FINDINGS AND RECOMMENDATIONS
Petitioner Keith Johnson is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. Petitioner stands convicted of kidnaping and various sex offenses after a jury trial in the Sacramento County Superior Court, case 01F07872. He is serving an aggregate sentence of 37 years to life.
Petitioner raises several grounds for relief, organized as follows for purposes of this opinion: (A) he received ineffective assistance of counsel at trial and on appeal; (B) the prosecution engaged in misconduct that violated his right to a fair trial; (C) the trial judge was impartial or biased; (D) there was insufficient evidence to support the deadly weapon use enhancement applied to each count; and (E) the cumulative effect of these errors deprived him of a fair trial. Although the petition is lengthy, the bulk of it consists of case law citations.
Petitioner's claims are mostly conclusory, without necessary supporting factual detail or explanation of the resulting prejudice. As set forth herein, habeas corpus relief is not warranted.
II. FACTUAL AND PROCEDURAL BACKGROUND
A fairly detailed background summary is helpful to understanding some of petitioner's allegations, especially those regarding his trial counsel's performance. The following evidence was adduced at trial.
On October 4, 2001, the 16 year old victim was dropped off for school at about 7:20 a.m. She was a junior at Kennedy High School at the time. (RT 255-57, 262-65.) Instead of going to her first class, the victim walked toward her friend Nicky's apartment, which was close by. (RT 264-65.) The victim called Nicky from the call box phone at the security gate outside the apartment building so Nicky could "buzz" her through the gate. (RT 266, 620.) While the victim was talking to Nicky, petitioner approached her and asked if she would help him find an apartment. (RT 267-68.) Petitioner stated he was trying to find his girlfriend, supposedly over the objections of her mother. (RT 268.) The victim agreed to help. (RT 268, 620.) She was to knock on the girl's door and ask her to come out so her mother would not see petitioner. (RT 269.)
Petitioner directed the victim across the street to a different apartment complex. (RT 271-72.) The victim explained to Nicky over her cell phone what she was doing. (RT 272.) She followed petitioner to the other complex and, as they arrived, ended her cell phone conversation with Nicky. (RT 271-73, 621.) Petitioner pointed up some stairs to an apartment with an open door. (RT 215-16, 274-75.) Thinking something was wrong, the victim stopped and began to turn around. (RT 275.) Petitioner grabbed her and held a knife to her throat; he told her not to scream or he would kill her. (RT 276-77.) Afraid, the victim complied with petitioner's order to go up the stairs and enter the apartment. (RT 277-78.)
Once inside, petitioner closed the door. (RT 278.) He ordered the victim to sit on the couch. (RT 278.) When she did not comply, petitioner put the knife to her throat and pushed her into the bedroom. (RT 279.) Petitioner wrestled the victim onto the bed and tied her hands behind her back. (RT 279-80.) He used her cell phone, and, at one point, answered a call from Nicky and forced the victim say that she was going to get a ride to school later. (RT 290.) He also called his sister and made the victim ask his sister if she had any sugar. (RT 282-84.) Petitioner untied the victim's hands and forced her to accompany him to his sister's apartment, where they retrieved a baby bottle filled with sugar that had been left outside the door. (RT 285-88.)
Returning to the original apartment, petitioner took the victim into the bedroom and told her he was going to "violate" her. (RT 289.) Petitioner said, "The least you can do is jerk me off." (RT 289.) The victim was afraid and did not respond. (Id.) Petitioner then told her he was going to tie her up but would let her go if she could free herself. (RT 290, 292.) The victim screamed and resisted but he tied her up. (RT 292.) She was able to free herself in his presence, but petitioner said he would tie her up again because he had not done it right the first time. (RT 293-94.) He said he would teach her a lesson about talking to strangers. (Id.) The victim again freed herself, and again petitioner retied her. (Rt 294-95.) This was repeated several times; petitioner used various items such as duct tape, shoelaces, an electrical cord, a sheet, a dress and socks, to tie, bind, and gag her. (RT 295-97, 366-72.)
The victim acknowledged difficulty remembering the precise sequence of events, but testified that petitioner committed a series of sexual assaults or attempted sexual assaults during their lengthy encounter. (Lodged Document 1*fn1 at 4.) At one point, petitioner threatened her with the knife, removed her pants while her hands were bound, and pushed her onto the bed. (Id.) He then pulled her underwear down partway and looked at her vagina, before pulling her underwear back up. (Id.) He subsequently touched her thighs, stomach, and breasts. (Id.)
Petitioner blindfolded the victim and rubbed her vagina through her underwear. (Lodged Document 1 at 4.) She subsequently felt his penis rub against her thigh. (Id.) She screamed and was able to free her hands and remove the blindfold. (Id.) Petitioner pulled up his pants, and the victim grabbed the knife he had left on the bed. (Id. at 4-5.) Petitioner took the knife from her, cutting his hand as he grabbed it by the blade. (Id. at 5.)
Petitioner left the bedroom and returned with a towel and a black case which he said contained a gun. (Lodged Document 1 at 5.) He threatened to shoot her if she did "that" again. (Id.) He said there were two bullets: one for her and one for him. (Id.) Petitioner tied the victim's hands and forcibly inserted his fingers into her vagina. (Id.) After moving her to another bedroom in the apartment for a short time, petitioner locked her in a closet. (Id.)
Several hours later, petitioner let her out of the closet. (Lodged Document 1 at 5.) He was still armed with the knife. (Id. at 4.) He tried to force her to orally copulate him, but stopped when she threatened to bite him. (Id.) He also tried unsuccessfully to have sexual intercourse with her. (Id.) Eventually, petitioner let the victim leave with her cell phone. (Id.; RT 357-58.) She immediately ran across the parking lot and called 911. (RT 358-60.) It was approximately 2:30 p.m. by the time the she left the apartment. (RT 362, 823-24, 826-29.)
During the subsequent investigation, police officers observed and photographed bruises and redness on the victim's wrists and ankles. (RT 710-15.) A plastic bag containing an electrical cord, a white athletic sock, duct tape stuck to two gray socks knotted together, more tape stuck to other socks, a bottle of cognac, a beer can, a wire coat hanger, and a 13 inch kitchen knife was recovered from a nearby dumpster. (RT 733-39, 746-47, 800-808.) Officers also recovered physical evidence from a bedroom of the apartment, including shoes without laces, a piece of knotted mesh cloth, an AC adapter with the cord cut off, two black cords, a red cord, a pair of anklet socks bearing the victim's name, and a container of petroleum jelly. (RT 723-24, 733, 740-46, 799-802.) The victim identified the items, including the knife, as those that she had seen in the apartment and those that petitioner had used to assault her. (RT 364-75.)
Petitioner was convicted by jury of kidnaping, forcible penetration with a foreign object, sexual battery, assault with intent to commit rape, and assault with intent to commit oral copulation. The jury found true a deadly weapon use enhancement allegation with respect to each count. Petitioner was sentenced to serve 37 years to life in state prison.
II. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under 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); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also 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 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); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).
The "contrary to" and "unreasonable application" clauses of §2254(d)(1) are different. Under the "contrary to" clause of §2254(d)(1), a federal court sitting in habeas corpus may grant the writ only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides the case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams, 529 U.S. at 405. As the Third Circuit has explained, "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome." Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888 (3rd Cir. 1999) (emphasis in original). It is not required that the state court cite the specific controlling test or Supreme Court authority, so long as neither the reasoning nor the result contradict same. Early v. Packer, 537 U.S. 3, 8-9 (2002).
The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle but unreasonably applies it to the facts of the particular case. Williams, 529 U.S. at 410. The focus of this inquiry is whether the state court's application of clearly established Federal law is objectively unreasonable. Id. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id.
The court will look to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003). A court may deny a petition for writ of habeas corpus on the ground that relief is precluded by 28 U.S.C. §2254(d) without addressing the merits of the claim. Lockyer v. Andrade, 538 U.S. 63, 71 (2003).
III. ANALYSIS OF THE CLAIMS
A. Ineffective Assistance of Counsel
The Sixth Amendment guarantees the effective assistance of counsel. A showing of ineffective assistance of counsel has two components. First, a petitioner must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). After the acts or omissions that are alleged not to have been the result of reasonable professional judgment are identified, it must be determined whether, in light of all the circumstances, counsel's performance was outside the wide range of professionally competent assistance. Id. at 690; Wiggins v. Smith, 539 U.S. 510, 521 (2003). In assessing an ineffective assistance of counsel claim, "[t]here is a strong presumption that counsel's performance falls within the 'wide range of professional assistance.'" Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strickland, 466 U.S. at 689). In addition, there is a strong presumption that counsel "exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689).
The second factor required for a showing of ineffective assistance of counsel is actual prejudice caused by the deficient performance. Strickland, 466 U.S. at 693-94. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in ...