ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
MARILYN L. HUFF, District Judge.
On May 17, 2011, Petitioner Theodore Swain ("Petitioner"), a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On October 24, 2012, Respondent filed a response. (Doc. No. 21.) On September 6, 2013, the magistrate judge issued a report and recommendation to deny the petition for writ of habeas corpus. (Doc. No. 45.) For the following reasons, the Court denies the petition for writ of habeas corpus and adopts the magistrate judge's report and recommendation.
On March 4, 2008, a jury in the California Superior Court of San Diego County convicted the Petitioner of a number of charges related to his involvement in a securities fraud scheme. (Lodgment No. 1, vol.3 at 105.) The jury found Petitioner guilty of fifteen counts of selling securities by misrepresentation or omission of a material fact (Cal. Corp. Code §§25401, 25540(b)), six counts of engaging in fraudulent securities schemes (Cal. Corp. Code §§ 25541, 25540 (a)), and eight counts of grand theft (Cal. Penal Code § 487(a)). The jury also found that three of the thefts were committed against elders (Cal. Penal Code § 368(d)) and that Petitioner engaged in a pattern of related felony conduct involving the taking of more than $100, 000, $500, 000 and $2, 500, 000 against the elders, respectively. (Cal. Penal Code §§ 186.11(a)(2)) and 12022.6(a)(4)). (Lodgment No. 1, vol. 1 at 164-195; see also id. vol. 2 at 442-45.) Petitioner unsuccessfully appealed his conviction to the California Court of Appeal and to the California Supreme Court. (Lodgment Nos. 3, 6, 7, 8.) Petitioner then filed petitions for writ of habeas corpus in the San Diego Superior Court, which denied his petition, and in the California Court of Appeal, which denied his petition. (Lodgment No. 9, 13.)
On May 17, 2011, Petitioner filed this federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1) On September 6, 2013, the magistrate judge filed a report and recommendation to deny the petition for writ of habeas corpus. (Doc. No. 45.)
I. Legal Standard of Review
A district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). If a party objects to any portion of the report, the district court "shall make a de novo determination of those portions of the report... to which objection is made." Id.
A federal court may review a petition for writ of habeas corpus by a person in custody pursuant to a state court judgment "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Id . § 2254(a); accord Williams v. Taylor , 529 U.S. 362, 375 n.7 (2000). Habeas corpus is an "extraordinary remedy" available only to those "persons whom society has grievously wronged and for whom belated liberation is little enough compensation." Juan H. v. Allen , 408 F.3d 1262, 1270 (9th Cir. 2005) (quoting Brecht v. Abrahamson , 507 U.S. 619, 633-34 (1993)). Because Petitioner filed this petition after April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs the petition. See Lindh v. Murphy , 521 U.S. 320, 327 (1997); Chein v. Shumsky , 373 F.3d 978, 983 (9th Cir. 2004) (en banc). "By its terms § 2254(d) bars relitigation of any claim adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter , 131 S.Ct. 770, 784 (2011). Indeed, "[w]hen 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." Id . Federal habeas relief is available, but only if the result of a federal claim the state court adjudicated on the merits is "contrary to, " or "an unreasonable application" of United States Supreme Court precedent, or if the adjudication is "an unreasonable determination" based on the facts and evidence. 28 U.S.C. §§ 2254(d)(1) and 2254(d)(2).
A federal court may grant habeas relief under the "contrary to" clause of § 2254(d)(1) if a state court either "applies a rule that contradicts the governing law set forth in [the United States Supreme Court's] cases" or "confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent." Early v. Packer , 537 U.S. 3, 8 (2002); see also Williams , 529 U.S. at 405-06 (distinguishing the "contrary to" and the "unreasonable application" standards). "[R]eview under 28 U.S.C. § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster , 131 S.Ct. 1388, 1398 (2011).
A federal court may grant habeas relief under the "unreasonable application" clause of § 2254(d)(1) if the state court "identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Williams , 529 U.S. at 407. A federal court may also grant habeas relief "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." Id . The state court's "unreasonable application" of binding precedent must be objectively unreasonable to the extent that the state court decision is more than merely incorrect or erroneous. Wiggins v. Smith , 539 U.S. 510, 520-21 (2003) (citation omitted); see Lockyer v. Andrade , 538 U.S. 63, 75-76 (2003).
Additionally, even if a state court decision is contrary to United States Supreme Court precedent or rests on an unreasonable determination of facts in light of the evidence, the petitioner must show that such error caused substantial or injurious prejudice. Penry v. Johnson , 532 U.S. 782, 795 (2001) (quoting Brecht , 507 U.S. at 637-38); see Fry v. Pliler , 551 U.S. 112, 121-22 (2007); Bains v. Cambra , 204 F.3d 964, 977 (9th Cir. 2000). AEDPA creates a highly deferential standard toward state court rulings. Woodford v. Viscotti , 537 U.S. 19, 24 (2002); see Womack v. Del Papa , 497 F.3d 998, 1001 (9th Cir. 2007).
In his federal petition for writ of habeas corpus, Petitioner raises seven grounds for relief. In claim one, Petitioner argues the trial court erred in failing to give a unanimity instruction with regard to the securities fraud, theft and securities scheme charges, and that his defense counsel was ineffective in failing to request such instructions. In claim two, Petitioner contends he received multiple sentences for the same acts, in violation of his constitutional rights. In claim three, Petitioner asserts the trial court improperly instructed the jury on the elements of the charged securities offenses, in violation of his due process rights. In claim four Petitioner argues he received ineffective assistance of counsel, in violation of his Sixth Amendment rights. In claim five, Petitioner claims he received ineffective assistance of appellate counsel, in violation of ...