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Smith v. Adams

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 3, 2010

FREE ODELL SMITH, PETITIONER,
v.
DERRAL ADAMS, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2004 conviction for second degree murder. The jury further found that petitioner personally discharged a firearm causing great bodily injury. Petitioner is serving a sentence of 40 years to life.

This action is proceeding on the amended petition filed March 9, 2010. (Dkt. 43.) After carefully reviewing the record, the undersigned recommends that the petition be denied.

II. Anti-Terrorism and Effective Death Penalty Act ("AEDPA")

In Williams (Terry) v. Taylor, 529 U.S. 362 (2000), the Supreme Court defined the operative review standard in a habeas corpus action brought pursuant to 28 U.S.C. § 2254. Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 405. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law; or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.

"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Id. at 407-08. It is this prong of the AEDPA standard of review which directs deference be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[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. at 410-11 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19 (2002).

"Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection).

The state courts need not have cited to federal authority, or even have indicated awareness of federal authority, in arriving at their decision. Early v. Packer, 537 U.S. 3 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9.

However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

When reviewing a state court's summary denial of a claim, the court "looks through" the summary disposition to the last reasoned decision. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000).

III. Background

The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the undersigned finds this summary to be accurate and adopts it herein:

On the morning of February 21, 2004, Scott Appleby, defendant's business partner in a mobile auto repair business, was sleeping in one of defendant's cars parked on Odea Drive in Sacramento. Around 5:30 a.m., Appleby was awoken by the sound of someone starting and stealing defendant's Chevrolet Caprice Classic, which was parked directly behind the car in which Appleby was sleeping. Appleby saw three cars in the vicinity at the time of the theft, including a 1969 white Mercury Cougar. Appleby informed defendant of the theft and gave him descriptions of the cars.

The following afternoon, Appleby was on Odea Drive, working on a car owned by "T-Max," when defendant arrived driving an El Camino. While defendant was still in the vicinity talking to T-Max, Appleby saw the same white Mercury Cougar he had seen during the car theft drive by and go around the corner. Appleby told another friend named Nick Costello and Costello went to tell defendant. Appleby then saw defendant, T-Max, and Costello jog to the corner and back.

Defendant then went to his El Camino, retrieved an SKS assault rifle from the trunk, walked out into the street and approached the driver's side window of the Cougar, which was now driving back down Odea Drive. Defendant then, without saying a word, fired four or five rounds into the Cougar, from only two feet away. Defendant and T-Max left in defendant's El Camino.

Christopher Navarro, the driver of the Cougar, was killed. Michelle Toney, the passenger in the Cougar, was not seriously injured. Toney was scared, had focused on the gun, and had ducked down inside the car when she saw the shooter, so she could not provide a very detailed description. Toney described the shooter as an African-American male, dressed in black with a black hood over his head, and some braids or dreadlocks protruding from edges of the hood and reaching down below his neckline.

The day after the shooting, Appleby contacted police and identified defendant as the shooter. He also told the district attorney investigator where to find the buried casings. Describing defendant to police, Appleby said defendant had short, kinky hair. A booking photograph of defendant, taken a month after the shooting, however, showed defendant with curls down to his shoulders.

Defendant told police that he did not think he was on Odea Drive the day of the shooting and denied ever owning an El Camino. Costello, however, confirmed that defendant was present on Odea Drive, driving an El Camino, on the afternoon of the shooting and was there right before the shooting. Department of Motor Vehicle records confirmed that an El Camino was sold to defendant on February 1, 2004.

Respondent's Lodged Document 4, pp. 2-4.

IV. Discussion

A. Claim One: Denial of Pre-Trial Marsden Motion

Petitioner alleges that the trial court improperly denied his November 30, 2004 Marsden*fn1 motion. Petitioner also argues that the trial court did not adequately question his counsel during the hearing on this motion.

Procedural Default

Respondent argues that claim one is procedurally defaulted. Respondent contends that petitioner raised this claim in his habeas petition filed in the California Supreme Court, which the California Supreme denied by order citing In re Robbins, 18 Cal.4th 770, 780 (1998), In re Clark, 5 Cal.4th 750 (1993), and In re Swain, 34 Cal.2d 300, 304 (1949). (Respondent's Lodged Document 14.)

Petitioner also raised this claim on direct appeal. The California Court of Appeal issued an opinion addressing the merits of this claim. (Respondent's Lodged Document 2.) The California Supreme Court denied petitioner's petition for review, which raised this claim, by an order citing no cases. (Respondent's Lodged Documents 3, 4.) Therefore, the California Supreme Court denied this claim on the merits.*fn2 Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005), citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (where more than one state court has adjudicated petitioner's claims, a federal habeas court analyzes the last reasoned decision; later unexplained orders, upholding a judgment or rejecting the same claim, rests upon the same ground as the prior order).

Petitioner has not defaulted on claim one because, in denying the petition for review, the California Supreme Court considered this claim on the merits. A claim cannot be defaulted when it was previously denied on the merits. Accordingly, respondent's argument that claim one is procedurally barred is without merit.

Legal Standard

Denial of a motion pursuant to People v. Marsden may implicate the Sixth Amendment right to counsel. Schell v. Witek, 218 F.3d 1017, 1023 (9th Cir. 2000) (en banc).

Therefore, when a criminal defendant makes a request for substitution of counsel, the trial court is constitutionally required to inquire into the defendant's reasons for wanting a new attorney. Schell, 218 F.3d at 1025 ("[I]t is well established and clear that the Sixth Amendment requires on the record an appropriate inquiry into the grounds for such a motion, and that the matter be resolved on the merits before the case goes forward."); see also Stenson v. Lambert, 504 F.3d 873, 886 (9th Cir. 2007) ("A trial court's inquiry regarding counsel's performance on a motion to substitute counsel should be such necessary inquiry as might ease the defendant's dissatisfaction, distrust and concern.") (citation and internal quotation marks omitted). For an indigent defendant, such an inquiry can serve to protect against constitutional injury because the failure to provide substitute counsel "may result in a denial of the constitutional right to effective assistance of counsel if the defendant and his attorney are embroiled in an 'irreconcilable conflict.'" United States v. Mills, 597 F.2d 693, 700 (9th Cir. 1979) (internal citations omitted).

In reviewing a federal habeas claim based on the denial of a substitution motion, "the ultimate constitutional question the federal courts must answer" is whether the state trial court's disposition of the motion violated a petitioner's constitutional rights because the conflict between the petitioner and appointed counsel "had become so great that it resulted in a total lack of communication or other significant impediment that resulted in turn in an attorney-client relationship that fell short of that required by the Sixth Amendment." Schell, 218 F.3d at 1026. If the reviewing court determines that a conflict developed between the petitioner and appointed counsel so serious that it "resulted in the constructive denial of assistance of counsel, no further showing of prejudice is required." Schell, 218 F.3d at 1027-28 (citing Strickland v. Washington, 466 U.S. 668, 692 (1984)). On the other hand, "not every conflict or disagreement between the defendant and counsel implicates Sixth Amendment rights." Schell, 218 F.3d at 1027 (citing Morris v. Slappy, 461 U.S. 1, 13-14 (1983) (holding that the Sixth Amendment does not guarantee a "meaningful relationship" between defendant and counsel)); see also Stenson, 504 F.3d at 886 ("An irreconcilable conflict in violation of the Sixth Amendment occurs only where there is a complete breakdown in communication between the attorney and client, and the breakdown prevents effective assistance of counsel. Disagreements over strategic or tactical decisions do not rise to [the] level of a complete breakdown in communication.")

As explained by the Ninth Circuit:

The test for determining whether the trial judge should have granted a substitution motion is the same as the test for determining whether an irreconcilable conflict existed. The court must consider: (1) the extent of the conflict; (2) whether the trial judge made an appropriate inquiry into the extent of the conflict; and (3) the timeliness of the motion to substitute counsel.

Daniels v. Woodford, 428 F.3d 1181, 1197-98 (9th Cir. 2005) (citations omitted).

Analysis

The undersigned will first summarize the Marsden hearing. (Respondent's Lodged Document 16, volume II.)

The trial court began the hearing by asking petitioner how his counsel had not properly represented him. (Id. at 4.) Petitioner responded that trial counsel wanted to pursue an imperfect self defense, which involved him admitting that he was present at the scene. (Id.) Petitioner objected to such a defense because he was not present at the crime scene and was innocent. (Id.) Petitioner also complained that he had not received all discovery from trial counsel. (Id. at 5.) Petitioner stated that he had not been allowed to fully watch the tapes and videotapes of witnesses. (Id.) Petitioner also complained that there had been no motions filed in his case. (Id.) Petitioner claimed that his lawyer had not obtained statements from the witnesses, the district attorney or police. (Id.)

In response, trial counsel stated that he had discussed possible defenses with petitioner. (Id. at 6-7.) Trial counsel stated that he told petitioner that he did not want to create a false defense, "but I indicated that it appeared to me that the only possible defense in this case was an imperfect self-defense given the facts of this case." (Id. at 7.)

I've indicated that to him twice, mainly because he insists on asking me what our defense is going to be. Every time I've--especially the last time that I mentioned that possibility to him, he got very upset with me. Consequently, I indicated to him that I would do whatever he thinks needs to be done in this case. But, of course, we have no witnesses.

(Id.)

When asked by the trial court if petitioner had provided trial counsel with the names of any witnesses, trial counsel responded,

Yes, Your Honor, and I have contacted what would have been a critical witness in this case, but that person totally destroyed any possible defenses that we may have had by utilizing that person. And he insisted that we--and when I say "we," I mean myself and my investigator--that we speak to that person, and we did. We spoke to that person at least three times that I'm aware of. And every time we spoke to that person, that person would not assist us in any manner that would, in fact, hurt our case even more. So besides that, that person we really had--have no other witnesses

(Id.)

Trial counsel told the court that although petitioner insisted that he had not viewed all the tapes, it was his understanding from his investigator that petitioner had viewed the tapes. (Id. at 8.) Trial counsel stated that he had given petitioner all of the reports and "everything that I have." (Id. at 9.) Regarding his failure to make any motions, trial counsel stated that he was going to make some motions regarding jury selection and the impeachment of witnesses. (Id.) However, trial counsel was not aware of any other pretrial motions he could have made. (Id. at 9-10.)

Regarding his relationship with petitioner, trial counsel stated, Well, I'm beginning to feel that's true, especially in my last couple of visits with Mr. Smith. I've detected in him total mistrust, um, and maybe some other feelings that I'm not going to put on the record. But, basically, I really think that, given his attitude, on the last couple of occasion[s] that we have met, it appears that--it does appear that there's no communications with Mr. Smith. I'm not going to get any assistance form him.

I'm just hoping that if the Court doesn't grant his motion, that I'm just hoping that everything will proceed in a smooth way. But, basically, I really think the communications have broken down. Mr. Smith doesn't trust me now at all. I think that Mr. Smith feels that if the outcome is unfavorable in this case, that it's due to the fact that, you know, we've not really communicated, and that we're sort of worlds apart concerning the presentation of this case.

(Id. at 10.)

The trial court then asked counsel if the prosecution's case would be stronger against petitioner if he called the witness who petitioner wanted him to call. (Id.) Trial counsel responded, "Most definitely." (Id.) Trial counsel then told the judge,

But, um, the problem is not so much that now, the problem is that to be frank with you, you know, if it were up to me, I would--I would indicate that another attorney should take over this case, you know, another attorney that Mr. Smith may feel more comfortable with.

(Id. at 11.)

Petitioner then told the court that the witness counsel was referring to was his girlfriend. (Id. at 12.) Petitioner stated that he wanted counsel to question her again because she told "them" that he was with her at the time of the shooting. (Id. at 12-13.)

The trial court went on to deny petitioner's Marsden motion: Well, having heard both Mr. Mayorga and Mr. Smith, I do find that Mr. Mayorga has properly represented you. He has questioned a witness that you indicated he should question. He didn't do it once, he did it three times. Mr. Mayorga has read all the discovery in this case. He's reviewed it. He's reviewed possible defenses.

To the extent that there is a personality conflict between the two people, I do not believe that it is such that it is a complete breakdown or a breakdown in the relationship of such a degree that it would make it impossible for Mr. Mayorga to properly represent Mr. Smith. To the extent that there are conflicts between the statements made this morning, I do believe Mr. Mayorga. I do believe that he has not only properly represented you Mr. Smith, but will continue to properly represent him in this case. And so the motion is denied. (Id. at 15-16.)

The California Court of Appeal denied the instant claim for the reasons stated herein:

Prior to trial, defendant made a Marsden motion seeking new trial counsel, claiming his counsel was not adequately representing him. Defendant contends the trial court prejudicially erred in denying his motion. He contends the testimony at the pre-trial Marsden hearing established that there had been "an irreconcilable breakdown in the attorney-client relationship." We find no error.

We review this claim under a settled standard. "[S]ubstitute counsel should be appointed when, and only when, necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation]." (People v. Smith (1993) 6 Cal.4th 684, 696.) To the extent there is a credibility question between defendant and counsel, the court is entitled to accept counsel's explanation. (Id. at p. 696.) "Moreover, a defendant may not force the substitution of counsel by his own conduct that manufactures a conflict." (Id. at pp. 696-697.)

We review the claim of erroneous denial of a Marsden motion under the deferential abuse of discretion standard. (People v. Earp (1999) 20 Cal.4th 826, 876.) "'Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would "substantially impair" the defendant's right to assistance of counsel.' [Citations.]" (People v. Hart (1999) 20 Cal.4th 546, 603.)

We agree with the trial court that defendant failed to carry his burden of showing such an irreconcilable conflict that ineffective representation is likely to result. Defendant complained that he wanted to present the defense that he was not the shooter and was not even present at the crime scene. Counsel responded that, on at least three occasions, he and his investigator spoke with the witness defendant claimed supported this defense, but the witness "totally destroyed any possible defenses" that defendant may have had. Accordingly, the only possible defense in counsel's professional judgment, given the facts of the case, was imperfect self-defense. Counsel had explained this to defendant and defendant had become angry.

Defendant's complaint did not warrant the appointment of new counsel. A conflict over the tactical decisions or the trial strategy to pursue does not constitute the type of "irreconcilable conflict" that indicates that counsel's representation has become inadequate. (People v. Welch (1999) 20 Cal.4th 701, 728-729.) When counsel represents a defendant, counsel is the "captain of the ship" and can make all but the most fundamental decisions for his client. (Id. at p. 729.)

Defendant also complained that he had not received and reviewed all the discovery and his attorney had not filed any motions, and in particular, a section 995 motion. Counsel responded that his investigator viewed all the relevant tapes with defendant and counsel had provided defendant with copies of all the written discovery. The trial court expressly stated it found counsel's statements credible. Counsel also stated that a section 995 motion was not available in this case and there were no other appropriate pretrial motions to be made. Counsel did intend, as the court was aware, to file certain motions regarding jury selection and a motion in limine regarding witness impeachment. But there were no other appropriate motions available.

Defendant also complained that he did not feel comfortable with his attorney, that he did not have a good "gut feeling," and that they did not have any relationship whatsoever. When asked to comment on defendant's statement that they had no relationship, counsel stated that he was "beginning to feel that that's true, especially in my last couple of visits." Counsel said defendant did not appear to trust him at all and that, given defendant's attitude, counsel did not think he was going to get any assistance from him. Accordingly, counsel stated that defendant might be better off with another attorney with whom defendant felt more comfortable.

A defendant, however, "cannot simply refuse to cooperate with his appointed attorney and thereby compel the court to remove that attorney. '"[I]f a defendant's claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law.'" (People v. Michaels (2002) 28 Cal.4th 486, 523.) Here, the "conflict" consisted primarily of disagreement over tactics and defendant's belief that counsel had not provided him discovery or made appropriate motions (which the trial court rejected as unsubstantiated), neither of which is sufficient to establish a fatal conflict and compel the substitution of counsel.

Finally, defendant complained that counsel did not have statements from all the witnesses from whom the district attorney had taken statements. Counsel explained that they had tapes of all the interviews. Counsel had also tried to interview a young boy who was a witness and had given a statement to the police, but the boy's mother refused to allow counsel to speak to the boy and refused to permit the boy to testify. Counsel noted, however, that this was to defendant's advantage since the boy's testimony would be harmful to defendant's case.

In sum, the record does not demonstrate that defendant's attorney was not providing effective representation or that defendant and his attorney had become embroiled in such an irreconcilable conflict that ineffective representation was likely to result. Thus, the trial court did not abuse its discretion in concluding that defendant had not shown that a failure to replace defendant's counsel would substantially impair defendant's right to the effective assistance of counsel.

(Respondent's Lodged Document 2, pp. 4-8.)

At the outset, the undersigned finds that the trial court's inquiry was adequate. A trial court's inquiry regarding counsel's performance on a motion to substitute counsel should be "such necessary inquiry as might ease the defendant's dissatisfaction, distrust, and concern." United States v. Garcia, 924 F.2d 925, 926 (9th Cir. 1991) (internal quotation marks and citation omitted). It also should provide a "sufficient basis for reaching an informed decision[ ]" regarding whether to appoint new counsel. United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986). The trial court gave petitioner adequate opportunity to discuss his grievances. The trial court also gave trial counsel an adequate opportunity to respond. Accordingly, petitioner's claim that the trial court's inquiry was inadequate is without merit.

The California Court of Appeal's denial of petitioner's claim challenging the trial court's denial of his motion for substitute counsel was not an unreasonable application of clearly established Supreme Court authority. Petitioner first objected to trial counsel's continued representation because he would not pursue the alibi defense petitioner requested. However, trial counsel told the court that there was no basis for this alibi defense. Trial counsel stated that on three occasions he had questioned petitioner's girlfriend, who petitioner claim would have provided his alibi, but she apparently was unable to assist in this defense. In fact, trial counsel told the court that if she testified, it would help the prosecution. Petitioner's disagreement with trial counsel over tactical decisions within the sphere of counsel's professional judgment did not entitle him to new counsel. Schell v. Witek, 218 F.3d at 1026.

Petitioner's request for new counsel based on trial counsel's failure to provide him with records and the opportunity to review the tapes was not supported by the record.

Finally, although trial counsel expressed concern based on petitioner's failure to cooperate with him, the conflict was of petitioner's own making based on his refusal to accept counsel's professional opinion that the only viable defense was imperfect self-defense. This disagreement did not amount to a denial of petitioner's Sixth Amendment rights. Schell, 218 F.3d at 1026; see also Plumlee v. Masto, 512 F.3d 1204, 1211 (9th Cir. 2008) (en banc) ("[W]e are not aware of any [Supreme Court case] that stands for the proposition that the Sixth Amendment is violated when a defendant is represented by a lawyer free of actual conflicts of interest, but with whom the defendant refuses to cooperate because of dislike or distrust.").*fn3

As stated above, the denial of this claim by the California Court of Appeal was not an unreasonable application of clearly established Supreme Court authority. Accordingly, this claim should be denied.

B. Claim Two: Failure to Conduct Marsden Hearing Post-Verdict Procedural Default

Respondent argues that this claim is procedurally defaulted on the same grounds as claim one. Like claim one, claim two was raised on direct appeal where, for the reasons discussed above, it was denied on the merits by both the California Court of Appeal and California Supreme Court. (Respondent's Lodged Documents 2-4). For the reasons discussed above, respondent's argument that claim two is procedurally barred is without merit.

Analysis

At the beginning of the sentencing hearing on January 10, 2005, petitioner told the court that he would, "like to request a lawyer to determine if my--if my lawyer--if my lawyer was ineffective and to file a new trial motion for new trial." (Respondent's Lodged Document 16, Volume I at 226.) The trial court then asked petitioner what the grounds of his new trial motion would be. (Id.) Petitioner responded that the grounds of his new trial motion would be ineffective assistance of counsel based on the claims raised at the earlier Marsden motion. (Id.) Petitioner went on to argue that if counsel had conducted an adequate investigation, "he would have found out that there were another witness that described the shooter as a light skin complected with long hair with small beard that coincided with the witness Michelle Toney's testimony--description of the shooter." (Id. at 227.) Petitioner also argued that counsel was ineffective for failing to present evidence that Scott Appleby had been incarcerated in an insane asylum for the attempted murder of his wife. (Id.)

The trial court then denied his motion for a new trial and for appointment of substitute counsel: "Based on applicable case law, the Court denies your motion for a new trial. I also decline to appoint an attorney to represent you at this time." (Id.)

The California Court of Appeal denied this claim for the reasons stated herein: Defendant also contends the trial court erred in failing to conduct a post-verdict Marsden hearing when defendant requested new counsel be appointed for the purpose of making a motion for a new trial based on ineffective assistance of trial counsel. Alternatively, he contends the trial court erred in not appointing new counsel to prepare and file a new trial motion. We disagree with both contentions. When a defendant requests substitution of new counsel after trial in order to assist in the preparation of a motion for new trial based on the inadequacy of trial counsel, the court must, as a preliminary matter, elicit from defendant the reasons he believes he was inadequately represented at trial. (People v. Stewart (1985) 171 Cal.App.3d 388, 395, disapproved on other grounds in People v. Smith, supra, 6 Cal.4th 684, 694-696.) This can be done in camera or in open court. (People v. Winbush (1988) 205 Cal.App.3d 987, 991.) "Once a trial judge is informed of the facts underlying a defendant's claim of inadequate assistance, he [or she] is then in a position to intelligently determine whether he [or she] may fairly rule on the defendant's motion for a new trial, or whether new counsel should be appointed to more fully develop the claim of inadequate representation." (People v. Stewart, supra, 171 Cal.App.3d at pp. 395-396.)

Here, contrary to defendant's assertion on appeal, the trial court did permit defendant to set forth the reasons he believed new counsel and a new trial were warranted. Upon defendant's request for a new attorney to bring a new trial motion, the trial court asked him: "What would the basis of your new trial motion be, sir?"

Defendant began by rehashing the complaints against counsel he had raised at the pre-trial Marsden hearing. In addition to those complaints, defendant also complained that counsel did not investigate or present evidence at trial that "Appleby had been incarcerated in the insane asylum for the mentally disturbed for the attempted murder of his wife." He believed such evidence would have impeached Appleby's testimony. Defendant also insisted that there was another eyewitness who would provide a physical description of the shooter as having a light complexion, long hair and a small beard--a description that coincided with Toney's description of the shooter as having long braids or curls and contradicted Appleby's description of defendant as having short, kinky hair. He claimed his counsel was ineffective for not investigating this witness and that it was a basis for a new trial.

The trial court then ruled as follows: "Based on applicable case law, the Court denies your motion for new trial. I also decline to appoint an attorney to represent you at this time."

Although conducted in open court, the trial court adequately permitted defendant to state the grounds upon which he believed a new trial motion should be granted. The trial court's denial of defendant's Marsden motion was also proper, as defendant failed to present any grounds warranting further action by the court. Trial counsel had already refuted most of defendant's claims during the pre-trial Marsden hearing. Defendant's added claim that counsel was ineffective for failing to pursue evidence of Appleby's alleged incarceration in a mental health facility did not require the appointment of new counsel to prepare and file a motion for new trial. In order to prevail on a motion for new trial based on ineffective assistance of counsel, "defendant must show both that his counsel's performance was deficient when measured against the standard of a reasonably competent attorney and that counsel's deficient performance resulted in prejudice to defendant in the sense that it 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.'" (People v. Andrade (2000) 79 Cal.App.4th 651, 659-660, quoting Strickland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d 674, 692-693].) Appleby's numerous prior convictions were discussed prior to trial. Defense counsel made a successful motion in limine permitting impeachment of Appleby with several of those prior convictions. Defendant's accusation that counsel was ineffective for failing to pursue Appleby's alleged incarceration in a mental health facility did not make a colorable claim that counsel's performance was deficient. At best, it was merely speculative information of marginal relevance and questionable admissibility. Accordingly, the trial court properly refused to appoint new counsel to bring a new trial motion for that purpose.

Likewise, defendant's claim that counsel was ineffective and a new trial was required because counsel did not investigate another eyewitness who would provide a physical description of the shooter as having long hair lacked merit. This alleged evidence did not support defendant's allegation of ineffective representation or his request for a new trial. In fact, it would have been further identification evidence supporting the People's case.

The witness defendant claims his counsel should have investigated would, according to defendant, state that the shooter had long hair and a small beard. This description coincided with Toney's description of the shooter as having long braids or curls and contradicted Appleby's description of defendant as having short, kinky hair. Defendant appears to believe this evidence would have been helpful in discrediting Appleby's testimony.

Appleby's description of defendant to the investigating officer as having very short, kinky hair, however, had already been thoroughly discredited by the evidence. At trial, Appleby testified that he had never seen defendant's hair because defendant always wore a hat or a wrap. Moreover, a booking photograph of defendant taken only one month after the shooting depicted defendant with curls down to his shoulders. Thus, the booking photograph showed that defendant resembled Toney's description of the shooter as having long braids or curls. Testimony from another witness that the shooter had long hair would not have assisted defendant in any way.

When a defendant's claim of ineffective assistance of counsel relates to courtroom events observed by the trial court, the trial court is generally able to resolve the new trial motion without appointing new counsel. (People v. Smith, supra, 6 Cal.4th 684, 692.) But even when the claim relates to matters outside the courtroom, the defendant must make a colorable claim of inadequacy of counsel before the court may, in its discretion, appoint new counsel to assist in moving for a new trial. (Id. at p. 693; see People v. Diaz (1992) 3 Cal.4th 495, 573-574.) New counsel should not be appointed without a proper showing. (People v. Smith, supra, 6 Cal.4th 684, 696.)

Here, defendant did not make the requisite showing. We find no abuse of discretion in the trial court's refusal to appoint new counsel to explore defendant's claims in inadequate representation.

(Respondent's Lodged Document 2, pp. 8-12.)

The Sixth and Fourteenth Amendments guarantee an individual brought to criminal trial in state or federal court the right to assistance of counsel. Faretta v. California, 422 U.S. 806, 807 (1975). A trial is unfair if an accused individual is denied counsel at a critical stage of his trial. United States v. Cronic, 466 U.S. 648, 659 (1984). The Ninth Circuit has long held that "there can be little question that the motion for a new trial under California law is a critical stage of the prosecution." Menefield v. Borg, 881 F.2d 696, 699 (9th Cir. 1989). Thus, criminal defendants are entitled to the assistance of competent counsel at a motion for a new trial. Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir. 1990) (citing Menefield v. Borg, 881 F.2d at 699). "Counsel" may be either trial counsel or substitute counsel appointed for purposes of hearing the new trial motion. Jackson, supra, 881 F.2d at 888. "There is no automatic right to a substitution of counsel simply because the defendant informs the trial court that he is dissatisfied with appointed counsel's performance." Id. However, "a trial judge is required to order a substitution of counsel if, after a hearing, it is demonstrated that there is a breakdown in the attorney-client relationship or that an actual conflict of interest existed." Id., citing Wood v. Georgia, 450 U.S. 261, 273-74 (1981). "Holding a hearing to review a defendant's... claim insures that the trial is fundamentally fair." Id.

In the instant case, when petitioner asked for new counsel to be appointed so that he could make a new trial motion based on ineffective assistance of counsel, the trial court asked petitioner to describe the grounds of the new trial motion. Petitioner described the grounds of his new trial motion as being the same as his pre-trial Marsden motion. Petitioner also raised new claims of ineffective assistance based on counsel's failure to discover a witness who would have provided a physical description of the shooter consistent with Toney's description as well as counsel's failure to impeach Appleby with his previous incarceration in an insane asylum.

Although the trial court did not conduct a Marsden hearing, it gave petitioner an adequate opportunity to set forth the grounds of the new trial motion. Based on the reasoning of the California Court of Appeal, the undersigned finds that the trial court's denial of the new trial motion was proper. First, trial counsel had already refuted most of petitioner's claims during the pre-trial Marsden hearing. Regarding Appleby's prior incarceration in a mental hospital, the California Court of Appeal observed that defense counsel had successfully moved to impeach Appleby with several prior convictions. Additional impeachment evidence of Appleby based on his previous incarceration in a mental hospital would not likely have changed the outcome of the case. In addition, as noted by the California Court of Appeal, it was "merely speculative information of marginal relevance and questionable admissibility." Regarding petitioner's claim that counsel failed to investigate a witness who would testify that the shooter had long hair, the California Court of Appeal noted that this evidence would have supported the People's case.

Because petitioners motion for a new trial was without merit, the trial court did not err in failing to hold a formal Marsden hearing where trial counsel could have addressed petitioner's new claims of ineffective assistance. The trial court was not required to conduct a Marsden hearing to determine whether new counsel should be appointed a criminal defendant in a new trial motion that it found meritless.

Moreover, the grounds of the new trial motion were the same as the grounds of petitioner's motion for substitute counsel. The trial court had already rejected the majority of these grounds in its previous order denying petitioner's Marsden motion discussed above. For the reasons stated by the California Court of Appeal, the record did not support the two new claims raised by petitioner in support of his motion for substitute counsel to represent him on his new trial motion. For these reasons, the trial court's inquiry into the grounds of petitioner's request for substitute counsel was adequate. The trial court's denial of petitioner's motion for substitute counsel was appropriate because petitioner did not present an adequate conflict with counsel.

The denial of this claim by the California Court of Appeal was not an unreasonable application of clearly established Supreme Court authority. Accordingly, this claim should be denied.

C. Claim Three: Trial Court Refused to Allow Petitioner to File Motions for New Trial

Procedural Default

Respondent argues that this claim is procedurally defaulted on the same grounds as claim one. Like claims one and two, claim three was raised on direct appeal where, for the reasons discussed above, it was denied on the merits by both the California Court of Appeal and California Supreme Court. (Respondent's Lodged Documents 2-4). For the reasons discussed above, respondent's argument that claim three is procedurally barred is without merit.

Analysis

Petitioner alleges that the trial court violated his constitutional rights by refusing to allow him to "go pro per" and proceed with two new trial motions. Petitioner is challenging the trial court's refusal to grant him a continuance to file his pro per motion for a new trial after it denied his motion for motion a new trial discussed in claim two above:

Court: Based on the applicable law, the Court denies your motion for a new trial. I also decline to appoint an attorney to represent you at this time. You obviously will have an opportunity to have a lawyer appointed to you free of charge for your appeal.

Petitioner: Okay. Since I don't have a motion--an attorney to file a new trial motion, I would like to go pro per and file my own motion.

Court: Well, you can go ahead and do that, sir, but I'm not going to delay judgment and sentence for that purpose. Based on what you indicated to this Court, I see no legal basis by which you have any chance of challenge--what you're seeking to challenge by way of a new trial motion.

On the other hand, you will have an opportunity through court-appointed attorney to appeal not only the sentence that will be imposed today, but everything and anything that occurred during the course of the trial or any other proceeding in your case.

Petitioner: Well, I would like to submit a writ of mandate to--for stay of sentence until appeal can be--could--your appeal ruling could be discussed or looked over with the district of the Court or something.

Court: That motion is denied. (RT at 227-28.)

The California Court of Appeal denied this claim for the reasons stated herein: Finally, defendant contends the trial court prejudicially erred in failing to grant his request to file a pro se motion for new trial. We find no error in the trial court's rulings.

After the trial court denied defendant's motion for a new trial and defendant's request for new counsel, defendant requested permission to file his own written motion for a new trial. The trial court replied: "Well, you can go ahead and do that, sir, but I'm not going to delay judgment and sentence for that purpose. Based on what you indicated to this Court, I see no legal basis by which you have any chance of challenge--what you're seeking to challenge by way of a new trial motion."

Thus, contrary to defendant's contention, the trial court did not deny defendant's request to file a pro se motion for new trial. Instead, after ruling on defendant's oral motion for new trial, the trial court simply declined to grant a continuance for the purpose of allowing defendant time to file a written motion of the same kind. Pursuant to section 1050, a continuance may be granted only upon a showing of good cause; whether a defendant has made a sufficient showing rests within the sound discretion of the trial judge. (People v. Howard (1992) 1 Cal.4th 1132, 1171.) The burden is on the defendant to establish an abuse of discretion. (People v. Rhines (1982) 131 Cal.App.3d 498, 506.)

Here, the only "good cause" defendant could offer was trial counsel's ineffective representation at trial, a point he failed to establish just moments before. Defendant failed to identify any facts that could possibly make a difference in the outcome, so as to warrant a continuance for him to prepare a written new trial motion. He thus has failed to show any abuse of discretion, error, or prejudice in the trial court's failure to grant a continuance. (Respondent's Lodged Document 2, pp. 12-14.)

As correctly observed by the California Court of Appeal, the trial court did not deny petitioner's request to file a pro se motion for new trial. Instead, the trial court denied petitioner's motion for a continuance to file this motion.

It is well-established that the decision to grant or deny a requested continuance lies within the broad discretion of the trial court, Ungar v. Sarafite, 376 U.S. 575, 589 (1964), and that the improper denial of a requested continuance warrants habeas relief only if there is a showing of actual prejudice to petitioner's defense resulting from the trial court's refusal to grant a continuance, Gallego v. McDaniel, 124 F.3d 1065, 1072 (9th Cir. 1997).

The trial court denied the request for a continuance because the grounds for this motion, as presented by petitioner, were without merit. Under these circumstances, it cannot be said that the trial court abused its discretion in denying petitioner's request for a continuance to file his motion for a new trial.

The denial of this claim by the California Court of Appeal was not an unreasonable application of clearly established Supreme Court authority. Accordingly, this claim should be denied.

D. Claim Four: Trial Court Improperly Responded to Jury Inquiry Regarding Jury Instructions

Procedural Bar

Respondent argues that claim four is procedurally barred because the California Supreme Court denied the petition raising this claim by order citing In re Dixon. (Respondent's Lodged Document 13.)

Federal courts may reach the merits of habeas petitions despite an asserted procedural bar so long as they are clearly not meritorious. Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002), citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997). Because the instant claim is without merit, the undersigned will not reach the procedural bar issue.

Because no state court has considered the merits of this claim, the undersigned conducts a de novo review. Nulph v. Cook, 333 F.2d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

Analysis

Petitioner argues that the trial court improperly responded to the following question submitted by the jury during deliberations: "What is the legal difference between malice aforethought and premeditation?" (CT at 190.) The trial court responded,

"Malice," express or implied relates to the element of intent, that is an intent to kill. See Jury Instruction number 8.11. "Premeditation" relates to the nature and extent of reflection required to constitute premeditation and deliberation for first degree murder. See Jury Instruction number 8.20.

(CT at 194.)

Petitioner argues that the trial court's response to the jury's inquiry was "ambiguous, inadequate, improper and misleading." Petitioner argues that the trial court's response failed to distinguish between malice aforethought and premeditation.

Where the initial instruction accurately states applicable law, as petitioner does not dispute, it is not error to refer the jury to the original instructions. Arizona v. Johnson, 351 F.3d 988, 993-94 (9th Cir. 2003). Thus, there can be no prejudicial error for the failure to provide additional guidance. See Beardslee v. Woodford, 358 F.3d 560, 575 (9th Cir. 2004). In responding to the jury's question, the trial judge responded with a brief explanation of each concept then referred to the jury instructions in which they were defined. There was nothing improper about this response. For these reasons, the instant claim is without merit and should be denied.

E. Claim Five: Sentencing Error

Procedural Default Respondent argues that claim five is procedurally barred because the California Supreme Court denied the petition raising this claim by order citing In re Dixon, 41 Cal.2d 756 (1953). (Respondent's Lodged Document 13.)

Federal courts may reach the merits of habeas petitions despite an asserted procedural bar so long as they are clearly not meritorious. Franklin v. Johnson, 290 F.3d 1223, 1232 (9lth Cir. 2002), citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997). Because the instant claim is without merit, the undersigned will not reach the procedural bar issue.

Because no state court has considered the merits of this claim, the undersigned conducts a de novo review. Nulph v. Cook, 333 F.2d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

Analysis

Petitioner alleges that the trial court improperly sentenced him to a 25 year consecutive sentence pursuant to California Penal Code § 12022.53. This section provides, in relevant part,

Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.

Cal. Penal Code § 12022.53(d).

Petitioner was convicted of second degree murder, which is specified in subdivision (a) of § 12022.53. The jury also found that petitioner used and discharged a firearm in the commission of the offense within the meaning of § 12022.53. (RT at 218.)

Petitioner appears to argue that his consecutive sentences violate California Penal Code § 654 which precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Federal courts must defer to the state courts' interpretation of state sentencing laws. See Bueno v. Hallahan, 988 F.2d 86, 88 (9th Cir. 1993). "Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief." Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994).

In People v. Palacios, 41 Cal.4th 720, 723 (2007), the California Supreme Court held the sentence enhancement provisions of § 12022.53 are not subject to the multiple punishment prohibition of § 654. Accordingly, petitioner's claim that his sentence violates § 654 is without merit.

Petitioner also suggests that the trial court abused its discretion in sentencing him to 25 years to life pursuant to § 12022.53. Petitioner's suggestion that the trial court abused its discretion in imposing this sentence is without merit because this section required the trial court to impose this sentence.

Finally, petitioner may also be arguing that his sentence pursuant to § 12022.53 was improper because it was not based on a jury finding. In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490. However, the jury specifically found that petitioner used the firearm within the meaning of § 12022.53. (RT at 218.) Petitioner's Apprendi claim is without merit.

For the reasons discussed above, this claim should be denied.

F. Claim Six: Jury Instruction Error

Procedural Bar Respondent argues that claim six is procedurally barred because it was denied by the California Supreme Court by order citing In re Dixon, 41 Cal.2d 756 (1953.) (Respondent's Lodged Document 13.) Respondent also argues that this claim is barred because the Superior Court denied it on procedural grounds as well. (Respondent's Exhibit 11.)

Because the claim is without merit, the undersigned will not reach the procedural bar issue. Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002), citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997).

The Sacramento County Superior Court went on to address the merits of this claim. (Respondent's Lodged Document 11.) Accordingly, the undersigned considers whether the denial of this claim by the Superior Court was an unreasonable application of clearly established Supreme Court authority.

Legal Standard

A challenge to jury instructions does not generally state a federal constitutional claim. See Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983); see also Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985). Habeas corpus is unavailable for alleged error in the interpretation or application of state law. Estelle v. McGuire, 502 U.S. 62 (1981); see also Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 1987); Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir. 1986). The standard of review for a federal habeas court "is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States (citations omitted)." Estelle v. McGuire, 502 U.S. at 68. In order for error in the state trial proceedings to reach the level of a due process violation, the error had to be one involving "fundamental fairness." Id. at 73. The Supreme Court has defined the category of infractions that violate fundamental fairness very narrowly. Id.

Where what is at issue is the failure to give an instruction, petitioner's burden is "especially heavy" because it has been held that "[a]n omission or an incomplete instruction is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 155. (1977). Moreover, a trial judge need not instruct on a defense which would be inconsistent with petitioner's theory of the case. Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir. 1984). Failure to give a jury instruction under these circumstances will not amount to a due process violation. Id.

Furthermore, the Supreme Court has held that there is no unreasonable application of federal law where a state appellate court decided that a jury instruction's single incorrect statement of the "imperfect self-defense" standard did not render the instruction reasonably likely to have misled the jury. Middleton v. McNeil, 541 U.S. 433 (2004).

Analysis

Petitioner argues that the trial court failed to instruct the jury sua sponte on involuntary manslaughter.

In 1980, the Supreme Court held that a defendant in a capital murder case has a constitutional right to have the jury instructed on a lesser included offense, Beck v. Alabama, 447 U.S. 625, 638 (1980), but specifically reserved judgment on whether the Due Process Clause requires such an instruction in a non-capital case. Id. at 638 n.7. Accordingly, the failure to give the involuntary manslaughter instruction did not violate clearly established Supreme Court authority. Solis v. Garcia, 219 F.3d 922, 928-29 (9th Cir. 2000).

Moreover, the evidence did not support an involuntary manslaughter instruction. Under California law, involuntary manslaughter is defined as an unlawful killing without malice aforethought "in the commission of an unlawful act, not amounting to [a] felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (Cal. Penal Code § 192 (b)). Petitioner's shooting of the victim did not constitute an unlawful act not amounting to a felony or a lawful act. Had the jury been given the involuntary manslaughter instruction, it is highly unlikely that they would have found him guilty of this lesser offense.

The trial court's failure to sua sponte give the involuntary manslaughter instruction did not violate fundamental fairness. After conducting an AEDPA review, the undersigned recommends that this claim be denied.

G. Claim Seven: Trial Court Admitting T-Shirt Evidence

Procedural Bar Respondent argues that claim seven is procedurally defaulted. Respondent contends that petitioner raised this claim in his habeas petition filed in the California Supreme Court, which the California Supreme denied by order citing In re Robbins, 18 Cal.4th 770, 780 (1998), In re Clark, 5 Cal.4th 750 (1993), and In re Swain, 34 Cal.2d 300, 304 (1949).

(Respondent's Lodged Document 14.)

Because the claim is without merit, the undersigned will not reach the procedural bar issue. Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002), citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997).

Because no state court has considered the merits of this claim, the undersigned conducts a de novo review. Nulph v. Cook, 333 F.2d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

Analysis

During his direct examination of witness Costello, the prosecutor asked about a t-shirt found on his car. Petitioner's trial counsel then objected, after which the trial court instructed the jury that it could consider Costello's testimony regarding the t-shirt only as it related to his credibility:

Prosecutor: Is part of the reason you didn't or you're reluctant to testify because of your family involvement and the places that they live in the same general area?

Costello: Well, my sister still lives in that home.

Prosecutor: And did you get some kind of an item left on your car the last few weeks that you think may or may not be a threat so that would give you concern?

Petitioner's Counsel: Judge, I'm going to object. Can we approach?

Court: Yeah. (Discussion held at bench.)

Court: Ladies and gentlemen, you're going to hear some evidence very shortly concerning something that was left on this witness' vehicle. You are to consider that evidence only as it relates to this witness' credibility in testifying here in this proceeding. You're not to use it for any other purpose, only to indicate his credibility as a witness.

Please proceed, Mr. Smith.

Prosecutor: Did you have occasion to find something on your car that caused you some concern recently?

Costello: Yeah.

Prosecutor: And when did this happen?

Costello: One day when I stopped to cash my check at a check cashing place.

Prosecutor: Was it days ago? Weeks ago? Or months?

Costello: Oh, maybe three weeks to a month.

Prosecutor: And tell us about the circumstances of what you found.

Costello: I found a white t-shirt thrown on the hood of my car with red stains in the chest area.

Prosecutor: Any did any thoughts cross your mind about your having to testify in this case and that left on your car?

Costello: Yeah. Thoughts ran across my mind. (RT at 143-44.)

Petitioner argues that admission of the t-shirt evidence violated his right to due process because the jury did not get to see the t-shirt, it lowered the prosecution's burden of proof because the defense had not heard of this evidence, and the court's instruction that it was relevant only regarding Costello's credibility did not cure any inference of consciousness of guilt or an intent to intimidate a witness.

Petitioner is raising two claims. First, petitioner appears to argue that admission of the t-shirt violated state law. Second, petitioner appears to be raising a claim pursuant to Brady v. Maryland, 373 U.S. 83 (1963). The undersigned will address petitioner's state law error claim first.

The Supreme Court has reiterated the standards of review for a federal habeas court. Estelle v. McGuire, 502 U.S. 62 (1991). In Estelle v. McGuire, the Supreme Court reversed the decision of the Court of Appeals for the Ninth Circuit, which had granted federal habeas relief. The Court held that the Ninth Circuit erred in concluding that the evidence was incorrectly admitted under state law because, "it is not the province of a federal habeas court to re-examine state court determinations on state law questions." Id. at 67-68. The Court reemphasized that "federal habeas corpus relief does not lie for error in state law." Id. at 67, citing Lewis v. Jeffers, 497 U.S. 764 (1990), and Pulley v. Harris, 465 U.S. 37, 41 (1984) (federal courts may not grant habeas relief where the sole ground presented involves a perceived error of state law, unless such error is so egregious as to amount to a violation of the Due Process or Equal Protection clauses of the Fourteenth Amendment).

The Supreme Court further noted that the standard of review for a federal habeas court "is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States (citations omitted)." Id. at 68. The Court also stated that in order for error in the state trial proceedings to reach the level of a due process violation, the error had to be one involving "fundamental fairness," Id. at 73, and that "we 'have defined the category of infractions that violate "fundamental fairness" very narrowly.'" Id. at 73. Habeas review does not lie in a claim that the state court erroneously allowed or excluded particular evidence according to state evidentiary rules. Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991).

The prosecutor asked Costello about the t-shirt in an attempt to explain his reluctance to testify. Appleby had testified that after he saw the stolen car, he told Costello about it. (RT at 61.) At that time, Costello was in his own driveway. (RT at 61.) Appleby testified that he then saw Costello go across the street and get petitioner. (Id.) Appleby then saw petitioner and Costello walk down the street toward the stolen car. (RT at 62.) He then saw them come running back up the street. (Id.) Petitioner then went to his car and Costello went back to his house. (RT at 63.) Petitioner got a rifle out of his car. (Id.) Appleby saw the stolen car come down the street and stop in front of Costello's house. (RT at 65.) Petitioner then walked up to the vehicle and shot the gun at it. (RT at 65-66.) Appleby testified that Costello buried the shell casings in his yard. (RT at 73-74.)

At trial, Costello denied that Appleby came up to him and told him that petitioner's stolen car was coming down the street. (RT at 142.) Costello denied going across the street and talking to petitioner and pointing out the stolen car. (Id.) Costello also denied going down the street to look at the stolen car. (RT at 143.) Costello testified that prior to hearing shots, he did not see anybody with a gun. (RT at 144.) Costello testified that he did not see defendant in the street after the shooting. (RT at 145.) Costello denied burying the shell casings in his yard. (RT at 146.)

While the t-shirt evidence was prejudicial to petitioner, it was relevant to explaining Costello's reluctance to testify. The trial court did not err in allowing the prosecutor to ask Costello, in essence, whether he felt intimidated by the t-shirt. The trial court also properly instructed the jury that they could only consider this evidence as it related to Costello's credibility. Juries are presumed to follow instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000) (juries are presumed to follow instructions). For these reasons, admission of the t-shirt evidence did not violate fundamental fairness.

Petitioner also suggests that the prosecutor's failure to disclose the t-shirt evidence before trial violated Brady v. Maryland, 375 U.S. 83 (1963). In Brady, the Supreme Court held that due process requires a prosecutor to produce to a criminal defendant any evidence, material either to guilt or punishment, that is favorable to the accused. 373 U.S. at 87-88. This obligation extends to impeachment evidence and to evidence that was not requested by the defense. United States v. Bagley, 473 U.S. 667, 676, 682 (1985). Petitioner's Brady claim fails because the t-shirt evidence was not exculpatory.

For the reasons discussed above, petitioner's Brady claim and claim challenging admission of the t-shirt evidence are without merit. Accordingly, these claims should be denied.

H. Claims Eight through Eleven: Prosecutorial Misconduct

Procedural Default Respondent argues that claims eight through eleven are procedurally defaulted.

Respondent contends that petitioner raised these claims in his habeas petition filed in the California Supreme Court, which the California Supreme denied by order citing In re Robbins, 18 Cal.4th 770, 780 (1998), In re Clark, 5 Cal.4th 750 (1993), and In re Swain, 34 Cal.2d 300, 304 (1949). (Respondent's Lodged Document 14.)

Because these claims are without merit, the undersigned will not reach the procedural bar issue. Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002), citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997).

Because no state court has considered the merits of these claims, the undersigned conducts a de novo review. Nulph v. Cook, 333 F.2d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

Claim Nine

In claim nine, petitioner alleges that the prosecutor violated due process by failing to disclose the t-shirt evidence, discussed in claim seven, to the defense. In the discussion of claim seven, the undersigned addressed claim nine which alleged a Brady violation. For the reasons discussed above, claim nine is without merit and should be denied.

Claim Eight

In claim eight, petitioner argues that the prosecutor's closing argument regarding Appleby's identification of him by his hair constituted misconduct.

A criminal defendant's due process rights are violated if prosecutorial misconduct renders a trial fundamentally unfair. Drayden v. White, 232 F.3d 704, 713 (9th Cir. 2000) (quoting Darden v. Wainwright, 477 U.S. 168, 183 (1986)). "[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982). Thus, the federal habeas court must distinguish between "ordinary trial error of a prosecutor and that sort of egregious misconduct... amount[ing] to a denial of constitutional due process." Donnelly v. DeChristoforo, 416 U.S. 637, 647-48 (1974).

In order to determine whether a prosecutor engaged in misconduct, it is necessary to examine the entire proceedings and place the prosecutor's remarks in context. See United States v. Robinson, 485 U.S. 25, 33 (1988) ("[P]rosecutorial comment must be examined in context...."). Relief on such claims is limited to cases in which the petitioner can establish that prosecutorial misconduct resulted in actual prejudice. See Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995) (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)); see also Darden, 477 U.S. at 181-83. In this vein, prosecutorial misconduct violates due process when it has a substantial and injurious effect or influence in determining the jury's verdict. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996).

During arguments, the prosecutor has wide latitude, including the freedom to argue reasonable inferences based on the evidence. Menendez v. Terhune, 422 F.3d 1012, 1037 (9th Cir. 2005). "Counsel are given latitude in the presentation of their closing arguments, and courts must allow the prosecution to strike hard blows based on the evidence presented and all reasonable inferences therefrom." Ceja v. Stewart, 97 F.3d 1246, 1253-54 (9th Cir. 1996).

Claim eight concerns the prosecutor's argument regarding Appleby's identification of petitioner:

So at that time she's [Michelle Toney] obviously focusing on the gun. She's glancing at him. She's probably looking--figuring out possible escape things, patterns, whether she should jump out of the car, duck down, things of that nature. And as she indicated to you, as he came closer, she did, in fact, duck down in the fetal position. And what she could tell you is he was an Afrian American, you know, approximate height, weight, and that he had what she believed to be dreadlocks or some kind of curls coming down.

And as I showed you on the big screen, his March photograph, as you'll get to see, he does have some braids that are dangling down. Now, that was about all she could tell you about the shooter. So, clearly based on her testimony alone, you can't convict Free Smith, but you can take the evidence, one witness at a time. You have to put all the witnesses and put them all together.

You add to this Scott Appleby. Now, he's a friend of the Defendant's. And as the Defendant told Detective Osborne during his interview himself, I don't know why someone would say I was on Odea Street that afternoon, I don't have a problem with anybody on Odea Street. You have heard absolutely no evidence of any kind of rift or problem between the two of them. The clear inference from that is there is no reason, whatsoever, that you have before you that Scott Appleby would come in and testify against his business partner and say he's the actual shooter. You've heard no evidence to the contrary as any kind of possible reason why he would do that other than it's simply the truth. Now, Mr. Mayorga will probably stand up here and tell you, well, you know, there was some slight difference in description where Mr. Appleby said the hair on the defendant was short and kinky at that time. But if you listen clearly to how that cross-examination went, Mr. Appleby said, I don't know what his hair looked like. He always had a hat on. He always wore a hat. I don't know if he had braids or not.

Until Mr. Mayorga said, well, didn't you tell detectives he had short, kinky hair at that time? He says, yeah, I guess that's what I said. Now, the sense that I got from that--you may disagree, but the sense I got is Mr. Appleby didn't care what kind of hair Mr. Free Smith had. He always had a hat on. Never paid attention. When he was pressed by detectives to come up with a description, I think of African American, short, kinky hair flashed in his mind. That's what they have. That's what he has. He didn't think long enough or even care enough, and the person always had a hat on.

But, you know, that's such a small point, it doesn't really matter in this case because he knows who Free Smith is. He's worked with him for months. So we don't need to get caught up in, you know, what little dreadlocks or curls coming down versus short, kinky hair because that's really not the issue. You combine that with the fact that he's--Mr. Appleby has him at the scene, places him there. You have another friend Nick Costello who places the Defendant at the scene. Combine that with the defendant's statement to Detective Osborne who says I was not on Odea Street that day, I was with my girlfriend.

Now, you have a complete lie to detectives about the very time and manner--very time and day of this crime where he's asked about being there, and he flat out lies to them.

(RT at 183-85.)

In claim eight, petitioner contends that the prosecutor's speculation regarding why Appleby stated that petitioner had short, kinky hair constituted misconduct. Petitioner argues that these "stereotypical comments" were prejudicial and lowered the prosecution's burden of proof. Petitioner argues that the argument conveyed to the jury that it did not matter what kind of hair petitioner had.

This argument was not misconduct. The undersigned agrees with respondent that the at-issue comments did not carry improper racial overtones or imply that the identification was racially motivated. Rather, the prosecutor sought to explain Appleby's thought process when he described petitioner's hair. This claim of prosecutorial misconduct is without merit.

Claim Ten

In claim ten, petitioner argues that the prosecutor committed misconduct by commenting on petitioner's failure to call defense witnesses:

Now, you have a complete lie to detectives about the very time and manner--very time and day of this crime where he's asked about being there, and he flat out lies to them. We know he's there because, not just one, but two of his friends say he was there. Now, if he was somewhere else such as with his girlfriend as he says so, and his two friends are actually lying, the defense has an opportunity to call witnesses such as his girlfriend. She did not testify in this case.

T-Max was a person that was mentioned that was with him. T-Max could have come in here and said I never saw him out there or, I was there, and he wasn't the shooter. You never heard from T-Max. These are logical witnesses that, if they had something to the alternative to say, something to clear him, you would expect them to come in and say that, T-Max being a friend of his, and clear his girlfriend--whatever her name is. Those are two people that you expect to be here if they had something alternatively to say.

(RT at 185.)

The Fifth Amendment precludes a prosecutor from commenting on a defendant's failure to testify. Griffin v. California, 380 U.S. 609, 615 (1965). The Ninth Circuit has recognized that "[t]he test to determine the existence of a Griffin violation is 'whether the language used was manifestly intended or was of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify.'" United States v. Mende, 43 F.3d 1298, 1301 (9th Cir. 1995) (quoting United States v. Fleishman, 684 F.2d 1329, 1343 (9th Cir. 1982)); see Beardslee v. Woodford, 358 F.3d 560, 586 (9th Cir. 2004) (stating same test for Griffin error in context of habeas review)). Under this standard, "'a prosecutor may properly comment upon the defendant's failure to present exculpatory evidence, as long as it is not phrased to call attention to defendant's own failure to testify.'" United States v. Lopez-Alvarez, 970 F.2d 583, 595-96 (9th Cir. 1992) (quoting United States v. Bagley, 772 F.2d 482, 494-95 (9th Cir. 1985); see United States v. Mayans, 17 F.3d 1174, 1185 (9th Cir. 1994) ("Thus courts have maintained a distinction between comments about the lack of explanation provided by the defense, and comments about the lack of explanation furnished by the defendant." ); see also Lincoln v. Sunn, 807 F.2d 805, 810 (9th Cir. 1987) ("Courts have distinguished between those cases in which the defendant is the sole witness who could possibly offer evidence on a particular issue, and those cases in which the information is available from other defense witnesses as well.").

The prosecutor's comments regarding the defense's failure to call petitioner's girlfriend and T-Max did not rise to Griffin error. These comments were not phrased so as to comment on defendant's failure to testify. These comments were addressed to the lack of explanation by the defense. For these reasons, this claim has no merit and should be denied.

Claim Eleven

In claim eleven, petitioner alleges that the prosecutor committed misconduct by arguing that it did not matter who picked up and buried the shell casings:

Then you have the added factor that the gun shells were collected apparently by Nick Costello; although he says it's Scott Appleby. So, you know, I don't think it really matters which one of them did it; although I think it's more believable that Mr. Appleby is the one who saw Costello collect them because he seems to be a more up front guy, coming up and telling you the truth, where Costello is changing his story from being at the house at the time of the shooting to being in the garage, being anywhere other than seeing his friend do it because he doesn't want to come out and say that.

But those shells that were used in the shooting were found in Nick Costello's--friend of the defendant's--front yard. Now, whether it's Appleby or Costello, the fact is one of those two friends of the Defendants picked up those shells and buried them. And they did it because at the spur of the moment time, they're trying to cover up for him and do him a favor.

(RT at 188-89.)

Petitioner is suggesting that the prosecutor improperly vouched for Appleby's credibility. Prosecutorial argument which is referred to as "vouching" comprises a type of prosecutorial misconduct which "consists of placing the prestige of the government behind a witness through [a prosecutor's] personal assurances of the witness's veracity, or suggesting that information not presented to the jury supports the witness's testimony." U.S. v. Weatherspoon, 410 F.3d 1142, 1146 (9th Cir. 2005) (quoting United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993); see also, e.g., U.S. v. Young, 470 U.S. 1,11 (1985) (prosecutor engages in vouching where he or she "tell[s] the jury that the Government th[inks]... witnesses testified truthfully"). As the Supreme Court reasoned in Young:

The prosecutor's vouching for the credibility of witnesses and expressing his personal opinion concerning the guilt of the accused pose two dangers: such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence.

Young, 470 U.S. at 18-19 (holding that rebuttal argument stating that prosecutor believed defendant intended to commit charged fraud was improper expression of personal opinion); United States v. Combs, 379 F.3d 564, 574 (9th Cir. 2004) (prosecutor's argument that in order to acquit defendant jury had to believe that case agent would risk his job by lying on stand constituted impermissible vouching).

The prosecutor argued that Appleby was a more believable regarding who buried the casings because he seemed to be a more "up front guy," whereas Costello changed his story. This argument did not constitute improper witness vouching. Based on the evidence, the prosecutor properly argued which witness was more believable.

The prosecutor's argument that it did not matter who buried the casings was also not improper. Who buried the casings was not strongly probative of petitioner's guilt. Petitioner argues that evidence regarding who buried the casings was relevant to prove whether Costello or Appleby was an aider or abettor. However, neither Costello or Appleby were charged with aiding or abetting.

For the reasons discussed above, claim eleven is without merit.

I. Claims Twelve through Twenty-one: Ineffective Assistance of Counsel Procedural Default

Respondent argues that claims twelve through twenty-one are procedurally barred.

Respondent argues that claims twelve through sixteen and eighteen are barred because the California Supreme Court denied the petition raising these claims by order citing In re Dixon. (Respondent's Lodged Document 13.) Respondent argues that claims seventeen and nineteen through twenty-one are barred because the California Supreme denied these claims by order citing In re Robbins, 18 Cal.4th 770, 780 (1998), In re Clark, 5 Cal.4th 750 (1993), and In re Swain, 34 Cal.2d 300, 304 (1949). (Respondent's Lodged Document 14.)

Because these claims are without merit, the undersigned will not reach the procedural bar issue. Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002), citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997). Some of these claims were addressed on the merits by the Sacramento County Superior Court. Accordingly, the undersigned considers whether the denial of these claims by the Superior Court was an unreasonable application of clearly established Supreme Court authority. As for those ineffective assistance of counsel claims which no state court reviewed on the merits, the undersigned conducts a de novo review. Nulph v. Cook, 333 F.2d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

Legal Standard for Ineffective Assistance of Counsel Claims

The test for demonstrating ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Id. at 688. To this end, the petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. Id. at 690. The federal court must then determine whether in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance. Id. "We strongly presume that counsel's conduct was within the wide range of reasonable assistance, and that he 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).

Second, a petitioner must affirmatively prove prejudice. Strickland, 466 U.S. at 693. 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 the outcome." Id.

In extraordinary cases, ineffective assistance of counsel claims are evaluated based on a fundamental fairness standard. Williams v. Taylor, 529 U.S. 362, 391-93 (2000) (citing Lockhart v. Fretwell, 506 U.S. 364 (1993)).

The Supreme Court has emphasized the importance of giving deference to trial counsel's decisions, especially in the AEDPA context:

In Strickland we said that "[j]udicial scrutiny of a counsel's performance must be highly deferential" and that "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." 466 U.S. at 689. Thus, even when a court is presented with an ineffective-assistance claim not subject to § 2254(d)(1) deference, a [petitioner] must overcome the "presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Ibid. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. See Williams, supra, at 411.*fn4 Rather, he must show that the [ ]Court of Appeals applied Strickland to the facts of his case in an objectively unreasonable manner.

Bell v. Cone, 535 U.S. 685, 698-99 (2002).

Claim Twelve

In claim twelve, petitioner alleges that counsel was ineffective for failing to call experts to contradict the prosecutor's theory and autopsy findings. Petitioner argues that had counsel employed an expert criminalist or other expert to re-enact the incident, jurors would have learned the near exact location of the shooter and weapon. Petitioner argues that this evidence would have contradicted the prosecutor's theory of a walk-up close range shooting while the victim was sitting in the driver's seat. Petitioner also argues that trial counsel failed to adequately cross-examine the defense expert, Mark Super.

The Sacramento Superior Court rejected this claim for the reasons stated herein: In the first petition, Sacramento County Superior Court Case No. 06F10406, petitioner first claims that trial counsel was ineffective in Case No. 04F01798, in failing to adequately cross-examine the prosecution's expert witness, Mark Super or to employ a defense expert to contradict that witness, regarding the gunshot wound to the victim, to show that the shooting did not occur as portrayed by the prosecution as that of a close-range shooting. He also claims ineffective assistance of appellate counsel in failing to raise the claim on appeal.

Petitioner fails to attach any reasonably available documentary evidence, such as an affidavit, from either Mark Super or a defense expert, to show what testimony could have been but was not presented at trial that would have shown the possibility that the shooting was not at close range. Nor does petitioner show that any such testimony would have been reasonably likely to have made a difference in the outcome of the trial, especially in light of the testimony from eyewitnesses that the shooter, who was shown to be petitioner, had come right up to the window of the car and shot the victim at close range. As such, the claim fails and is denied (In re Bower (1985) 38 Cal.3d 865; In re Swain (1949) 34 Cal.2d 300; In re Harris (1993) 5 Cal.4th 813, 827 fn.5; Strickland v. Washington (1984) 466 U.S. 668.) (Respondent's Lodged Document 9.)

Petitioner has not provided any evidence that an expert would have testified that the shooting was not at close range. As such, petitioner has failed to establish prejudice with respect to this claim. See Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001) (speculation that a helpful expert could be found or would testify on petitioner's behalf insufficient to establish prejudice); Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001) (no ineffective assistance where petitioner did "nothing more than speculate that, if interviewed," a witness might have given helpful information). Petitioner's own speculation that an expert would have been able to offer this testimony is insufficient to demonstrate a colorable ineffective assistance of counsel claim.

While petitioner faults counsel for not adequately cross-examining Dr. Super, he does not identify any specific questions counsel could have asked Dr. Super that would have changed the outcome of the trial.

Finally, two witnesses testified that petitioner came right up to the window of the car and shot the victim at close range. One of these witnesses was Michelle Toney, a passenger in the car. Based on this eyewitness testimony, it is very unlikely that trial counsel could have found an expert to testify that the shooting did not occur as testified to by the eyewitnesses.

For the reasons discussed above, claim twelve is without merit. The denial of this claim by the Sacramento County Superior Court was not an unreasonable application of clearly established Supreme Court authority.

Claim Thirteen

In claim thirteen, petitioner alleges that counsel was ineffective for failing to investigate Appleby's psychiatric records and to impeach him with these records. Petitioner claims that he told his counsel that Appleby was legally insane.

As discussed above, on direct appeal, the California Court of Appeal found that the trial court properly denied petitioner's Marsden motion, one of the grounds of which was that trial counsel failed to present evidence that Appleby was insane. (Respondent's Lodged Document 2, pp. 9-11.) The California Court of Appeal found,

Appleby's numerous prior convictions were discussed prior to trial. Defense counsel made a successful motion in limine permitting impeachment of Appleby with several of those prior convictions. Defendant's accusation that counsel was ineffective for failing to purse Appleby's alleged incarceration in a mental facility did not make a colorable claim that counsel's performance was deficient. At best, it was merely speculative information of marginal relevance and questionable admissibility. (Id., p. 11.)

For the reasons stated by the California Court of Appeal, the undersigned finds that counsel's failure to attempt to impeach Appleby with evidence that he had once been incarcerated in a mental hospital was not ineffective assistance. Assuming that such evidence existed, it is not clear whether it would even have been admissible. It is not clear what type of mental illness Appleby suffered from and whether it impacted his credibility. For that reason, it is difficult to assess the issue of prejudice. However, because Appleby was impeached by his numerous convictions, it is not likely that evidence that he had once been incarcerated in a mental hospital would have changed the outcome of the trial.

In the rest of claim thirteen, petitioner alleges that trial counsel was ineffective for failing to present evidence suggesting that Appleby had a motive to fabricate because he was mad at petitioner. Petitioner alleges that as a result of counsel's ineffective assistance, the jury did not learn that: 1) Appleby had gotten petitioner's Chevy Suburban towed away; 2) a pistol found in the Suburban would have contradicted Appleby's testimony that he never had a gun; 3) Appleby had previously stated that petitioner paid him only one-third of what he owed him; 4) Appleby was not interested in the Suburban but in getting his tools, all of which actually belonged to petitioner.

In support of his claim that counsel failed to present evidence that Appleby was mad at him, petitioner cites Exhibit J attached to the petition. Exhibit J appears to be reports by someone at the Sacramento County Sheriff's Office of conversations with Harry Jones. These reports state that Jones told the reporting officer that Appleby had contacted him after the shooting and told him that he wanted his tools out of the Suburban, which was returned to Jones after petitioner's arrest because the vehicle was still in Jones's name. (Dkt. No. 43-3 at 77-78.) Appleby told him that he was not interested in the Suburban, but he wanted his tools out of it so that he could work. (Id. at 78.) The fact that Appleby wanted his tools back does not suggest a motive to lie. It is very unlikely that the outcome of the trial would have been different had the jury been made aware that Appleby tried to get his tools back after the shooting.

The report also states that Jones told the Sheriff's Office that "Appleby said he wasn't going to have partners anymore if things like this were going to happen. Appleby said Dell [petitioner] only paid him one-third of what he owed him on a job anyway." (Id.) At trial, Appleby testified that he and petitioner split everything 50-50. (RT at 77.) While Appleby may have believed that petitioner was "shorting" him, this did not necessarily create a motive to inculpate petitioner in a murder. It is very unlikely that the jury would have decided to disbelieve Appleby's testimony had they known that he believed that petitioner was not paying him all he was due.

Finally, Appleby also told Jones that the police found a pistol and drug paraphernalia in petitioner's car. (Id. at 79.) Petitioner apparently infers from this statement that the gun must have been Appleby's because Appleby was living in the car. However, other than Appleby's statement there is no evidence that a pistol was found in the Suburban after the incident.

Much of Appleby's testimony was corroborated by other witnesses. While Costello was clearly reluctant to testify against petitioner, he did not deny that petitioner was on Odea Drive just before the shooing. (RT at 140.) It is highly unlikely that the outcome of the trial would have been different had trial counsel sought to impeach Appleby's testimony with the evidence described above.

Claim Fourteen

In claim fourteen, petitioner alleges that counsel was ineffective for failing to call Anthony Woods, aka T-Mack as a witness. Petitioner alleges that trial counsel could have located Woods because he knew his license plate number. Petitioner contends that Woods would have testified that he saw Appleby pick up the shell casings. Petitioner also argues that Woods would have testified that he did not leave the scene with petitioner, as testified to by Appleby.

In support of claim fourteen, petitioner refers to Exhibit I attached to the petition which includes letters from Woods to his appellate counsel. In these letters, Woods states that Appleby is the one who picked up the shell casings. (Dkt. No. 43-2, p. 64.) He also states that "Mr. Smith was not around at the time." (Id., p. 62.) He also states that he, Woods, was not in the car with petitioner. (Id., p. 63.) He also suggests that Appleby was mad at petitioner: "Something happen to where Free found out about Scott ride me and mine old lady around when they was done working so Free didn't give Scott the key. So I guess Scott was mad at Free." (Id. at 65.)

The Sacramento County Superior Court*fn5 denied this claim for the reasons stated herein:

Petitioner does not demonstrate that trial counsel's choice was not a tactical one, as Woods could have invoked his Fifth Amendment rights and declined to testify, or might well have testified to the detriment of petitioner due to Woods's own involvement in the matter. Nor does petitioner demonstrate where Woods was located at the time of the trial and that trial counsel would have been able to discover Wood's location so as to be able to subpoena him to testify at trial. Regardless, even if Woods had been found and had testified that it was actually Appelby who had picked up the bullets, petitioner does not show that this would have been reasonably likely to have made any difference in the outcome of the trial. Woods appears to have been incarcerated at the time he wrote the letters, and reflects that in the letters, which lacked credibility. Further, Appelby's own statements about who picked up the casings were already shown to the jury to have been contradictory, and Woods would not have added much more to the impeachment of that part of Appelby's statements. Nor would it have made a difference in the strong evidence that petitioner had been the shooter and had shot the victim at close range. As such, the claim fails (Strickland, supra).

(Respondent's Lodged Document 9.)

The denial of this claim by the Superior Court was not an unreasonable application of clearly established Supreme Court authority. Petitioner claims that trial counsel could have located Woods because he knew his license plate number. However, petitioner has presented no evidence that Woods could actually be located through his license plate number alone. In addition, in his letters Woods admitted his reluctance to speak on petitioner's behalf ("I know I been acting like I didn't want to say nothing..." (Dkt. No. 43-2 at at 62 of 117.)). This suggests that Woods may not have been willing to testify at petitioner's trial.

In any event, for the reasons stated by the Superior Court, petitioner has not demonstrated that he was prejudiced by trial counsel's failure to call Woods as a witness. Had Woods testified that Appleby picked up the shell casings and buried them, it is not likely that the outcome of the trial would have been different. In addition, Woods's statement in his letter regarding why Appleby was mad at petitioner is very unclear and does not demonstrate a clear motive by Appleby to lie. In addition, Woods's statements suggest that he was present at the time of the shooting, which is consistent with Appleby's testimony. Woods did not deny that petitioner was the shooter. For these reasons, and because of the strong evidence that petitioner was the shooter, it is not likely that the outcome of the trial would have been different had trial counsel called Woods to testify.

For the reasons discussed above, claim fourteen should be denied.

Claim Fifteen In claim fifteen, petitioner alleges that trial counsel was ineffective for failing to call petitioner's girlfriend to testify in support of his alibi defense. As discussed above, petitioner's counsel addressed his investigation of petitioner's girlfriend and the alibi defense at the Marsden hearing:

Yes, Your Honor, and I have contacted what would have been a critical witness in this case, but that person totally destroyed any possible defenses that we may have had by utilizing that person. And he insisted that we--and when I say "we," I mean myself and my investigator--that we speak to that person, and we did. We spoke to that person at least three times that I'm aware of. And every time we spoke to that person, that person would not assist us in any manner that would, in fact, hurt our case even more. So besides that, that person we really had--have no other witnesses.

(Respondent's Lodged Document 16, volume II, p. 7.)

In support of the instant claim, petitioner has presented no evidence that his girlfriend was willing to testify that petitioner was with her at the time of the shooting. Petitioner has presented no evidence contradicting trial counsel's representation that his girlfriend apparently was unwilling to provide an alibi and would have actually "destroyed any possible defenses." For these reasons, petitioner has failed to demonstrate that counsel acted unreasonably in not calling his girlfriend as a witness or that he was prejudiced by his failure to do so. This claim should be denied.

Claim Sixteen

In claim sixteen, petitioner alleges that his counsel was ineffective for failing to call Harry and Judith Jones as defense witnesses. The Sacramento County Superior Court denied this claim for the reasons stated herein:

Petitioner next claims that trial counsel was ineffective in failing to call Harry and Judith Jones as witnesses for the defense at trial. He attaches Exhibit G in support, which are police reports summarizing Harry Jones's statements to police. In the statements, Harry told police that Appelby had called him and made numerous statements about the crime and Appleby seeing petitioner shoot the victim. Harry also stated that petitioner had bought the Suburban vehicle from Harry and had been making payments to Harry on it, that Harry received a call from a tow company that the Suburban had been towed and that it would take $400 from Harry, still the registered owner of it, to get it back, and that Harry got it back and it had no guns, ammunition, or drugs in it. Petitioner claims that this would contradict Appelby's testimony that Appelby bought the suburban.

Harry Jones's statement to police contain[s] nothing favorable to petitioner. Harry had no personal knowledge as to what petitioner did with the Suburban, once it was out of Harry's physical possession, nor did Harry have any personal knowledge as to what was in the Suburban at the time it was towed. Petitioner fails to show anything specific that Harry Jones, or Judith Jones, would have testified to that would have been reasonably likely to have made any difference in the outcome of the trial, requiring denial of this claim (Strickland, supra.)

(Respondent's Lodged Document 9.)

After reviewing Jones's statement to the police (see Dkt. No. 43-2, exhibit J), the undersigned agrees with the reasoning of the Superior Court. Jones's statements to the police were not favorable to petitioner. According to Jones, Appleby told him that petitioner shot the victim in the car. (Dkt. No. 43-2, p. 78 of 117.) Jones had no personal knowledge of the crime. Petitioner has not demonstrated that the testimony of either Harry or Judith Jones would have changed the outcome of the trial.

The denial of this claim by the Superior Court was not an unreasonable application of clearly established Supreme Court authority. Accordingly, this claim should be denied.

Claim Seventeen

In claim seventeen, petitioner alleges that counsel was ineffective for failing to object to the jury being instructed as to the heat of passion theory of voluntary manslaughter but not the imperfect self-defense theory of voluntary manslaughter. Petitioner argues that trial counsel should have argued for a defense of imperfect self-defense.

Petitioner's trial counsel argued for both instructions:

Court: Okay. Under which theory of voluntary manslaughter are you requesting such?

Counsel: Well, basically Judge, I think that on two theories. Basically, I think that given the circumstances of what may have transpired there out on Odea Street on the date in question, given the fact that my client had been angry about what had occurred supposedly to his automobile, um, and being told that one of the persons who may have been involved in the theft of his car that was present at the moment may have caused my client to suddenly develop a heat of passion in the moment and acted in the manner in which he did.

In addition, of course, I think that there is a possibility, given the facts of the case, that my client also may have acted in the--maybe unreasonable belief in the necessity to defend himself as the automobile of the victim came at him and swerved just before my client allegedly shot into the car as it passed. So--and maybe the second theory is the most logical one for which to give that voluntary manslaughter instruction. (RT at 177-78.)

The trial court agreed to give the heat of passion instruction but agreed with the prosecutor that there was no evidence to support an instruction for imperfect self-defense. (RT at 178-179.)

Under California law, even if a homicide defendant was unreasonable in fearing that the victim was going to inflict death or great bodily harm upon the defendant, the defendant is entitled to have the jury instructed on imperfect self-defense if there is substantial evidence the defendant acted in an honest but unreasonable fear that the victim was about to inflict death or great bodily injury on the defendant. See 1 Witkin & Epstein, Cal.Criminal Law, supra, § 77, pp. 411-12. Such a defense, if established, reduces murder to voluntary manslaughter by negating malice aforethought. People v. Flannel, 25 Cal.3d 668, 674 (1979).

"The subjective elements of self-defense and imperfect self-defense are identical. Under each theory, the appellant must actually believe in the need to defend himself against imminent peril to life or great bodily injury. To require instruction on either theory, there must be evidence from which the jury could find that appellant actually had such a belief." People v. Viramontes, 93 Cal.App.4th 1256, 1262 (2001).

In the instant case, there was no evidence presented that petitioner felt the need to defend himself against the victim. For that reason, counsel was not unreasonable in failing to press harder for the imperfect self-defense instruction.

Petitioner also suggests that counsel did not adequately argue the heat of passion defense during closing argument. Regarding heat of passion, the jury was instructed in part, "The heat of passion which will reduce a homicide to manslaughter must be such a passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same circumstances...." (CT at 173.) In his closing argument, trial counsel did not emphasize the heat of passion defense most likely because there was no evidence to support it. Counsel could not reasonably argue that a reasonable person, seeing their stolen car, would walk up and shoot the driver multiple times. Instead, counsel argued that Appleby could not be believed and that he was motivated to lie because he wanted to take over the car repair business from petitioner. (RT at 196-209.) Unfortunately for petitioner, there was no good defense to the charges.

Counsel argued the case as well as he could in light of the overwhelming evidence against petitioner. The instant claim of ineffective assistance of counsel is without merit and should be denied.

Claim Eighteen

In claim eighteen, petitioner alleges that trial counsel was ineffective for failing to present the defense that Appleby was an accessory.

The undersigned agrees with respondent that there was no evidence that Appleby was an accessory. That he may have picked up the bullet casings did not make him an aider and abettor. Moreover, whether Appleby was an aider and abettor was not relevant to whether petitioner committed the crime. A finding that Appleby aided and abetted petitioner was not a defense. Perhaps most important, an argument by counsel that Appleby aided and abetted petitioner would have undermined the defense that petitioner did not commit the crime. For these reasons, counsel acted reasonably in not arguing that Appleby acted as an accessory. This claim should be denied.

Claim Nineteen

In claim nineteen, petitioner alleges that trial counsel was ineffective for failing to present a viable defense. In support of this claim, petitioner argues that trial counsel was ineffective for failing to make an opening statement. Petitioner also argues that counsel's cross-examination of the prosecution's witnesses was minimal. Petitioner also faults counsel for presenting no defense witnesses including expert witnesses. Petitioner argues that counsel failed to adequately present the "third party" defense he requested and failed to investigate Appleby's mental problems.

The decision whether to make an opening statement is typically a strategic decision that cannot form the basis of an ineffective assistance claim. United States v. Rodriguez-Ramirez, 777 F.2d 454, 458 (9th Cir. 1985) ("The timing of an opening statement, and even the decision whether to make one at all, is ordinarily a mere matter of trial tactics and in such cases will not constitute the incompetence basis for a claim of ineffective assistance of counsel."). In any event, it is very unlikely that the outcome of the trial would have been different had counsel made an opening statement.

The undersigned has reviewed the record and finds that petitioner's counsel adequately cross-examined the prosecution's witnesses. Counsel's failure to present petitioner's third party, i.e. alibi defense, has been previously discussed. As noted above, there was no third party to blame. Moreover, petitioner's girlfriend apparently would not testify that petitioner was with her at the time of the shooting. Regarding counsel's failure to call any defense witnesses, as previously discussed, counsel strategically chose not to call any witnesses because all of them either hurt petitioner's defense or would not testify. Petitioner's claims that counsel was ineffective for failing to call expert witnesses and to investigate and present evidence of Appleby's mental health problems were addressed and rejected in a previous section of these findings and recommendations.

For these reasons, the instant claim of ineffective assistance of counsel is without merit. Accordingly, this claim should be denied.

Claim Twenty

In claim twenty, petitioner alleges that trial counsel was ineffective during sentencing. In particular, petitioner argues that counsel failed to present any character witnesses or any other mitigating evidence. Petitioner argues that Harry and Judith Jones could have testified as to his good character. Petitioner also argues that at the time of the present offense, he had been "felony free" since 1993. Petitioner also argues that he had had many jobs, started his own business and paid child support.

The probation report indicated that petitioner had numerous prior convictions. In 1992, petitioner was convicted of misdemeanor battery and resisting arrest. (CT at 211-12.) In 1993, petitioner was convicted of misdemeanor driving under the influence and carrying a loaded firearm. (CT 212.) In 1993, petitioner was convicted of felony battery on a custodial officer and robbery. (Id.) In 1998, petitioner was convicted of misdemeanor battery on a spouse. (Id.) In 2000, petitioner was convicted of misdemeanor battery. (CT at 213.)

At sentencing, the trial court commented, "Well, this Court has no doubt whatsoever that Mr. Free Odell Smith is the person that committed what has been the most senseless murder I have ever sat as a judge in. Absolutely no reason for this to have happened to Mr. Navarro." (RT at 232.) The court went on to sentence petitioner to 15 years to life for second degree murder and a consecutive 25 years to life pursuant to California Penal Code § 12022.53(d).

Based on the record described above, it is very unlikely that petitioner would have received a different sentence had trial counsel presented any of the mitigating evidence petitioner cites in his petition. Moreover, it is unclear what other sentence to which petitioner believes he would be entitled had counsel introduced the mitigating evidence. The trial court was required by law to sentence him to 25 years to life pursuant to California Penal Code § 12022. The sentence for second degree murder is 15 years to life. Cal. Penal Code §§ 187, 190. Petitioner clearly did not qualify for probation.

For the reasons discussed above, the instant claim of ineffective assistance of counsel is without merit and should be denied.

Claim Twenty-One

In claim twenty-one, petitioner alleges that trial counsel was ineffective for denying him his right to be present at all critical stages of the trial. In particular, petitioner argues that trial counsel waived petitioner's presence for an in-camera hearing regarding prosecution witness Costello. At this hearing, a lawyer was appointed to advise Costello regarding his testimony:

Court: One final matter, Mr. Mayorga. I understand you don't object to the Court placing on the record that Mr. Leonard has been appointed to advise witness Nick Costello in this matter. Mr. Leonard is in the courtroom. I'm going to ask that he remain during the course of Mr. Costello's testimony.

Petitioner's Counsel: I have no objections, Your Honor. I waive my client's presence--

Court: Okay. Thank you.

Petitioner's Counsel: --for that purpose. (RT at 130.)

Petitioner is arguing that his counsel should not have waived his presence at the hearing where the issue of counsel for witness Costello was discussed. Petitioner also argues that counsel was ineffective for not objecting to appointment of counsel for Costello and for counsel's presence during Costello's testimony.

Clearly established United States Supreme Court precedent provides that a defendant has the right to be present at any critical stage of a criminal proceeding if his presence would contribute to the fairness of the procedure. Campbell v. Rice, 408 F.3d 1166, 1171 (9th Cir. 2005) (citing Kentucky v. Stincer, 482 U.S. 730, 745 (1987)). However, the privilege of presence is not required when the "presence would be useless, or the benefit but a shadow." Stincer, 482 U.S. at 745. A defendant's right to be present is not absolute, but instead only required to the extent that fairness and justice would be thwarted by his absence. United States v. Gagnon, 470 U.S. 522, 526 (1985).

As observed by respondent, counsel for Costello was appointed in order to protect Costello's right against self-incrimination. An objection by counsel to appointment of counsel for Costello or for permitting counsel to remain in the courtroom during Costello's testimony would have been overruled. For these reasons, counsel was not ineffective for failing to object.

Regarding counsel's waiver of petitioner's right to be at the hearing, there was no reason for petitioner to be present for this mundane formality. Petitioner's presence would have been useless. For these reasons, counsel was not ineffective for waiving petitioner's presence at this hearing.

For the reasons discussed above, the instant ineffective assistance of counsel claim is without merit and should be denied.

J. Claims Twenty-Two, Twenty-Three, Twenty-Four: Ineffective Assistance of Appellate Counsel

Claim Twenty-Two

In claim twenty-two, petitioner alleges that appellate counsel was ineffective for failing to raise claims four through twenty-one on appeal. Respondent does not argue that this claim is procedurally barred. Accordingly, the undersigned considers whether the denial of this claim by the California Supreme Court was an unreasonable application of clearly established Supreme Court authority.

A claim of ineffective assistance of appellate counsel utilizes the same Strickland standard that is applied to trial counsel. Smith v. Robbins, 528 U.S. 259, 287 (2000). Appellate counsel is not required to raise every colorable or non-frivolous claim; effective appellate advocacy involves weeding out weaker claims in order to focus on stronger ones. Jones v. Barnes, 463 U.S. 745, 751-54 (1983); Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989).

As discussed above, claims four through twenty-one are without merit. For that reason, these claims would have been denied had appellate counsel raised them on appeal. Because petitioner has not demonstrated prejudice as a result of appellate counsel's failure to raise claims four through twenty-one on appeal, this claim is without merit and should be denied. The denial of this claim by the California Supreme Court was not an unreasonable application of clearly established Supreme Court authority.

Claim Twenty-Three

In claim twenty-three, petitioner alleges that appellate counsel was ineffective for misstating the facts in petitioner's opening brief. Respondent does not argue that this claim is procedurally barred. Accordingly, the undersigned considers whether the denial of this claim by the California Supreme Court was an unreasonable application of clearly established Supreme Court authority.

Petitioner argues that appellate counsel's statement in the opening brief that Costello had stored an SKS rifle previously for a few days at petitioner's request was prejudicial. Petitioner argues that such a statement does not exist in the record. In the statement of facts of opening brief, appellate counsel stated,

A few minutes later, Costello and appellant came running back. Whether T-Mack was with them was not stated. Costello went to his house, and appellant went to his El Camino. Appellant lifted up a pad in the back of the truck and removed a wrapped item. He unwrapped it and stood there. Costello saw that it was the SKS rifle that he previously had stored for a few days at appellant's request. Appleby did not know whether appellant regularly stored the rifle in the vehicle. (RT 62-64.) (Respondent's Lodged Document 1, p. 6.) (emphasis added.)

Appellate counsel mistakenly stated that Costello had previously stored the rifle, because it was Appleby who testified that he previously had the rifle. The portion of the transcript cited by appellate counsel above was from Appleby's testimony. The undersigned agrees with respondent that this error was easily decipherable. In addition, it is not likely that this error contributed to the California Court of Appeal's affirmance of the judgment. The California Court of Appeal did not rely on this error in its opinion.

Petitioner also objects to appellate counsel's argument that the trial court's characterization of the relationship between petitioner and his counsel as being a personality conflict was not on the record. Petitioner argues that this statement gave the wrong impression that it was appellate counsel's characterization of the relationship rather than the trial court's characterization.

In the opening brief, appellate counsel argued that the trial court's finding that petitioner and his counsel had a mere personality conflict was not supported by the record:

...This remark, in and of itself, signaled the existence of such breakdown in the attorney-client relationship that it should have generated an inquiry by the trial court as to whether defense counsel's ability and obligation to represent appellant was compromised. (People v. Bonin (1989) 47 Cal.3d 808, 836; cf. People v. Horton 91995) 11 Cal.4th 1068, 1106.) Instead, the trial court merely concluded that the discord was a "personality conflict" and "expected" defense counsel would continue to properly represent appellant in the case. (RT 16.)

The trial court's characterization of the relationship as a "personality conflict" is not borne out by the record. There is every indication that appellant made every effort to communicate with his attorney. He initially accepted the attorney's advice and representations and initially relied upon him to represent his interests. (RT 13, 15.) As appellant indicated, he placed his trust in his attorney. (RT 13, 15.) Over time, this trust and confidence was eroded by defense counsel's failure to respond to appellant and failure to provide him with meaningful explanations and approaches to the case. In short, the relationship deteriorated to a point beyond repair... (Respondent's Lodged Document 1, pp. 17-18.)

Appellate counsel argued that the record showed that the conflict between petitioner and his counsel involved more than a mere personality conflict and that the trial court erred in characterizing it as so. This argument does not constitute ineffective assistance of counsel.

The denial of the claims raised in claim twenty-three by the California Supreme Court was not an unreasonable application of clearly established Supreme Court authority. Accordingly, this claim should be denied.

Claim Twenty-Four

In claim twenty-four, petitioner argues that appellate counsel failed to notify petitioner of his rehearing date after the California Court of Appeal issued its opinion. Petitioner argues that he could not file his petition for rehearing because he did not receive adequate notice.

Respondent argues that this claim is barred because the Sacramento Superior Court denied this claim by order citing In re Robbins, 18 Cal.4th 770, 780 (1998), and In re Clark, 5 Cal.4th 750 (1993). (Respondent's Lodged Document 9.)

Because this claim is without merit, the undersigned will not reach the procedural bar issue. Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002), citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997). The Superior Court went on to address the merits of this claim. (Respondent's Lodged Document 9.) Accordingly, the undersigned considers whether the denial of this claim by the Superior Court was an unreasonable application of clearly established Supreme Court authority.

The Superior Court denied this claim for the reasons stated herein:

Regardless, petitioner attaches correspondence from appellate counsel dated May 17, 2006, which was five days after the Third District had issued its opinion affirming the judgment, advising petitioner of the requirement that the petition for rehearing be filed by May 27, 2006; further, petitioner admits receiving this letter from appellate counsel on May 23, 2006, nine days after the Third District had issued its opinion affirming the judgment and four days before the deadline. As such, petitioner still had time to timely deliver to prison authorities a petition for hearing to be mailed to the Third District, which would have met the requirement for a timely filing of such a petition with that rule (see In re Jordan (1992) 4 Cal.4th 116 (prison delivery rule)). Nor does petitioner specify what issue he was prevented from raising in his petition for review filed thereafter with the California Supreme Court, due to his failure to timely file a petition for rehearing. As such, the claim would fail in any event, even if it were not barred by Robbins/Clark (Bower, supra; Swain, supra).

(Respondent's Lodged Document 9.)

In the amended petition, petitioner argues that in the petition for review he would have raised appellate counsel's misstatement of the facts including the issues discussed in claim twenty-three above. For the reasons discussed above, the undersigned finds that had these matters been brought to the appellate court's attention in a petition for review, it is very unlikely that the petition for review would have been granted.

Petitioner also argues that he would have "beefed up" trial counsel's ineffectiveness, apparently in support of hisclaim that the trial court improperly denied his motion for substitute counsel. However, petitioner does not describe with any specificity how he would have "beefed up" this claim.

Petitioner also claims that he had newly discovered evidence, i.e. the discovery of Anthony Woods, whose statements he would have put in a petition for review. This claim could not have been raised on appeal because it involved consideration of matters outside the record on appeal. In re Carpenter, 9 Cal.4th 634, 646 (1995). Therefore, it would have been inappropriate for petitioner to have raised this claim in the petition for review.

The denial of this claim by the Superior Court was not an unreasonable application of clearly established Supreme Court authority. Accordingly, this claim should be denied.

Conclusion

For all of the above reasons, the undersigned recommends that petitioner's application for a writ of habeas corpus be denied. If petitioner files objections, he shall also address whether a certificate of appealability should issue and, if so, why and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(3).

Accordingly, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be denied.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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