The opinion of the court was delivered by: George H. King, United States District Judge*fn2
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
This matter is before the Court on Petitioner Salvador Castaneda's ("Petitioner") Petition for Writ of Habeas Corpus ("Petition"). On October 24, 2007, Petitioner filed the Petition asserting seven grounds for relief. On February 19, 2008, Respondent Ben Curry, Warden, ("Respondent") filed an Answer. Petitioner filed a Traverse on May 7, 2008. 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: Prejudicial Extrinsic Evidence Exposed to Juror(s) Violated Fifth, Sixth, and Fourteenth Amendments
In Ground 1, Petitioner asserts the following two arguments: (1) the jury's exposure to his arrest photograph on the prosecutor's laptop computer violated his Sixth and Fourteenth Amendment rights; and (2) the trial court's failure to conduct an adequate inquiry into whether the jurors had been prejudiced by not questioning the individual jurors violated his Fifth and Fourteenth Amendment rights.
The California Court of Appeal decision rejecting this argument was not contrary to or an unreasonable application of clearly established federal law. First, Petitioner fails to rebut the trial court's factual findings by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). The trial court determined that only Jurors 6 and 12 could potentially have seen the photograph and that they could not have seen Petitioner's tattoo. (Lodged Doc. ("LD") 3 at 5.) Because Petitioner fails to cite to any evidence of juror exposure to extrinsic evidence, there is no Sixth Amendment violation. Second, Petitioner fails to establish that the trial court's hearing on the matter violated clearly established federal law. There is no clearly established federal law that requires a trial court to question individual jurors regarding exposure to extrinsic evidence. See Sims v. Rowland, 414 F.3d 1148, 1155 (9th Cir. 2005) (holding that Smith v. Phillips, 455 U.S. 209 (1982), does not "stand for the proposition that any time evidence of juror bias comes to light, due process requires the trial court to question the jurors alleged to have bias."). Moreover, the trial judge adequately investigated Petitioner's claim by questioning the prosecutor and positioning herself in the jury box to assess any prejudice. Third, even assuming the jurors were exposed to the photograph, Petitioner fails to demonstrate that the evidence had a "substantial and injurious effect or influence in determining the jury's verdict." Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir. 2000) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). There was no prejudice given that amount of testimonial evidence against Petitioner. (See LD 3 at 10.)
B. Ground 2: Ineffective Assistance of Appellate Counsel in Violation of Sixth Amendment
In Ground 2, Petitioner argues that his appellate counsel rendered ineffective assistance by failing to: (1) frame the prosecutorial misconduct claim as an ineffective assistance of trial counsel claim; and (2) raise the issue of the trial court's deficient examination of prejudice resulting from jury exposure to the arrest photograph.
Petitioner fails to demonstrate prejudice from the alleged ineffectiveness of his appellate counsel. See Strickland v. Washington, 466 U.S. 668, 694 (1984). As to the failure to raise the ineffective assistance of trial counsel claim, Petitioner fails to demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. While the Court of Appeal determined that Petitioner's trial counsel procedurally defaulted on the claim of prosecutorial misconduct, the court still reached the merits and rejected the claim. Thus, there was no prejudice. As to the failure to raise the claim of the trial court's deficient examination of the jury, Petitioner also fails to demonstrate prejudice. Petitioner fails to rebut the Court of Appeal's finding of harmless error even if there was juror exposure to the photograph.
C. Ground 3: Ineffective Assistance of Trial Counsel in Violation of Sixth Amendment
In Ground 3, Petitioner argues that his trial counsel rendered ineffective assistance of counsel by failing to: (1) call three witnesses - (a) Maria Gonzalez, (b) the police officers who responded to the incident in Leana Mena's apartment on October 15, 2001, and (c) Mena's mother; (2) introduce a recorded phone conversation between Petitioner and Mena; and (3) timely object to the arrest photograph on the prosecutor's laptop computer.
Petitioner fails to demonstrate that his trial counsel rendered ineffective assistance on any of these grounds. As to counsel's failure to call Maria Gonzalez as a witness, Petitioner fails to demonstrate prejudice. First, Petitioner's proffer of what Gonzalez would have testified to at trial as to Mena is vague, especially in light of the trial court's discussion of Gonzalez's testimony. (See Rep. Tr. 48-49.) As such, it is not clear that Gonzalez could have testified as to this proffer at trial. Second, even assuming Gonzalez could have testified, there was no prejudice given the amount of testimony against Petitioner. Moreover, Petitioner's counsel raised the "set up" theory during his opening statement, his direct examination of Petitioner, and his cross-examination of Mena. As to counsel's failure to call the police officers and Mena's mother, Petitioner fails to show how this alleged impeachment evidence would undermine confidence in the verdict. Strickland, 466 U.S. at 694. First, Petitioner's own testimony, that he entered Mena's apartment on October 15, 2001 by punching and crawling through a window, casts considerable doubt on his theory that he resided with Mena. Moreover, ...