FINDINGS AND RECOMMENDATIONS
I. INTRODUCTION AND BACKGROUND
Petitioner Clinton Reddick is a state prisoner proceeding pro se with an amended petition for writ of habeas corpus brought pursuant to 28 U.S.C. §2254. Petitioner stands convicted of various offenses in the Sacramento County Superior Court, case 02F03113. On direct appeal in case C045131, the California Court of Appeal, Third District, summarized the facts of his commitment offenses as follows:
On April 9, 2002, at 1:00 p.m., defendant robbed Fashion Town, a Sacramento business owned and operated by Heasung Woo. During the robbery, defendant ordered Woo and his wife down onto the ground at gunpoint. At some point, Jerold Cassidy, a taxi driver, entered the store. At the time, defendant had the gun pointed at Woo.
Cassidy had been dispatched to the location to pick up a passenger. He pulled up to Fashion Town, parked his car, approached the store, "threw the door open," and said, "taxi." Inside the store, Cassidy saw defendant "holding down [Woo] and his wife on the floor with a gun at their head[s]." Defendant turned and said something to the effect of "hold it right there." The door then swung closed. Cassidy quickly walked away.
Defendant was later located at his co-defendant's apartment. A loaded handgun was recovered inside a hallway closet.
(Lodged document 2 at 2.) Petitioner was convicted of two counts of second degree robbery, possession of a firearm by a convicted felon, and assault with a firearm (as to victim Cassidy). He was sentenced to serve 11 years in state prison, consecutive to another term he was then serving. The California Court of Appeal, Third Appellate District, affirmed judgment, and the California Supreme Court denied review. Petitioner subsequently filed four separate state petitions seeking a writ of habeas corpus, which were likewise denied.
Petitioner sets forth the following nine grounds for relief: (1) trial counsel rendered ineffective assistance when he refused to call petitioner's former attorney to testify at trial; (2) there was insufficient evidence to sustain the convictions because victim Woo testified that the handgun recovered from the co-defendant's home was not the gun used during the robbery; (3) the trial court erred when it denied petitioner's motion brought pursuant to People v. Marsden (2 Cal. 3rd 118 (1970)) to relieve counsel and have new counsel appointed; (4) trial counsel rendered ineffective assistance in various other ways, including by failing to sufficiently meet with petitioner before trial; (5) the prosecutor engaged in misconduct by attempting to improperly influence an eyewitness's testimony regarding the number of doors that were on the getaway car; (6) the prosecutor engaged in misconduct by knowingly presenting as false evidence the gun from co-defendant's home, which victim Woo failed to identify as the gun used during the robbery;*fn1 (7) the prosecutor engaged in misconduct when she misstated to the judge a summary of the facts of petitioner's prior felony conviction during a hearing outside the presence of the jury; (8) appellate counsel rendered ineffective assistance of counsel in failing to raise the foregoing seven grounds on direct appeal; and (9) the evidence was insufficient to sustain the conviction for assault with a firearm with respect to victim Cassidy because the gunman never pointed the gun at Cassidy. III. 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 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).
A. Procedurally Defaulted Grounds
Petitioner's grounds 1, 3, 5-8, and most of ground 4*fn2 were presented to the California Supreme Court in a petition for writ of habeas corpus in case S159988. The California Supreme Court denied these claims in an unreasoned opinion with citations to In re Robbins, 18 Cal. 4th 770, 780 (1998) and In re Clark, 5 Cal. 4th 750 (1993). (Lodged document 12.) These citations indicate that the court dismissed the petition as untimely. See Thorson v. Palmer, 479 F.3d 643, 644-45 (9th Cir. 2007) (concluding that the California Supreme Court's citation to Robbins was "a clear ruling that [the] petition was untimely"); see also Park v. California, 202 F.3d 1146, 1152 n.3 (9th Cir. 2000) (noting that Clark "dealt specifically with the bar of untimeliness"). Respondent asserts that these grounds are barred from review on the merits because the state court declined to review them due to their untimeliness, a state procedural bar.
As a general rule, a federal habeas court "'will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'" Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). The state rule is "adequate" for these purposes if it is "firmly established and regularly followed." Id. (quoting Ford v. Georgia, 498 U.S. 411, 424 (1991)); see also Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003) ("[t]o be deemed adequate, the state law ground for decision must be well-established and consistently applied.") The state rule must also be "independent" in that it is not "interwoven with the federal law." Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000) (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)). Even if the state rule is independent and adequate, a claim may be still reviewed by the ...