FINDINGS AND RECOMMENDATIONS
Petitioner, Francisco Javier Carranza, is a state prisoner proceeding pro se witha petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a determinate term of forty-five years imprisonment following his convictions by jury trial in the Sacramento County Superior Court, Case No. 02F08252, for nine counts of second degree robbery. The jury found true penalty enhancements pursuant to section 12022.53 of the California Penal Code for use of a firearm with respect to four of the second degree robbery counts. The jury also found true a penalty enhancement pursuant to section 667(a) of the California Penal Code for a previous felony conviction. With this petition, Petitioner challenges the constitutionality of his convictions. Upon careful consideration of the record and applicable law, it is recommended that this petition for writ of habeas corpus relief be denied.
Petitioner alleges four grounds for relief in his pending petition. Specifically, Petitioner's claims are verbatim as follows:
(1) Prosecutorial misconduct rendered trial [sic] fundamentally unfair. Prosecutor committed misconduct when she asked defendant about his alledged [sic] confession to uncharged bank robberies . . .
(2) Prosecutorial misconduct. Prosecutor verbally pushed defendant to call FBI Agent a liar durring [sic] cross examination then vouched for agents [sic] credibility during closing.
(3) The cumulative effect of misconduct and improper vouching violated due process even if individual instances of misconduct did not.
(4) Trial court erred in dennying [sic] defendant's Marsden motion even after attorney declared a conflict.
Petitioner's first three claims all allege that the prosecutor committed prejudicial misconduct in varying ways during Petitioner's trial, and will be examined together in subsection (A). Subsection (B) will address Petitioner's fourth and final claim that the trial court erred in denying his Marsden motion to substitute counsel.
The basic facts of Petitioner's crimes were summarized in the partially published opinion*fn2 of the California Court of Appeals, Third Appellate District, as follows:
From June 2002 to September 2002, defendant committed five robberies of Bank of America branches in Sacramento.
Defendant was interviewed by Agents Brian Alvarez and Minerva Shelton of the Federal Bureau of Investigation (FBI) at the end of September 2002. According to Agent Alvarez, he read defendant his "Miranda rights," and defendant said he understood them. During the interview, defendant gave the agents details about the Sacramento robberies. The agents showed defendant still photographs taken from surveillance video of the robberies and defendant initialed the back of them.
Defendant testified at trial that it was the FBI agents who provided the details of the robberies to him during the interview. He admitted committing the Sacramento robberies only because Agent Alvarez promised to release his cousin and friends from custody if he did so. (Lodged Doc. 4 at 2).
Following a jury trial, Petitioner was found guilty of committing five bank robberies involving nine victims. The jury found true a penalty enhancement for personal use of a firearm in one of the robberies involving four of the victims. The jury also found true a penalty enhancement for a prior felony conviction that qualified as a strike under California's Three Strikes law. Accordingly, Petitioner was sentenced to a determinate term of forty-five years imprisonment.
Petitioner timely appealed his convictions to the California Court of Appeal, Third Appellate District. The appellate court affirmed his convictions in a reasoned opinion on July 9, 2007. Petitioner then sought review of his convictions in the California Supreme Court. That petition was denied without comment on November 24, 2007. Petitioner filed this federal petition for writ of habeas corpus on October 20, 2008. Respondent filed an answer on November 16, 2009. Petitioner did not file a traverse.
V. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). Although "AEDPA does not require a federal habeas court to adopt any one methodology," Lockyer v. Andrade, 538 U.S. 63, 71 (2003), there are certain principles which guide its application.
First, AEDPA establishes a "highly deferential standard for evaluating state-court rulings." Woodford v. Visciotti, 537 U.S. 19, 24 (2002). Accordingly, when determining whether the law applied to a particular claim by a state court was contrary to or an unreasonable application of "clearly established federal law," a federal court must review the last reasoned state court decision. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004); Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Provided that the state court adjudicated the petitioner's claims on the merits, its decision is entitled to deference, no matter how brief. Lockyer, 538 U.S. at 76; Downs v. Hoyt, 232 F.3d 1031, 1035 (9th Cir. 2000). Conversely, when it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, AEDPA's deferential standard does not apply and a federal court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
Second, "AEDPA's, 'clearly established Federal law' requirement limits the area of law on which a habeas court may rely to those constitutional principles enunciated in U.S. Supreme Court decisions." Robinson, 360 F.3d at 155-56 (citing Williams, 529 U.S. at 381). In other words, "clearly established Federal law" will be " the governing legal principle or principles set forth by [the U.S. Supreme] Court at the time a state court renders its decision." Lockyer, 538 U.S. at 64. It is appropriate, however, to examine lower court decisions when determining what law has been "clearly established" by the Supreme Court and the reasonableness of a particular application of that law. See Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 2000).
Third, the "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meanings." Bell v. Cone, 535 U.S. 685, 694 (2002). Under the "contrary to" clause, a federal court may grant a writ of habeas corpus only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides the case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams, 529 U.S. at 405. It is not necessary for the state court to cite or even to be aware of the controlling federal authorities "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002). Moreover, a state court opinion need not contain "a formulary statement" of federal law, but the fair import of its conclusion must be consistent with federal law. Id.
Under the "unreasonable application" clause, the court may grant relief "if the state court correctly identifies the governing legal principle...but unreasonably applies it to the facts of the particular case." Bell, 535 U.S. at 694. As the Supreme Court has emphasized, a 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." Williams, 529 U.S. at 410. Thus, the focus is on "whether the state court's application of clearly established federal law is objectively unreasonable." Bell, 535 U.S. at 694 (emphasis added).
Finally, the petitioner bears the burden of demonstrating that the state court's decision was either contrary to or an unreasonable application of federal law. Woodford, 537 U.S. at 24 ; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996).
A. Prosecutorial Misconduct
In three separate but related grounds for relief, Petitioner claims that the prosecutor committed prejudicial misconduct during his trial. Specifically, Petitioner claims that the prosecutor
(1) improperly cross-examined him regarding his alleged confessions to uncharged Seattle bank robberies after agreeing, pursuant to a defense motion in limine, to exclude all reference to those robberies; (2) "pushed" him to testify that a witness was lying and then improperly vouched for that witness' credibility during closing statements; and (3) that the cumulative effect of the prosecutor's misconduct violated his due process rights. The California Court of Appeal, Third Appellate District, summarized the background of Petitioner's three prosecutorial misconduct claims as follows:
Before trial, defense counsel moved to "exclude any reference" to "prior bank robberies in Seattle" committed by defendant. When the court asked for the prosecutor's response, she stated, "I will admonish the witnesses." The court responded, "All right. Thank you."
The questioning about which defendant complains occurred during defendant's cross-examination after he had just testified that he confessed to the charged robberies in exchange for a promise by Agent Alvarez that he would release his friends and cousin from custody, and that Alvarez was the one who provided him with the details about the charged robberies. After this testimony, the prosecutor and defendant had the following exchange:
"[THE PROSECUTOR:] You gave [Agent Alvarez] information about Seattle, right?
"[THE DEFENDANT:] Yeah. I told him where I was living; that kind of stuff.
"[THE PROSECUTOR:] Did you ever go into detail about Seattle robberies you committed?
"DEFENSE COUNSEL: Objection. I would object.
Relevance. We have had in limines about this.
"THE DEFENDANT: Did that mean I answer?
"THE DEFENDANT: He told me about the Seattle robberies on Fourth Avenue and attempted robbery and that was all included in the thing he wanted me to sign.
"[THE PROSECUTOR]: So when he says that you try to begin the conversation that he had with you by going into detail about these three Seattle robberies he's mistaken?
"[THE DEFENDANT:] He is lying.
"[THE PROSECUTOR:] He is lying. [¶] So you know nothing about these three Seattle robberies that you confessed to?
"[THE DEFENDANT:] I did not confess to anything. I just put my signature on what he asked me to put it on so he would let my friends and cousin go.
"[THE PROSECUTOR:] And so my question was is that your ...