The opinion of the court was delivered by: George H. King United States District Judge*fn5
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
This matter*fn1 is before the Court on Petitioner Gerald Allen Harper's ("Petitioner") Petition for Writ of Habeas Corpus ("Petition"). On June 1, 2006, Petitioner filed the Petition asserting 10 grounds for relief, as well as a request for an evidentiary hearing. On October 30, 2006, Respondent Larry Scribner, Acting Warden at Calipatria State Prison, filed an Answer. Petitioner filed a traverse on December 1, 2006. Petitioner also filed a motion for expansion of the record on May 6, 2009, as well as a notice which appears to relate to that motion on July 10, 2009. We have considered the papers filed in support of and opposition to this Petition, and deem this matter appropriate for resolution without oral argument. L.R. 78-230(h). As the Parties are familiar with the facts in this case, they will be repeated only as necessary. Accordingly, we rule as follows.
I. Our Standard of Review Under AEDPA
Petitioner's case is subject to the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See 28 U.S.C. § 2254. A federal district court shall not grant a petition for habeas corpus with respect to any claim that was adjudicated on the merits in State court unless the adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
A. Ground 1: Fifth, Sixth, and Fourteenth Amendments Violated Due to Juror Sleeping During Trial
Although not clear from the Petition, Petitioner appears to make the following two arguments in Ground 1: (1) Juror No. 1 sleeping during trial violated his Sixth Amendment right to a fair jury trial; and (2) the trial court failed to conduct an adequate inquiry into Juror No. 1's alleged sleeping in violation of his due process rights. According to the trial court, Juror No. 1 suffered from a "legitimate medical condition that [may cause him] to nod off during the course of sitting." (1RT 713.)
First, Petitioner presents no evidence, other than his speculation, that Juror No. 1 was sleeping "on numerous occasions." See 28 U.S.C. § 2254(e)(1); James v. Borg, 24 F.3d 20, 26 (9th Cir. 2004) ("Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief."). Second, Petitioner fails to cite any clearly established law that would require the trial court to hold a more extensive evidentiary hearing. In any event, the trial court's inquiry into Petitioner's claim was not contrary to or an unreasonable application of clearly established federal law. See Tanner v. United States, 483 U.S. 107, 127 (1987); Smith v. Phillips, 455 U.S. 209, 215 (1982).
B. Ground 2: Fifth and Fourteenth Amendments Violated Due to Prosecutor's Access to Privileged Information During the Remand Proceedings
In Ground 2, Petitioner argues that the prosecutor's attendance of the remand hearing, where the trial court examined Petitioner's ineffective assistance of counsel claim, violated the Fifth and Fourteenth Amendments. The trial court deemed the remand proceedings a Marsden*fn2 hearing. (LD 10 at 3.) The trial court allowed the prosecutor to be present during the June 25, 2004 hearing and allowed the prosecutor to access the transcript of the May 27, 2004 hearing. (LD 10 at 5.)
The trial court's decision to allow the prosecutor to be present during the remand proceedings was not contrary to or an unreasonable application of clearly established federal law. First, the remand proceedings did not constitute a Marsden hearing because they occurred after Petitioner was convicted. Petitioner waived his attorney-client privilege by putting counsel's performance at issue. See Bittaker v. Woodford, 331 F.3d 715, 716 (9th Cir. 2003) (en banc) ("It has long been the rule in federal courts that, where a habeas petitioner raises a claim of ineffective assistance of counsel, he waives the attorney-client privilege as to all communications with his allegedly ineffective lawyer."). Second, to the extent the Court of Appeal's remand order can be subject to a different interpretation, Petitioner suffered no prejudice because the prosecutor never had any opportunity to use the allegedly "privileged communications" inasmuch as there was no new trial. See Brecht v. Abrahamson, 507 U.S. 619, 637--38 (1993).
C. Ground 3: Fourteenth Amendment Violated Due to State Courts' Refusal to Provide Defense Investigation Files.
In Ground 3, Petitioner argues that the state superior court, Court of Appeal, and California Supreme Court violated his Fourteenth Amendment due process rights when they withheld the defense investigation files and impeded his ability to demonstrate his ineffective assistance of counsel claim on appeal and in habeas proceedings. Petitioner also filed a motion to expand the record specifically requesting the files. The defense investigation files were files prepared by Petitioner's trial counsel, Joel Deckler, and contained information about six witnesses Petitioner wanted to call at trial. During the remand hearing, the prosecutor, Deckler, and Petitioner's temporary counsel, Tami Buscho, possessed copies of the files. (2RT 94-95.) The trial court requested that the prosecutor return her copy and placed the files under seal. (2RT 96-97.) During petitioner's second appeal, the Court of Appeal granted his counsel's request to access these files, but the files could not be located in the superior court file. (Pet., Ex., Appellate Court Docket.)
Regarding Petitioner's second appeal, the state court's failure to provide him the defense investigation files did not violate his rights. First, the California Court of Appeal granted Petitioner's attorney's request for the files. Second, Petitioner presents no evidence that the state superior court or Court of Appeal intentionally withheld the files. Third, Petitioner suffered no prejudice from not being able to review the files for his second appeal. See Brecht, 507 U.S. at 637--38; Kennedy v. Lockyer, 379 F.3d 1041, 1053 (9th Cir. 2004) (harmless error applies in habeas when a state fails to provide the defendant with a portion of the transcript). Petitioner's appellate counsel did not mention that the files were lost in her opening appellate brief. In addition, there is no evidence that Petitioner's counsel attempted ...