ORDER ACCEPTING, IN PART, REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND GRANTING IN PART AND DENYING IN PART CERTIFICATE OF APPEALABILITY
MARGARET M. MORROW, District Judge.
Pursuant to 28 U.S.C. § 636, the court has reviewed the Petition, the records on file, and the Report and Recommendation of United States Magistrate Judge Patrick Walsh and has considered de novo the portions of the Report as to which objections have been filed. The court accepts the Magistrate Judge's Report and adopts the conclusions of the Report and Recommendation with the exception of Part V, which the court declines to adopt.
The court offers the following observations as support for this outcome. First, although Judge Walsh conducted an evidentiary hearing in this case prior to issuance of the Supreme Court's decision in Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388 (2011), he correctly disregarded the evidence adduced at that hearing. See Gentry v. Sinclair, 705 F.3d 884, 902 (9th Cir. 2013) ("[A]lthough the district court held an evidentiary hearing related to some of these claims, any evidence that was not part of the state court record is not reviewable under § 2254(d)"); id. at 902 n. 8 ("Hicks's evidentiary hearing testimony are not reviewable by this court pursuant to Pinholster").
Second, as respects petitioner's ineffective assistance of counsel claim, Judge Walsh concluded that the state court's finding that prejudice did not result from trial counsel's ineffectiveness was entitled to deference. In adopting that finding, the court emphasizes the highly deferential standard the Supreme Court has directed that federal courts apply in judging such claims. First, the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), is itself deferential. "In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on on the outcome or whether it is possible a reasonable doubt might have been established if counsel had acted differently. Instead, Strickland asks whether it is reasonably likely' the result would have been different." Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 790 (2011). See also Walker v. Martel, 709 F.3d 925, 942 (9th Cir. 2013) (" Strickland asks whether it is reasonably likely' the result would have been different, " quoting Richter ).
When the issue of prejudice is reviewed under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), moreover, review is "doubly" deferential. Richter, 131 S.Ct. at 788; Walker, 709 F.3d at 941. As stated by the Supreme Court in Richter, the state court's decision must be "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement." Richter, 131 S.Ct. at 786-87. As detailed in the Report and Recommendation, the state court's conclusion concerning prejudice was based on its observation that jailhouse informants, by their very nature, are suspect; on its conclusion that the jury would not have discounted the informant's testimony had it known he received an 11 rather than a 14 year sentence; and on its view that the informant knew details about the crime that only petitioner knew and that the informant must thus have learned from petitioner. While it is possible that not all fairminded jurists would so conclude, the court cannot say that no fairminded jurist would agree with this rationale.
For similar reasons, the court concurs with Judge Walsh's resolution of the prosecutorial misconduct claim. Specifically, the court concludes that "fairminded jurists could disagree" as to whether there is a reasonable likelihood that the jury's verdict would have been different had it known Deputy District Attorney Spira testified falsely that the informant had not received a sentence reduction in exchange for his testimony. Richter, 131 S.Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
The court finds that, as respects petitioner's claims that he received ineffective assistance of counsel and that the prosecutor committed misconduct by presenting false evidence, petitioner has established that reasonable jurists could find its assessment of the claims debatable. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 330 (2003). For this reason, a certificate of appealability as to these claims is GRANTED.
As respects petitioner's claims that the prosecutor violated his rights under Brady v. Maryland, 373 U.S. 83 (1963), and the Confrontation Clause, petitioner has not made a substantial showing of the denial of a constitutional right; as a consequence, a certificate of appealability as to these claims is DENIED. See Rules Governing Section 2254 Cases in the United States District ...