The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner, George Randall Wilson, is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. At the time he filed his petition, Petitioner was pro se. He has since retained counsel. Petitioner is currently serving an indeterminate sentence of 40 years to life in prison after a jury convicted him of two counts of assault with a deadly weapon (a knife and a lamp) and one count of corporal injury upon a spouse. The jury deadlocked on one count of attempted murder. Petitioner raises four claims in this federal habeas petition; specifically: (1) Petitioner's appellate counsel was ineffective for failing to raise certain claims on appeal, specifically the claims raised in this petition ("Claim I");
(2) he is actually innocent of the crime or the evidence adduced at trial was insufficient to support a conviction ("Claim II"); (3) his trial counsel provided ineffective assistance of counsel by failing to introduce evidence relating to the victim's mental state at the time of the crime and failing to call certain witnesses ("Claim III"); and, (4) the prosecution failed to disclose evidence favorable to the defense ("Claim IV"). For the reasons stated herein, the federal habeas petition should be denied.
I. FACTUAL AND PROCEDURAL BACKGROUND*fn1
In January 2004, the victim planned to separate from defendant, her husband. One evening in late January 2004, the victim went to bed alone. In the night, defendant entered the victim's room and stabbed her with a knife. The victim yelled for help. She was bleeding a lot. Defendant then hit her with a lamp and the victim yelled, "that's enough, that's enough." Defendant retorted, "no, you deserve it." As defendant ran down the stairs, he said, " 'I'm sorry. Dang it. Why did I do this,' " and left the house. The victim's daughter called 911.
The victim sustained a laceration on her left inner forearm which penetrated to the muscle and appeared to have been inflicted by a sharp object, such as a knife. She also sustained about an inch deep laceration to her abdomen through the fat under the skin, through the anterior fascia of the abdominal wall, which also appeared to have been inflicted with a sharp object. No broken glass or other foreign objects were found in the wounds.
The victim told paramedics that she had been stabbed while she was asleep. The victim told a police officer that defendant stabbed her while she was sleeping and that he used a knife. At the hospital, the victim told doctors and nurses, " 'He stabbed me, he stabbed me.' " The victim told one of her sons that defendant had stabbed her. At the preliminary hearing, the victim admitted telling officers that defendant had stabbed her with a knife.
In July 2006, two and a half years later, defendant was arrested. The victim visited him 25 times at the jail.
At trial, the victim told a different story, claiming she had a fight with defendant during which she hit him in the back with a lamp, the light bulb broke, and she was cut.
Defendant did not testify, and he called no witnesses to testify on his behalf.
After Petitioner's conviction, he directly appealed to the California Court of Appeal, Third Appellate District. In his direct appeal, Petitioner did not raise any of the claims that he raises in this habeas petition. Petitioner's third claim in this petition, that his trial counsel was ineffective, was initially raised in a motion for a new trial in the trial court. See Clerk's Tr. at 350. That motion was denied in a reasoned oral opinion by the trial court. See Rep.'s Tr. at 965-73. The remaining claims were raised in Petitioner's petition for habeas corpus in the California Supreme Court, which was summarily denied. See Order Denying Petition, California Supreme Court (lodged with the court).
III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. § 2254(d); Perry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000).
In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). "When it is clear, however, that the state court has not decided an issue, we review that question de novo." Reynoso v.Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S. 374, 377 (2005)).
IV. ANALYSIS OF PETITIONER'S CLAIMS 1. Claim II*fn2
In Claim II, Petitioner asserts that he is either actually innocent of the crime or that the evidence adduced at trial was insufficient to support a conviction. The trial in this case centered around which version of events the jury chose to believe. Initially, the victim claimed that she had been stabbed by the Petitioner. She told this to her daughter, the police, the paramedics who transported her to the hospital, and the doctors and nurses who attended to her wounds. However, several years later at trial, after visiting Petitioner in prison twenty-five times, the victim recanted this version of the events and instead claimed that she was the aggressor and that she had hit Petitioner with a lamp and that her wounds were the result of a struggle over the lamp. See, e.g., Rep.'s Tr. at 88-89. Petitioner's actual innocence and insufficiency of the evidence claims rest upon the second version the events being true. Petitioner claims that several declarations of potential defense witnesses, which were filed in state court, prove that he is innocent of the crime.
To the extent Petitioner claims that he is actually innocent, he lacks the clearly established federal law, as determined by the Supreme Court, to support his position. See 28 U.S.C. § 2254(d)(2). "Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceedings." Herrera v. Collins, 506 U.S. 390, 401 (1993); see also House v. Bell, 547 U.S. 518, 555 (2006); District Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 129 S.Ct. 2308, 2321-22 (2009) ("Whether such a federal right [to be released upon proof of actual innocence] exists is an open question. We have struggled with it over the years, in some cases assuming, arguendo, that it exists while also noting the difficult questions such a right would pose and the high standard any claimant would have to meet."); cf. In re Davis, 557 U.S. __, 130 S.Ct. 1 (2009). Petitioner's actual innocence claim lacks the foundation to support relief under AEDPA. See Carey v. Musladin, 549 U.S. 70, 77 (2006).
Even if a claim of actual innocence based upon new evidence would support the issuance of a writ under AEDPA, Petitioner's additional evidence does not prove that he is innocent. A habeas petitioner asserting a freestanding claim of actual innocence must make a "stronger showing than [the] insufficiency of the evidence to convict" showing adopted by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319 (1979). Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997). The required showing must go "beyond demonstrating doubt about [the petitioner's] guilt, and must affirmatively prove that he is probably innocent." Id. (citation omitted). Post conviction evidence serving only to "undercut the evidence presented at trial" does not suffice to meet this standard. Id. at 477; see also Spivey v. Rocha, 194 F.3d 971, 979 (9th Cir. 1999) (habeas relief unavailable where "the totality of the new evidence does not undermine the structure of the prosecution's case"); Swan v. Peterson, 6 F.3d 1373, 1384-85 (9th Cir. 1993) (newly-discovered evidence warrants habeas relief only when it bears on the constitutionality of the conviction and probably would produce an acquittal) (citations omitted).
Petitioner's purported "new evidence" does not meet this high standard. Petitioner's additional evidence consists of: (1) a declaration by a nurse practitioner who saw the victim's wounds at some point after she was released from the hospital and concluded that they were not stab wounds; (2) a declaration by Petitioner's mother who knew the victim at the time of the incident and believed she was "not in her right mind"' (3) a declaration from the victim's daughter describing the victim's behavior near the time of the crime as "erratic" and that she had recently been released from a mental heath institution; and, (4) juvenile criminal records of another daughter who testified at trial. This evidence, at best, may have supported Petitioner's version of the events. However, it does not prove he is innocent. If introduced at trial, it would have only been evidence for the jury to consider in determining which version of the events to believe, and would likely have had little effect (See Claim III, infra). The purported "new evidence" is not sufficient to affirmatively prove that Petitioner is probably innocent. Carriger, 132 F.3d at 476.
Petitioner's insufficiency of the evidence claim is equally lacking in merit. The Due Process Clause of the Fourteenth Amendment "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime for with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a conviction if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 at 319. "[T]he dispositive question under Jackson is 'whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.'" Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 318). A petitioner for writ of habeas corpus "faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005).
In raising his insufficiency of the evidence claim, Petitioner ignores the evidence supporting the prosecution's version of the events. At trial, numerous statements made by the victim shortly after the incident were admitted into evidence. The officer who made initial contact with the victim and interviewed her at the scene while she was being treated by paramedics testified that the victim told him that when she woke up she was being stabbed by the Petitioner with a knife. Rep.'s Tr. at 392-93. Another officer recalled the victim yelling that she had been stabbed by the Petitioner. Id. at 484. The victim testified that she repeatedly told someone at the hospital "he stabbed me, he stabbed me." Id. at 145. The trauma surgeon who examined the victim at the hospital concluded that she had two visible wounds, one on her arm and one on her abdomen. Id. at 319. The wound on the arm was a laceration which penetrated to the muscle and was made by a ...