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Joseph C. Wells v. Gary Swarthout

May 30, 2012


The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

MEMORANDUM DECISION and ORDER [Re: Motion at Docket No. 23]

Joseph C. Wells, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Wells is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Solano. Respondent has answered. Wells has replied.


In August 2005 a Solano County Superior Court jury convicted Wells of first-degree murder in violation of California Penal Code § 187 with enhancements for personal use of a firearm under California Penal Code §§ 12022.5(a)(1) and 12022.53(b)-(d). The Solano County Superior Court sentenced Wells to serve fifty years to life in state prison. On February 14, 2007, the California Court of Appeal, First District, affirmed the state-court judgment in an unpublished, reasoned decision, People v. Wells, 2007 WL 466963 (Cal. Ct. App. Feb. 14, 2007). The California Supreme Court denied Wells' petition for review on May 9, 2007.

The facts of Wells' case are unique and are therefore are repeated here as they are necessary to an understanding of this Court's decision. The California Court of Appeal summarized the facts supporting his conviction for murder as follows:

Evidence presented at trial demonstrated that sometime before December 2001, a woman who was living with defendant, Christina Jones, began dating another man, Michael Sinay. Over the course of a year, as Jones maintained relationships with both men, the men engaged in an escalating series of confrontations involving threats, violence, and property damage, most of which were initiated by defendant. As one example among several, in October 2002, defendant pursued a car driven by Sinay in a high speed chase through Vallejo, Sinay's hometown, eventually rear-ending the car. Soon after, Sinay drove with a friend, Michael Yokoi, to defendant's home in Richmond. Throwing rocks, they smashed the windows of defendant's vehicle.

On December 21, 2002, Sinay was driving with Yokoi in the latter's white truck when they spotted defendant's parked vehicle in Vallejo. Yokoi put his truck in reverse gear and backed into the car, denting it. In an interview with police a few days later, Jones, who had driven defendant's car to Vallejo, said defendant was aware that a white truck had caused the damage to his car. She also told police that defendant was so angry after the incident that she took her children to spend the night at her mother's house, rather than remain in the home she shared with defendant. That night, Sinay saw defendant drive by his home.

Two nights later, on December 23, Sinay, Yokoi, Fred Heley, and Sinay's brother, James, were in Sinay's garage, which doubled as a recreation room. Around 11:30 p.m., Yokoi, James, and Heley left the garage to go to Heley's house. Yokoi split off to go to his truck, which was parked across and up the street. James and Heley continued up the street and around the corner toward Heley's house. James heard a vehicle start. Then he heard gunshots behind him. The two ran back toward Sinay's house, where they found Yokoi lying in the driveway. As he ran up, James saw a black Ford Mustang drive away with its lights off.

Sinay's mother was wrapping Christmas gifts in a bedroom on the second floor when she heard the gunshots. She got up, looked out the window, and saw a man in the driveway firing a gun. He was wearing dark clothes and a beanie. She opened the bedroom door and began shouting. Sinay heard the gunshots while he was still in the garage. He grabbed a telephone to call 911 and, as he called, stood on a stool to see out the garage window. He saw a "hefty" man in dark clothes and a beanie walking away. The man got in a dark Mustang and drove away. Sinay noted that the car had license plates from "Nino's" dealership. In a transcript of the 911 call from Sinay, he identified defendant as the shooter. Yokoi died from six gunshot wounds.

The police investigation revealed that defendant had purchased a blue Mustang convertible from Nino's Motors in Vallejo in early December. Police located the Mustang five days later in Vallejo in the garage of one of defendant's sisters. Inside was a cell phone and a receipt from a Target store in Pinole, timestamped December 23 at 7:33 p.m. A contemporaneous surveillance tape from Target showed a man identified as defendant dressed in a black beanie, black shirt, and black pants.

A Sprint engineer, qualified as an expert witness, testified about the calls to and from defendant's cell phone that night. She stated that Sprint maintained cell phone receiving towers about one-half to one mile apart in urban areas and three to five miles apart in rural areas. In the vicinity of Vallejo and Richmond, a tower would typically be located within one-half to one mile, at most, of any caller. Because Sprint records the location of the tower receiving and routing each call, the caller's location at the time of a call can be estimated in urban areas with an accuracy of between one-half and one and one-half miles. Judging from the pattern of received and outgoing calls, the engineer determined that defendant's cell phone was located in Richmond at 10:35 p.m. on the night of December 23; on or near Cummings Skyway in Crockett, a highway between Richmond and Vallejo, at 11:02 p.m.; in Vallejo at 11:17 p.m.; and back in Richmond by 12:20 a.m. the next day.

The Carquinez Bridge is a toll bridge located on U.S. Interstate 80, a direct route between Richmond and Vallejo. At the time of the shooting, the bridge had 11 manned toll lanes, with a camera located behind each toll-taker. In addition, there were two wide-angle cameras covering, between them, all toll lanes. The bridge also had one FasTrak lane, No. 7. Vehicles passing through this lane were not required to stop, and it had no individual camera. The wide-angle camera was therefore the only photographic record of vehicles passing through lane No. 7. The individual cameras were located above the toll collector, pointing toward the door of the toll booth. As a result, the view provided by the camera was variable. As a California Department of Transportation (Caltrans) employee testified, "Sometimes you can get a very good view. If you have [a] large collector, you won't get much of a view of the person in the vehicle. If our tape is any good, you might get a good picture. If our tape is bad, you won't get anything." Caltrans's practice was to reuse the videotapes from these cameras every three to six weeks. The video quality from the cameras was described as "inconsistent," with images deteriorating as the videotapes aged through reuse.

Vallejo police detective Joseph Iacono obtained and viewed the videotapes made at the Carquinez Bridge during the hour-long period prior to Sinay's call to 911 on December 23. Iacono retrieved 13 tapes, 9 of which, he was told, covered all of the lanes individually except one, and 4 of which were wide-angle views. He described the images as "fair." Asked whether he had a "clear view" of the passing cars, he responded, "Sometimes yes. Sometimes no. Some cars are easier to make out than others." In a review of the tapes lasting several days, Iacono failed to find a blue Mustang with Nino's dealer plates passing through the toll booths. When he was finished, Iacono returned the tapes to Caltrans without making a copy of them.

Nearly a year later, a second detective, Stephen Darden, attempted to reacquire the videotapes, but by then some had been reused. Darden ultimately obtained only the wide-angle views. He spent several days reviewing the tapes he was able to get, focusing on cars passing at approximately 11:00 p.m. on the night of the shooting. Again, defendant's Mustang was not located. Darden testified that he saw one Mustang, but on closer inspection, using enhancing technology borrowed from the sheriff's office, the vehicle turned out not to be defendant's.

One of defendant's sisters testified that she borrowed defendant's cell phone on the night of the shooting. She drove from her home in Vallejo to Richmond about 9:00 p.m. to pick up the cell phone and borrow money from defendant to finish her Christmas shopping. After picking up the cell phone, she drove back to Vallejo, where she shopped, using the cell phone periodically. She returned to Richmond shortly before midnight. Defendant's sister reviewed the available wide-angle videotapes from the Carquinez Bridge taken that evening. Although she saw cars that might have been hers crossing the bridge that night, she was unable to determine with certainty whether her car was on the tapes.

The failure of the police to maintain copies of the Carquinez Bridge videotapes had become an issue earlier in defendant's prosecution. Defendant had become aware that the tapes were largely unavailable after making a discovery request in October 2003. He subsequently sought and obtained an order from the trial court dismissing the charges against him as a result of the failure of the police to maintain exculpatory evidence. This court reversed that dismissal, concluding in an nonpublished opinion that the police officers' testimony about their failure to locate defendant's car on the videotapes constituted "'comparable evidence'" to the lost tapes and that there was insufficient evidence to support defendant's claim that the officers had acted in bad faith in failing to maintain the evidence.

After the presentation of evidence about the videotapes at trial, the court asked counsel to approach the bench, and a discussion was held off the record. Following the discussion, defense counsel asked in the presence of the jury to make a motion. Granted permission, counsel made a speaking motion to dismiss the case on the ground that the videotapes had not been preserved. The trial court responded by asking whether "this [is] the motion that's already been decided by the Court of Appeal[ ]?" After defense counsel responded affirmatively, the court said again, "You may make your motion." Defense counsel then explained the basis for her motion in some detail, arguing that the videotapes would have exculpated defendant by demonstrating that he did not cross the bridge and that the testimony of the detectives was not comparable to the tapes.

After defense counsel finished, she was reprimanded by the trial judge, who said, "You had asked to bring this motion when you approached the bench a moment ago. The Court had advised that we would not entertain the motion at this time and told [you to] call your next witness. Despite that you brought the motion up in front of the jury. The Court is entertaining it at this time. Is that an accurate statement of the ... at-bench conference?" Defense counsel responded, "It is, your Honor. I just wanted to make the record. I thought your Honor would say we would put it over, but when asked numerous questions, I then now made my record." The prosecutor was permitted brief counter-argument, during which she made the point that "[a]s the Court of Appeal found in this case, there was no violation." The court then denied defendant's motion.

After the jury was dismissed for the day, the court returned to the topic of the motion to dismiss, asking defense counsel why she had made the motion in contravention of the court's direction during the bench conference. Counsel apologized, explaining that she believed she was required to make the motion on the record and had anticipated that the court would defer argument. Although the prosecutor objected vehemently to defense counsel's conduct, she sought no particular sanction, and the court deferred the matter. After extensive later discussion, the court instructed the jury over defense objection as follows: "Last Friday, on July 29th, 2005, you were present while the Court heard and denied a defense motion to dismiss this case based on the return of the VHS videotapes to Caltrans by Detective Iacono. [¶] The Court of Appeal[ ] in San Francisco has reviewed the conduct of Detective Iacono and found that there was no evidence that he acted in bad faith and that the return of the tapes to Caltrans did not violate [defendant's] right to due process under the law. This legal issue was decided by the Court of Appeal[ ] on January 26th, 2005. Thus, that legal issue is not before you for consideration. So that is my admonition to you."

The prosecutor did not address the bridge videotape evidence in her opening argument. Defense counsel, however, argued to the jury that the evidence was undisputed that the detective did not see a Mustang on the tapes. During rebuttal argument, the prosecutor, over defense objection, turned to this topic, arguing: "The bridge tapes, that's a lot of drama about nothing. Corporal Iacono testified to you he did not see [defendant's] car cross the bridge. He also testified to you that he viewed a couple thousand cars. You know, that would be like trying to find a needle in a haystack. The reasonable inference from that testimony is that he merely missed it.... [¶] ... [¶] Corporal Iacono told you that the in-booth tapes that the defense has talked about, not good quality. He couldn't see the driver's faces. Couldn't see the cars ."

The trial court denied defense counsel's motion for leave to deliver a surrebuttal to respond to this argument, but the court-with the consent of defense counsel and over prosecution objection-agreed to give an instruction addressing the issue. As delivered immediately prior to the formal jury instructions, the court's special instruction summarized in very general terms the evidence regarding the acquisition, review, and reuse of the bridge videotapes, noting that the witnesses "described the quality of the videotapes generally, among other things" and that Iacono had not seen a Mustang. The court noted that counsel had addressed the evidence about the videotapes in argument and then stated: "For example, [the prosecutor] argued that Detective Iacono must have missed it; that it's like looking for a needle in a haystack. [¶] The attorneys are allowed to make reasonable inferences from the evidence. What the attorneys say is not evidence.... You consider the arguments of the attorneys, but the actual testimony and the evidence is that which came from the witnesses."

Defendant was convicted, and the enhancements were found to be true. The court imposed a sentence of 50 years to life.

Wells, 2007 WL 466963, at *1-5 (footnotes omitted) (citations omitted).

In April 2008 Wells filed a state-habeas petition in the Solano County Superior Court. Doc. No. 1 at 2,10. The state court held an evidentiary hearing on Wells' ineffective assistance of trial counsel claim, but on June 29, 2009, the trial court denied the petition in an unpublished, reasoned decision. In re Wells, No. FCR253794 (Cal. Super. Ct. Jun. 29, 2009); Doc. No. 1 at 177-179; Ex. 18 at 1-3. Wells' appeal to the California Court of Appeal was summarily denied on December 17, 2009, and the California Supreme Court also summarily denied his petition on November 10, 2010. Wells timely filed his Petition to this Court on December 3, 2010.


In his Petition to this Court, Wells raises three grounds for relief, including: (1) ineffective assistance of trial counsel because defense counsel failed to call two alibi witnesses and four eyewitnesses; (2) prosecutorial misconduct and instructional error by the trial court, as well as several other errors by the trial count, all of which Well's claims amounts to a violation of due process; and (3) the combined errors by the prosecution and trial court cumulatively violated Wells' right to a fair trial.

Wells' second ground contains six claims, including: (a) prosecutorial misconduct because the prosecutor urged the jury to infer that the detective did not see Well's car cross the bridge on the tapes simply because he merely missed it due to the video's poor quality and the number of cars that crossed the bridge on the tape; (b) that the trial court erred by giving a curative instruction in response to defense counsels objection to the prosecution's argument on rebuttal regarding the lost bridge tapes; (c) that the trial court erred by instructing the jury (i) that the Court of Appeal had already ruled that there was no evidence that the detectives who viewed the bridge tapes that went missing acted in bad faith, (ii) that the return of the tapes that went missing did not violate Well's due process rights, and (iii) that the legal issue therefore was not before the jury because the court of appeal already decided it; (d) that the trial court erred by not allowing defense counsel's request for surrebuttal following the prosecution's statement during rebuttal concerning the lost bridge tapes; (e) that the trial court erred by refusing to give the jury an instruction, CALJIC 2.28, on discovery; and (f) that the trial court erred by denying defense counsel's request for a Kelly hearing to determine the scientific reliability of the expert testimony presented concerning the use of Wells' cell phone records to pinpoint the location of his cell phone at the time the calls were made.

Respondent contends that subpart (b) of Wells' second ground-his challenge to the trial court's curative instruction given to the jury in response to the defense counsel's objection to the prosecutor's argument on rebuttal-is procedurally barred on adequate and independent state grounds. Respondent also claims that subpart (e) of Wells' second ground-his challenge to the trial court's refusal to give CALJIC 2.28-is procedurally barred on adequate and independent state grounds. Respondent does not raise any other affirmative defense. See Rules Governing Section 2254 Cases in the U.S. Dist. Courts, Rule 5(b) (2011) ("The answer must . . . state whether any claim in the petition is barred by a failure to exhaust state remedies, a procedural bar, non-retroactivity, or a statute of limitations.").


The standard of review governing federal habeas petitions is contained in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), which applies to all federal habeas petitions filed after the statute's enactment in April 1996. See Lindh v. Murphy, 521 U.S. 320, 326 (1997) (noting that Congress's intent was for AEDPA to apply to cases that were filed after the statute's enactment). Because Wells filed his Petition after the effective date of the statute, its provisions apply to his case.

Under AEDPA, this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2).

A state-court decision is "contrary" to federal law "if the state court applies a rule that contradicts the governing law set forth" in controlling, Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The Supreme Court has noted that "[a]voiding these pitfalls does not require citation of our cases-indeed, it does not even require awareness of our cases, 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).

When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be "objectively unreasonable," not just "incorrect or erroneous." Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (citing Williams, 529 U.S. at 409-10, 412). The Supreme Court has made clear that the "objectively unreasonable" standard is "a substantially higher threshold" than simply believing that the state-court determination was incorrect. Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). "AEDPA thus imposes a highly deferential standard for evaluating state-court rulings, and demands that state-court decisions be given the benefit of the doubt." Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (citations omitted) (internal quotation marks omitted). "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642, 643 (1974)). In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a "substantial and injurious effect" or influence in determining the outcome. Fry v. Pliler, 551 U.S. 112, 121 (2007). Because "[s]tate court judgments of conviction and sentence carry a presumption of finality and legality," the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief. Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002).

The Supreme Court recently underscored the magnitude of the deference required: As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011) (emphasis added).

The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision." Williams, 529 U.S. at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. Early, 537 U.S. at 10. Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (alterations in original) (citation omitted); see also Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam) (stating that when no Supreme Court case gives a "clear answer to the question presented," then the state-court decision cannot be contrary to or an unreasonable application of clearly established federal law); Kessee v. Mendoza-Powers, 574 F.3d 675, 678-79 (9th Cir. 2009). Accordingly, "it is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established" by the Supreme Court. Knowles v. Mirzayance, 556 U.S. 111, 122 (2009).

In applying these standards in habeas review, this Court reviews the "last reasoned decision" by the state court. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). State appellate court decisions that summarily affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court. See Richter, 131 S. Ct. at 784("As every Court of Appealsto consider the issue has recognized, determining whether a states court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning."); Ylst v. Nunnemaker, 501 U.S. 797, 802-03 (1991) ("Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground."). This Court gives the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court. See Richter, 131 S. Ct. at 784-85 (rejecting the argument that a summary disposition was not entitled to § 2254(d) deference).

Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) ("Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary . . . ." (citing 28 U.S.C. § 2254(e)(1))). This presumption applies to state-trial courts and appellate courts alike. See Stevenson v. Lewis, 384 F.3d 1069, 1072 (9th Cir. 2004) ("Stevenson does not address these factual findings, let alone challenge them with clear and convincing evidence. Accordingly, we presume them to be correct." (citing 28 U.S.C. § 2254(e)(1); Pollard v. Galaza, 290 F.3d 1030, 1035 (9th Cir. 2002))).

A state court is not required to give reasons before its decision can be deemed to be "adjudicated on the merits." Richter, 131 S. Ct. at 784-85 (2011). When there is no reasoned state-court decision denying an issue presented to the state, "it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state law procedural principles to the contrary." Id. (citing Harris v. Reed, 489 U.S. 255, 265 (1989)). However, "[t]he presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst, 501 U.S. at 803). Where the presumption applies, this Court must perform an independent review of the record to ascertain whether the state-court decision was "objectively unreasonable." Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (quoting Pham v. Terhune, 400 F.3d 740, 742 (9th Cir. 2005) (per curiam)). In conducting an independent review of the record, this Court presumes that the relevant state-court decision rested on federal grounds. See Coleman v. Thompson, 501 U.S. 722, 740 (1991) ("The presumption at present applies only when it fairly appears that a state court judgment rested primarily on federal law or was interwoven with federal law, that is, in those cases where a federal court has good reason to question whether there is an independent and adequate state ground for the decision."); see also Harris, 489 U.S. at 263.

Moreover, this Court gives that presumed decision the same deference as a reasoned decision. Richter, 131 S. Ct. at 784-85, The scope of this review is for clear error of the state court ruling on the petition:

[A]lthough we cannot undertake our review by analyzing the basis for the state court's decision, we can view it through the "objectively reasonable" lens ground by Williams. . . . Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law. Only by that examination may we determine whether the state court's decision was objectively reasonable.

Delgado v. Lewis (Delgado II), 223 F.3d 976, 982 (9th Cir. 2000).

"[A]lthough we independently review the record, we still defer to the state court's ultimate decision." Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).


A. Motion at Docket No. 23

On May 7, 2012, Wells filed a Motion for Appointment of Counsel at Docket No. 23.

There is no constitutional right to counsel in federal habeas proceedings. See Lawrence v. Florida, 549 U.S. 327, 336-37 (2007) (citing Coleman, 501 U.S. at 756-57). Appointment of counsel is not required in a habeas corpus proceeding in the absence of an order granting discovery or an evidentiary hearing. Rules Governing Section 2254 Cases in the U.S. Dist. Courts, Rules 6(a), 8(c) (2011). This Court may appoint counsel under the Criminal Justice Act in this case if the Court determines that the interests of justice so require. 28 U.S.C. § 2254(h); 18 U.S.C. § 3006A(a)(2)(B); see Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) ("In deciding whether to appoint counsel in a habeas proceeding, the district court must evaluate the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved."). This Court does not so determine. Additionally, because all the pleadings are completed in this case, appointment of counsel at this stage is unnecessary. Accordingly, Wells' request for the appointment of counsel at Docket No. 23 will be denied.

B. Procedural Bar

Federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman, 501 U.S. at 729. This Court may not reach the merits of procedurally defaulted claims, that is, claims "in which the petitioner failed to follow applicable state procedural rules in raising the claims . . . ." Sawyer v. Whitley, 505 U.S. 333, 338 (1992). Procedural default does not preclude federal habeas review unless the last state court rendering judgment in a case clearly and expressly states that its judgment rests on a state procedural bar. Teague v. Lane, 489 U.S. 288, 298-99 (1989) (citing Harris, 489 U.S. at 262- 63). "[I]n order to constitute adequate and independent grounds sufficient to support a finding of procedural default, a state rule must be clear, consistently applied, and well established at the time of the petitioner's purported default." Morales v. Calderon, 85 F.3d 1387, 1393 (9th Cir. 1996) (internal quotation marks omitted); see also Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000) ("For a state procedural rule to be 'independent,' the state law ground for decision must not be 'interwoven with federal law.'" (citing Michigan v. Long, 463 U.S. 1032, 1040-41 (1983); Harris, 489 U.S. at 265)). The fact that the state court also ruled on the merits in the alternative does not vitiate a procedural bar defense. Comer v. Schriro, 480 F.3d 960, 964 n.6 (9th Cir. 2007) (citing Harris,489 U.S. at 264 n.10).

In California, a claim of instructional error is waived on appeal unless a timely objection is made. See People v. Davis, 115 P.3d 417, 445 (Cal. 2005) ("Here, however, defendant's counsel failed to object to the prosecutor's statement. Review on appeal is therefore barred . . . ."); People v. Cunningham, 25 P.3d 519, 560 (Cal. 2001) ("Defendant's failure to assert a timely objection results in a waiver of the issue." (citing Cal. Evid. Code. § 353)). California's contemporaneous objection rule is "clear, consistently applied, and well-established" where, as here, a party fails to make a proper objection to the admission of evidence. Melendez v. Pliler, 288 F.3d 1120, 1124-25 (9th Cir. 2002) (holding that the district court erred finding that Meledez's claim under the Sixth Amendment was procedurally defaulted because the record showed that defense counsel had indeed objected). The rule is well established under California Evidence Code § 353 and the Ninth Circuit has stated that California's contemporaneous objection rule is a valid procedural bar. Rich v. Calderon, 187 F.3d 1064 (9th Cir. 1999) ("We may not review his six other prosecutorial misconduct claims because Rich procedurally defaulted by failing to make contemporaneous objections, and the California court consequently invoked a procedural bar to their consideration, the validity of which Rich has failed to overcome." (citing Harris, 489 U.S. 255; Coleman, 501 U.S. 722)). Moreover, the California rule is entirely consistent with federal law as established by the United States Supreme Court, which also requires that an objection state the specific ground or grounds on which it is based. Fed. R. Evid. 103(a)(1); see Yakus v. United States, 321 U.S. 414, 444 (1944) ("No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it."); Peretz v. United States, 501 U.S. 923, 936-37 (1991) (cases cited therein).

Although the ultimate burden of proving adequacy of a state procedural bar is on the Respondent, once Respondent has "adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner." Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003). To prove a fundamental miscarriage of justice, Wells must show that a constitutional violation probably resulted in his conviction despite his actual innocence. See Schlup v. Delo, 513 U.S. 298, 321-25 (1995) (linking miscarriages of justice to actual innocence); United States v. Olano, 507 U.S. 725, 736 (1993) ("In our collateral-review jurisprudence, the term 'miscarriage of justice' means that the defendant is actually innocent."); Murray v. Carrier, 477 U.S. 478, 496 (1986) ("In an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default."). Although at the gateway stage Wells does not need to establish his innocence as an "absolute certainty," he must demonstrate that it is more likely than not that no reasonable juror could find him guilty beyond a reasonable doubt. House v. Bell, 547 U.S. 518, 538 (2006). The Ninth Circuit stated: If a petitioner has procedurally defaulted on a claim, a federal court may nonetheless consider the claim if he shows: (1) good cause for his failure to exhaust the claim; and (2) prejudice from the purported constitutional violation; or (3) demonstrates that not hearing the claim would result in a "fundamental miscarriage of justice." Coleman, 501 U.S. at 750, 111 S.Ct. 2546; Sawyer v. Whitley, 505 U.S. 333, 339--40, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). An objective factor outside of a petitioner's control (e.g., ineffective assistance of counsel or a basis for the claim that was previously unavailable) could constitute cause. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). The petitioner can meet the ...

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