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Thomas C. Sampson v. L. Scott Mcewen

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


January 31, 2013

THOMAS C. SAMPSON,
PETITIONER,
v.
L. SCOTT MCEWEN, WARDEN,
RESPONDENT.

The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable George H. King, Chief United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on March 2, 2011, accompanied by a supporting memorandum ("Pet. Mem."). Respondent filed an Return on July 5, 2011. Petitioner filed a Reply on August 4, 2011. On January 2, 2013, the matter was transferred to the undersigned Magistrate Judge.

BACKGROUND

A jury found Petitioner guilty of the first degree murder of Rene Flores (Count 1), the second degree murder of Ricardo Garris (Count 2), and possession of an assault weapon (Count 3) (Reporter's Transcript ["R.T."] 2541-44; Clerk's Transcript ["C.T."] 49-97, 501-06). The jury found true the special circumstance allegations that:

(1) Petitioner murdered Flores while lying-in-wait within the meaning of California Penal Code section 190(a)(15); and (2) Petitioner was guilty of multiple murders within the meaning of California Penal Code section 190(a)(3) (R.T. 2542, 2544; C.T. 496-97, 499-501). The jury further found true the allegations that, with respect to the murders:

(1) Petitioner personally used a firearm within the meaning of California Penal Code section 12022.53(b); (2) Petitioner intentionally and personally discharged a firearm within the meaning of California Penal Code section 12022.53(c); and (3) Petitioner intentionally and personally discharged a firearm which caused death to another person within the meaning of California Penal Code section 12022.53(d) (R.T. 2542-43; C.T. 496-97, 499, 505-06). Petitioner received the following sentence: (1) on Count 1, a term of life without the possibility of parole plus a consecutive 25 years to life; (2) on Count 2, a term of 15 years to life plus a consecutive 25 years to life ; and (3) on Count 3, a consecutive term of three years (R.T. 2716-20; C.T. 512-22).

The Court of Appeal affirmed the judgment (Respondent's Lodgment 6; see People v. Sampson, 2009 WL 1680349 (Cal. App. June 17, 2009)). The California Supreme Court summarily denied Petitioner's petition for review (Respondent's Lodgment 8).

Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court, which that court denied in a one-page order (Respondent's Lodgments 9, 10). Petitioner filed a habeas corpus petition in the California Court of Appeal, which that court denied on the ground that "[e]ach claim raised by petitioner in his habeas petition was raised and rejected on appeal" (Respondent's Lodgments 11, 12). Petitioner filed a habeas corpus petition in the California Supreme Court, which that court denied summarily (Respondent's Lodgments 11, 12, 13, 14).

SUMMARY OF TRIAL EVIDENCE

The following summary is taken from the opinion of the California Court of Appeal in People v. Sampson, 2009 WL 1680349. See Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (presuming correct the statement of facts drawn from state court decision), petition for cert. filed (Nov. 15, 2012); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).

1. The People's Case

[O]n February 24, 2005, defendant was employed by the City of Los Angeles Department of Public Works as a maintenance and construction helper; he was on assignment as a plumber's helper trainee. Because he was late for work that day, defendant went directly to the job site without first checking in at the "yard." A few hours later, he received a telephone call from his supervisor, victim Rene Flores, informing defendant that he was going to be docked a day's pay because he arrived late to work and did not check in. The conversation "flipped a switch" inside defendant. Abandoning his truck at the job site, defendant tried to make an appointment with a psychologist at Kaiser. When that failed, he walked to the emergency room at a nearby Kaiser Hospital and asked to see a nurse. Defendant left the hospital after the nurse told him to wait. Defendant returned to the yard by bus and picked up his car, then drove home. There, he prepared a meal and changed into his favorite suit. On a paper plate, he wrote his bank information and a "power of attorney," and left it along with his wallet for his mother. He next retrieved an assault rifle he had owned for several years, loaded it and placed it, along with some extra magazines full of bullets, into a vacuum cleaner box which he placed in his car. Defendant then drove to the yard to talk to Flores.

Upon learning that Flores was not present, defendant returned to his car to wait. While waiting, defendant smoked a cigarette and took a nap.[*fn1 ] At about 4:00 p.m., another employee, Enrique Baca, approached defendant's car. So that Baca would not see the rifle, defendant got out of the car and told Baca he was waiting for Flores.

When Flores arrived at the yard, defendant went to the office that Flores shared with victim Ricardo Garris. After Flores commented on defendant's dress and asked what he was doing with a rifle, defendant fatally shot Flores and Garris.

Defendant left the office and drove away in his car. Obtaining the address of the Hollenbeck police station from information (411), defendant unloaded the rifle and drove there. At the station, he told officers that he had just killed two people. Defendant told the officers that he had a gun in his car and consented to a search of the car from which officers recovered the assault rifle. Defendant appeared calm, clear and polite as he described the shooting. Defendant gave several detailed accounts of the shooting to Detective Dennis Fanning.

2. The Defense Case

Testifying at trial, defendant denied shooting Flores and Garris and maintained he did not know who did. He explained that after arriving home, he changed into a suit because he intended to go to San Diego and wanted to look nice. He left the note and financial information for his mother in case he did not get home in time to make the mortgage payment. He brought the rifle with him because he hoped to sell it or give it away. Defendant returned to work with the intention of finishing his shift so that he would be covered with the union. Defendant left the rifle in the car when he went into Flores's office to check in; the car was unlocked and all four windows were rolled down. As defendant stepped inside the office and said "[h]ey," he saw someone else in the office besides Flores and Garris, but could not describe that person. After hearing the first gunshot, defendant felt faint and dizzy. He leaned against the wall, but did not try to run away. After the unknown person shot Flores and Garris, the assailant noticed defendant. The person pointed the gun at defendant and started "yanking on it like a chainsaw" as he walked toward defendant. When the person was about two feet away, defendant grabbed the rifle, and the person ran away. Defendant went outside, but the person was nowhere in sight. Defendant went straight to his car and drove to the police station. At the police station, defendant did not tell the first two officers that he committed two murders; he tried to tell them what happened, but could not get the words out. Defendant explained that he later told Detective Fanning that he shot two people because he "didn't want to go home. I didn't want to go back outside. I just wanted to be somewhere quiet and secure."

Defense investigator Timothy Williams, a retired detective from the Los Angeles Police Department, testified that he was a court-qualified expert on police procedures. In a case dealing with a confession, Williams explained, it is proper police procedure to confirm the truth of the statements made by the suspect. This corroboration is necessary because people give false confessions. Williams had never experienced a person coming to the police station and falsely confessing to a crime the police did not yet know had happened. Williams had, however, heard of people falsely confessing to murder.

Reviewing the discovery in this case, Williams noted, among other things, that the autopsy report, blood spatter analysis, and bullet trajectory analysis were all inconsistent with defendant's description of the shooting. He also noted that no gunshot residue test was performed on defendant to confirm defendant's statement that he shot two people. A gunshot residue test should have been performed to corroborate defendant's confession and "individuals have in the past, as studies support that, that people have confessed to crimes they haven't committed." Williams agreed that in all three police interviews, defendant gave a consistent description of what had occurred. Williams read the transcripts of those interviews, but he never listened to the tapes so he did not know the tone of defendant's voice or level of calmness during those interviews. Those tapes were the best source of information regarding defendant's demeanor during the interviews. Williams conceded that the police corroborated several aspects of defendant's confession, but maintained that they failed to corroborate others.

(Respondent's Lodgment 6, at pp. 2-5; see People v. Sampson, 2009 WL 1680349, at *1-2) (footnote added).

PETITIONER'S CONTENTIONS

Petitioner contends:

1. The trial court's exclusion of particular expert witness testimony concerning false confessions allegedly violated due process and Petitioner's right to a fair trial and right to present a defense (Petition, Ground One; Pet. Mem., pp. 22, 24-25);*fn2

2. The prosecutor allegedly violated the Constitution and Rule 404 of the Federal Rules of Evidence, by assertedly mischaracterizing material facts in closing argument (Petition, Ground Two; Pet. Mem., pp. 22, 26-29);

3. The trial court allegedly committed instructional error, by assertedly: (1) failing to instruct the jury on voluntary manslaughter/heat of passion; and (2) failing to instruct the jury that provocation could negate premeditation, thus allegedly lowering the prosecution's burden of proof (Petition, Ground Three; Pet. Mem., pp. 22, 29-31);

4. The evidence allegedly was insufficient to support the jury's special circumstance finding of lying-in-wait (Ground Four; Pet. Mem., pp. 22, 31-32);

5. Petitioner's sentence on Count 3 allegedly violated California Penal Code section 654, the Double Jeopardy Clause, and the principles set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000) (Ground Five; Pet. Mem., pp. 32-33);

6. Petitioner's trial counsel allegedly rendered ineffective assistance, by assertedly:

a. Failing to object to the prosecutor's alleged factual misstatements in closing argument;

b. Failing to secure instructions on voluntary manslaughter and provocation; and

c. Failing to object to an allegedly improper sentence on the gun possession charge (Count 3).

(Ground Six; Pet. Mem., pp. 22, 34-38).

STANDARD OF REVIEW

A federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody 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." 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).

"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 132 S. Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts . . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.

Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts). A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. at 407 (citation omitted).

"In order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been 'objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 131 S. Ct. 770, 786 (2011). This is "the only question that matters under § 2254(d)(1)." Id. (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. at 786-87 ("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.").

In applying these standards, the Court looks to the last reasoned state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011) (citation, quotations and brackets omitted).

Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).

DISCUSSION*fn3

I. Petitioner's Challenge to the Exclusion of Particular Expert Testimony Does Not Merit Habeas Relief.

A. Background

During a "mini opening statement" at the commencement of jury selection, Petitioner's counsel stated that the evidence would show that Petitioner gave a false confession to two murders Petitioner purportedly did not commit (R.T. 21). Counsel stated that a police procedures expert would testify that false confessions assertedly are the second leading cause of wrongful convictions, and that the police in Petitioner's case allegedly did not follow normal procedures to corroborate Petitioner's confession (id.). Thereafter, the court stated that it had been "caught . . . off guard" by counsel's statement, and that the court would not permit the expert to testify that false confessions assertedly were the second leading cause of false confessions (R.T. 305). When Petitioner's counsel explained that the expert allegedly had obtained this information from a "big finding and study," the court said the testimony was "simply impermissible," and that the proposed testimony raised "all sorts of Evidence Code section 352 issues" (id.).*fn4 The court said the testimony involved hearsay and improper opinion evidence (id.). Following additional argument, the court deemed the proposed testimony inadmissible, stating "it is a 352 issue" (R.T. 309). The court said that if the expert "start[ed] offering opinions as to the second largest cause of wrongful convictions, then the People [would be] entitled to bring in every alleged confession in history which has been found to be credible," which the court said would distract the jury (id.). However, the court did permit defense counsel to ask the expert about police procedures concerning corroboration of confessions and about whether the police followed those procedures in Petitioner's case (R.T. 310).

Petitioner contends the trial court violated the Constitution by excluding the proposed testimony of the defense expert that false confessions reportedly were the second leading cause of false convictions (Pet. Mem., pp. 24-25). The Court of Appeal rejected this contention, ruling that, although Crane v. Kentucky, 476 U.S. 683 (1986) ("Crane"), forbade the "blanket exclusions" of all evidence related to the circumstances of a confession, Crane did "not compel admission of all expert testimony relating to a false confession"

(Respondent's Lodgment 6, at pp. 5-6; see People v. Sampson, 2009 WL 1680349, at *3). The Court of Appeal observed that the trial court did not preclude the expert from opining concerning the procedures police should follow to ensure that a confession is not false, or from testifying that police assertedly did not follow those procedures in Petitioner's case (Respondent's Lodgment 6, at p. 8; see People v. Sampson, 2009 WL 1680349, at *5). The Court of Appeal also ruled that statistical evidence concerning the number of wrongful convictions allegedly based on false confessions was not relevant, and that, even assuming some relevance, the court properly excluded the testimony under California Evidence Code section 352 (Respondent's Lodgment 6, at p. 8; see People v. Sampson, 2009 WL 1680349, at *5).

B. Discussion

In limited circumstances, the exclusion of crucial evidence may violate the Constitution. See Holmes v. South Carolina, 547 U.S. 319, 319 (2006); Chambers v. Mississippi, 410 U.S. 284, 302 (1973) ("Chambers"). "Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'" Crane, 476 U.S. at 690; Chia v. Cambra, 360 F.3d 997, 1003 (9th Cir. 2004), cert. denied, 544 U.S. 919 (2005) ("The Supreme Court has made it clear that the erroneous exclusion of critical, corroborative defense evidence may violate both the Fifth Amendment due process right to a fair trial and the Sixth Amendment right to present a defense.") (citations and internal quotations omitted). In Crane, 476 U.S. at 691, the Supreme Court ruled that the exclusion of testimony concerning the circumstances under which the petitioner's confession was obtained violated the petitioner's right to present a defense.

However, "Chambers . . . does not stand for the proposition that the defendant is denied a fair opportunity to defend himself whenever a state . . . rule excludes favorable evidence." United States v. Sheffer, 523 U.S. 303, 316 (1998). "While the Constitution . . . prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury." Holmes v. South Carolina, 547 U.S. at 320 (citations omitted); see also Moses v. Payne, 555 F.3d 742, 758 (9th Cir. 2009). Thus, "the Constitution permits judges to exclude evidence that is repetitive . . . , only marginally relevant or poses an undue risk of harassment, prejudice or confusion of the issues." Holmes v. South Carolina, 547 U.S. at 326-27 (citations, internal brackets and quotations omitted).

As previously indicated, the trial court excluded the evidence in the exercise of the court's discretion under California Evidence Code section 352. Section 352 confers upon a trial court the discretion to exclude evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Petitioner does not challenge the constitutionality of section 352, but rather challenges the "trial judge's abuse of discretion" (Reply, p. 7).

In Moses v. Payne, the habeas petitioner challenged the constitutionality of a section 352 exclusion of expert testimony concerning the victim's alleged risk factors for suicide, proffered to support the defendant's contention that the victim had killed herself. Moses v. Payne, 555 F.3d at 758. In denying relief, the Ninth Circuit reasoned that the United States Supreme Court has not squarely addressed the issue of whether or when an evidentiary rule that requires a trial court to "balance factors and exercise its discretion" might violate a defendant's due process right to present a defense. See Moses v. Payne, 555 F.3d at 758. Rather, the Supreme Court cases "focused only on whether an evidentiary rule, by its own terms, violated a defendant's right to present evidence[,]" not on whether a court's exercise of discretion in excluding evidence violates that right. Id.

In Brown v. Horell, 644 F.3d 969 (9th Cir.), cert. denied, 132 S. Ct. 593 (2011), the Ninth Circuit applied Moses v. Payne in the context of expert testimony concerning a confession. The trial court in Brown v. Horell excluded proposed expert testimony concerning the methods whereby modern interrogation techniques assertedly produce false confessions. Id. at 977. Deeming the case analogous to Moses v. Payne, the Ninth Circuit denied habeas relief on the ground that no Supreme Court case postdating Moses v. Payne had addressed the interplay of the discretionary exclusion of evidence and the right to present a defense, and no such case had established any controlling legal standard governing those matters. Brown v. Horell, 644 F.3d at 983.

In accordance with Brown v. Horell and Moses v. Payne, federal habeas relief is unavailable on Petitioner's challenge to the trial court's discretionary exclusion of expert testimony. There exists no clearly established Supreme Court law supporting Petitioner's challenge. See Brown v. Horell, 644 F.3d at 983; Moses v. Payne, 555 F.3d at 758; Jimenez v. Hernandez, 2010 WL 890869, at *6-7 (C.D. Cal. Mar. 8, 2010); see also 28 U.S.C. § 2254(d); Knowles v. Mirzarance, 556 U.S. 111, 122 (2009) ("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 this Court") (citations and internal quotations omitted); Wright v. Van Patten, 552 U.S. 120, 126 (2008) ("Because our cases give no clear answer to the question presented, . . . it cannot be said that the state court unreasonably applied clearly established Federal law") (citation, internal brackets and quotations omitted).

In any event, Petitioner has failed to show that the exclusion of the proposed expert testimony violated the Constitution. At Petitioner's trial, the court permitted the expert to testify concerning the procedures police assertedly should use to verify the reliability of a confession, and the court also permitted the expert to testify that the police assertedly did not perform an adequate corroborative investigation in Petitioner's case (see R.T. 1895-97, 1914-17, 1921-22, 2105-08, 2123-24, 2139-40). See Cason v. Hedgpeth, 2009 WL 1096209, at *12 (C.D. Cal. Apr. 22, 2009) (exclusion of expert testimony concerning the phenomenon of false confessions and failure of police to adhere to correct interviewing procedures not unconstitutional, where jury heard testimony concerning circumstances under which confession occurred). Moreover, the trial court reasonably concluded that the introduction of testimony concerning other confessions (whether false or truthful) could divert the jury's attention from the evidence of Petitioner's confession. See Holmes v. South Carolina, 547 U.S. at 320. Petitioner has not shown that the Court of Appeal's rejection of this claim was contrary to, or an unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. 770, 785-87 (2011).

Furthermore, any alleged error was harmless under the harmless error standard for federal habeas corpus cases set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993) ("Brecht"). Brecht forbids a grant of habeas relief for a trial-type error unless the error had a "substantial and injurious effect or influence" on the outcome of the case. Id. at 637-38.

Simply stated, the evidence of Petitioner's guilt was overwhelming. At trial, Petitioner did not deny that, after having a conversation with Flores at approximately 10 a.m. concerning Petitioner's failure to arrive at work on time, Petitioner:

(1) abandoned his truck; (2) went home; (3) donned a nice suit and hat; (4) placed a loaded SKS semiautomatic rifle in his car in a vacuum cleaner box along with another loaded magazine; (5) left his house keys, ATM cards and bank pin numbers along with a note for his mother; (6) drove to the yard, taking the gun out of the box on the way and placing it under his legs; (7) waited close to six hours for Flores' return; and (8) entered the office to speak to Flores (R.T. 2155-65, 2173-76, 2179-83, 2189-93, 2202-11, 2216-19, 2270). Petitioner did not deny that he brought the gun to the police station after the shooting, and did not deny that he told Detective Fanning that he had committed the murders (R.T. 2270-71, 2278).

Petitioner's purported explanations at trial for his behavior on the day of the shooting were inconsistent, implausible, and sometimes even ludicrous. Petitioner testified that, after leaving Kaiser, Petitioner went home and donned a suit because he "wanted to look nice" for a purported upcoming weekend in San Diego (R.T. 2161). However, Petitioner admitted that, when he left home to drive to the yard (supposedly to finish his shift wearing a suit), he did not take with him his house keys, ATM cards or a suitcase with clean clothing (R.T. 2197-99, 2202-03). Petitioner said he told police that he purportedly knew from a "sixth sense" that he was not coming back (R.T. 2162). Petitioner also said he took the loaded weapon with him to sell it to someone in San Diego whom Petitioner purportedly had met three years before but whose name and phone number Petitioner did not know (R.T. 2163, 2187-88, 2270). Petitioner explained his failure to tell the detectives about the purported trip to San Diego by saying that Petitioner knew it was illegal to sell a gun (R.T. 2189).

Petitioner's testimony that a purported unknown assailant shot the victims with Petitioner's assault rifle was singularly implausible. Petitioner said he left the gun in the car when he went to talk to Flores (R.T. 2164). According to Petitioner, Petitioner observed the gun while Petitioner was in the office with Flores and Garris, although Petitioner allegedly did not see the supposed shooter enter (R.T. 2228). Petitioner allegedly heard Flores say "what are you going to do with that shotgun [sic]," but assertedly did not hear the shots (R.T. 2168, 2234, 2242). After the first shot, Petitioner allegedly leaned against the wall, purportedly feeling "incapacitated" and "dizzy" (R.T. 2168). According to Petitioner, after shooting Flores and Garris, the alleged shooter advanced on Petitioner, "yanking" on the gun "like a chainsaw" (R.T. 2169). Petitioner said he "grabbed the gun" from the alleged shooter, from a distance of approximately two and a half feet, after which the alleged shooter purportedly departed without harming Petitioner (R.T. 2169, 2250).*fn5 Petitioner also said he did not take the gun away, but allegedly only put his hand on it, whereupon the alleged shooter purportedly simply let go of the gun (R.T. 2212). While he assertedly was repossessing the gun, Petitioner supposedly looked only at the gun, not at the alleged shooter (R.T. 2250-51). Petitioner allegedly did not know the identity of the alleged shooter, and could not describe the alleged shooter's appearance or even gender (R.T. 2167, 2244, 2251-52).

Petitioner supposedly could only make out a "shape and an outline" of the alleged shooter (R.T. 2245). Petitioner said a medical condition prevented Petitioner from being able to see the alleged shooter, but admitted Petitioner had not received treatment for the purported medical condition or even seen a doctor for it, and admitted Petitioner had no history of mental illness (R.T. 2252-55).

Petitioner admitted that, after the alleged shooter left, Petitioner did not attempt to help the victims, although Petitioner purported to have felt "bad" for the victims who supposedly were "like family" (R.T. 2269, 2272). Petitioner admitted that, after the alleged shooter left, Petitioner did not call 911 from his cell phone (R.T. 2271-72). Petitioner admitted driving to the police station but denied telling the two officers he first encountered there that Petitioner had committed the murders (R.T. 2170-71). Petitioner said he tried to tell the officers what happened but allegedly had difficulty "getting the words out" (R.T. 2170). Petitioner admitted he did not tell the two officers at the police station that another person supposedly was the shooter (R.T. 2246).

Petitioner's explanation for his confession to Detective Fanning was, if anything, even more unbelievable. Petitioner testified that the "only reason" Petitioner assertedly falsely told Detective Fanning that Petitioner shot the victims was because Petitioner supposedly did not want to leave the interrogation room to go home or "back outside," but rather purportedly wanted to stay "somewhere quiet and secure" (R.T. 2171). Petitioner supposedly confessed falsely because Detective Fanning reportedly had told Petitioner that the only person permitted to stay in the interrogation room would be the shooter, and Petitioner allegedly wanted to stay in the room because the room was "so quiet" and "better than the place that [Petitioner] just left" (R.T. 2172, 2259, 2264). Despite being handcuffed with paper wrappings on his hands, Petitioner allegedly felt such "peace" and contentment that he assertedly did not want to leave the room (R.T. 2172).*fn6 Petitioner testified that, when Petitioner allegedly told Detective Fanning that Petitioner was not the shooter, Detective Fanning supposedly told Petitioner not to worry about it, and that the police would investigate and find the shooter (R.T. 2262). Petitioner said Fanning "needed a body . . . just for the night" (R.T. 2267).

Petitioner accused the detectives of making "gestures," giving "sublimal" cues, feeding Petitioner answers, and eliciting information from Petitioner that was not tape-recorded (R.T. 2179, 2220-21, 2256). However, Petitioner agreed that the interviewing detectives were polite and did not threaten Petitioner or exhibit any weapon (R.T. 2178).*fn7 Petitioner admitted that his trial testimony was the first time Petitioner had ever complained that the detectives purportedly had instructed or forced Petitioner to lie (R.T. 2221). Petitioner testified that "the main things" in his confession were true, except "the part with the gun" (R.T. 2255-56, 2261). When the prosecutor asked Petitioner whether Petitioner recalled Detective Fanning asking Petitioner "Why did you do it, why did you do it?" Petitioner responded:

Yes. I couldn't, if he would have given me a little lead - I couldn't think of anything. I couldn't think of a reason. If I wasn't angry. I wasn't upset or anything inside of me to just say, oh yeah, I was angry and this is why I did it. I couldn't come up with anything.

(R.T. 2267-68) (emphasis added). Not surprisingly, the jury rendered its guilty verdict after only two hours of deliberations (see C.T. 502-03).*fn8

Given the strength of the evidence that Petitioner was the shooter (including his taped confession), the improbability of Petitioner's story that a mysterious stranger purportedly committed the murders with Petitioner's gun, and the implausibility of Petitioner's assertions that he falsely confessed to the murders because he supposedly enjoyed the tranquility of a police interrogation room, this Court cannot conclude that the trial court's exclusion of expert testimony had any substantial and injurious effect or influence on the jury's verdict. See Brecht, 507 U.S. at 637-38.

For the foregoing reasons, Petitioner is not entitled to habeas relief on Ground One of the Petition.

II. Petitioner's Claim of Prosecutorial Misconduct Does Not Merit Habeas Relief.

A. Background

As mentioned above, the trial evidence showed that, before leaving his home to return to the yard, Petitioner left a paper plate on a table bearing words "not much but enjoy, love you mom power of attorney" (R.T. 995, 1232, 1303; C.T. 423-27). Petitioner also left his bank pin numbers, ATM cards and wallet, and threw his house keys into his mother's car (R.T. 339; C.T. 426-27).*fn9 Petitioner told Detective Fanning that Petitioner "left everything" except his car keys and identification (C.T. 427). When Detective Fanning asked whether Petitioner thought he was going to die, Petitioner said, "I didn't know. I just didn't need it." (C.T. 428). Petitioner explained that he left his house keys behind because he "just knew [he] wasn't coming back" (C.T. 339). Asked how he "just knew" this, Petitioner said, "I just -- I just knew. It was just like -- like I don't know. Like everything is over. I mean, that's it." (CT 340). Petitioner also told Detective Fanning that Petitioner went to the yard with the gun because Petitioner "saw [his] whole life just gone" (R.T. 273). At trial, Petitioner admitted writing the words on the paper plate and leaving his ATM cards, and admitted throwing his house keys in his mother's car (R.T. 2161-62, 2190-93, 2202-03).

During cross-examination, the prosecutor asked Petitioner whether the note on the plate was a "suicide note . . . a goodbye note to your mom in the sense of 'I'm not going to see you again'" (R.T. 2191). Petitioner responded, "[n]o, it is not" (id.). In closing argument, the prosecutor characterized the note as a "suicide note" or "goodbye" note, arguing the note showed Petitioner intended to go to the yard and commit murder (R.T. 2473, 2480, 2488, 2518).

Petitioner contends the prosecutor mischaracterized the evidence by referring to the note as a "suicide" or "goodbye" note, allegedly in order to use the note as propensity evidence (Pet. Mem., pp. 26-29). Petitioner contends the prosecutor thereby violated the Constitution and Rule 404 of the Federal Rules of Evidence (which limits the admissibility of propensity evidence in federal trials) (Pet. Mem., pp. 26-27).

Petitioner raised this claim in the habeas corpus petition he filed in the California Supreme Court, which that court denied summarily (Respondent's Lodgments 14, 15). Therefore, this Court "must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011).

B. Discussion

Prosecutorial misconduct merits habeas relief only where the misconduct "'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation omitted); Bonin v. Calderon, 59 F.3d 815, 843 (9th Cir. 1995), cert. denied, 516 U.S. 1051 (1996) ("To constitute a due process violation, the prosecutorial misconduct must be so severe as to result in the denial of [the petitioner's] right to a fair trial."). The Court must consider the entire proceeding to determine whether the alleged misconduct rendered the trial so unfair as to violate due process. See Sechrest v. Ignacio, 549 F.3d 789, 807-08 (9th Cir. 2008), cert. denied, 130 S. Ct. 243 (2009).

In fashioning closing arguments, prosecutors are allowed reasonably wide latitude. United States v. McChristian, 47 F.3d 1499, 1507 (9th Cir. 1995). "The arguments of counsel are generally accorded less weight by the jury than the court's instructions and must be judged in the context of the entire argument and the instructions. [citation]." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 898 (9th Cir. 1996).

In Parker v. Matthews, 132 S. Ct. 2148 (2012) ("Parker"), the United States Supreme Court ruled that alleged prosecutorial misconduct in closing did not warrant habeas relief under the habeas standard of review set forth in 28 U.S.C. section 2254. In Parker, the Court of Appeals for the Sixth Circuit had granted habeas relief on a claim that the prosecutor committed misconduct in closing argument by suggesting that the petitioner had colluded with his lawyer and a witness to manufacture an "extreme emotional disturbance" defense. The United States Supreme Court reversed the Sixth Circuit, observing that, even if the comments directed the jury's attention to inappropriate considerations, the petitioner had not shown that the comments were "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 2155 (quoting Harrington v. Richter, 131 U.S. 770, 786-87 (2011)). The Supreme Court noted that in Darden v. Wainwright the Court had upheld a closing argument "considerably more inflammatory" than the one at issue in Parker,*fn10 and that "particularly because the Darden standard is a very general one, leaving courts more leeway in reaching outcomes in case-by-case determinations," the Sixth Circuit's decision was improper. Parker, 132 S. Ct. at 2155 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

"'[P]rosecutors must have reasonable latitude to fashion closing arguments, and thus can argue reasonable inferences based on the evidence, including that one of the two sides is lying.'" Cunningham v. Wong, F.3d , 2013 WL 69198, at *14 (9th Cir. Jan. 8, 2013) (quoting United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993)).

Here, Petitioner denied that the note was a "suicide note," but admitted to Detective Fanning that Petitioner was not planning on returning home, and thought everything was "over" (C.T. 339-40, 428). From these admissions and the circumstantial evidence, one reasonably could infer that Petitioner left the note and other items because Petitioner knew he was going to try to kill his boss with an assault rifle and thought he might die in the attempt. One also reasonably could infer that Petitioner left his belongings and bid his mother goodbye because Petitioner believed that he might be killed in an exchange of gunfire, might be convicted of murder and be executed, or might be convicted of murder and sent to prison for the rest of his life.*fn11 The prosecutor's argument constituted a reasonable interpretation of the evidence.*fn12

To the extent Petitioner claims that the prosecutor's comments sanctioned the jury's use of supposed propensity evidence, such claim fails for an independent reason. The United States Supreme Court has never ruled that the admission of propensity evidence violates the Constitution. See Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991) ("we express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of 'prior crimes' evidence to show propensity to commit a charged crime"). Therefore, Petitioner cannot obtain habeas relief on any such claim. See Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008), cert. denied, 555 U.S. 1117 (2009) (rejecting habeas petitioner's challenge to introduction of propensity evidence, where petitioner could point to no Supreme Court precedent establishing that admission of otherwise relevant propensity evidence violated the Constitution); Alberni v. McDaniel, 458 F.3d 860, 864 (9th Cir. 2006), cert. denied, 549 U.S. 1287 (same) (rejecting challenge to admission of propensity evidence in light of Supreme Court's express refusal to consider the issue in Estelle v. McGuire); see generally Moses v. Payne, 555 F.3d 742, 758--59 (9th Cir. 2009) (habeas relief unavailable where the Supreme Court had articulated no "controlling legal standard" on the issue); Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir.), cert. denied, 555 U.S. 871 (2008) (where Supreme Court "expressly left [the] issue an 'open question,'" habeas relief unavailable).

To the extent Petitioner contends the prosecutor violated Rule 404 of the Federal Rules of Evidence, federal habeas relief is plainly unavailable. The Federal Rules of Evidence simply do not apply to state criminal proceedings. See Fed. R. Evid. 101(a) ("These rules apply to proceedings in United States courts."); Higuera v. Lewis, 2011 WL 4595006, at *7 (N.D. Cal. Oct. 4, 2011); Rios v. Domingo, 2010 WL 5563884, at *6 (C.D. Cal Dec. 9, 2010), adopted, 2011 WL 93035 (C.D. Cal. Jan 11, 2011); Walton v. Clark, 2010 WL 4672251, at *10 (C.D. Cal. July 20, 2010), adopted, 2010 WL 4672353 (C.D. Cal. Nov. 8, 2010).

Finally, any alleged error was harmless under the Brecht standard. Given the strength of the evidence against Petitioner, the prosecutor's "suicide" or "goodbye" argument had no substantial and injurious effect or influence on the verdict. See Brecht, 507 U.S. at 637-38.

For all of the foregoing reasons, Petitioner is not entitled to habeas relief on Ground Two of the Petition.

III. Petitioner's Claim of Instructional Error Does Not Merit Habeas Relief.

A. Governing Legal Standards

"[I]nstructions that contain errors of state law may not form the basis for federal habeas relief." Gilmore v. Taylor, 508 U.S. 333, 342 (1993); see also Estelle v. McGuire, 502 U.S. at 71-72 ("the fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief"); Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988) (instructional error "does not alone raise a ground cognizable in a federal habeas corpus proceeding"). When a federal habeas petitioner challenges the validity of a state jury instruction, the issue is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. at 72; Clark v. Brown, 450 F.3d 898, 904 (9th Cir.), cert. denied, 549 U.S. 1027 (2006). The court must evaluate the alleged instructional error in light of the overall charge to the jury. Middleton v. McNeil, 541 U.S. 433, 437 (2004); Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997), cert. denied, 522 U.S. 1079 (1998). "The relevant inquiry is 'whether there is a reasonable likelihood that the jury has applied the challenged instruction' in an unconstitutional manner." Houston v. Roe, 177 F.3d 901, 909 (9th Cir. 1999), cert. denied, 528 U.S. 1159 (2000) (quoting Boyde v. California, 494 U.S. 370, 380 (1990)). In challenging the failure to give an instruction, a habeas petitioner faces an "especially heavy" burden. Henderson v. Kibbe, 431 U.S. at 155.

B. Failure to give Voluntary Manslaughter/Heat of Passion Instruction

1. Background

In a conference with counsel concerning jury instructions, the trial court asked whether an instruction on the "heat of passion" theory of voluntary manslaughter was appropriate (R.T. 2305). The prosecutor opposed the instruction, arguing that there was no evidence of anger or provocation, and that Petitioner had told Detective Fanning that Petitioner was not angry at the time of the killings (R.T. 2305). The court tentatively agreed, but asked Petitioner's counsel to think about the matter (R.T. 2305-06).

Later, Petitioner's counsel expressed his belief that Petitioner's testimony (in which Petitioner denied being the shooter) precluded any voluntary manslaughter/heat of passion instruction (R.T. 2411). The court declined to give the instruction, stating that the evidence did not support it, and adding: "I hope the day never comes when, as a matter of public policy and criminal jurisprudence, an appellate court says that an individual who is disciplined at work somehow objectively is provoked so that if that individual engaged in homicide thereafter, society is prepared to recognize that that is the requisite provocation" (R.T. 2414). The court also ruled that the evidence did not show that Petitioner subjectively believed himself to be the victim of provocation (R.T. 2414). The trial court gave instructions on first degree and second degree murder only (R.T. 2446-56; C.T. 481-84).

On appeal, Petitioner argued that the failure to instruct on a lesser-included offense deprived Petitioner of his constitutional right to have a jury determine every material issue presented by the evidence, citing only a state court case (see Respondent's Lodgment 3, pp. 16-32).*fn13 In rejecting the claim, the Court of Appeal discussed only state law (see Respondent's Lodgment 4, pp. 9-10; People v. Thomas, 2009 WL 1680349, at * 5-6). The California Supreme Court denied the claim summarily (see Respondent's Lodgment 7, pp. 4-7; Respondent's Lodgment 8). In his habeas corpus petition filed in the Superior Court, Petitioner expressly raised a federal constitutional challenge to the failure to give the instruction (see Respondent's Lodgment 9, pp. 6-11).*fn14 The Superior Court rejected the claim as having previously been decided on appeal (see Respondent's Lodgment 10). The Court of Appeal also rejected Petitioner's constitutional challenge on the ground that the claim previously had been rejected on appeal (see Respondent's Lodgment 12).

2. Discussion

Petitioner is not entitled to habeas relief on this claim for several reasons. First, if the standard of review set forth in 28 U.S.C. section 2254(d)(1) applies, the United States Supreme Court expressly has declined to rule on the issue of whether federal habeas relief is available for a court's failure to instruct on a lesser included offense in a non-capital case. See Beck v. Alabama, 447 U.S. 625, 638 n.14 (1980) ("Beck"); see also Powell v. Hatcher, 407 Fed. App'x 226, 227 (9th Cir.), cert. denied, 131 S. Ct. 2467 (2011) (denying habeas relief, noting that in Beck the Supreme Court expressly declined to rule on the issue); Huynh v. Hernandez, 2007 WL 186307, at *1 (9th Cir. Jan. 22, 2007) (failure to instruct on lesser offense of involuntary manslaughter did not merit habeas relief; "there is no 'clearly established' Supreme Court law that requires giving a lesser-included offense instruction in a non-capital case") (citations omitted); see also Dansby v. Trombley, 369 Fed. App'x 657, 660 (6th Cir. 2010) ("the Supreme Court has never held that due process requires the giving of jury instructions on lesser-included offenses in non-capital cases"). Therefore, under the standard of review set forth in 28 U.S.C. section 2254(d)(1), habeas relief is unavailable on this claim. See Moses v. Payne, 555 F.3d at 758-59; Larson v. Palmateer, 515 F.3d at 1066.

Second, even if a de novo standard of review applies, in the Ninth Circuit a claim challenging a state court's failure to give a lesser included offense instruction "'fails to present a federal constitutional question and will not be considered in a federal habeas corpus proceeding.'" Powell v. Hatcher, 407 Fed. App'x at 227 (quoting James v. Reese, 546 F.2d 325, 327 (9th Cir. 1986)).

Third, and in any event, the evidence in the present case manifestly did not support a voluntary manslaughter/heat of passion instruction. In California, "manslaughter, a lesser included offense of murder, is an unlawful killing without malice." People v. Cruz, 44 Cal. 4th 636, 664, 80 Cal. Rptr. 3d 126, 187 P.3d 970 (2008), cert. denied, 555 U.S. 1215 (2009) (citation omitted). "Malice is presumptively absent when a defendant kills 'upon a sudden quarrel or heat of passion' (citation), provided that the provocation is sufficient to cause an ordinarily reasonable person to act rashly and without deliberation, and from passion rather than judgment. (citation)." Id. The heat of passion requirement for manslaughter has both an objective and a subjective component. People v. Steele, 27 Cal. 4th 1230, 1252, 120 Cal. Rptr. 2d 432, 47 P.3d 225 (2002), cert. denied, 537 U.S. 1115 (2003). Objectively, the heat of passion must be "such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, because 'no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.'" Id. at 1252-53 (quoting People v. Logan, 175 Cal. 45, 49, 164 P. 1121 (1917)). "The defendant must actually, subjectively, kill under the heat of passion." People v. Steele, 27 Cal. 4th at 1252 (citation omitted).

At Petitioner's trial, there was no evidence of any objective provocation. Evidence that Flores had threatened to discipline Petitioner several hours prior to the shooting did not show objective provocation. See People v. Pride, 3 Cal. 4th 195, 250, 10 Cal. Rptr. 2d 636, 833 P.2d 643 (1992), cert. denied, 507 U.S. 935 (1993) (defendant who killed his employer not entitled to voluntary manslaughter instruction where evidence showed employer criticized defendant's work performance three days before the killing, there was no evidence the two argued immediately prior to the killing, and the injuries inflicted were consistent with either a provoked or a premeditated killing); People v. Hach, 176 Cal. App. 4th 1450, 1458-59, 98 Cal. Rptr. 3d 508 (2009) (evidence insufficient to show provocation as a matter of law, where defendant quarreled with his girlfriend several hours before the shooting, then took his assault rifle and drove in search of her, and, finding her with her new boyfriend, shot and killed the boyfriend; evidence showed no heat of passion, but only a "persistent, brooding jealousy which spurred appellant to arm himself and lie in wait for a victim"). In particular, uncontroverted evidence that the telephone conversation with Flores occurred some eight hours before the shooting belied any claim of objective provocation. "[I]f sufficient time has elapsed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter." People v. Daniels, 52 Cal. 3d 815, 868, 277 Cal. Rptr. 122, 802 P.2d 906 (1991), cert. denied, 502 U.S. 846 (1991) (citation and internal quotations omitted).

There was also no evidence of objective provocation immediately preceding the shooting. When Petitioner entered the office, Flores asked Petitioner whether Petitioner had gone to or was coming from church, hardly a provocative statement (C.T. 280, 370). Seeing the gun, Flores asked what Petitioner was going to do with the gun, again not a provocative statement (C.T. 371-72). Moreover, the largely uncontroverted evidence of planning was wholly inconsistent with any notion of objective heat of passion. See People v. Souza, 54 Cal. 4th 90, 115, 141 Cal. Rptr. 3d 419, 277 P.3d 118 (2012), petition for cert. filed (Jan. 3, 2013) (No. 12-8108, 12A404) (where evidence showed a "concerted effort to plan and execute a surprise attack," voluntary manslaughter instruction unwarranted).

There was also no evidence of subjective heat of passion. At trial, Petitioner denied having had any argument with Flores (R.T. 2173). Petitioner told Detective Fanning that, when Flores called Petitioner, Flores allegedly sounded "like he was determined to prove that he was the boss," adding "I don't have a problem with that" (C.T. 311). Petitioner said Flores did not use any profanity, but was just being authoritative (C.T. 315). Petitioner testified at trial that he went to Kaiser because he purportedly felt "disoriented" due to wounds on his head from previous experiences (R.T. 2157). Petitioner told Detective Fanning that, after the call from Flores, Petitioner did not feel "hate," or feel bad, but thought things would not be "nice" when he returned home (C.T. 318, 341). Petitioner had not felt angry or upset with Flores and Garris, and said he felt no emotion at all before or during the shooting (C.T. 339, 382, 436-37, 449). Petitioner said he never felt as if Flores had been "doing [Petitioner] wrong" (C.T. 399). Petitioner denied feeling like everything was caving in on him, and denied feeling nervous or nauseous before the shooting (C.T. 342, 399). Petitioner said he felt nothing while he waited in the car, smoking a cigar, until Flores returned (C.T. 362). Petitioner told Detective Fanning there was "no excuse" for the murders and that he "really didn't" have any reason for murdering Flores and Garris (C.T. 256-57).

At trial, Petitioner testified that he had rejected Detective Fanning's suggestion that Petitioner had killed the victims because Flores assertedly was always "on [Petitioner's] back" and "was always grilling [Petitioner]" (R.T. 2268). Petitioner explained:

I, I, I could not -- I don't know my exact response to that question. But I could not accept that answer because they [the police] are trying to put a label on me as being angry or somebody else being angry, and that is just not in my personality.

(R.T. 2269).

Accordingly, the evidence did not support a voluntary manslaughter/heat of passion instruction. Therefore, for this reason as well, the trial court did not deny Petitioner a fair trial by refusing to give such an instruction.

For all of the foregoing reasons, Petitioner is not entitled to habeas relief on this claim.

C. Failure to Instruct on Provocation

In California, sufficient provocation may negate the premeditation and deliberation required to prove first degree murder. See People v. Valentine, 28 Cal. 2d 121, 132, 169 P.2d 1 (1946); People v. Le, 158 Cal. App. 4th 516, 526, 69 Cal. Rptr. 3d 831 (2007). Petitioner contends the trial court's failure to instruct the jury sua sponte on this principle assertedly lessened the prosecution's burden of proof in alleged violation of Mullaney v. Wilbur, 421 U.S. 684 (1975) ("Mullaney") (Pet. Mem., pp. 30-31).*fn15 The Court of Appeal rejected this claim, ruling that there was "no evidence of provocation that would defeat the overwhelming evidence of premeditation" (Respondent's Lodgment 6, p. 11; see People v. Sampson, 2009 WL 1680349, at *6).

In Mullaney, the trial court instructed the jury that, if the prosecution established that a murder was intentional and unlawful, malice was implied conclusively unless the defendant proved by a preponderance that he had acted in the heat of passion on sudden provocation so as to reduce the murder charge to manslaughter. Mullaney, 421 U.S. at 685. The United States Supreme Court held that this instruction impermissibly had lessened the prosecution's burden of proof. Mullaney, 421 U.S. at 700-01.

Mullaney has no application in the present case. As the Court of Appeal reasonably concluded, the evidence at Petitioner's trial did not show any provocation sufficient to warrant a provocation instruction. Petitioner denied being angry or upset prior to the shooting, and the evidence overwhelmingly showed that the murder of Flores was deliberate, premeditated, and unprovoked. See People v. Enraca, 53 Cal. 4th 735, 760, 137 Cal. Rptr. 3d 117, 269 P.3d 543 (2012), cert. denied, 133 S. Ct. 225 (2012) (instruction that jury may consider provocation on issue of deliberation and premeditation unwarranted, where "the forensic evidence strongly suggested that defendant deliberately executed his victims").

For the foregoing reasons, Petitioner has failed to demonstrate that the Court of Appeal's rejection of this claim was contrary to, or an unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. 770, 785-87 (2011). Petitioner is not entitled to habeas relief on this claim.

IV. Petitioner's Challenge to the Sufficiency of the Evidence to Support the Lying-in-Wait Special Circumstance Finding Does Not Merit Habeas Relief.

Petitioner argues that the evidence was insufficient to support the jury's finding of lying-in-wait because: (1) Petitioner assertedly "parked [his] car in plain view and entered the office openly"; (2) Petitioner allegedly did not carry a "hidden gun" while exiting the car or entering the office; and (3) the victim "saw the gun and commented on it" (Pet. Mem., p. 31). The Court of Appeal rejected this claim, deeming the evidence of lying-in-wait to be sufficient (Respondent's Lodgment 6, pp. 11-12).

A. Governing Legal Standards

On habeas corpus, the Court's inquiry into the sufficiency of evidence is limited. Evidence is sufficient unless the charge was "so totally devoid of evidentiary support as to render [Petitioner's] conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment." Fish v. Cardwell, 523 F.2d 976, 978 (9th Cir. 1975), cert. denied, 423 U.S. 1062 (1976) (citations and quotations omitted). A conviction cannot be disturbed unless the Court determines that no "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 317 (1979). A verdict must stand unless it was "so unsupportable as to fall below the threshold of bare rationality." Coleman v. Johnson, 132 S. Ct. 2060, 2065 (2012). In applying these principles, a court looks to state law for the substantive elements of the criminal offense, but the minimum amount of evidence that the Constitution requires to prove the offense "is purely a matter of federal law." Id. at 2064.

Jackson v. Virginia establishes a two-step analysis for a challenge to the sufficiency of the evidence. United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). "First, a reviewing court must consider the evidence in the light most favorable to the prosecution." Id. (citation omitted); see also McDaniel v. Brown, 558 U.S. 120, 130 S. Ct. 665, 673 (2010).*fn16 At this step, a court "may not usurp the role of the trier of fact by considering how it would have resolved the conflicts, made the inferences, or considered the evidence at trial." United States v. Nevils, 598 F.3d at 1164 (citation omitted). "Rather, when faced with a record of historical facts that supports conflicting inferences a reviewing court must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id. (citations and internal quotations omitted); see also Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) ("it is the responsibility of the jury - not the court - to decide what conclusions should be drawn from evidence admitted at trial"). The prosecution need not rebut all reasonable interpretations of the evidence or "rule out every hypothesis except that of guilt beyond a reasonable doubt at the first step of Jackson [v. Virginia]." Id. (citation and internal quotations omitted).

At the second step, the court "must determine whether this evidence, so viewed, is adequate to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt." United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted; original emphasis). A reviewing court "may not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Id. (citations and internal quotations omitted; original emphasis).

B. Challenge to Sufficiency of the Evidence to Support the Finding of Lying-in-Wait

"The lying in wait special circumstance requires proof of an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage." People v. Jurado, 38 Cal. 4th 72, 119, 41 Cal. Rptr. 3d 319, 131 P.3d 400 (2006), cert. denied, 549 U.S. 956 (2006) (citations and internal quotations omitted).

The element of concealment is satisfied by a showing "that a defendant's true intent and purpose were concealed by his actions or conduct," and "[i]t is not required that he be literally concealed from view before he attacks the victim." People v. Streeter, 54 Cal. 4th 205, 247, 142 Cal. Rptr. 3d 481, 278 P.3d 754 (2012) (citation and internal quotations omitted). "[T]he concealment element may manifest itself by either an ambush or by the creation of a situation where the victim is taken unawares even though he sees his murderer." People v. Sims, 5 Cal. 4th 405, 432, 20 Cal. Rptr. 2d 537, 853 P.2d 992 (1993), cert. denied, 512 U.S. 1253 (1994) (citation omitted). In the present case, the element of concealment was amply supported by evidence that Petitioner concealed the gun in a vacuum cleaner box before driving to the yard, put the gun on the floor beneath his legs before he reached the yard, exited his car to speak with Baca (from which one reasonably could infer that Petitioner did not want Baca to see the gun), waited in his car for approximately six hours, and then entered the office with the gun held down by his leg (C.T. 212, 217-19, 275, 277, 330-31, 336-37, 356-57, 359, 367-68; R.T. 2164, 2182-83, 2189, 2196-97, 2203-04, 2208-11, 2217). Although Flores saw Petitioner briefly before Petitioner began firing, "[t]he concealment element may manifest itself . . . by the creation of a situation where the victim is taken unawares even though he sees his murderer." People v. Morales, 48 Cal. 3d 527, 555, 257 Cal. Rptr. 64, 770 P.2d 244 (1989), cert. denied, 493 U.S. 984 (1989) (original emphasis; citation and internal quotations omitted), disapproved on other grounds, People v. Williams, 49 Cal. 4th 405, 111 Cal. Rptr. 3d 589, 233 P.3d 1000 (2010), cert. denied, 131 S. Ct. 1602 (2011).

The purpose of the "watching and waiting" requirement "is to distinguish those cases in which a defendant acts insidiously from those in which he acts out of rash impulse." People v. Mendoza, 52 Cal. 4th 1056, 132 Cal. Rptr. 3d 808, 263 P.3d 1 (2011), cert. denied, 132 S. Ct. 2691 (2012) (citation and internal quotations omitted). "This period need not continue for any particular length of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation." Id. (citation, internal quotations and footnote omitted). "'Watchful' does not require actual watching; it can include being "alert and vigilant" in anticipation of the victim's arrival to take him or her by surprise." People v. Streeter, 54 Cal. 4th at 247 (citation omitted). Here, Petitioner waited for approximately six hours for Flores to return to the yard (R.T. 2208-11). Although he allegedly "dozed" or "nodded off," Petitioner said the dozing lasted only "a quick second" (see C.T. 363-64). Petitioner smoked a cigar, spoke with Baca, and ascertained that Flores was not expected to return until approximately 6 p.m. (R.T. 2212-14; C.T. 274-75, 358-62). Petitioner was sufficiently "alert and vigilant" to notice when Flores' truck arrived (R.T. 2212-13; C.T. 277-78, 364). The evidence sufficed to meet the "waiting and watching" element. See id. (30 to 40 minutes sufficient); People v. Mendoza, 52 Cal. 4th at 1074 (lapse of "a few minutes" sufficient).

The evidence also showed that Petitioner launched "a surprise attack on an unsuspecting victim from a position of advantage." Flores had no reason to suspect that Petitioner, whom Flores knew only as a passive subordinate employee, intended to kill Flores. See People v. Streeter, 54 Cal. 4th at 249; see also People v. Lewis, 43 Cal. 4th 415, 510, 75 Cal. Rptr. 3d 588, 181 P.3d 947 (2008) (evidence sufficient where defendant targeted restaurant owner, waited near restaurant until owner emerged, then quickly approached in a car and conversed with victim for approximately three seconds before shooting him). Petitioner's argument that Flores was not "surprised" because Flores reportedly commented on the gun is specious; Flores barely had time to get the words out and begin to rise from his seat before Petitioner began firing. See People v. Livingston, 53 Cal. 4th 1145, 1173, 140 Cal. Rptr. 3d 139, 274 P.3d 1132 (2012), cert. denied, 2013 WL 57248 (U.S. Jan. 7, 2013) (evidence sufficient to support lying-in-wait special circumstance finding, where defendant suddenly appeared in the door of a guard shack, shouted an epithet, and began firing into the shack with a semi-automatic firearm; victims were "entirely unsuspecting," and defendant "attacked from a position of advantage --shooting suddenly with a semi-automatic firearm on victims trapped in a small room").

In sum, the Court of Appeal's rejection of Petitioner's challenge to the sufficiency of the evidence to support the lying-in-wait special circumstance finding was neither contrary to, nor an unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. 770, 785-87 (2011). Petitioner is not entitled to habeas relief on Ground Four of the Petition.

V. Petitioner's Claim of Sentencing Error Does Not Merit Habeas Relief.

A. Background

California Penal Code section 654(a) provides, in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of punishment, but in no case shall the act or omission be punished under more than one provision." Section 654 forbids the imposition of multiple punishments for offenses committed during a single course of conduct and incident to a single objective. See People v. Perez, 23 Cal. 3d 545, 551, 153 Cal. Rptr. 40, 43, 591 P.2d 63 (1979).

Under California law, a defendant may be convicted of multiple crimes arising out of an indivisible course of conduct, but may not be sentenced separately for each such offense. See People v. Pearson, 42 Cal. 3d 351, 359-60, 228 Cal. Rptr. 509, 514-15, 721 P.2d 595 (1986); People v. Austin, 23 Cal. App. 4th 1596, 1614, 28 Cal. Rptr. 2d 885, 896 (1994) (where Penal Code section 654 prevents punishment for multiple offenses arising out of an indivisible course of conduct, proper judgment is to "impose sentence on the greater crime and stay the sentence on the lesser, such stay to become permanent when service of sentence for the greater offense is completed"), disapproved on other grounds, People v. Palmer, 24 Cal. 4th 856, 861, 867, 103 Cal. Rptr. 2d 13, 16, 20, 15 P.3d 234 (2001), cert. denied, 532 U.S. 1055 (2001).

However, "if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct." People v. Perez, 23 Cal. 3d at 551, 153 Cal. Rptr. at 43-44 (citation omitted).

In Petitioner's case, the sentencing court imposed a consecutive sentence on the gun possession charge (Count 3), making the following findings:

He [Petitioner] had a completely separate and distinct intent in acquiring the weapon, in maintaining it and, at least according to part of his testimony, in moving it. It was not solely for the objective of committing Counts 1 and 2 or fortuitous that Mr. Sampson had this assault weapon. It constitutes a completely separate and distinct offense, and the acts committed with the firearm were distinct and separate violations of law from his mere possession of that firearm.

(R.T. 2720).

Petitioner contends the court improperly punished Petitioner twice for the same act, in violation of California Penal Code section 654, Due Process and the Double Jeopardy Clause (Pet. Mem., pp. 32-33). Petitioner also contends that, by using facts purportedly not found by the jury,*fn17 the sentencing court improperly imposed a consecutive sentence on the gun possession charge in alleged violation of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) ("Apprendi") (holding that any fact other than the fact of a prior conviction that increases the penalty for a crime beyond the prescribed statutory maximum must be proved beyond a reasonable doubt) (Pet. Mem., p. 33). Petitioner raised these claims on direct appeal (see Respondent's Lodgment 6, pp. 38-48). The Court of Appeal ruled that California Penal Code section 654 did not bar a consecutive sentence on the gun possession charge, but the Court of Appeal did not address expressly Petitioner's federal constitutional arguments (see Respondent's Lodgment 6, pp. 12-13; People v. Sampson, 2009 WL 1680349, at *7). The Superior Court and the Court of Appeal rejected these claims on habeas review on the ground that the claims purportedly had been rejected on appeal (see Respondent's Lodgments 10, 12). The California Supreme Court summarily denied the habeas petition containing these claims (see Respondent's Lodgment 15).

B. Discussion

To the extent Petitioner contends his sentence on the gun possession charge (Count 3) violated California Penal Code section 654 or any other state law, Petitioner is not entitled to habeas relief. Federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Matters relating to sentencing and serving of a sentence generally are governed by state law and do not raise a federal constitutional question. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994), cert. denied, 514 U.S. 1026 (1995) ("The decision whether to impose sentences concurrently or consecutively is a matter of state criminal procedure and is not within the purview of federal habeas corpus.") (citation omitted); Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) (rejecting as not cognizable petitioner's contention the California court violated section 654 by imposing two consecutive terms for rape in concert based on petitioner's single act of standing guard while others raped the victim); see also Wilson v. Corcoran, 131 S. Ct. 13, 16 (2010) (per curiam) ("[I]t is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts.") (original emphasis).

Under narrow circumstances, however, the misapplication of state sentencing law may violate due process. See Richmond v. Lewis, 506 U.S. 40, 50 (1992). "[T]he federal, constitutional question is whether [the error] is so arbitrary or capricious as to constitute an independent due process" violation. Id. (internal quotation and citation omitted); see also Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) ("Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief.").

No such fundamental unfairness infected Petitioner's sentence. In prosecutions for possession of a prohibited weapon, where the evidence shows "a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved." People v. Wynn, 184 Cal. App. 4th 1210, 1217, 109 Cal. Rptr. 3d 457 (2010) (citations and internal quotations omitted) (imposition of sentence for assault with deadly weapon and for possession of a deadly weapon was permissible, where defendant admitted to police that he carried the weapon because people were afraid of it); see also People v. Ratcliff, 223 Cal. App. 3d 1401, 1413, 273 Cal. Rptr. 253 (1990) (where "the defendant already had the handgun in his possession when he arrived at the scene of the first robbery," imposition of sentence on both charges permissible).

The determination by Petitioner's sentencing court that the gun possession offense was separate and distinct from the murders was supported by Petitioner's own statements and testimony. Petitioner admitted that he had obtained the gun several years before the shooting, and also testified that he placed the gun in the car on the date of the shooting supposedly intending to take the gun to San Diego to sell (C.T. 268-70, 335; R.T. 2163, 2183-85, 2187-88, 2270). This evidence amply supported the sentencing court's imposition of a consecutive sentence on Count 3 under California Penal Code section 654.

Petitioner's contention that his consecutive sentence on Count 3 violated the principles espoused in Apprendi is foreclosed by Oregon v. Ice, 555 U.S. 160 (2009) (consecutive sentencing does not implicate Apprendi); see also United States v. McCalla, 545 F.3d 750, 753 (9th Cir. 2008), cert. denied, 555 U.S. 1173 (2009) (lower federal court may not set aside or disregard United States Supreme Court precedent).

There is no merit to Petitioner's apparent contention that he and his counsel had no notice that Petitioner could receive a consecutive sentence on Count 3. California Penal Code section 669 and Rule 4.425 of the California Rules of Court grant a sentencing court "broad discretion" to impose a consecutive sentence. See People v. Leon, 181 Cal. App. 4th 452, 104 Cal. Rptr. 601 (2010) (citations, footnote and internal quotations omitted). Thus, by statute and court rule, Petitioner and his counsel were on notice that the court could impose a consecutive sentence. See United States v. Ingham, 486 F.3d 1068, 1079 n.9 (9th Cir.), cert. denied, 552 U.S. 961 (2007) (defendant had notice of advisory federal Sentencing Guidelines because Guidelines set a statutory maximum).*fn18

Petitioner's Double Jeopardy claim also does not merit habeas relief. "The Fifth Amendment's prohibition on double jeopardy protects against being punished twice for a single criminal offense." United States v. Brooks, 610 F.3d 1186, 1194 (9th Cir. 2010) (citation and internal quotations omitted). Under the Double Jeopardy Clause, "'where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.'" United States v. Del Toro-Barboza, 673 F.3d 1136, 1148 (9th Cir.), cert. denied, 133 S. Ct. 586 and 133 S. Ct. 588 (2012) (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)). Additionally, "[e]ven if the two counts are multiplicitous, where 'a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the "same" conduct under Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.'" Id. (citations omitted); see Missouri v. Hunter, 459 U.S. 359, 366 (1983) ("With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.").

The offenses of murder and possession of an assault weapon each require the proof of a fact which the other does not. See Cal. Penal Code §§ 187, 12280(b); cf. United States v. Wright, 79 F.3d 112, 114 (9th Cir. 1996) (Double Jeopardy Clause did not bar federal prosecution for murder following previous felon-in-possession conviction based on possession of murder weapon). Accordingly, California law permitted Petitioner's consecutive sentence on Count 3.

To the extent Petitioner contends that the sentences on the gun enhancements violated Double Jeopardy, Petitioner's contention fails because the California Legislature expressly has authorized such sentence enhancements. See Cal. Penal Code § 12022.53(b), (c), (d).*fn19

Therefore, Petitioner's sentence did not violate the Double Jeopardy Clause.*fn20

For the foregoing reasons, Petitioner is not entitled to habeas relief on his claims of alleged sentencing error raised in Ground Five of the Petition.

VI. Petitioner's Claims of Ineffective Assistance of Trial Counsel Are Meritless.

Petitioner contends his trial counsel rendered ineffective assistance, by allegedly:

1. Failing to object to the prosecutor's supposed mischaracterization of the note on the paper plate as a "suicide" or "goodbye" note;

2. Failing to object to the consecutive sentence on Count 3; and

3. Failing to ensure that the jury received an instruction on voluntary manslaughter/heat of passion.

Petitioner raised these claims in his habeas corpus petition filed in the Superior Court (Respondent's Lodgment 9, pp. 18-21). Applying Strickland v. Washington, 466 U.S. 668 (1984) ("Strickland"), the Superior Court rejected the claims, deeming the performance of Petitioner's counsel "exemplary, not just acceptable under prevailing standards of effective representation" (Respondent's Lodgment 10). The Superior Court also ruled that Petitioner had failed to show prejudice (id.). Petitioner also raised his ineffective assistance claims in the habeas petition filed in the Court of Appeal, which that court denied on the ground that Petitioner assertedly had raised the claims on direct appeal (Respondent's Lodgment 12). The California Supreme Court rejected these claims summarily (Respondent's Lodgment 15).

A. Governing Legal Standards

To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 688, 694, 697. A reasonable probability of a different result "is a probability sufficient to undermine confidence in the outcome." Id. at 694. The court may reject the claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697; Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) ("Failure to satisfy either prong of the Strickland test obviates the need to consider the other.") (citation omitted).

Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford, 384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (quoting Strickland, 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. The court may "neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight. . . ." Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert. denied, 130 S. Ct. 1154 (2010) (citation and quotations omitted); see Yarborough v. Gentry, 540 U.S. 1, 8 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.") (citations omitted). Petitioner bears the burden to show that "counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, 131 S. Ct. 770, 787 (2011) (citation and internal quotations omitted); see Strickland, 466 U.S. at 689 (petitioner bears burden to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy") (citation and quotations omitted).

A state court's decision rejecting a Strickland claim is entitled to "a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Harrington v. Richter, 131 S. Ct. at 785. "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. at 788.

"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently." Id. at 791-92 (citations omitted). Rather, the issue is whether, in the absence of counsel's alleged error, it is "'reasonably likely'" that the result would have been different. Id. at 792 (quoting Strickland, 466 U.S. at 696). "The likelihood of a different result must be substantial, not just conceivable." Id. "Where the defendant claims ineffective assistance for failure to file a particular motion, he must not only demonstrate a likelihood of prevailing on the motion, but also a reasonable probability that the granting of the motion would have resulted in a more favorable outcome." Leavitt v. Arave, 646 F.3d 605, 613 (9th Cir. 2011), cert. denied, 132 S. Ct. 2379 (2012) (citation and internal quotations omitted).

B. Discussion

For the reasons stated above, the prosecutor did not commit misconduct or mischaracterize the evidence by referring to Petitioner's note on the paper plate as a "suicide" or "goodbye" note. Thus, Petitioner's counsel reasonably (and correctly) could have determined that any objection to the prosecutor's challenged argument would have been futile.

Also without merit is Petitioner's claim that counsel erred by failing to object to the consecutive sentence on the gun possession charge (Count 3). For the reasons discussed above, counsel reasonably (and correctly) could have determined that the consecutive sentence did not violate California Penal Code section 654 or the federal Constitution.

Finally, Petitioner has failed to show trial counsel unreasonably failed to seek instructions on voluntary manslaughter/heat of passion and provocation. Counsel reasonably (and correctly) believed that Petitioner's own testimony rendered such instructions inapplicable (see R.T. 2411).

Additionally, none of counsel's alleged derelictions, individually or collectively, prejudiced Petitioner within the meaning of Strickland. Given the weight of the evidence against Petitioner, Petitioner has failed to demonstrate a reasonable probability of a different result had counsel acted in the manner proposed by Petitioner. See Strickland, 466 U.S. at 696. "What [Petitioner's] protest over the cogency of his defense really shows is that not every . . . case can be won by the defense." Hendricks v. Calderon, 70 F.3d 1032, 1042 (9th Cir. 1995), cert. denied, 517 U.S. 1111 (1996).

For the foregoing reasons, the state courts' rejection of Petitioner's claim of ineffective assistance of counsel was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. at 785-87. Therefore, Petitioner is not entitled to habeas relief on Ground Six of the Petition.

RECOMMENDATION

For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.


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