FINDINGS AND RECOMMENDATIONS
Petitioner Kenyatta Latchison, a state prisoner proceeding with appointed counsel, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner attacks his conviction in the Solano County Superior Court, case number FCR194512, for murder and assault on a child causing death.
Petitioner makes the following claims:
A. The prosecutor committed misconduct by shifting the burden of proof;
B. He received ineffective assistance of trial counsel; and
C. The prosecutor committed misconduct by disparaging defense counsel. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's petition for habeas corpus relief be denied.
III. FACTUAL AND PROCEDURAL BACKGROUND
On October 1, 2001, two-year-old Aryanna H. died after being left in appellant's care. On January 23, 2002, in connection with her death, appellant was charged with murder (Pen.Code, § 187, subd. (a); Count 1) and with assault on a child causing death (Pen.Code, § 273ab; Count 2). Jury trial commenced on July 23, 2004. During trial, a factual dispute arose with regard to the cause of death. According to the prosecution, the victim died of blunt force head injuries inflicted by appellant. The defense countered by offering expert testimony that the victim died, not from any externally inflicted trauma, but from a rare illness known as "cortical venous thrombosis" (CVT).
During rebuttal closing argument, the prosecutor argued as follows: "Finally, [defense counsel] gets to the point of his case.... And the point essentially is, 'Trust my expert, believe my expert....' Well, why don't we boil it down to the bottom line. His guy was bought. He was brought in the case and bought." Defense counsel's timely objection to this argument was overruled. The prosecutor continued by arguing that "[defense counsel] has to defend, somehow he has to try to defend the case or give you some option, otherwise we might as well not have the trial. He offered up CVT." Defense counsel did not object to this latter comment.
On August 3, 2004, the jury found petitioner guilty of both counts. Reporter's Transcript ("RT") at 402. The trial judge sentenced petitioner to a term of 25 years to life. Clerk's Transcript ("CT") at 241-243.
B. Post Trial Proceedings
1) State Appellate Review
Petitioner filed a timely appeal with the California Court of Appeal, First Appellate District that was denied on January 26, 2006. Opinion at 1-4. On March 3, 2006, petitioner sought review from the California Supreme Court. Petn's Ex. B. That request was denied on April 12, 2006. Petn's Ex. C at 1.
Petitioner filed a state habeas petition in the California Supreme Court on October 8, 2006. Petn's Ex. D at 1. The California Supreme Court denied that petition on April 25, 2007. Petn's Ex. E at 1.
On April 18, 2007, petitioner filed his original federal petition for writ of habeas corpus. Counsel was appointed on May 24, 2007 and a stay was granted on February 28, 2008. On August 19, 2008, petitioner filed an amended petition and the stay was lifted on August 25, 2008. Respondent filed an answer on October 15, 2008 and petitioner filed a traverse on November 11, 2008.
IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a).
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings 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 ...