not shown that the prosecutor misstated the evidence.
Petitioner fails to demonstrate the evidence allegedly withheld was in fact exculpatory. (See Pen. Code, § 1054.1(e); Brady v. Maryland (1963) 373 U.S. 83.)
Petitioner claims there was no evidence there was blood on the crutch as stated by the prosecutor. However, the victim testified the crutch looked like it had blood on it. The prosecutor's statement was thus reasonable in light of the evidence. Nor did the prosecutor express her personal opinion as to petitioner's guilt. A prosecutor may assert the defendant is guilty if that belief is based on the evidence. (See People v. Mayfield (1997) 14 Cal.4th 668, 782.) That is what the prosecutor did here. As she summarized the evidence, her assertion petitioner was guilty was a rational inference from the evidence rather than a statement of her personal belief.
Under Strickland v. Washington, to demonstrate ineffective assistance of counsel, Gregory must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense.*fn17 A deficient performance is one in which counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment.*fn18 Petitioner must show that defense counsel's representation was not within the range of competence demanded of attorneys in criminal cases, and that there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been different.*fn19
Strickland and its progeny do not mandate this court act as a "Monday morning quarterback" in reviewing tactical decisions. Indeed, the Supreme Court admonished in Strickland:*fn20
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.
The petition must specify all the grounds for relief available to the petitioner and the facts supporting each ground.*fn21 Gregory carries the burden of proving by a preponderance of the evidence that he is entitled to habeas relief.*fn22 As the Supreme Court has stated:*fn23
Habeas Corpus Rule 2(c) is more demanding. It provides that the petition must "specify all the grounds for relief available to the petitioner" and "state the facts supporting each ground." See also Advisory Committee's Note on subd. (c) of Habeas Corpus Rule 2, 28 U.S.C., p. 469 ("In the past, petitions have frequently contained mere conclusions of law, unsupported by any facts. [But] it is the relationship of the facts to the claim asserted that is important . . . ."); Advisory Committee's Note on Habeas Corpus Rule 4, 28 U.S.C., p. 471 ("'[N]notice' pleading is not sufficient, for the petition is expected to state facts that point to a real possibility of constitutional error." (internal quotation marks omitted)). Accordingly, the model form available to aid prisoners in filing their habeas petitions instructs in boldface:
"CAUTION: You must include in this petition all the grounds for relief from the conviction or sentence that you challenge.
And you must state the facts that support each ground. If you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date."
Petition for Relief From a Conviction or Sentence By a Person in State Custody, Habeas Corpus Rules, Forms App., 28 U.S.C., P. 685 (2000 ed., Supp. V) (emphasis in original).
As he did in his petition for habeas relief in the state courts, Gregory couches his arguments in purely conclusory and speculative terms as to what might have been the result if counsel ...