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Kevin Dunigan v. Robert Hickman


January 23, 2013



Petitioner is a state prisoner proceeding without counsel on an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a 2009 judgment of conviction entered against him in the Sacramento County Superior Court on a charge of first degree murder. He raises nine cognizable grounds for federal habeas relief. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

I. Factual Background*fn1

Defendant Kevin Wayne Dunigan killed Gary Veirs after Veirs punched him for swearing at Veirs's girlfriend when she rejected Dunigan's advances. Dunigan killed Veirs by "gutt[ing]" him, i.e., "insert[ing a knife] in [Veirs's] side [and] ripp[ing] him open from one side to another." Based on this evidence, a jury found defendant guilty of first degree murder while personally using a dangerous and deadly weapon.

Sentenced to prison for 26 years to life following a trial in which he represented himself, defendant appeals and raises the following two contentions: (1) the court erred in failing to order a competency hearing; and (2) the People presented insufficient evidence the murder was premeditated and deliberate. Disagreeing, we affirm.


One August evening in 1995, Marie Morrissette was leaving her house on Stockton Boulevard in Sacramento when a man (later identified as defendant) approached her and said, "'Hey baby, what's up?'" Morrissette "put [her] hand up . . . to let him know not to talk to [her]" and then "kept on walking." Defendant responded in a loud voice, "'Well, fuck you then, bitch.'"

Just then, Morrissette's boyfriend, Veirs, came out of the house and told defendant, "'Don't talk like that to my old lady.'" There was an "instant [fist] fight." Veirs swung at defendant, defendant swung back, and within "seconds" the two were on the ground with Veirs on top. Defendant reached for a knife that was on his left side by his pants. The knife was about a foot long and "seemed . . . really sharp." Defendant pulled it out of its sheath. Morrissette yelled to Veirs, "'Babe, he's got a knife.'" She tried unsuccessfully to kick the knife out of defendant's hand. Veirs tried to "get up off him," but defendant was already stabbing him. Defendant "gutted him" by inserting the knife in his side and "ripp[ing] him open from one side to another."

Morrissette ran inside the house and called 911. Veirs followed her inside and was "bleeding everywhere." An ambulance took Veirs to the hospital. Veirs died from stab wounds to his chest. Defendant was implicated in Veirs's murder in December 2008 after foreign DNA taken from Veirs's fingernails matched defendant's DNA.

Resp.'s Lodg. Doc. 4 at 1-2.

After the California Court of Appeal issued its decision on petitioner's direct appeal, petitioner filed two petitions for review and six collateral challenges to his conviction, in which he appears to have exhausted all of the claims contained in the instant petition. Resp.'s Lodg.

Docs. 5, 7, 9, 11, 14, 16, 18, 20. Both petitions for review and all of the collateral challenges were either summarily denied or denied on procedural grounds. Lodg. Docs. 6, 8, 10, 12, 13, 15, 17, 19, 21.

II. Analysis

A. Standards for a Writ of Habeas Corpus

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.

For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)).

A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.*fn2

Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, 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." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S.___,___,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s 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,131 S. Ct. at 786-87.

If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").

The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, 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." Harrington, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "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, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784.

When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).*fn3

B. Petitioner's Claims

1. Unlawful Search and Arrest Warrants

In his first claim for relief, petitioner argues that "false averment[s] and omissions of facts" were used to support the issuance of his search and arrest warrants. Second Amended Petition, Dckt. No. 46 (Pet.) at 6.*fn4 Specifically, he contends that the warrants were improperly based on an unreliable, falsified, and contaminated DNA sample, in violation of his rights under the Fourth and Fourteenth Amendments. Id. at 7-15. Petitioner argues that this court "has no alternative under settled constitutional principles but to quash the warrant and exclude the products of the search." Id. at 13.

In his second ground for relief, petitioner claims that the state court judge who authorized his arrest warrant violated his rights under the Fourth and Fourteenth Amendments because the warrant was not based on probable cause. Id. at 16. He argues that the judge knew the arrest warrant was based on unreliable DNA results. Id. Petitioner also claims that the "seizure of [his] person lacked probable cause in violation of the Fourth Amendment of the U.S. Const." Id. He argues that his arrest warrant for first degree murder was invalid because the supporting affidavit did not support a finding that he harbored malice aforethought. Id. at 17. With these two claims, petitioner is essentially arguing that the search and arrest warrants in this case were issued without probable cause, in violation of the Fourth Amendment.*fn5

The United States Supreme Court has held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 494 (1976). There is no evidence before the court that petitioner did not have a full and fair opportunity to litigate his Fourth Amendment claims in state court. On the contrary, petitioner filed a motion to exclude the evidence obtained from his arrest and search warrants, and argued that the indictment should be dismissed because the prosecutor had destroyed evidence indicating that petitioner's arrest and search warrants were supported by false and unreliable DNA evidence. Clerk's Transcript on Appeal (CT) at 434-50. Because petitioner had a fair opportunity to and did, in fact, litigate his Fourth Amendment claims in state court, his first two grounds for relief are barred in this federal habeas proceeding. Stone, 428 U.S. at 494.

2. Admission of Petitioner's Compelled Statements to Police

In his next ground for relief, petitioner claims that the introduction into evidence of his "compelled" statements to the police violated his rights as set forth in Miranda v. Arizona, 384 U.S. 436 (1966) (Miranda rights), and his Fifth Amendment right to remain silent. Pet. at 18-23. Petitioner also argues that the prosecutor introduced knowingly false testimony about these statements at the preliminary hearing. Id. at 21. After setting forth the background and the applicable law, the court will address these claims below.

a. Background

The state court record reflects that on January 14, 2008, Detective Keller obtained a search warrant for the collection of a DNA sample from petitioner. CT at 771. On January 16, 2009, Detectives Keller and Jason visited petitioner, who was then housed at Pelican Bay State Prison. Id. After being advised of his Miranda rights, petitioner "denied any knowledge of a murder in 1995 and invoked his right to remain silent." Id. Detective Keller then served the search warrant and "collected a DNA sample." Id. Petitioner agrees that, "wary of Keller's line of questions petitioner invoked the right to remain silent." Pet. at 19.

Subsequently, on April 8, 2009, petitioner was questioned on two separate occasions at the Sacramento County Jail by prosecution investigator Ron Garvrick. CT at 1481-1518, 1519-30.*fn6 At the beginning of the first interview, Garvrick told petitioner that he was investigating whether an individual named Oveida Burley committed the 1995 murder. Specifically, Garvrick stated, "it's less about you as it is about . . . Burly O-Vieda." Id. at 1481. Garvrick asked petitioner whether he knew "Burly O'Vieda." Id. Petitioner stated that he did. Id. Garvrick explained to petitioner that Burley was arrested in 1995 for murder, that he was then released "because of some witness stuff," but that "the Sacramento Police Department is looking at this guy again" and that the police were "looking at running this guy's DNA again." Id. at 1482, 1483. Petitioner interpreted these statements by Garvrick to mean that "Oveda Burley was the suspect and not petitioner," and that petitioner would not be prosecuted for the murder. Pet. at

19. Petitioner claims that this deception by Garvrick was "a compellment to induce a statement," and constituted "overreaching." Id. at 19-20.

Mr. Garvrick then reminded petitioner that the police had previously obtained a DNA sample from him but that he had not waived his right to remain silent and refused to be interrogated. CT at 1483. Petitioner agreed with these statements. Id. Yet, petitioner spoke with Garvick on this occasion. Garvrick showed petitioner a picture of the victim and asked whether he "knew him at all." Id. Petitioner denied that he knew the victim and stated that he had never seen him. Id. at 1484, 1487, 1488. Garvrick told petitioner that he "had to advise [him] of [his] rights," but stated that he would be questioning petitioner about the matters he had just discussed. Id. at 1485. Petitioner said, "The only thing I know that the -- the officer came and told me that my DNA was found on the scene and he had it since 1995. But DNA's been in the FBI database since '94." Id. Garvrick then gave petitioner the Miranda warnings. Id. at 1486. Petitioner stated that he understood his rights.

Petitioner told Garvrick that he "grew up" very close to where the stabbing took place, on Tamoshanter Way, but that he had moved away by the time of the murder. Id. at 1487, 1491, 1494. Petitioner also stated, however, that his mother continued to own the house on Tamoshanter Way after petitioner moved out, and that he lived there "in '90." Id. at 1492. Petitioner explained that at the time of the stabbing he lived in his brother's apartment in Rancho Cordova. Id. at 1492, 1494.

Later that same day, investigator Garvrick returned to the jail to ask petitioner some additional questions. Id. at 1520, et seq. He first told petitioner they were trying to track down a tip that someone named "Icewater" had committed the murder. Id. at 1520. He asked petitioner to listen to the tipster's voice to determine whether he recognized the voice "from somebody in the neighborhood." Id. Garvrick also stated, "we're still trying to make this case on, ah, Burley." Id. Garvrick reminded petitioner that he been advised of his constitutional rights at the interrogation earlier in the day, and asked whether he wanted to be advised of his rights again. Id. at 1521. Petitioner indicated that since Garvrick had already advised him of his rights, he did not need to do so again. Id. After listening to the audiotape, petitioner stated that he did not recognize the tipster's voice. Id. at 1524.

At petitioner's preliminary hearing, the prosecutor asked Mr. Garvrick whether he had asked petitioner "where he lived at or if he ever lived near Stockdale." CT at 569. Garvrick responded that petitioner "said he lived on Tamoshanter at the time, near 63rd Avenue." Id. Later, when petitioner was cross-examining Mr. Garvrick, the following colloquy took place:

Q. (by petitioner): And you said that the victim told you that he lived at that time at the address on Tamoshanter?

A. No, sir. You told me you lived on Tamoshanter next to 63rd Avenue.

Q. I told you that at the time of this occurrence?

A. That you had lived at that address.

Q. Okay.

CT at 572.

During the trial proceedings, petitioner filed a motion to suppress his statements to Mr. Garvrick. Reporter's Transcript on Appeal (RT) at 136-49. Mr. Garvrick was called as a witness at that hearing. Id. Petitioner argued that his statements were coerced. Id. at 149. The trial court denied the motion, stating, "the Court does not find a violation of any decision of law of either state or federal, a violation of any constitutional law, either state or federal, in terms of the taking of the statement by the detective regarding Mr. Dunigan." Id.

b. Petitioner's Arguments

Petitioner claims that he suffered a "triple constitutional violation," noting first that Detective Keller obtained a DNA sample from him at Pelican Bay State Prison. Pet. at 19. Petitioner argues that investigator Garvrick violated the Miranda decision when, at the first interview on April 8, he asked petitioner several questions before he advised him of his constitutional rights. Id. at 19, 20. He contends that he should have been advised of his rights before any questions were asked. Id. Petitioner also argues that his statements to Garvrick were coerced by Garvrick's deceptive tactics. Id. Finally, petitioner claims Garvrick violated his constitutional rights and "conspired with the prosecutor" when he testified at the preliminary hearing that petitioner told him he lived on Tamoshanter Way at the time of the crime when, in fact, he had told Garvrick that he had moved away from that location by the time the murder took place. Id. at 21. Petitioner argues that the prosecutor's "knowing use of false testimony left uncorrected" was a violation of his Fourteenth Amendment right to due process. Id.

c. Analysis

Petitioner's claim, if any, that his right to remain silent was violated when his DNA sample was taken at Pelican Bay State Prison is meritless. The right to remain silent "protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature" and does not prohibit the taking of physical evidence, such as a DNA sample. See Schmerber v. California, 384 U.S. 757, 761 (1966) (analysis of blood sample taken without defendant's consent did not violate his Fifth Amendment rights); United States v. Reynard, 473 F.3d 1008, 1021 (9th Cir. 2007) (the compelled extraction of blood for DNA collection does not violate a prisoner's Fifth Amendment right against self-incrimination). Accordingly, the extraction of petitioner's DNA at the prison did not violate his right to remain silent.

Petitioner's claim that his Miranda rights were violated during the two interrogations on April 8, 2009 must also be denied, for several reasons. In Miranda, the United States Supreme Court held that the Fifth Amendment privilege against self-incrimination prohibits the admission into evidence of statements obtained from a suspect during "custodial interrogation" without a prior warning of certain rights. 384 U.S. at 444. Custodial interrogation means "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444. Whether a suspect is "in custody" for purposes of Miranda requires application of an objective test. J.D.B. v. North Carolina, ___ U.S. ___, 131 S.Ct. 2394, 2402 (2011); Yarborough v. Alvarado, 541 U.S. 652, 662-63 (2004). Two inquiries are necessary for a determination of an individual's "in custody" status under this test: (1) what were the overall circumstances surrounding the interrogation; and (2) given those circumstances, would a reasonable person in the suspect's situation have felt free to terminate the interrogation and leave. J.D.B., 131 S.Ct. at 2402; Yarborough, 541 U.S. at 662-63; Thompson v. Keohane, 516 U.S. 99, 112 (1995); Stansbury v. California, 511 U.S. 318, 322 (1994). The questioning of a confined prisoner about events that occurred outside the prison is not necessarily custodial, but depends on the circumstances surrounding the interrogation. Howes v. Fields, ___ U.S. ___, 132 S.Ct. 1181 (2012) (defendant was not taken into custody for purposes of the Miranda rule when he was escorted from his cell and interrogated in a conference room within the prison about events that had occurred outside of the prison).

Under the circumstances of this case, it appears that petitioner was not "in custody" for purposes of the Miranda rule. There is no evidence that petitioner believed he was not free to terminate the April 8 interrogation. He was not prevented from leaving the interrogation room, the questioning was not lengthy, he was not physically restrained, and he was not told that he was required to answer investigator Garvrick's questions. As noted above, the mere fact that petitioner was already incarcerated due to an earlier conviction during the questioning (see n. 6 supra) is not dispositive of this issue. Howes, 132 S.Ct. at 1191. As pointed out in Howes, "[i]nterrogated suspects who have previously been convicted of crime live in prison." Id. Thus, "[t]aking a prisoner aside for questioning-as opposed to questioning the prisoner in the presence of fellow inmates-does not necessarily convert a 'non-custodial situation . . . to one in which Miranda applies.'" Id. (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam)).

In any event, the state court record reflects that petitioner was advised of his constitutional rights at the beginning of the interrogation on April 8, but waived them and agreed to talk. Accordingly, even assuming arguendo that he was "in custody" during the two interrogations on April 8, petitioner has failed to show that his Miranda rights were violated. It is true that petitioner answered several questions prior to receiving his Miranda warnings. In his answers, petitioner admitted that he knew Oveida Burley, denied that he knew the victim, and stated that he had been told his DNA was found at the scene of the crime. These statements were not in any way inculpatory and therefore would not have contributed to the verdict in this case. Accordingly, any Miranda violation that may have resulted from Garvrick's failure to advise petitioner of his rights before asking these questions was harmless. See Arizona v. Fulminante, 499 U.S. 279, 295-96 (1991) (the admission of evidence obtained in violation of Miranda is subject to harmless error analysis).

Petitioner also claims that his statement to Mr. Garvrick that he had lived on Tamoshanter Way was involuntary because of Garvrick's deceptive remarks indicating that Oveida Burley, and not petitioner, was the target of the investigation. There is no evidence to support this claim.

The Fourteenth Amendment to the United States Constitution demands that confessions be made voluntarily. See Lego v. Twomey, 404 U.S. 477, 483-85 (1972). In determining whether a confession is voluntary, "the question is 'whether the defendant's will was overborne at the time he confessed.'" Haynes v. Washington, 373 U.S. 503, 513 (1963). "The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession." Collazo v. Estelle, 940 F.2d 411, 416 (9th Cir. 1991) (en banc) (quoting Culombe v. Connecticut, 367 U.S. 568, 602 (1961)). "Under the Fourteenth Amendment, a confession is involuntary only if the police use coercive means to undermine the suspect's ability to exercise his free will." Pollard v Galaza, 290 F.3d 1030, 1033 (9th Cir. 2002). Misrepresentations made by law enforcement in obtaining a statement do not constitute coercive conduct unless they would cause a suspect's will to be overborne. Id. at 1034.

There is no evidence here that petitioner's will was overborne at the time he told investigator Garvrick that he "grew up" on Tamoshanter Way. Mr. Garvrick's statement that the police were primarily investigating Oveida Burley, even if false, was not so coercive that it would have caused petitioner to lose "governing self-direction." Nor is the fact that petitioner was in jail when he was questioned sufficiently compelling to overbear petitioner's will in light of the totality of the circumstances. See Howes, 132 S.Ct. at 1191 ("For a person serving a term of incarceration . . . the ordinary restrictions of prison life, while no doubt unpleasant, are expected and familiar and thus do not involve the same 'inherently compelling pressures' that are often present when a suspect is yanked from familiar surroundings in the outside world and subjected to interrogation in a police station."). Cases in which convictions have been overturned on this basis have involved circumstances far more coercive than those involved in this case. See, e.g., Lynumn v. Illinois, 372 U.S. 528, 534 (1963) (confession found to be coerced by officers' false statements that state financial aid for defendant's infant children would be cut off, and her children taken from her, if she did not cooperate); Rogers v. Richmond, 365 U.S. 534, 541-45 (1961) (defendant's confession was coerced when it was obtained in response to a police threat to take defendant's wife into custody); Spano v. New York, 360 U.S. 315, 323 (1959) (confession found to be coerced where police instructed a friend of the accused to falsely state that petitioner's telephone call had gotten him into trouble, that his job was in jeopardy and that loss of his job would be disastrous to his three children, his wife and his unborn child). Under the circumstances presented here, petitioner's statement that he used to live on Tamoshanter Way was not coerced or involuntary.

Petitioner also argues that the prosecutor's use of knowingly false testimony at the preliminary hearing; specifically, Garvrick's testimony that petitioner told him he lived on Tamoshanter Way at the time of the crime, violated his federal constitutional rights. It is clearly established that "a conviction obtained by the knowing use of perjured testimony must be set aside if there is any reasonable likelihood that the false testimony could have affected the jury's verdict." United States v. Bagley, 473 U.S. 667, 680 n.9 (1985). There are three components to establishing a claim for relief based on the prosecutor's introduction of perjured testimony at trial. Specifically, the petitioner must establish that: (1) the testimony or evidence was actually false; (2) the prosecutor knew or should have known that the testimony or evidence was actually false; and (3) the false testimony or evidence was material. Hein v. Sullivan, 601 F.3d 897, 908 (9th Cir. 2010).

There is no evidence in this case that the prosecutor knew Garvrick's statement at the preliminary hearing that petitioner told him he "lived on Tamoshanter at the time" was false. Even if he did, the statement made by Garvrick at the preliminary hearing was not material to the outcome of petitioner's trial. At trial, petitioner extensively cross-examined Garvrick about his testimony at the preliminary hearing. RT at 393-96. Garvrick clarified that petitioner told him he had lived on Tamoshanter Way in the past but did not live there at the time of the crime. Id. at 393. Given this clarification at trial before the jurors, Garvrick's statement at the preliminary hearing could not have had an impact on the verdict in this case.

For all of the foregoing reasons, petitioner is not entitled to relief on his claims regarding his statements to investigator Garvrick.

3. Denial of Right to Fair Trial and Unbiased Decisionmaker

a. Petitioner's Arguments

In his fourth claim for relief, petitioner argues that the Sacramento County Sheriff's Office conspired with the prosecutor to "circumvent" his defense. Pet. at 23. Specifically, petitioner alleges that a Sheriff's Deputy confiscated his legal research and "defense documents" from his cell for the purpose of allowing the prosecutor to discover "possible defenses petitioner may address." Id. Petitioner claims that after the prosecutor reviewed the stolen documents, his "ability to circumvent petitioner's defense increased substantially." Id. at 24. Petitioner argues that this situation violated his Sixth Amendment right to present a defense. Id.

Petitioner also argues that jail administrators "perpetuated these acts" by planting inmate operatives for the purpose of stealing his documents and orchestrating "pod shakedowns" in order to allow access to petitioner's work product when he was away from his cell. Id.

According to petitioner, these "operatives" would then give the information obtained from petitioner's cell to the District Attorney's Office. Id. Petitioner states that these activities were "evidence[d]" when he filed a complaint against a state court judge who then vacated a pending court date "pursuant to a pod shakedown disclosing the complaint." Id.

Petitioner further alleges that several motions he filed in state court were improperly denied without allowing him the opportunity to argue the motions, and that his request for a single cell was denied, thereby preventing him from making "a full confidential defense," in violation of "the Sixth and Fourteenth Amendments." Id. at 25. Petitioner specifically directs the court's attention to his unsuccessful "motion to enforce confidential pro per privileges," which the trial judge denied without oral argument. In that motion, petitioner claimed that "the Sacramento Sheriff's Department does conspire with the Sacramento County District Attorney's office by using their dominion and control over the incarcerated pro per defendant, to illegally search, confiscate and browse through the inmate's pro per defense, notwithstanding the fact that they use 'confidential informants' (i.e. operatives) as cellmates of the pro per defendant(s), who also use these subversive means and other more closely designed processes for these same purposes." CT at 25-26; RT at 15-16.

Petitioner also claims that his "Challenge for Cause" was improperly denied without a hearing even though the judge "knew he had failed to properly respond to petitioner's challenge in a timely manner." Pet. at 26. In support of this claim, petitioner directs the court's attention to a document he filed in the trial court, which the trial judge construed as a request to challenge him for cause pursuant to the California Code of Civil Procedure (CCP). CT at 238. The trial judge ordered the motion stricken pursuant to CCP § 170.4(b), on the grounds that "(1) the filing was not properly verified; (2) the fact that a court ruled against a party on one or more occasions is not indicia of bias or prejudice; (3) the vague and conclusory allegations of prejudice are insufficient to support bias; (4) the allegations of facts and references to circumstances not pertinent and appropriate to the issued and/or so inconsequential as not to be probative of bias do not support a challenge; and (5) the defendant may not create his own bias by suing or making allegations against the court in other forums." Id.

Finally, petitioner argues that the trial judge's "abuse of discretion" and "this form of arbitrary administration of justice" is "violative of both the equal protection and due process clause of the Fourteenth Amendment." Pet. at 26. Petitioner claims that the foregoing events violated "the Due Process Clause of the Fourteenth Amendment which also implicates a pro se prisoner's Sixth Amendment Right to put on a full defense." Id.

b. Applicable Law

"A fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 349 U.S. 133, 136 (1955). A judge "may not adopt procedures that impair a defendant's right to due process or his other rights guaranteed by the constitution." United States v. Thompson, 827 F.2d 1254, 1258 (9th Cir. 1987). In order to prevail on a claim of judicial bias, a petitioner must overcome a "strong presumption that a judge is not biased or prejudiced." Sivak v. Hardison, 658 F.3d 898, 924 (9th Cir. 2011) (quoting Rhoades v. Henry, 598 F.3d 511, 519 (9th Cir. 2010)).

Criminal defendants have a constitutional right, implicit in the Sixth Amendment, to present a defense and this right is "a fundamental element of due process of law." Washington v. Texas, 388 U.S. 14, 19 (1967). See also Crane v. Kentucky, 476 U.S. 683, 687, 690 (1986); California v. Trombetta, 467 U.S. 479, 485 (1984); Webb v. Texas, 409 U.S. 95, 98 (1972); Moses v. Payne, 555 F.3d 742, 757 (9th Cir. 2009). A defendant's right to present a defense stems both from the Fourteenth Amendment right to due process and the Sixth Amendment right "to have compulsory process for obtaining witnesses in his favor." Moses, 555 F.3d at 757.

A defendant's due process rights are also violated when a prosecutor's misconduct renders a trial fundamentally unfair. Darden v. Wainwright, 477 U.S. 168, 181 (1986).

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).

c. Analysis

There is no evidence in this case that petitioner failed to receive a fair trial in a fair tribunal or that the prosecutor committed misconduct. Petitioner's allegations concerning collusion between the Sheriff's Department and the District Attorney's office, including his allegations regarding the use of inmate informants to steal information from petitioner and give it to the prosecutor, lack underlying factual support and should be rejected on that basis. Petitioner has provided no evidence, apart from his unsupported allegations, that these alleged events actually took place. Bare conclusions, unsupported by allegations of underlying fact, are insufficient to establish a federal constitutional violation. Shepherd v. Nelson, 432 F.2d 1045, 1046 (9th Cir. 1970).

Nor has petitioner demonstrated that the trial judge improperly denied his filed motions, was biased against him, or otherwise prevented him from receiving a fair trial. The record does not support petitioner's allegations that his motions were improperly scheduled or denied. The record also reflects that petitioner was able to mount a thorough defense to the charges against him, which included calling his own witnesses and cross-examining the prosecution witnesses. Petitioner has failed to demonstrate that his trial proceedings were unfair or that the judge, prosecutor, or jail authorities violated his constitutional rights through collusion or in any other manner. Accordingly, he is not entitled to relief on his claims of judicial bias and fundamental unfairness in the handling of his trial proceedings.

4. Suppression of Exculpatory Evidence

a. Petitioner's Arguments

In his next claim for relief, petitioner alleges that the prosecutor and various state court judges colluded to deny him the right to discovery of exculpatory evidence regarding the DNA evidence linking him to the crime. Pet. at 27-32. Petitioner explains that he was seeking "exculpatory evidence such as petitioner's 1994 DNA profile and actually any other exculpatory evidence such as previous DNA testing of the evidence." Id. at 27; see also CT at 95-104. Petitioner further argues that the trial judge gave the prosecutor too much time to provide requested discovery. Pet. at 27; RT at 15-17. He argues that this constituted "collusion." Pet. at 28.

Petitioner also argues that he sought to compel the same DNA evidence at a preliminary hearing, but the presiding judge "quickly changed the subject." Id. Petitioner alleges that the prosecutor "deceived the court once again, and Judge Fall has allowed it to go unquestioned."

Id. He argues, "surely it is a manifest abuse of discretion for the magistrate not to order the prosecutor to produce the requested evidence." Id. at 29. Petitioner also directs the court's attention to another hearing before a different state court judge, in which the parties discussed the prosecutor's compliance with petitioner's discovery requests with respect to the DNA evidence. Id.; RT at 36, et seq. Petitioner contends that the judge improperly refused to grant his requests for additional discovery and allowed the prosecutor to deceive him when he stated that the discovery was unavailable or had already been produced. Pet. at 29-30; see RT at 39-42. Petitioner alleges that the judge "appears to be way over the top with regards to her collusion with the prosecutor." Pet. at 30.

Petitioner also alleges that the state court judges who ruled on his discovery requests "all have a common bond in that they supported the prosecutor's perjury," which "allowed the prosecutor to suppress requested exculpatory evidence that would've explained away the charges." Id. at 31. Petitioner claims that the improper actions of the prosecutor and the state court judges who presided over his trial proceedings violated the dictates of Brady v. Maryland, 373 U.S. 83 (1963), and the due process clause of the Fourteenth Amendment. Id. at 32.

b. Applicable Law

The United States Supreme Court has held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. See also Youngblood v. West Virginia, 547 U.S. 867, 869 (2006) ("A Brady violation occurs when the government fails to disclose evidence materially favorable to the accused"). There are three components of a Brady violation: "[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; the evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999). In order to establish prejudice, petitioner must demonstrate that "'there is a reasonable probability' that the result of the trial would have been different if the suppressed documents had been disclosed to the defense." Id. at 289.

c. Analysis

Petitioner has failed to establish that the prosecutor violated the requirements of Brady in failing to turn over discovery. There is no evidence, apart from petitioner's unsupported speculation, that any evidence related to DNA testing was favorable to petitioner, that it was suppressed by the prosecution, or that there is a reasonable probability the result of the trial would have been different if the evidence had been disclosed to him. In fact, petitioner states that the facts only "suggest" the DNA evidence he seeks even existed. Pet. at 32. This is insufficient to establish a Brady violation.

Nor has petitioner established that any state court judge colluded with the prosecutor to deny petitioner exculpatory evidence or otherwise acted in such a way as to deny petitioner the right to a fair trial. Petitioner's unsupported allegations are insufficient to establish that a due process violation occurred in connection with the provision of discovery in this case. The mere fact that several state court judges denied petitioner's requests for discovery does not establish that they were biased against petitioner or otherwise violated his rights. Accordingly, he is not entitled to relief on these claims.

5. Ineffective Assistance of Counsel

a. Petitioner's Arguments

In his next claim, petitioner argues that Mr. Broome, an attorney hired by his family to represent him, rendered ineffective assistance of counsel when he: (1) used self-defense "as his assertion for petitioner's defense;" (2) failed to acquire "DNA exculpatory evidence," and (3) declined to defend petitioner's case using the theory that the DNA evidence connecting petitioner to the crime was unreliable. Pet. at 33-37. Petitioner explains that when "it became clear that [counsel] was in collusion with the prosecution," petitioner "had no alternative but to relieve Broome as counsel." Id. at 34. After discharging his attorney, petitioner represented himself during the trial proceedings, although it appears that counsel was present at the preliminary hearing in an advisory capacity. Petitioner argues that trial counsel's "ineffectiveness violated the Sixth Amendment." Id.

Petitioner also argues that his trial counsel colluded with the trial judge to violate his constitutional rights. Specifically, he explains that he was unable to substitute another counsel at a "Marsden" hearing; he was ordered to leave the courtroom for a brief period during the hearing on his motion to discharge his retained counsel; and the prosecutor was allowed to attend the hearing, thereby "inva[ding] the defense camp." Id. at 34-35. Petitioner argues that his trial counsel was responsible for allowing all of this to take place, and that counsel must have been "representing conflicting interests." Id. at 35. Petitioner also argues that the trial judge's "abuse of discretion" in conducting the "Marsden" hearing in this manner "shocks the conscience." Id. at 36.*fn7

Petitioner further contends that he suffered prejudice from his trial counsel's actions when, at the preliminary hearing, after counsel had been relieved but was observing the proceedings from the courtroom, the prosecutor advised the court that certain motions filed by petitioner had been withdrawn by petitioner's counsel after he was hired. Id. Petitioner's former counsel agreed that he had not proceeded with those motions. Petitioner argues that the prosecutor, in effect, used his former trial counsel to "circumvent petitioner's defense motions," thereby violating petitioner's right to defend himself at the preliminary hearing. Id. Petitioner also argues that the trial judge abused her discretion in allowing the prosecutor to "circumvent" his motions in this way. Id. He argues, "surely the magistrate's refusal to allow petitioner to make a full defense violated both the Sixth and Fourteenth Amendments." Id. at 37.

b. Applicable Law

To support a claim of ineffective assistance of counsel, a petitioner must first show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). After a petitioner identifies the acts or omissions that are alleged not to have been the result of reasonable professional judgment, the court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id. at 690; Wiggins v. Smith, 539 U.S. 510, 521 (2003). "Counsel's errors must be 'so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" Richter, 131 S.Ct. at 787-88. (quoting Strickland, 466 U.S. at 687). Surmounting the bar imposed by Strickland was "never an easy task," and "establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Id. at 788.

Second, a petitioner must establish that he was prejudiced by counsel's deficient performance. Strickland, 466 U.S. at 693-94. 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. "The likelihood of a different result must be substantial, not just conceivable." Richter, 131 S.Ct. at 792.

c. Analysis

Petitioner's claim that his trial counsel rendered ineffective assistance because of the events related above lacks merit and should be denied. Petitioner has failed to demonstrate either deficient performance by Mr. Broome, or that he was prejudiced by Broome's performance. First, even assuming arguendo that Broome had decided to present a defense of self-defense, this decision was rendered moot when petitioner discharged Mr. Broome before the trial took place and presented his own defense. Second, petitioner has failed to demonstrate ineffective assistance of counsel, or any other violation of his constitutional rights, at the hearing on his Faretta motion to represent himself. The trial judge granted petitioner's Faretta motion after advising him of the rights he would be waiving by proceeding without counsel. RT at 23-26. There is no constitutional violation under these circumstances.

To the extent petitioner is claiming that the hearing on his motion to represent himself violated Marsden, his arguments are meritless. As explained, petitioner's was not seeking removal of appointed counsel but instead was seeking to discharge his retained attorney and represent himself. Therefore, the motion was not properly brought pursuant to People v. Marsden, but was actually based on the decision in Faretta v. California. Accordingly, the Marsden decision has no bearing on these events. Nor has petitioner demonstrated that he suffered prejudice as a result of his trial counsel's decision to abandon petitioner's previously filed motions. After a review of the record, the court concludes that there is no reasonable probability these motions would have been granted even if counsel had decided to pursue them.

Finally, petitioner has failed to demonstrate that any actions by any state court judge rendered his trial proceedings fundamentally unfair, or that there was any improper collusion between any judge and the prosecutor, or anyone else, in connection with the matters described above. Accordingly, petitioner has also failed to demonstrate that his rights under the Fourteenth Amendment were violated.

The state court decision denying petitioner's claims of ineffective assistance of counsel and due process violations is not contrary to or an unreasonable application of United States Supreme Court authority. Accordingly, petitioner is not entitled to habeas relief on these claims.

6. Denial of Petitioner's Motion to Set Aside the Information

In his next ground for relief, petitioner claims that the trial court's denial of his motion to set aside the information pursuant to Cal. Penal Code § 995 violated his rights under the Sixth and Fourteenth Amendments because of "the arbitrary and outrageous manner it was denied." Pet. at 37. Petitioner describes in detail his objections to the manner in which his motion was heard and denied. Id. at 37-48. He contends that the evidence introduced at the preliminary hearing was insufficient to support the charges brought against him. Id. He also alleges that the state court judge who denied the motion "abused her discretion to the point of a conspiracy." Id. at 46.*fn8

As explained above, an application for a writ of habeas corpus by a state prisoner can be granted only for violations of the Constitution or laws of the United States. Engle v. Isaac, 456 U.S. 107, 119 (1982). A federal writ is not available for alleged error in the interpretation or application of state law. Wilson, 131 S. Ct. at 16. Since there is no federal constitutional right to a preliminary hearing, see Gerstein v. Pugh, 420 U.S. 103, 125 n.26 (1975) and Ramirez v. State of Ariz., 437 F.2d at 119 (9th Cir. 1971), and therefore no right to a dismissal for insufficient evidence after a preliminary hearing, petitioner's allegations fail to state a cognizable federal habeas claim. The denial of a § 995 motion to dismiss is a state law claim which is not cognizable on federal habeas review. Lopes v. Campbell, 408 Fed.Appx 13, 15 (9th Cir. 2010) (petitioner's claim that the trial court erroneously denied his motion under Cal. Penal Code § 995 "not cognizable on federal habeas review"); Johnson v. Hedgpeth, No. ED CV 09-1577-GW(CT), 2010 WL 1848165, at *14 (C.D. Cal. Feb. 25, 2010) (same).

In any event, petitioner has failed to demonstrate that the trial court erred in denying his motion to dismiss. Pursuant to California Penal Code § 995, an information must be dismissed if the evidence presented at the preliminary hearing was insufficient to demonstrate probable cause that the defendant committed the charged offense. Cal. Penal Code § 995(a)(2). Probable cause means "such a state of facts as would lead a [person] of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused." People v. Mower, 28 Cal.4th 457, 473 (citations omitted). "'Reasonable and probable cause' may exist although there may be some room for doubt." Id. In light of these standards, petitioner's claim that the trial court violated his federal constitutional rights in denying his motion to dismiss must be denied. The evidence introduced at the preliminary hearing demonstrated probable cause that petitioner committed the charged offense. See CT at 557-639.

Accordingly, for the foregoing reasons, relief on this claim must be denied.

7. Denial of Self-Representation on Appeal

In his next claim for relief, petitioner argues that the California Court of Appeals' denial of his right to represent himself on appeal violated his Sixth Amendment rights. Pet. at 50. Petitioner states that he objected in writing to the appellate brief filed by his appellate counsel because none of the issues he wanted to raise on appeal was contained in his opening brief. Id.

Petitioner argues that since he was granted the right to represent himself at trial, he should have been able to represent himself on appeal as well, especially where "there arises a conflict of interest between the attorney and client and/or client and state who appoints indigent appellants representation." Id. at 51.

The United States Supreme Court has held that a criminal defendant does not have a federal constitutional right to represent himself on direct appeal from his conviction. Martinez v. Court of Appeal of California, Fourth Appellate Dist., 528 U.S. 152 (2000). Thus, the failure of a state appellate court to allow self-representation on appeal does not violate either the Sixth or the Fourteenth Amendments to the United States Constitution. Id. at 160-61. See also Tamalini v. Stewart, 249 F.3d 895, 900 (9th Cir. 2001) (same). As explained by the Sixth Circuit, "[c]learly, this holding contradicts the petitioner's assertion that there exists a constitutional entitlement to submit a pro se appellate brief on direct appeal in addition to the brief submitted by appointed counsel." McMeans v. Brigano, 228 F.3d 674, 684 (6th Cir. 2000). See also Brown v. Clay, No. C 06-7140 CRB (PR), 2010 WL 199779 at *5 (N.D. Cal. Jan. 13, 2010) (same). Based on these authorities, petitioner is not entitled to relief on this claim.

8. Ineffective Assistance of Appellate Counsel

Petitioner also argues that his appellate counsel rendered ineffective assistance in failing to raise on direct appeal the claims that he asked counsel to raise, including the claims raised in the instant petition. Pet. at 52-65. In particular, petitioner faults his appellate counsel for failing to challenge the DNA evidence linking him to the murder. Id. In his lengthy argument in support of this claim, petitioner also argues that various parties, attorneys, prison administrators, and judges conspired to violate his constitutional rights. Id. Petitioner's arguments are rambling, conclusory, and largely unsupported by the record.

The Strickland standards apply to appellate counsel as well as trial counsel. Smith v. Murray, 477 U.S. 527, 535-36 (1986); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989).

However, an indigent defendant "does not have a constitutional right to compel appointed counsel to press non-frivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points." Jones v. Barnes, 463 U.S. 745, 751 (1983). Counsel "must be allowed to decide what issues are to be pressed." Id. Otherwise, the ability of counsel to present the client's case in accord with counsel's professional evaluation would be "seriously undermined." Id. See also Smith v. Stewart, 140 F.3d 1263, 1274 n.4 (9th Cir. 1998) (Counsel is not required to file "kitchen-sink briefs" because it "is not necessary, and is not even particularly good appellate advocacy.") There is, of course, no obligation to raise meritless arguments on a client's behalf. See Strickland, 466 U.S. at 687-88 (requiring a showing of deficient performance as well as prejudice). Thus, counsel is not deficient for failing to raise a weak issue. See Miller, 882 F.2d at 1434. In order to establish prejudice in this context, petitioner must demonstrate that, but for counsel's errors, he probably would have prevailed on appeal. Id. at 1434 n.9. Petitioner has failed to make that showing here.

Nothing in the record indicates that petitioner probably would have prevailed on appeal if appellate counsel had raised any of his suggested claims. Nor has petitioner substantiated his claims that the conspiratorial behavior of the parties involved in his criminal trial violated his right to due process or any other federal constitutional right. Accordingly, he is not entitled to relief on these claims.

9. Denial of Attorney's Fees

In his last ground for relief, petitioner claims that he should have received an award of attorney's fees pursuant to Cal. Gov't Code § 800 and other state statutes for the work he performed at trial and on appeal, because his prosecution was "capricious and/or arbitrary." Pet. at 66-82. Petitioner also argues that his parents should be reimbursed for the fees they paid to Mr. Broome. Id. at 81. His request does not state a cognizable federal habeas claim. Whether or not the trial court or any state authority violated state law in failing to pay attorney's fees to petitioner, or reimbursement to his parents, is purely a question of state law. As noted above, a federal writ is not available for alleged error in the interpretation or application of state law. Wilson, 131 S. Ct. at 16. Accordingly, petitioner is not entitled to relief on this claim.

10. Request for Evidentiary Hearing

Petitioner also requests an evidentiary hearing on his claims. Pet. at 69. Pursuant to 28 U.S.C. § 2254(e)(2), an evidentiary hearing is appropriate under the following circumstances:

(e)(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-

(A) the claim relies on(I) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense[.]

Under this statutory scheme, a district court presented with a request for an evidentiary hearing must first determine whether a factual basis exists in the record to support a petitioner's claims and, if not, whether an evidentiary hearing "might be appropriate." Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999). See also Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir. 2005); Insyxiengmay v. Morgan, 403 F.3d 657, 669-70 (9th Cir. 2005). A petitioner requesting an evidentiary hearing must also demonstrate that he has presented a "colorable claim for relief." Earp, 431 F.3d at 1167 (citing Insyxiengmay, 403 F.3d at 670, Stankewitz v. Woodford, 365 F.3d 706, 708 (9th Cir. 2004) and Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001)). To show that a claim is "colorable," a petitioner is "required to allege specific facts which, if true, would entitle him to relief." Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998) (internal quotation marks and citation omitted).

The court concludes that no additional factual supplementation is necessary in this case and that an evidentiary hearing is not appropriate with respect to the claims raised in the instant petition. The facts alleged in support of these claims, even if established at a hearing, would not entitle petitioner to federal habeas relief. Therefore, petitioner's request for an evidentiary hearing must be denied.*fn9

III. Conclusion

For all of the foregoing reasons, 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 fourteen 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." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).

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