The opinion of the court was delivered by: John L. Weinberg United States Magistrate Judge
REPORT AND RECOMMENDATION
Petitioner is currently incarcerated at the Mule Creek State Prison in Ione, California. He seeks relief under 28 U.S.C. § 2254 from his 2004 jury conviction in the Solano County Superior Court for fifteen sex offenses, including lewd and lascivious conduct on a child, oral copulation on a child, and unlawful sexual intercourse with a child. (See Docket 1; Dkt. 16, 1 Clerk's Transcript at 131-36 and 270-77.) All of these charges involved his relationship with "C.M.," his stepdaughter, when she was approximately thirteen through sixteen years of age. Petitioner is currently serving a determinate sentence of eighteen years and four months in prison. (See Dkt. 16, 2 CT at 446-48.) Respondent has filed an answer to the petition, along with relevant portions of the state court record, and petitioner has filed a traverse in reply to the answer. (See Dkts. 16 and 19.) The briefing is now complete and this matter is ripe for review. The Court, having thoroughly reviewed the record and briefing of the parties, recommends that the Court deny the petition and dismiss this action with prejudice.
II. FACTUAL AND PROCEDURAL HISTORY
On direct review, the California Court of Appeal summarized the relevant facts adduced during petitioner's trial as follows:
On October 16, 2002, 16-year-old C.M. appeared shaky and unfocused when she met with her friend Sarah to study after school. C.M. confided in Sarah that she was upset because the man she regarded as her stepfather -- appellant Bradford Neal Dickson -- had been sexually molesting her since she was 13 years old. That night, Sarah told her parents what C.M. had told her. Sarah and her stepfather accompanied C.M. to report the molestation to the Vacaville Police Department the following day.
While she was with the police, they recorded a telephone conversation that C.M. had with Dickson. In that call, C.M. said that when she and Sarah had been "talking about relationships," she "slipped" and told her friend "about us." Dickson responded: "What? What? [Your] mom's here, I gotta be careful." C.M. told him that she was alone -- that no one was around just then. When he asked how "much . . . detail" she gave, C.M. replied that she told Sarah "what kind of relationship we had." Dickson asked what she meant by that, prompting C.M. to say that she told her friend that "we did it." Dickson: "What in the hell are you talking about? Do you know what this causes now? . . . [Y]ou know what's going to happen? I probably won't even be here tomorrow. You just messed everything up for [your sister], for everything." C.M. asked what would happen if Sarah told what she knew. Dickson replied, "A lot."
In the telephone call, C.M. told Dickson that "I'm just thinking that . . . we shouldn't do it anymore . . . [b]ecause it makes me feel uncomfortable . . . and now [Sarah] knows. . . ." Her stepfather responded by accusing C.M. of breaking her word to him and advising her to tell Sarah that she exaggerated things because she was angry with him. C.M. said "I'm thinking it would be better if we just stop . . . having sex. . . ." Later, she asked him, can "we just stop doing it . . . [b]ecause it's bugging me[?]" C.M. said that she had told Sarah that Dickson was "[like] a boyfriend" to her, prompting Dickson to respond that she could have said that without offering "other details." When C.M. explained that she had not revealed details such as "when we started doing it," Dickson's response suggested that C.M. should not have said anything at all about it.
During the call from C.M., Dickson made other responses that were consistent with the molestation charges. He never challenged her implicit or explicit statements about a sexual relationship between them. He reminded her of the negative consequences to both of them if word got out at school. More than once, he worried aloud about someone overhearing the telephone conversation. Several times, he told C.M. to come home so that they could talk there and "sort it out before something really bad happens." Again and again, Dickson pressured C.M. to "take back" her allegations. He suggested that she say that she had made a false accusation against him out of anger. His last words were to "make sure you un-do it . . . . I'm counting on you to do that."
Dickson was arrested and jailed for several days. Initially, C.M.'s mother Kelly B. did not believe that C.M. was truthful. Kelly wanted to keep her family together and could not accept the implications of molestation on her own relationship with Dickson. On October 18, 2002, she pressured C.M. to copy out a letter to police saying that her molestation report had been false. C.M. left a voicemail message for police about the letter. When the police and a social worker visited her at school on October 21, 2002, C.M. told them that Kelly had compelled her to write the letter.
B. Charges and Pretrial Matters
On October 25, 2002, a felony complaint was filed charging Dickson with three counts of sexual acts with a minor . . . C.M. was interviewed again by police on October 28, 2002. By November 2002, he had been arrested and released on bail. In March 2003, an amended felony complaint was filed charging him with 52 specific sexual offenses. He waived a preliminary hearing on these charges. C.M. was interviewed by police a third time during this month.
In April 2003, Dickson was charged by information with 52 sexual offenses committed against minor C.M. The charges of lewd acts with a child, oral copulation and unlawful sexual intercourse were allegedly committed between August 1999 and October 2002. . . . In October 2003, Dickson's first defense counsel was replaced by the attorney who ultimately defended him at trial.
In January 2004, the information was amended to charge 15 counts -- two counts of lewd and lascivious conduct, seven counts of oral copulation and six counts of unlawful sexual intercourse. . . .
At trial, C.M. testified that Dickson -- who was 20 years older than her and whom she regarded as her stepfather -- lived in her home from the time she was seven years old. As she got older, C.M. began to play soccer and softball. Dickson took her to her games and sometimes coached her teams. She was closer to Dickson than she was to her natural father, Geoffrey M.
Starting when she was 13 or 14 years old, she and Dickson started sleeping in the living room, while Kelly shared her bedroom with C.M.'s youngest sister. The living room was the room that was furthest from the bedrooms in their house. Kelly worked long hours, going to bed early and rising early each day to prepare for work. Dickson and C.M. started sleeping in the living room so they could rise early to go to sporting events without disturbing Kelly.
Dickson and Kelly rarely had sexual relations. C.M. told the jury that one day, Dickson stopped acting like a father and began touching her breasts. At first, he touched C.M. through her clothing; later, he touched her breasts beneath her clothes. Dickson bought her clothing and gifts and let her do things that she wanted to do in exchange for sexual contact. C.M. received more attention from him than her siblings did.
C.M. told the jury that the sexual contact ceased for a while, but that when she was 14, Dickson resumed routinely touching her breasts. She began orally copulating him two or three times a week. By the time she was 15, she and Dickson were having sexual intercourse several times a week. He used condoms. She complained that she did not want to do this, but she "had to." Dickson told her not to tell anyone about their sexual encounters. If she did, he told her, she would have to live elsewhere and would have to go to school somewhere else. Dickson repeatedly threatened to take her out of her school or take away some of her clothing as a penalty for not engaging in sexual relations with him. Being able to continue at her school and have the support of her school friends was very important to her. C.M. did not tell Kelly about these incidents. She did not have a close relationship with her mother and Dickson tried to prevent them from being alone together.
Dickson also discouraged her from having friends her own age. At high school, C.M. had a boyfriend. She told the jury that she did not have sexual intercourse with her boyfriend. She did not tell him about the molestation until after she had reported it to police.
Dickson told C.M. that he cared for her and that his relationship with Kelly was failing. He said that he planned to marry C.M. when she turned 18 and moved away from home. They had sexual relations on the night before she told Sarah about the molestation. Her first report to police was not complete -- it took a while for her to feel comfortable with the male police officer to be completely candid with him. C.M. had several police interviews, some of which were videotaped.
On October 22, 2002, Child Protective Services removed C.M. from Kelly's home. C.M. moved to Folsom to live with her father Geoffrey M. for her junior year in high school. She did not want to do so -- she wanted to stay in her school where her boyfriend and her other friends were going to school. Soon, her younger sister was removed from Kelly's home and joined C.M. at their father Geoffrey's house. Kelly and Geoffrey became involved in a dispute about which parent should have custody of their daughters. Over time, Kelly came to accept that C.M.'s report of molestation had been true. Before the school year began in the fall of 2003, C.M. was allowed to return to her mother's home.
Dickson's defense attorney cross-examined C.M., attempting to undermine her credibility. He brought out the fact that she occasionally stayed alone overnight at a hotel with Dickson when traveling to participate in soccer and softball tournaments. C.M. denied that any sexual contact occurred during these overnight hotel stays. Dickson wanted to have sexual intercourse during these overnight hotel stays, but she complained that she had to get up early to play sports and he understood this.
Defense counsel also elicited evidence that C.M. was taking birth control pills. She explained that Dickson did not obtain these for her -- she got them from a friend. She told the jury that she feared becoming pregnant. She took several home pregnancy tests during this time, apparently at Dickson's request.
Also on cross-examination, Dickson's defense attorney noted that C.M. told the jury that the first incident of molestation had occurred in the summer. C.M. had also testified that she received a gift that she wanted for Christmas in exchange for the sexual contact. Defense counsel suggested that the lapse of time between summer and Christmas made this testimony suspect. Defense counsel also noted various inconsistencies in C.M.'s reports to police.
Kelly and C.M.'s sister both testified about their home life with Dickson. A social worker also testified about the reactions that C.M. and Kelly had to the initial report of molestation. The jury heard the tape recording of the telephone conversation that C.M. had with Dickson on October 17, 2002. It also saw the October 18, 2002 letter that C.M. wrote to police recanting her molestation charges. Videotapes of three police interviews with C.M. were also played for the jury. The jury was given the means to review the audiotape and videotapes during deliberations.
D. Verdict, Posttrial Motions and Sentencing
In February 2004, after deliberating for a day and a half, the jurors advised the trial court that they were unable to reach a unanimous verdict. After three ballots, the jury was divided 10 to 2. The trial court ordered the jurors to continue deliberations. At the end of that afternoon's deliberations, the jurors had taken a fourth ballot, but were still divided. Some of the jurors believed that further deliberations might be productive, so the trial court ordered the jurors to return the following day to resume deliberations.
On the following day, the jury unanimously convicted Dickson of all 15 counts. In April 2004 before sentencing, new counsel was substituted for trial counsel. In August 2004, sentencing counsel moved for a new trial, based in part on a claim of ineffective assistance of counsel at trial. . . . After hearing, the trial court -- noting that it found C.M. to be a credible witness -- denied the motion. Dickson was sentenced to 18 years, four months in state prison. . . .
(Dkt. 16, Exhibit J at 1-7.)
The California Court of Appeal affirmed petitioner's judgment on July 28, 2005, and the California Supreme Court denied review on October 26, 2005. (See id. at 22; id., Ex. K.) Petitioner filed a petition for writ of habeas corpus in the California Supreme Court on January 22, 2007. (See id., Ex. L.) After the state court summarily denied his petition, petitioner timely filed the instant federal habeas petition on June 22, 2007. (See Dkt. 1).
III. FEDERAL CLAIMS FOR RELIEF
Petitioner presents the following claims for relief in his federal habeas petition:
(A) Petitioner's right to effective assistance of counsel was violated by his trial counsel's failure to:
(2) Present any physical evidence, including (a) handwritten notes by C.M. and C.M.'s friends, (b) a progress report and an email from C.M.'s science teacher, and (c) an audiotape of law enforcement's second interview of C.M.;
(3) Introduce evidence of C.M.'s false allegations against her biological father;
(4) Explain to the jury petitioner's statements during the pretext phone call;
(5) Cross-examine C.M. adequately;
(6) Allow petitioner to testify in his own defense;
(7) Present expert testimony regarding petitioner's genital herpes; and
(8) Allow petitioner's private investigator to be present at trial.
(B) Petitioner's confrontation and due process rights were violated by law enforcement's "suggestive questioning" of C.M. during pretrial interviews, and his counsel was ineffective for failing to introduce an email from C.M. admitting this fact at trial;
(C) Petitioner's right to due process and effective assistance of trial counsel were violated by prosecutorial misconduct during closing argument;
(D) Petitioner's right to due process was violated by jury misconduct during deliberations; and
(E) Petitioner's right to due process was violated by cumulative prejudice stemming from the above alleged errors.
Respondent concedes that petitioner has exhausted all his claims for relief, but contends that his claims are without merit. (See Dkt. 16 at 2-3.)
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this petition because it was filed after the enactment of AEDPA. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Because petitioner is in custody of the California Department of Corrections pursuant to a state court judgment, 28 U.S.C. § 2254 provides the exclusive vehicle for his habeas petition. See White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir. 2004) (providing that § 2254 is "the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment. . . ."). Under AEDPA, a habeas petition may not be granted with respect to any claim adjudicated on the merits in state court unless petitioner demonstrates that the highest state court decision rejecting his petition was either "contrary to, or involved an unreasonable application of, clearly established Federal law" as determined by the U.S. Supreme Court, or "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)(1) and (2).
As a threshold matter, this Court must ascertain whether relevant federal law was "clearly established" at the time of the state court's decision. To make this determination, the Court may only consider the holdings, as opposed to dicta, of the U.S. Supreme Court. See Williams v. Taylor, 529 U.S. 362, 412 (2000). In this context, Ninth Circuit precedent remains persuasive but not binding authority. See id. at 412-13; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003).
The Court must then determine whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." See Lockyer v. Andrade, 538 U.S. 63, 71 (2003). "Under the 'contrary to' clause, a federal habeas court may grant the writ 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 a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. "Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. At all times, a federal habeas court must keep in mind that it "may not issue the writ simply because [it] 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 [objectively] unreasonable." Id. at 411.
In each case, the petitioner has the burden of establishing that the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). To determine whether the petitioner has met this burden, a federal habeas court looks to the last reasoned state court decision because subsequent unexplained orders upholding that judgment are presumed to rest upon the same ground. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007).
When a state court reaches a decision on the merits but provides no reasoning to support its conclusion, we must independently review the record to determine whether the state court erred in its application of U.S. Supreme Court law. Delgado v. Lewis,223 F.3d 976, 982 (9th Cir. 2000). See also Greene v. Lambert, 288 F.3d 1081, 1089 (9th Cir. 2002) (holding that when there is an adjudication on the merits but no reason for the decision, the court must review the complete record to determine whether resolution of the case constitutes an unreasonable application of clearly established federal law). Thus, while our review of the record will be conducted independently in this case ...