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Vieira v. Chappell

United States District Court, E.D. California

February 5, 2015

RICHARD J. VIEIRA, Petitioner,
v.
KEVIN CHAPPELL, Warden, Respondent.

MEMORANDUM AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS, and (2) ISSUING CERTIFICATE OF APPEALABILITY FOR CLAIMS 2 AND 6 (ECF No. 37)

ORDER DENYING MOTION FOR EVIDENTIARY HEARING AND EXPANSION OF THE RECORD (ECF No. 107)

CLERK TO SUBSTITUTE RON DAVIS AS RESPONDENT AND ENTER JUDGMENT

ANTHONY W. ISHII, Senior District Judge.

Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is represented in this action by Wesley A. Van Winkle, Esq., of the Law Offices of Wesley A. Van Winkle, and Lissa J. Gardner Esq., of the Office of the Federal Defender. Respondent Kevin Chappell[1] is named as the Action Warden of San Quentin State Prison. He is represented in this action by Catherine Chatman, Esq., and Ward Campbell, Esq., of the Office of the California Attorney General.

I.

BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a judgment of the Superior Court of California, County of Stanislaus, following his conviction by jury trial on September 6, 1991, of four counts of first degree murder and one count of conspiracy to commit murder for the deaths of Franklin Raper, Richard Ritchey, Dennis Colwell, and Darlene Emmie Paris. The jury found true the alleged special circumstance of multiple murder as to each count. In addition, the jury found that Petitioner personally used a deadly weapon in commission of the murders. The jury determined that the penalty for three of the murder counts and the conspiracy to commit murder count should be death. As the remaining murder count, the jury found that Petitioner should be sentenced to life without the possibility of parole. On March 30, 1992, Petitioner was sentenced to death.

On March 7, 2005, the California Supreme Court reversed the death sentence on the count of conspiracy to commit murder, remanded the matter for Petitioner to be given a sentence of twenty-five years to life for that count, upheld the death sentence as to the other three murder counts and affirmed the judgment in all other respects. People v. Vieira, 35 Cal.4th 264 (2005) (modified May 26, 2005).

On October 29, 2006, Petitioner filed a federal petition for writ of habeas corpus in this Court. He then filed a petition for writ of habeas corpus in the California Supreme Court on October 31, 2006. In re Richard John Vieira, No. S147688, Cal. Sup.Ct. filed October 31, 2006. (ECF No. 38, Attach. 1.) The Court ordered the federal petition held in abeyance pending exhaustion of state remedies. (ECF No. 43.) On June 24, 2009, the California Supreme Court denied the petition on the merits on each claim, and determined that multiple claims were procedurally barred. (ECF No. 58, Attach. 1.)

On January 8, 2010, the parties filed a joint statement wherein the parties agreed that the federal petition was fully exhausted. (ECF No. 68.) On February 2, 2010, Respondent filed an answer to the petition, without points and authorities. (ECF No. 74.)

On September 1, 2010, Petitioner filed a memorandum of points and authorities in support of the petition. On July 21, 2011, Respondent filed a memorandum of points and authorities in support of his answer. On January 9, 2012, Petitioner filed a reply to Respondent's memorandum.

II.

STATEMENT OF FACTS

The factual summary is taken from the California Supreme Court's summary of the facts in its March 7, 2005, opinion. Pursuant to 28 U.S.C. §§ 2254(d)(2), (e)(1), the state court's summary of facts is presumed correct. Petitioner does not present clear and convincing evidence to the contrary; thus, the Court adopts the factual recitations set forth by the state appellate court. See Vasquez v. Kirkland, 572 F.3d 1029, 1031 n.1 (9th Cir. 2009) ("We rely on the state appellate court's decision for our summary of the facts of the crime.").

A. Guilt Phase
At the time the murders took place in 1990, defendant lived at a location known as "the Camp" at 4150 Finney Road in Salida in Stanislaus County. The Camp consisted of a number of houses and trailers. Defendant lived in a trailer with codefendant David Beck, near a house occupied by codefendant Gerald Cruz and his wife. Codefendant Jason LaMarsh lived in another nearby trailer. Cruz was the acknowledged leader of this informal group. Beck was generally in charge of discipline. Everyone in the group pooled their money. Ron Willey was also associated with the group, but did not live at the Camp during the relevant time period. Defendant held a low status within the group. Michelle Evans, who was also involved in the group and was for a time LaMarsh's girlfriend, testified that defendant was a "slave" to the other members of the group, and was given such tasks as cooking, bathing Cruz's children, and undertaking various repairs. Evans, who was charged with the same first degree murder and conspiracy to commit murder charges as defendant, entered into a plea bargain in which she received a one-year sentence in exchange for her trial testimony. According to her testimony, defendant was beaten by Beck, at Cruz's order, for various deficiencies in his work. He was also given the task of guarding the camp late into the night, as well as often spending days doing construction work.
Cruz and Beck bought assault weapons and several camouflage masks and knives. Two weeks before the murders, they purchased a police-style baton.
One of the Camp residents, Franklin Raper, a man in his 50's, was known to be selling drugs from his trailer. The noise and other activities attendant upon drug sale and use, as well as hypodermic needles and other drug paraphernalia left by Mr. Raper's customers, became a concern to Cruz and other Camp residents. Also of concern was Raper's treatment of an elderly man named Jiggs. Raper used Jiggs's electricity to power his trailer, refused to compensate him for it, and threatened to kill Jiggs when the latter threatened to disconnect the former's power. Cruz, according to Evans's testimony, looked out for people in the Camp, and became upset by this behavior. He and others asked Raper to leave the Camp, but Raper initially refused.
Then began a series of confrontations between Raper and Cruz's group. Cruz and others pushed Raper's car across the street and set it on fire. Raper agreed to leave the Camp and had his trailer towed to 5223 Elm Street. But Raper returned soon after and destroyed a newly repaired fence near Cruz's house. Cruz had Raper arrested and taken to jail. Two weeks before the murders, Jason LaMarsh and others in the group got into a physical altercation with Raper at the latter's Elm Street residence, accusing him of stealing one of their guns, until others broke up the fight. Later the same evening, Dennis Colwell, one of the people present at the Elm Street residence during the fight, drove slowly by the Camp and was pursued by Cruz and other Camp residents. They dragged Colwell from the car and beat him, seeking to have him tell them what was going on at the Elm Street residence. Defendant watched as the beating took place.
Michelle Evans's sister, Tanya, had lived at the Elm Street residence, but was evicted around the same time as Raper moved his trailer there. Raper lived in the residence and allowed others to stay there as a kind of "crash pad." The afternoon of the murders, Cruz asked Evans to prepare a diagram of the residence. Later that day, Cruz met with Beck, LaMarsh, Evans, Willey and defendant in LaMarsh's trailer. Cruz announced that the plan was to go over to the Elm Street residence "to do em and leave no witnesses." Cruz gave each person a plan of entry and an assignment. Evans's task was to enter the residence as a visitor, to account for all the people at the residence and attempt to move them into the living room, to open up the back window and then leave and wait in the car. LaMarsh was to enter with her. Beck was to come in through the back window. Cruz, Willey and defendant were supposed to come through the front door after Evans had completed her assignment. Cruz told the group that whoever "messed up" in carrying out their assignments would "join" the victims, and he looked directly at defendant when he made the statement.
Cruz then handed out weapons to be used. There were two baseball bats, a Ka-bar knife and an M-9 knife. Cruz took one of the knives, along with a police baton. Defendant was given a baseball bat and also had his own.22-caliber handgun. Before going to the Elm Street residence, defendant and Willey were seen swinging their bats and "dancing around" to hard rock music. Defendant and others put on camouflage masks.
The group then proceeded to the Elm Street residence just after midnight on May 21, 1990, driving over together in a Mercury Zephyr. Raper, Colwell, and two others present at the house at the time, Richard Ritchey and Darlene ("Emmie") Paris, were murdered. Donna Alvarez, who had been sleeping in one of the bedrooms when the attack began, managed to escape to a neighbor's house.
Ritchey ran through the front door and into the street. A neighbor (Earl Creekmore) and Evans testified that Willey and Cruz caught up to Ritchey and beat him. Cruz then slit his throat with his knife. Raper's and Colwell's throats were also slit and they had multiple wounds, including severe skull fractures inflicted by a baseball bat or police baton. In Raper's case, the top of the head was caved in and there were severe lacerations to the brain.
Defendant killed Emmie Paris. The day after the murder he told Evans that Paris began screaming and Cruz ordered him to shut her up. Defendant hit her with a baseball bat several times but did not succeed in silencing her. Cruz then handed him his knife and he stabbed her. When this also failed, defendant grabbed Paris's hair and sawed at her throat till "it felt like her head was going to come off." Evans testified that he laughed when he told her this. According to Dr. Ernoehazy, who performed the autopsy for the coroner, Paris died from a slicing wound to the throat.
Two days later, in a conversation with his girlfriend, Mary Gardner, defendant admitted having been at the murder scene but denied killing anyone. He blamed LaMarsh for allowing Alvarez to escape, telling her that the plan had been to leave no witnesses. Gardner became upset because she knew three of the people who were killed and defendant said that they deserved to die, they had been "warned" and should not have been there.
Police investigating the crime scene found a baseball bat and Ka-bar knife with bloodstains matching those of the victims, as well as several masks that had been worn by the killers. Sheriff's detective Deckard, the principal investigator, questioned Donna Alvarez and from her description of one of the men she had seen, and with a [sic] help of passersby acquainted with LaMarsh, he was able to assemble a photographic lineup that included LaMarsh. Alvarez identified him as having been one of the assailants. Suspicion soon focused on the Camp residents. Evans was arrested, and in subsequent statements, implicated her codefendants. Defendant was initially interrogated and released the day after the murders, acknowledging that he knew the codefendants but denying he had any role in the murders and claiming he had been at the Oakdale Motel the night the homicides occurred. Two days later, defendant was arrested and further interrogated. He admitted he participated in planning the murders and that he was present at the murder scene. Initially during the interview, he stated that it had been his function to stand guard in the hall, but later in the interview he admitted that he had struck one of the victims in the legs several times with a baseball bat. Defendant stated that he "completely condoned" the murders.
The defense put on no witnesses disputing the role in the murders that Evans and others attributed to defendant. As will be explained below, the core of the defense was apparently testimony regarding defendant's cult membership and his incapacity to form the requisite criminal intent. For reasons discussed below, the principal defense witness, Randy Cerny, was not permitted to testify at the guilt phase.
B. Penalty Phase
At the penalty phase, the prosecution argued solely the circumstances of the crime and did not allege past violent criminal activity or prior felony convictions on defendant's part.
The defense called several childhood friends, neighbors and family members, who portrayed defendant as a fairly quiet and nonviolent youth. His father introduced him to smoking marijuana when defendant was eight years old. Since that time, defendant became a habitual marijuana user, smoking it at least once a week. He also had trouble in school, having a condition his mother, Barbara Vieira, identified as "lazy eye, " which caused him to have difficulty with reading and to be held back a year in the sixth grade. Defendant did not complete high school. He left his regular high school after failing to make the football team, enrolling in a continuation high school which he left after being suspended for possessing marijuana. Soon after, he found work hanging sheetrock with his father and later his uncle. He never learned how to drive. His mother testified that he was a good boy and eager to do chores around the house.
Defendant's sister, Angela Young, testified that it was she who introduced defendant to Cruz and his circle when defendant was 15. (He was 21 at the time of the murders.) Defendant's sister lived for a few months in 1987 and 1988 with Cruz and others in a house in Modesto. Cruz led others in the study of the occult and the performance of supposedly occult rituals that included candles, robes, and chanting. Cruz told Young that "to sacrifice your first newborn was... the greatest thing you can ever do" and that it was "for the satisfaction of Satan..., " although there was no evidence any such sacrifices had occurred. Young soon moved out of the house, but arranged for her brother, who was seeking independence from the family, to move in.
Defendant's sister and mother testified to changes they noticed in defendant after he went to live with Cruz. He required permission from Cruz to visit his family, and when he did visit, he would telephone Cruz to ask permission to stay for dinner or to have a beer. He always looked tired, with dark circles under his eyes, and was thin, nervous and withdrawn. He often appeared to have been beaten up, with black eyes, fat lips, and slashes on his arms.
A deputy sheriff assigned to the county jail testified that defendant had no incidents of misconduct in his approximately one year and four months of incarceration.
Randy Cerny, a retired deputy sheriff who had become an expert on cults, and lectured on cults for law enforcement agencies, also testified for the defense. Based on his general study of cults, his review of a diary defendant had written in the 18 months before the murder while living with Cruz, and his interviews with defendant, Cerny formed the opinion that defendant was involved in a "cult style group" with Cruz as the leader. Defendant was subject to "a process of mind control" that included sleep deprivation, regular physical punishment, and minimization of contact with family and others outside the group. According to the diary, the punishment included shock treatments with an exposed electric wire, beatings from other members of the group, and various forms of sexual humiliation. Cerny testified that it was apparent from the diary that defendant had internalized many of Cruz's values: in it he expressed the desire to sacrifice himself so that Cruz's health would improve and expressed gratitude for Cruz being "merciful" in not having him beaten when he made a certain mistake. Cerny also described the cult as having occult and satanic underpinnings, with Cruz directing the members of the group to read and study the books of the English occultist Alistair Crowley, of whom Cruz believed himself to be the reincarnation, and to engage in various rituals.
On cross-examination, Cerny admitted he had no way of verifying that the events described in the diary actually occurred. He also related, at the prosecution's behest, portions of the diary in which defendant wrote about administering punishment to another member of the group, entertaining obsessive and sometimes violent fantasies about a woman who had rejected him, and participating in the group's heavy use of drugs.

Vieira, 35 Cal.4th at 273-78.

III.

JURISDICTION

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of Stanislaus County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(d).

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

IV.

STANDARD OF REVIEW

Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner can show that the state court's adjudication of his 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); Harrington v. Richter, ___ U.S. ___, ___, 131 S.Ct. 770, 784 (2011); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 413.

As a threshold matter, this Court must "first decide what constitutes clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is "clearly established Federal law" this Court must look to the "holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams, 592 U.S. at 412. "In other words, clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Id. In addition, the Supreme Court decision must "squarely address [] the issue in th[e] case'; otherwise, there is no clearly established Federal law for purposes of review under AEDPA." Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (quoting Wright v. Van Patten, 552 U.S. 120, 125 (2008)); see also Panetti v. Quarterman, 551 U.S. 930 (2007); Carey v. Musladin, 549 U.S. 70');"> 549 U.S. 70 (2006). If no clearly established Federal law exists, the inquiry is at an end and the Court must defer to the state court's decision. Carey, 549 U.S. 70');"> 549 U.S. 70; Wright, 552 U.S. at 126; Moses, 555 F.3d at 760. In addition, the Supreme Court has recently clarified that habeas relief is unavailable in instances where a state court arguably refuses to extend a governing legal principle to a context in which the principle should have controlled. White v. Woodall, ___ U.S. ___, 134 S.Ct. 1697, 1706 (2014). The Supreme Court stated: "[I]f a habeas court must extend a rationale before it can apply to the facts at hand, ' then by definition the rationale was not clearly established at the time of the state-court decision.'" Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)).

If the Court determines there is governing clearly established Federal law, the Court must then consider whether the state court's decision was "contrary to, or involved an unreasonable application of, " [the] clearly established Federal law." Lockyer, 538 U.S. at 72 (quoting 28 U.S.C. § 2254(d)(1)). "Under the contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13; see also Lockyer, 538 U.S. at 72. "The word contrary' is commonly understood to mean diametrically different, ' opposite in character or nature, ' or mutually opposed.'" Williams, 529 U.S. at 405 (quoting Webster's Third New International Dictionary 495 (1976)). "A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases." Id.

"Under the reasonable application clause, ' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. "[A] federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411; see also Lockyer, 538 U.S. at 75-76. The writ may issue only "where there is no possibility fair-minded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents." Richter, 131 S.Ct. at 784. The Supreme Court stated:

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 fair-minded disagreement.

Id. at 786-87. In other words, so long as fair-minded jurists could disagree on the correctness of the state courts decision, the decision cannot be considered unreasonable. Id. at 784. In applying this standard, "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 fair-minded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme Court]." Id. at 786. This objective standard of reasonableness applies to review under both subsections of 28 U.S.C. § 2254(d). See Hibbler v. Benedetti, 693 F.3d 1140, 1146-47 (9th Cir. 2012). If the Court determines that the state court decision is objectively unreasonable, and the error is not structural, habeas relief is nonetheless unavailable unless the error had a substantial and injurious effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

Petitioner has the burden of establishing that the decision of the state court is contrary to or involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is objectively unreasonable. See LaJoie v. Thompson, 217 F.3d 663, 669 (9th Cir. 2000); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999).

The AEDPA requires considerable deference to the state courts. "[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits, " and "evidence introduced in federal court has no bearing on 2254(d)(1) review." Cullen v. Pinholster, ___ U.S. ___, ___, 131 S.Ct. 1388, 1398-99 (2011). "Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (citing 28 U.S.C. § 2254(e)(1)). However, a state court factual finding is not entitled to deference if the relevant state court record is unavailable for the federal court to review. Townsend v. Sain, 372 U.S. 293, 319 (1963), overruled by, Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).

If a petitioner satisfies either subsection (1) or (2) for a claim, then the federal court considers that claim de novo. See Panetti, 551 U.S. at 953 (when section 2254(d) is satisfied, "[a] federal court must then resolve the claim without the deference AEDPA otherwise requires."); Frantz v. Hazey, 533 F.3d 724, 737 (9th Cir. 2008).

In this case, many of Petitioner's claims were raised and rejected by the California Supreme Court on direct appeal. However, many of his claims were raised in his state habeas petition to the California Supreme Court, and summarily denied on the merits. In such a case where the state court decision is unaccompanied by an explanation, "the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Richter, 131 S.Ct. at 784. The Supreme Court stated that "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 fair-minded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786 (emphasis added). Petitioner bears "the burden to demonstrate that there was no reasonable basis for the state court to deny relief.'" Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 131 S.Ct. at 784).

When reviewing the California Supreme Court's summary denial of a petition, this Court must consider that the California Supreme Court's summary denial of a habeas petition on the merits reflects that court's determination that:

[T]he claims made in th[e] petition do not state a prima facie case entitling the petitioner to relief. It appears that the court generally assumes the allegations in the petition to be true, but does not accept wholly conclusory allegations, and will also review the record of the trial... to assess the merits of the petitioner's claims.

Pinholster, 131 S.Ct. at 402 n. 12 (quoting In re Clark, 5 Cal.4th 750, 770, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993) and citing People v. Duvall, 9 Cal.4th 464, 474, 37 Cal.Rptr.2d 259, 886 P.2d 1252 (1995)). Accordingly, if this Court finds Petitioner has unarguably presented a prima facie case for relief on a claim, the state court's summary rejection of that claim would be unreasonable. Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); Nunes v. Mueller, 350 F.3d 1045, 1054-55 (9th Cir. 2003).

V.

PROCEDURAL BARS

All of Petitioner's claims have been raised to the California Supreme Court and denied on the merits. In addition, many of his claims were denied as procedurally barred. As to those claims, Respondent has argued that California's timeliness rule for state habeas petitions, California's rule barring claims on state habeas that could have been presented on direct appeal, and California's contemporaneous objection rule are all adequate and independent state grounds that bar federal habeas review. The Court will not address procedural default with this order to the extent the claims lack merit because the Court finds the question of procedural default to be relatively complicated in this case. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (Courts may reach the merits of a case prior to addressing procedural default); Bell v. Cone, 543 U.S. 447, 451, 451 n.3 (2005); Loggins v. Thomas, 654 F.3d 1204, 1215 (11th Cir. 2011). In the event that any claims survive review on the merits, the parties will be directed to further brief the issue of procedural default as to those claims.

VI.

REVIEW OF CLAIMS

A. Claim 1

In his first claim for relief, which includes numerous subclaims, Petitioner alleges he received ineffective assistance of counsel throughout the guilt phase of the trial. This claim, including all of its subclaims, was presented to the California Supreme Court by petition for writ of habeas corpus. In a decision unaccompanied by an explanation, the claim was rejected on the merits and as untimely. As noted above, in such a case as this where the state court decision is unaccompanied by an explanation, "the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief, " Richter, 131 S.Ct. at 784, and this 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 fair-minded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786 (emphasis added). The Court will address the claims in the order they are presented in the petition.

1. Clearly Established Law

The clearly established federal law for ineffective assistance of counsel claims is Strickland v. Washington, 466 U.S. 668 (1984). In a petition for writ of habeas corpus alleging ineffective assistance of counsel, the court must consider two factors. Richter, 131 S.Ct. at 787; Strickland, 466 U.S. at 687; Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994).

First, the petitioner must show that counsel's performance was deficient, requiring a showing that counsel made errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The petitioner must show that "counsel's representation fell below an objective standard of reasonableness, " and must identify counsel's alleged acts or omissions that were not the result of reasonable professional judgment considering the circumstances. Richter, 131 S.Ct. at 787 (citing Strickland, 466 U.S. at 688); United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995)). Petitioner must show that counsel's errors were so egregious as to deprive defendant of a fair trial, one whose result is reliable. Strickland, 466 U.S. at 688. Judicial scrutiny of counsel's performance is highly deferential, and the habeas court must guard against the temptation "to second-guess counsel's assistance after conviction or adverse sentence." Id. at 689. Instead, the habeas court must make every effort "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id.; see also Richter, 131 S.Ct. at 789. A court indulges a "strong presumption' that counsel's representation was within the wide range' of reasonable professional assistance." Richter, 131 S.Ct. at 787 (quoting Strickland, 466 U.S. at 687); Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). This presumption of reasonableness means that not only do we "give the attorneys the benefit of the doubt, " we must also "affirmatively entertain the range of possible reasons [defense] counsel may have had for proceeding as they did." Pinholster, 131 S.Ct. at 1407.

The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that [t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688). However, "general principles have emerged regarding the duties of criminal defense attorneys that inform [a court's] view as to the objective standard of reasonableness' by which [a court must] assess attorney performance, particularly with respect to the duty to investigate." Summerlin, 427 F.3d at 629. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland, 466 U.S. at 690. However,

[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgment.

Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 690-91); see also Thomas v. Chappell, 678 F.3d 1086, 1104 (9th Cir. 2012) (counsel's decision not to call a witness can only be considered tactical if he had "sufficient information with which to make an informed decision"); Reynoso v. Giurbino, 462 F.3d 1099, 1112-1115 (9th Cir. 2006) (counsel's failure to cross-examine witnesses about their knowledge of reward money cannot be considered strategic where counsel did not investigate this avenue of impeachment); Jennings v. Woodford, 290 F.3d 1006, 1016 (9th Cir. 2002) (counsel's choice of alibi defense and rejection of mental health defense not reasonable strategy where counsel failed to investigate possible mental defenses).

Second, the petitioner must demonstrate prejudice, that is, he must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result... would have been different." Strickland, 466 U.S. at 694. "It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding.'" Richter, 131 S.Ct. at 787 (quoting Strickland, 466 U.S. at 693). "Counsel's errors must be so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" Richter, 131 S.Ct. at 787-788 (quoting Strickland, 466 U.S. at 687). Under this standard, we ask "whether it is reasonably likely' the result would have been different." Richter, 131 S.Ct. at 792 (quoting Strickland, 466 U.S. at 696). That is, only when "[t]he likelihood of a different result [is] substantial, not just conceivable, " id., has the defendant met Strickland's demand that defense errors were "so serious as to deprive the defendant of a fair trial." Id., at 787-788 (quoting Strickland, 466 U.S. at 687.) A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the petitioner as a result of the alleged deficiencies. Strickland, 466 U.S. at 697. Since the defendant must affirmatively prove prejudice, any deficiency that does not result in prejudice must necessarily fail.

Under AEDPA, the Court does not apply Strickland de novo. Rather, the Court must determine whether the state court's application of Strickland was unreasonable. Richter, 131 S.Ct. at 785. Establishing that a state court's application of Strickland was unreasonable under 28 U.S.C. § 2254(d) is very difficult. Richter, 131 S.Ct. at 788. Since the standards created by Strickland and § 2254(d) are both highly deferential, ' when the two are applied in tandem, review is doubly' so. Richter, 131 S.Ct. at 788 (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). Further, because the Strickland rule is a "general" one, courts have "more leeway... in reaching outcomes in case-by-case determinations" and the "range of reasonable applications is substantial." Id. at 786; Premo v. Moore, ___ U.S. ___, ___, 131 S.Ct. 733, 740 (2011).

2. Factual Background

The crime occurred after midnight on May 21, 1990. RT[2] 1430. Investigating officer, Detective Gary Deckard, questioned Petitioner later that evening. RT 1430. Petitioner stated he had no knowledge of what had taken place. RT 1431. He advised the detective that he had been at the Oakdale Motel at the time of the crime. RT 1432. Two days later, Petitioner was placed under arrest, advised of his Miranda[3] rights, and questioned further. RT 1434; Pet. Exhs., vol. 6, pp. 1777-1848. He again stated he had no knowledge of the crime. RT 1434. Later in the interview, he admitted that he had been present and participated in the planning stage of the crime. RT 1434; Pet. Exhs., vol. 6, p. 1783. He stated the group went over a diagram of the house, and he was given the assignment of guarding a hallway to prevent anyone from escaping. RT 1435; Pet. Exhs., vol. 6, p. 1784. Initially, he stated he had been unarmed and had not attacked anyone. RT 1435-37. Later, he changed his statement and said he had struck one of the victims in the leg several times with a baseball bat. RT 1438; Pet. Exhs., vol. 6, p. 1826. When confronted with his changing statements, Petitioner admitted: The "only reason why I been bullshitting you people is cause I know man, heh, it's big time." RT 1440-41; Pet. Exhs., vol. 6, p. 1828. He stated it was his understanding that the victims were to be beaten, but not killed. RT 1454; Pet. Exhs., vol. 6, pp. 1797-98. He admitted that he "completely condoned" what had taken place. RT 1443; Pet. Exhs., vol. 6, p. 1847. He denied that he had killed anybody. Pet. Exhs., vol. 6, pp. 1825-26.

Petitioner was indigent and could not afford private counsel. Because there were multiple defendants and the county public defender's office could not represent all defendants, on May 24, 1990, John Grisez of the county "conflicts" firm of Grisez, Orenstein and Hertle was appointed to represent Petitioner. RT 126. Immediately, Grisez and the prosecutor began negotiating a plea agreement whereby Petitioner would testify against the other defendants, and in exchange, Petitioner would plead guilty to four counts of first degree murder, without special circumstances and with the possibility of parole. RT 92-93; CT[4] 1127. Pursuant to the agreement, Petitioner agreed to provide another interview with the investigating detectives on May 31, 1990. RT 92. In that interview, Petitioner admitted that Cruz had planned the killings in advance. CT 1101, 1131. He further stated that Cruz had instructed that everyone in the house was to be killed. CT 1131.

As part of the agreement, Petitioner was to take a polygraph examination. RT 96-97, CT 1128. On June 18, 1990, polygraph examiner George L. Johnson met with Petitioner for purpose of examining Petitioner. RT 112-13. During the pretest phase, Petitioner offered new information including admitting that he had stabbed victim Darlene Emmie Paris one time in the side, inserting the knife about 5-6 inches deep, and then cutting her throat. CT 1132. He stated Cruz had directed him to do this, and Cruz had given him his "Ka-Bar" knife to do so. CT 988, 1132. He stated that the victim had been lying on her stomach when he pulled her head up by her hair, and then cut her throat. CT 1132. He stated that the cut was deep "as it felt like he almost cut her head off." CT 1132. He stated he had done this because Cruz had directed him to do so. CT 1132. Because of the new admissions, the examiner could not create polygrams, and so the meeting was concluded without conducting an examination. CT 1132.

Thereafter, Petitioner met again with Detective Deckard. RT 988. Deckard asked Petitioner whether he had stabbed Paris, and Petitioner admitted he had stabbed her in the left side and then cut her throat. RT 988. Petitioner stated the cut to her throat was "pretty deep" because "her head felt like a loose tooth" and "had a lot of play in it." RT 988. He stated he had done so because Cruz had motioned with a gesture that he should. RT 989.

Five months later, in October of 1990, Petitioner rejected the plea agreement against Grisez's wishes. RT 140-41, 257. In late October or early November, one of Grisez's colleagues in the firm, Mary Ellen Hertle, took over the case. RT 126. On November 28, 1990, during the preliminary hearing, Hertle declared a conflict and she was relieved as counsel. CT 687-88. The preliminary hearing proceeded with the remaining defendants. CT 704.

On November 29, 1990, the court appointed Paul Ligda to represent Petitioner. CT 693(e). On December 11, 1990, on the fourth day of the preliminary hearing, Ligda moved to sever Petitioner's case and begin the preliminary hearing anew. CT 697. The prosecutor objected stating that all of the evidence was already in. CT 697. Ligda explained that he would need an additional two months to prepare because he had not yet received all of the transcripts and more work needed to be done. CT 697-98. He observed that the other attorneys had been given approximately five months to prepare, implying that two months would not be unreasonable. CT 698. He stated he would not need five months like the other attorneys because he had the advantage of some of the work already having been done. CT 698. The court granted the motion and severed Petitioner's case. CT 698.

As noted by Respondent, when Ligda was appointed, he faced a case in which Petitioner had provided several voluntary and incriminating statements to investigators which established, by themselves, every element of the charges against him. In addition, Petitioner had already rejected the plea agreement and negotiations were not likely to resume due to additional statements having been procured from other witnesses. RT 2129. Ligda attempted to exclude all of Petitioner's statements from evidence by filing motions in limine. CT 1098, 1103-04. On August 12, 1991, a hearing was held on the motion and the trial court initially ruled that only the June 18 interview with Detective Deckard would be excluded. RT 47, 163. After additional briefing, the court ruled that the statement to the polygraph examiner would be admissible "up to the point where Mr. Johnson developed a serious question about his ability to give [Petitioner] a polygraph." RT 209. Ligda requested that the court reconsider its ruling as to the May 31 statement, but the court declined. RT 209.

Ligda also challenged portions of the audiotapes of the May 21 and 23 interviews. RT 247. The prosecutor agreed not to use the audiotapes during those portions of the interviews, and instead would have the detectives testify. RT 267. The trial court then returned to the May 31 and June 18 statements. After considering Ligda's arguments and cited cases, the court ruled that both statements were inadmissible since they were made in the course of plea negotiations. RT 259. Therefore, Ligda was successful in excluding from evidence the most damaging and incriminating statements made by Petitioner wherein he admitted he took an active role in the conspiracy and personally stabbed and sliced the throat of one of the victims.

Ligda's strategy was to present Petitioner as a slave of Gerald Cruz's group. RT 815-16. His theory which he argued to the jury was that Petitioner did not possess free will and only did what he was told to do by Cruz, or he would suffer physical and mental consequences, even death. RT 815-16; 1703. Ligda argued that Petitioner thus could not have premeditated or deliberated on the murders. RT 1703-05. Further, the defense theory was that Petitioner possessed no intent to kill, that the plan among the group was only to beat the occupants, and that Petitioner had only conspired to assist in beating the victims. RT 1705. Ligda was able to rely on Petitioner's May 23 statement and Michelle Evans's testimony in support of this theory. He was able to point out that the only evidence of Petitioner having personally killed someone came from Evans, and he attacked her credibility in several ways. RT 1706-14. Had the other statements been admitted, this defense theory would not have been tenable.

At the motion for new trial, Ligda explained his defense strategy as follows:

Well, essentially, [Petitioner's] defense rested on a jury acceptance and understanding of the fact that [Petitioner] was subservient to Cruz; that he had been for some particular time and that it was evidenced by a number of things culminating, as it were, on the evidence that evening that he was threatened in the presence of other witnesses that harm could come to him if he did not carry out his assigned project that particular evening.

RT 2104.

3. Claim 1B

Petitioner first alleges trial counsel, Paul Ligda, rendered ineffective assistance by failing to complete investigation of the case, opting instead to proceed to trial prematurely. Also, he claims counsel performed ineffectively by seeking a severance and by failing to take steps necessary to have Petitioner's case joined with his codefendants.

a. Severance of Case; Failure to Move to Consolidate

Petitioner claims counsel rendered ineffective assistance by moving to sever his case from that of his codefendants, and by later failing to move to consolidate the cases. He claims that since Petitioner was a physically small and neurologically impaired young man whom the Cruz group treated and abused as their slave, Ligda inexcusably sacrificed one of the few advantages Petitioner had, which was his lack of culpability when compared to the other codefendants. He argues it is a virtual certainty that the sympathy the jurors would have felt for Petitioner would have assured a sentence less than death and probably second degree murder.

The Court notes first that bifurcation of the case was contemplated by the trial court, at the urging of the prosecutor, as a result of the previous attorney's conflict and prior to the appointment of Ligda. CT 688. Ligda was appointed in the midst of the preliminary hearing and appeared on the fourth day of the examination. CT 697. At that time, he moved to sever the case because he was essentially beginning work on the case. He stated he had only received two of the three transcripts and was in the middle of reviewing the police reports. CT 697. He asked that the case be severed and a new preliminary hearing be ordered for Petitioner in order that he could complete work and prepare for the hearing. CT 697. Based on this, it is clear that a fair-minded jurist could have found that Petitioner failed to establish a prima facie case of ineffectiveness for Ligda's decision to request severance.

Petitioner also faults Ligda for later failing to move to consolidate the cases. Petitioner was arraigned on March 8, 1991. At that time, the trial court asked whether there would be a motion to consolidate Petitioner's case with his codefendants. RT 4. The prosecutor responded, "No. your Honor, there is not. There is an Aranda problem in trying this defendant along with the other ones." RT 4. The trial court then responded: "All right. Vacate the trial date that I just suggested. May the minute order reflect that the District Attorney will not be moving to consolidate this matter because of Aranda problems." RT 4. Petitioner claims that despite the statement of the prosecutor and the ruling of the court, Ligda should have moved to consolidate so that he could have benefitted by being tried alongside his more culpable codefendants. Respondent counters that consolidation would have been denied under Aranda, and in any case, consolidation might have been damaging to the defense.

There is nothing in the record concerning Ligda's reasons for not seeking consolidation. Therefore, the Court must "affirmatively entertain the range of possible reasons" he may have had for his action or omission. Pinholster, 131 S.Ct. at 1407.

The Aranda problem the prosecutor declared refers to the Aranda/Bruton rule, which "bars admission in a joint trial of one defendant's out-of-court confession that powerfully and facially incriminates a codefendant, even if the court instructs the jury to consider the confession only against the declarant." People v. Smith, 135 Cal.App.4th 914, 921-22 (2005) (citing Bruton v. United States, 391 U.S. 123, 135-136 (1968) and People v. Aranda, 63 Cal.2d 518, 531-32 (1965)). As noted by Respondent, Petitioner's several statements did powerfully and facially incriminate his codefendants, and at that time none of Petitioner's statements had been excluded, so there was in fact an Aranda problem. Ligda himself conceded there was an Aranda problem. Pet. Exhs., vol. 7, p. 1868. Petitioner fails to demonstrate a likelihood that any motion for consolidation would have been successful in the face of the prosecutor's declaration. A fair-minded jurist could conclude based on this that Petitioner failed to establish a prima facie case that Ligda's alleged omission was objectively unreasonable.

For the trial court to allow consolidation, Petitioner's statements would have had to be redacted to avoid references to codefendants. Respondent contends that doing so could have damaged Petitioner's defense. Respondent posits that evidence pointing to the greater culpability of a codefendant would have been redacted from the incriminating statement. This is a weak argument but still a reasonable possibility. As noted above, the defense theory was that Petitioner did not premeditate and deliberate; rather, he had no free will and merely did what Cruz commanded him to do. Petitioner made two statements, one during the pretest phase of the polygraph examination, and the other to Detective Deckard, wherein Petitioner stated that he sliced Paris' throat because Cruz told him to do so or Cruz motioned that he do so. CT 1132; RT 989. Under Aranda/Bruton, these statements would necessarily have been redacted. It is plausible that at that time, Ligda, in attempting to defend Petitioner in the face of multiple powerfully incriminating statements, could have wanted every statement showing Cruz directed the killing in evidence so as to buttress the defense theory. The reviewing court indulges a "strong presumption' that counsel's representation was within the wide range' of reasonable professional assistance." Richter, 131 S.Ct. at 787 (quoting Strickland, 466 U.S. at 687). Therefore, a fair-minded jurist could conclude that Petitioner failed to present a prima facie case that Ligda's decision not to seek consolidation was objectively unreasonable.

b. Decision to Expedite Trial

Petitioner claims Ligda rendered ineffective assistance by proceeding to trial before he had completed his investigation. Petitioner states that Ligda had an extensive vacation planned, and therefore, he rushed the case to trial so as not to interfere with his plans. Petitioner points to Ligda's statement, provided 15 years later, that Petitioner "was tried first in part because I had an extended prepaid trip planned beginning in November of 1991." Pet. Exhs., vol. 14, p. 4060.

The record does not support Petitioner's claim that Ligda was determined to set the trial as early as possible in order to satisfy his personal interests at the expense of Petitioner's defense. Ligda was appointed on November 29, 1990. Petitioner faults Ligda for advancing the date of trial to August 19 from the previously set date of September 9, 2011. This is not an accurate reading of the record. At the arraignment on March 8, 1991, the parties agreed initially to set trial for September 9, 1991. RT 5. However, the clerk advised the court that September 10 was a court holiday and the clerk did not know if any other trials were set for that week. RT 5. The trial court then suggested September 16 and Ligda agreed. RT 5. The prosecutor, however, advised the court that he had another capital case scheduled to commence in early October. RT 5. The parties thereafter agreed to a trial date of August 19, 1991, and in fact trial commenced on that date. RT 6, 274. At that time, Petitioner's codefendants' trial was actually scheduled earlier, to wit, June 17, 1991. RT 9. On March 27, 1991, the codefendants moved for a continuance to October. RT 11. During the motion for continuance, the prosecutor opined that there was a large amount of material to go through, but the earlier date of June 17 was realistic. RT 12. The motion for continuance was granted for October 28, 1991, with an alternate date of February 18, 1992, and ultimately, that trial commenced on or around April of 1992. RT 24; Pet. Exhs., vol. 4, p. 1018. Therefore, the record shows that the parties had both agreed to September 9, 1991, which at that time was after the codefendants' trial was scheduled to commence. Had Ligda wanted to set the trial as soon as possible, he could have asked the case be joined with the codefendants so as to set the trial a full month earlier. Additionally, when the trial court appeared to have a conflict with the September 9 date, the court suggested September 16 and Ligda readily agreed. The August 19 date was agreed upon because the prosecutor had a conflict with the later date. As noted by Respondent, Ligda's vacation plans never even entered into the discussion of scheduling until after the trial had concluded and during a motion for new trial. RT 1994, 2004. Accordingly, Ligda's actions do not demonstrate a motivation to get the case scheduled as soon as possible.

Nevertheless, even assuming that Ligda was motivated to set the trial prior to his preplanned vacation, there is nothing unreasonable or sinister in an attorney taking a vacation into account in scheduling a trial. Ligda stated he would be prepared for trial on the scheduled date, and the record provides no reason why he should have sought a continuance at any time prior to trial. Ligda never stated that his discovery was incomplete. He never stated his preparation for trial was lacking, or that he could have used more time to prepare for trial. There is no evidence that Ligda had obligations between the time of his appointment and the time of trial that would have interfered with his preparation.

Petitioner points to additional discovery that was obtained by the codefendants after Petitioner's trial. Petitioner claims Ligda should have asked for a continuance so that this new evidence would have been available to him. However, the evidence was not known to him prior to trial. Counsel cannot be deemed ineffective because he failed to continue a trial as long as possible in the hope that additional evidence, unknown at the time, might be discovered at a later date. While it is true that the codefendants' attorneys asked for additional time, Ligda's vacation plans had nothing to do with that decision. A trial involving four attorneys and four defendants is substantially more complex; therefore, it cannot be deemed unreasonable that they would request a continuance while Ligda did not.

Petitioner further points to the declaration of Ramon Magana, defense counsel for codefendant LaMarsh. In his declaration, Magana stated that Ligda pushed for a quick trial. Pet. Exhs., vol. 14, p. 4066. As discussed above, the record does not show Ligda did this. Rather, the record shows Ligda had agreed to a trial date that was initially set beyond the codefendants' trial. He did not request a continuance, but there is no reason evident in the record that Ligda needed one prior to the trial. Magana faults Ligda for the discovery he obtained after Petitioner's trial, but Magana concedes the evidence only became known after the trial. For example, the witness Rosemary McLaughlin was only discovered later through a newspaper article regarding a motel fire. In addition, the tape recordings of Starn and some of the codefendants were made available after Petitioner's trial. Magana concedes that prior to Petitioner's trial, the prosecutor had informed the defense attorneys that they did not exist. Ligda cannot be faulted for failing to obtain material he did not know existed. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight... and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689.

Moreover, Magana's statement consists of hearsay of what Ligda allegedly told Magana, and conjecture as to what Magana "believed" Ligda was thinking. Pet. Exhs., vol. 14, p. 4066 ("I believe he wanted the money from the trial for his trip."). This is not sufficient to rebut the presumption of counsel's effectiveness. See Greiner v. Wells, 417 F.3d 305, 325 (2d Cir. 2005). This Court finds that the California Supreme Court could have reasonably chosen not to consider Magana's declaration, or given it little weight, in determining whether Petitioner's claim established a prima facie case.

c. Prejudice

Petitioner claims that Ligda's motion to sever the case, his failure to move to consolidate the cases, and his actions in proceeding to trial prematurely prejudiced him as demonstrated by the evidence that was later discovered and the outcome the evidence had on the retrial of codefendants Willey and LaMarsh. Petitioner notes that Willey and LaMarsh were each found guilty of four counts of second degree murder and one count of conspiracy to commit second degree murder. Pet. Exhs., vol. 7, p. 1871. Willey received a sentence of 62 years to life, and LaMarsh received a sentence of 64 years to life. Id. at 1897. Petitioner on the other hand was found guilty of four counts of first degree murder and one count of conspiracy to commit murder and was sentenced to death. The Court notes that codefendants Cruz and Beck were also found guilty of four counts of murder and one count of conspiracy and sentenced to death. Id. at 1871. Petitioner argues that he would have fared as well or better than Willey and LaMarsh had he been tried with them and had Ligda delayed the trial so as to obtain the additional discovery.

The Court does not find that comparing Petitioner's trial with the Willey-LaMarsh retrial demonstrates prejudice. There were many differences between the two trials. First, Petitioner made several highly incriminating statements which by themselves established every element of the crimes charged. Although Ligda was successful in excluding the most damaging statements from the trial, Petitioner's initial statements to detectives were admissible at trial. In the May 23, 1990, statement, Petitioner recounted how he was part of the group during the planning stage and the distribution of the weapons, he admitted he entered the house with the group, he admitted he attacked one of the occupants of the house, and he stated he condoned the conspiracy. Pet. Exhs., vol. 6, pp. 1777 et seq. He further made statements to his girlfriend Mary Gardner and to Michelle Evans, which were admissible at trial. In those statements, Petitioner had stated that everyone in the house was supposed to die and admitted that he personally stabbed a victim and then cut her throat. RT 1066-67, 1313-14. Willey and LaMarsh had made no such statements.

In addition, Willey and LaMarsh both testified at their trial. LaMarsh testified that he had gone to the victims' house with Evans so that Evans could take some of Tanya Miller's clothing. Id. at 1891. LaMarsh testified that he brought a bat along as a scare tactic in case the occupants tried to hurt Evans. Id. He stated that he did not know of any plan to hurt or kill anyone. Id. LaMarsh testified that Raper yelled at him when he entered the house. Id. He accompanied Evans to a bedroom whereupon Ritchey became aggressive and told him, "It's time for you to go, Jason." Id. LaMarsh took out his.22-caliber handgun, pointed it at Ritchey, and told him to leave. Id. LaMarsh then exited the house out the back window. Id. He stated he then ran to the front door to get Evans and went back inside the house. Id. at 1892. When he went inside, Raper attacked him with a knife, so he used his bat to protect himself. Id. Raper grabbed his arm, which appeared to be broken, and dropped his knife. Id. Cruz then attacked Raper by hitting him over the head with a baton. Id. LaMarsh ran out the back window again, came to the front door again to survey the scene, and then fled to the car. Id.

Willey testified that he went to the victims' house to help move furniture. Id. at 1895. He testified that when he approached the house, LaMarsh yelled to him that "the shit's starting, " and Ritchey ran out the front door. Id. at 1896. Willey stated he then tackled Ritchey and started to punch him so he couldn't get away to get help. Id. Beck then came up, pushed Willey off of Ritchey, and then cut Ritchey's throat with a large knife. Id.

Petitioner however did not testify in his defense. Had he done so, he would have been impeached with his highly incriminating statements which Ligda had successfully excluded.

Moreover, as pointed out by Respondent, if Petitioner had been tried alongside Willey and LaMarsh, additional incriminating evidence would have been proffered. At the Willey-LaMarsh retrial, witness James Richardson testified that he had known Evans for six years. Id. at 1887. He stated that Evans and a man, inferably Petitioner, discussed how the man had just murdered a girl with a baseball bat. Id. Witness Larry Cortinas testified that he was incarcerated at the Stanislaus County Jail with Cruz, Beck, and Petitioner, and they had all admitted to him that they had beaten people to death at the Elm Street house. Id. at 1888. LaMarsh testified that Petitioner was armed with a bat and a knife on the night of the murders. Id. at 1891. He testified that he saw Petitioner during the attack kneeling by the kitchen table and pulling someone out from beneath it. Id. at 1892. Willey also testified that Petitioner was armed with a bat and a knife. Id. at 1895.

Given the differences noted above, the outcome of the Willey-LaMarsh retrial cannot be considered proof that Petitioner was prejudiced by Ligda's decision to sever or his failure to consolidate the cases.

Petitioner also points to specific evidence that was discovered subsequent to Petitioner's trial. He claims the evidence supports his contention that Ligda's decision to go to trial prematurely prejudiced his defense. He argues that this evidence would have been discovered had Petitioner not forced the case to trial. He claims the evidence was crucial to the defense. However, as previously discussed, there is no evidence in the record that Ligda "forced" the case to trial prematurely. The trial was scheduled in a normal fashion, and while Ligda did not seek continuances like the codefendants' attorneys did, there is no reason that he should have done so prior to trial. Petitioner does not demonstrate that any of the specific evidence addressed below was known to Ligda or could have been discovered prior to trial. Counsel cannot be faulted for failing to request continuances in the hope that additional unknown evidence might be discovered. For this reason, the claim fails. Nevertheless, the Court will address each item of evidence identified by Petitioner.

i. Sherry Trammel

Petitioner states that certain police reports involving Michelle Evans were turned over to the prosecution after Petitioner's trial. In his declaration, Ligda did not recall seeing the police reports prior to trial. Pet. Exhs., vol. 14, p. 4059. He does not state whether he knew about Trammel, whether he investigated her, or whether he would have found her testimony helpful. He states he would have used whatever was available to attack Evans' credibility. Id.

In one police report dated July 9, 1991, in an incident involving Evans and Trammel, Evans allegedly threatened Trammel that she would "slice you like I sliced the rest." Pet. Exhs., vol. 2, p. 537. Respondent correctly notes that no declaration from Trammel was submitted, and it is unknown whether Trammel would have testified if called or what her testimony would have been. Petitioner cannot demonstrate prejudice where he fails to demonstrate that the witness could have been called to testify, state with specificity what that witness would have testified to, or show that the witness was actually available and willing to testify. Alcala v. Woodford, 334 F.3d 862, 872-73 (9th Cir. 2003). Petitioner submits no affidavit from the witness and only speculates as to her testimony. See Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000); Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir.), as amended by 253 F.3d 1150 (9th Cir. 2001) (mere speculation of possible helpful information from potential witnesses is not sufficient to show ineffective assistance of counsel). The California Supreme Court could have reasonably chosen to disregard this evidence.

ii. Michell Mercer

Petitioner also points to police reports involving Michell Mercer that were discovered after Petitioner's trial. Pet. Exhs., vol 2, p. 542. Mercer testified at the subsequent Cruz-Beck trial that Evans confessed to being present at the house during the killing of Raper, and that Evans had "helped slice up Darlene [Paris]." Pet. Exhs., vol. 2, p. 584. Petitioner contends that Mercer's testimony would have undermined Evans' credibility since Evans had testified she was not present when the murders took place. Mercer provided a declaration wherein she stated she would have testified to the same at Petitioner's trial had she been contacted. Pet. Exhs., vol. 14, pp. 4056-57.

Again, Ligda does not recall having seen this police report. He does not state whether he knew about Mercer, whether he investigated her, or whether he would have found her testimony helpful. Counsel cannot be blamed for failing to put on a witness he did not or should not have known about.

In any case, a fair-minded jurist could conclude that Mercer's testimony would not have changed the outcome. Mercer testified that she was biased against Evans. She stated that Evans had broken up a relationship between Mercer and her boyfriend. Pet. Exhs., vol. 2, p. 591. Mercer testified that she still cared about the boyfriend a lot. Id. When asked whether Mercer liked Evans, she stated, "No, sir, I can't say I do." Id. at 590. Therefore, Mercer's bias would have undermined the impeachment value of her testimony. As pointed out by Respondent, Mercer and Evans both testified at the Cruz-Beck trial, and both Cruz and Beck were convicted and sentenced to death.

Moreover, Mercer's testimony did not call Petitioner's own culpability into question. Even if Mercer's statements were taken as true, they would only have established that Evans also participated in the attacks. None of her statements would have exculpated Petitioner. In addition, the jury was instructed that Evans' testimony as an accomplice had to be corroborated. RT 1673-74, 1709. The circumstantial evidence corroborating her testimony was overwhelming.

iii. Evidence of Benefits in Exchange for Testimony

Petitioner claims counsel's decision to proceed prematurely also prejudiced him because it deprived him of the information and records showing that financial and other benefits and inducements had been made to Evans and Alvarez in exchange for their testimony. Petitioner states that while his case was being tried, counsel for two of his codefendants sought records of moneys paid or any offer of consideration offered to any witness in the matter. Pet. Exhs., vol. 3, pp. 689-97.

Ligda did not discuss this information in his declaration, but it is clear from the record that he was aware of it. In her preliminary hearing testimony, Evans states she was given a motel room, money for meals, and assistance in relocation expenses by the District Attorney's Office. CT 931-33. Evans further stated that the assistance did not influence her testimony in the case. CT 933. Since counsel clearly knew of the information, Petitioner cannot demonstrate prejudice resulting from his allegedly proceeding to trial prematurely.

iv. Evidence of Cruz's Influence and Control over the Cult

Petitioner claims that Ligda's decision to proceed to trial prematurely deprived him of all of the material available concerning Cruz's cult, including what he terms the "Master's tapes, " which were tapes made by Cruz containing his occult teachings. He further claims Ligda did not possess the complete diaries of all the cult members. He contends that these materials, which were turned over after Petitioner's trial, would have been crucial to a cult expert or mental health expert in evaluating Petitioner's mental state and the influence of Cruz and other members.

Ligda makes no mention of these items in his declaration. He does not state whether he knew about them, investigated them, or whether he would have found them helpful. In any case, Ligda did in fact consult and present an expert on cults and mind control of cult members. RT 1859. The expert, Randy Cerny, reviewed police reports, Petitioner's diary which he maintained from 1988 to 1990, and trial transcripts. RT 1867. In addition, Cerny interviewed Petitioner on two occasions, as well as Petitioner's sister, Angela Young, who was a former member of Cruz's cult. RT 1867. Petitioner complains that the additional materials would have been crucial, but he does not state what additional information the materials would have provided that would have assisted the defense. Cerny reviewed much of the same information and came to the same conclusions as the codefendants' expert, Patrick O'Reilly.

Both Cerny and O'Reilly determined that the group was a cult and Cruz was the leader of the cult. RT 1868; Pet. Exhs., vol. 1, pp. 4, 20. Cerny concluded that Petitioner was subjected to a process of mind control by Cruz. RT 1868. Likewise, O'Reilly found that Cruz used highly effective measures of influence, persuasion and intimidation to retain Petitioner as a member of the group. Pet. Exhs., vol. 1, p. 4. Cerny noted that Petitioner was subjected to extended periods of sleep deprivation as a method of mind control. RT 1869-71. O'Reilly also found that sleep deprivation was a controlling tool that Cruz used consistently. Pet. Exhs., vol. 1, p. 28. Cerny noted from Petitioner's diary that Petitioner was subjected to constant and repeated brutal physical punishment at Cruz's direction. RT 1871-75. O'Reilly found the same. Pet. Exhs., vol. 1, pp. 25-26. Cerny discussed shock treatments that would be administered by Cruz. RT 1872. An exposed orange extension cord would be placed on the testicles or the forehead of Petitioner or other members, and Cruz would turn on the light switch to supply shocks. RT 1872. Cerny recounted one incident where Petitioner could not stand the sight of another member, Steve Perkins, being electrocuted in this manner. RT 1872. This angered Cruz which caused Cruz to subject Petitioner to the same torture. RT 1872-73. O'Reilly described the same electrocution torture, also noting the incident with Perkins. Pet. Exhs., vol. 1, pp. 25-26. Cerny described how Cruz would punish Petitioner by forcing Petitioner to engage in sodomy with other members. RT 1873. O'Reilly also noted the same punishment. Pet. Exhs., vol. 1, pp. 27-28. Cerny discussed how Petitioner was isolated from outside influences and restricted from seeing his family members as a form of control. RT 1875-76. On occasions when he would leave the camp he usually had to have someone accompany him. RT 1876. O'Reilly also discussed these same restrictions. Pet. Exhs., vol. 1, p. 23. Cerny also noted that Petitioner was required to ask permission from Cruz to do things. RT 1876. O'Reilly noted the same. Pet. Exhs., vol. 1, p. 23. Cerny noted that Petitioner was required to work and turn all of his funds over to Cruz as a form of cult control. RT 1876. O'Reilly also noted that Petitioner had to work and turn over all his earnings to Cruz. Pet. Exhs., vol. 1, p. 23. Cerny and O'Reilly also noted that Cruz followed the teachings of occultist Aleister Crowley and even considered himself Crowley's reincarnation. RT 1877; Pet. Exhs., vol. 1, p. 24.

In light of the foregoing, Petitioner's expert discovered and presented most of the same information that his codefendants' expert did. He also came to the same conclusion that Petitioner had been subjected to a process of mind control by Cruz. Therefore, Petitioner cannot establish that he suffered any prejudice by Ligda's failure to procure these additional materials.

v. James Richardson

In addition to witnesses Trammel and Mercer, Petitioner claims Ligda's decision to proceed with trial prematurely deprived him of the benefit of testimony of James Richardson. Petitioner claims Richardson would have contradicted Evans' allegation that Petitioner had confessed to her and Richardson that he killed Paris.

Petitioner concedes that Richardson moved and was not located until October 25, 1991, which was after Petitioner's trial. For this reason alone, the claims fails. Counsel cannot be expected to delay trial indefinitely in the hope that a witness might turn up at a later date.

At the Cruz-Beck trial and the LaMarsh-Willey retrial, Richardson testified that he received a call from Evans shortly after the homicides to pick her up. Pet. Exhs, vol. 3, pp. 601-602. At some point, they picked up Petitioner who gave Evans her purse. Id. at 623, 673. Richardson testified that Evans told him that she had "set it all up" and that she had enjoyed watching it. Id. at 644, 650. However, Richardson also testified that Evans identified Petitioner as one of the men "that actually did the homicide." Id. at 643, 648, 685. Richardson stated Evans informed him that Petitioner was "the one that killed the girl." Id. at 648-49. Richardson also overheard Petitioner stating that he had hit the girl with a baseball bat. Id. at 649, 660.

Thus, Richardson's testimony would not have been helpful. It did not contradict Evans' allegation that Petitioner had admitted to killing Paris. Richardson stated that Evans and Petitioner spoke for some time behind the truck and beyond his hearing. It is entirely possible that Petitioner's admission took place during that conversation. Moreover, the rest of Richardson's testimony would only have bolstered and corroborated Evans' testimony. His testimony would have reaffirmed Evans' statement that Petitioner was the person who actually killed Paris, and his testimony that he heard Petitioner state he had hit the girl with the baseball bat would have corroborated Evans' testimony that Petitioner attacked Paris. A fair-minded jurist could reasonably have determined that Petitioner failed to present a prima facie case that he suffered prejudice as a result of counsel's failures concerning Richardson.

vi. Rosemary McLaughlin

Petitioner also claims he was prejudiced by counsel's decision to advance the trial date insofar as he was denied the benefit of testimony from Rosemary McLaughlin. McLaughlin was a former member of Cruz's group. Petitioner maintains that she could have testified that Petitioner was the cult's slave and was mistreated and abused at the hands of other cult members, thus generating sympathy for Petitioner. McLaughlin was discovered subsequent to Petitioner's trial "through a newspaper article regarding a motel fire." Pet. Exhs., vol. 14, p. 4067.

Once again, there is no indication that Ligda knew of this witness or could have discovered this witness prior to trial. In fact, as noted above, it was only through happenstance that she was discovered through a newspaper article published after Petitioner's trial. It is unreasonable to find that counsel erred because he failed to seek a continuance on the chance such a witness might materialize.

In addition, McLaughlin's testimony would have been cumulative to the evidence already presented by Ligda. Petitioner states McLaughlin would have testified that Petitioner was a slave and mistreated by the group. At the Willey-LaMarsh retrial, McLaughlin testified that she had been a member of Cruz's group in the past, that Cruz was the leader, and that Petitioner was treated like a slave. Pet. Exhs., vol. 7, p. 1882. She stated that Cruz controlled members of the group using threats, violence, manipulation, and sleep deprivation. Id. She left the group in 1987 or 1988 but visited on occasion starting in 1989. Id. She testified that on May 20, 1990, at around 10:00 p.m., she was at home watching television with her boyfriend, Phillip Wallace, when she received a call from Cruz. Id. at 1885. The purpose of the call was to recruit the two of them to help Cruz "go beat someone up." Id. They refused. Id. The next day Beck came to their house wearing new shoes, stating his old shoes were covered in blood. Id. at 1886. Beck grinned, stating "[w]e slit some throats." Id.

Respondent correctly states that Ligda had presented evidence concerning the cult and Petitioner's treatment within the cult through Evans' direct testimony, her cross-examination, Deckard's testimony, and various other witnesses. RT 1336-43, 1351-52, 1366, 1451-52, 1536, 1564-67, 1581. In addition, Ligda presented substantial evidence concerning the cult through his expert, Randy Cerny. RT 1859-81. McLaughlin would not have provided any new information. Petitioner cannot show prejudice.

vii. Change of Venue

Petitioner claims counsel's decision to proceed separately from the codefendants and rush the case to trial deprived him of the assistance of a competent venue expert. Petitioner contends that Ligda was forced to rely on the survey of investigator Alan Peacock. Petitioner's motion to change venue was subsequently denied. On the other hand, the codefendants relied on Dr. Stephen Schoenthaler to conduct a change of venue survey. The codefendants' motion was granted and venue was changed to Alameda County.

Petitioner's argument is not well-taken. Ligda initially sought funds to have a survey conducted by experts of his choice, to wit, the National Jury Project. Pet. Exhs., vol. 7, p. 1852-54. The trial court denied the motion and advised Ligda that he should have the survey conducted instead by one of the investigators already retained. Id. at 1858. The court stated it was "confident that... the investigators that have been... retained in this case are competent investigators." Id. at 1861. As a result, Ligda retained investigator Alan Peacock, who was a licensed private investigator. RT 166. Utilizing the survey conducted by Peacock, Ligda moved for change of venue. A hearing was conducted and the trial court denied the motion. RT 164-204.

Petitioner argues that had Ligda delayed or joined his case with the codefendants, he would have had the benefit of the expertise provided by Schoenthaler. However, Schoenthaler was contacted only after Ligda's motion was denied and at the recommendation of Peacock. Pet. Exhs., vol. 14, p. 4035. In other words, Schoenthaler was only retained because of Ligda's choice to retain Peacock. Thus, it is completely speculative to say Ligda would have had the benefit of Schoenthaler's expertise had he delayed or joined with his codefendants.

viii. Juror Questionnaires

As evidence of prejudice, Petitioner points to jury questionnaires distributed to jurors by the prosecution following the Cruz-Beck trial. Petitioner identifies five responses. He does not state whether additional responses from the other jurors exist. Petitioner claims that the responses demonstrate that had Petitioner been tried with his codefendants at a later date, he would have received a lesser sentence or been acquitted. Petitioner submits that when asked whom they believed cut Paris' throat, one of the respondents thought Petitioner had done so, two jurors said that either Beck or Petitioner had done so, one said that Cruz had done so, and one responded: "Not sure at all. Could have been Rick Vieira, Beck, Cruz, or even Michelle Evans. Probably Vieira or Beck. I didn't rule out Missy.'" Pet. Exhs., vol. 3, pp. 699-718.

Petitioner's argument is not persuasive. The prosecution was not seeking Petitioner's conviction at the Cruz-Beck trial. Relevant evidence of Petitioner's guilt, such as Evans' testimony of Petitioner's description of the way in which he cut Paris' throat, was not presented or argued. Such evidence would have been presented had Petitioner been on trial with his codefendants. Therefore, the jury's conclusion regarding Petitioner's guilt is not relevant. A fair-minded jurist could reasonably have chosen to disregard this evidence.

d. Conclusion

In sum, Petitioner fails to show that no reasonable jurist could have found that he failed to make a prima facie showing that counsel rendered ineffective assistance by moving for severance, by failing to move for consolidation, and by advancing the trial prematurely. Reasonable grounds existed for counsel's initial motion for severance as well as for his alleged failure to move to consolidate Petitioner's case with his codefendants. Also, the record does not reflect that Ligda purposefully advanced the trial prematurely to the detriment of Petitioner.

Even if the Court considered Ligda's decisions or omissions to constitute ineffectiveness, Petitioner fails to demonstrate that no reasonable jurist could have found that he failed to make a prima facie showing of prejudice. Petitioner's comparisons to the trials of his codefendants cannot be considered as proof of prejudice. As to the additional evidence, none of it was known to Ligda, and the evidence would not have altered the outcome of the trial. This claim is denied.

4. Claim 1C

Petitioner claims Ligda performed ineffectively by opting to forego second counsel in exchange for a higher hourly pay rate for himself. Petitioner argues that Ligda placed his own financial interests ahead of the best interests of his client.

Initially, Petitioner points to American Bar Association guidelines which recommend the appointment of two qualified attorneys in cases where the death penalty is sought. Nevertheless, the Supreme Court has stated that "Strickland stressed, however, that American Bar Association standards and the like' are only guides' to what reasonableness means, not its definition." Bobby v. Van Hook, 558 U.S. 4, 8 (2009) (quoting Strickland, 466 U.S. at 688). Rather, "the Federal Constitution imposes one general requirement; that counsel make objectively reasonable choices." Id. (quoting Roe v. Flores-Ortega, 528 U.S. 470, 479 (2000)).

Petitioner also notes that federal law requires the appointment of two counsel, at the defendant's request, when a defendant is indicted for a capital federal offense. 18 U.S.C. § 3005. However, as this case concerns a state conviction, federal statutes do not govern.

Petitioner further argues that California law compelled Ligda to request second counsel. Cal. Penal Code § 987(d) provides:

In a capital case, the court may appoint an additional attorney as a co-counsel upon a written request of the first attorney appointed. The request shall be supported by an affidavit of the first attorney setting forth in detail the reasons why a second attorney should be appointed. Any affidavit filed with the court shall be confidential and privileged. The court shall appoint a second attorney when it is convinced by the reasons stated in the affidavit that the appointment is necessary to provide the defendant with effective representation. If the request is denied, the court shall state on the record its reasons for denial of the request.

Cal. Penal Code § 987(d).

In Keenan v. Superior Court, the California Supreme Court held that the decision whether an additional attorney should be appointed remains within the sound discretion of the trial court. Keenan v. Superior Court, 31 Cal.3d 424, 430 (1982). However, a second attorney is required only upon "a showing of genuine need." Id. at 434. The burden "is on the defendant to present a specific factual showing as to why the appointment of a second attorney is necessary to his defense against the capital charges." People v. Lucky, 45 Cal.3d 259, 279 (1988).

In this case, prior to Ligda's appointment, Ken Faulkner, counsel for codefendant Beck, negotiated an arrangement with the superior court clerk wherein all attorneys for the defendants charged with the murders agreed to a compensation arrangement whereby the attorneys agreed to forego second counsel in exchange for a $125 hourly rate. Pet. Exhs., vol. 14, pp. 4070-71. When Ligda was appointed as replacement for Grisez, the following colloquy occurred:

MR. LIGDA: Your Honor, ..., I would understand my appointment would be under the same circumstances as the appointment of counsel on the other defendants?"
THE COURT: Can you tell me very briefly what those circumstances are? We're talking financial?
MR. LIGDA: Yes. Whatever they are, the same?
THE COURT: And as far as you know, whatever financial agreements that have been made with those counsel have been made through the superior court?
MR. LIGDA: Judge Stone, I believe.
THE COURT: That will, I'll make that order.

RT 5-6.

The discussion above shows that Ligda merely accepted the arrangement that had already been established by all other counsel. It does not support Petitioner's allegation that Ligda waived second counsel in exchange for a higher hourly rate, with the implication that he acted to maximize his income at Petitioner's expense. Moreover, there is nothing in the record to indicate that this case was so complex that Ligda could have or should have made a specific factual showing of genuine need at that time, nor is there anything in the record which shows Ligda felt constrained by the fee arrangement or that it affected his performance in any way, and Petitioner makes no such showing now. In support of his allegation, Petitioner points to Ligda's statement made fifteen years later, that "[i]n hindsight, having co-counsel would have been helpful, especially during the trial." Pet. Exhs., vol. 14, p. 4059. But this statement reflects only Ligda's view in hindsight, and the Supreme Court has warned not to judge counsel's decisions in the "harsh light of hindsight." Richter, 131 S.Ct. at 789 (quoting Bell v. Cone, 535 U.S. 685, 702 (2002)). Moreover, he does not state that there was a genuine need for additional counsel, only that it would have been helpful, and having additional counsel would be helpful in many cases.

Petitioner also claims that it was the policy of the Stanislaus County Superior Court to discourage lead counsel in indigent capital cases from requesting second counsel. Petitioner states the court would pay lead counsel a higher rate of $125 per hour rather than the standard rate of $100 per hour if counsel agreed to forego second counsel. Pet. Exhs., vol. 6, p. 1732. Reference to the written policy of the Stanislaus County Superior Court reveals no such purpose. The policy states that "[t]he court shall appoint a second attorney when it is convinced by the reasons stated in the affidavit that the appointment is necessary to provide the defendant with effective representation." Id. This is in accord with California law. The policy provides for a fee payment of $100 per hour in a special circumstance murder case. Id. at 1739. In an extraordinary special circumstance case, the attorney may apply for a fee adjustment up to $125 per hour. Id. However, there is nothing in the policy precluding an attorney earning $125 per hour from applying for appointment of second counsel. According to the policy, second counsel may be appointed upon a showing of good cause, which is again in accord with California law. Id. at 1743.

In sum, a fair-minded jurist could have found that Petitioner failed to make a prima facie showing that Ligda erred. This claim is denied.

5. Claim 1D

Petitioner next claims Ligda failed to competently investigate, develop evidence, confront, and cross-examine Evans. The parties both agree that Evans was the key witness for the prosecution. She was a member of the group and she provided a detailed first-hand account of the events leading up to the murders and the group's flight thereafter. Like Petitioner and the other codefendants, she was originally charged with four counts of first degree murder with special circumstance of multiple murder and one count of conspiracy to commit murder. RT 1211. Like Petitioner, she initially denied involvement in the murders. RT 1432. Subsequently, she admitted her involvement and entered into a plea agreement with the understanding that she would testify fully and truthfully. RT 1211. The only information from Ligda concerning his strategy and actions in regard to Evans is his statement that "[m]y goal at trial was to destroy her credibility so that the jury would disregard the damaging portions of her testimony." Pet. Exhs., vol. 14, p. 4059.

As previously discussed, "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Id. at 690-91. "[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Id. "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id. at 691. With this standard in mind, the Court will address Petitioner's specific claims concerning Evans.

a. James Richardson

Petitioner alleges Ligda rendered ineffective assistance by failing to present the testimony of James Richardson to impeach Evans. As previously discussed, Petitioner concedes that Richardson moved and was not located until October 25, 1991, which was after Petitioner's trial. There is nothing in the record to indicate that counsel could have discovered Richardson so he could testify at trial. It is unreasonable to expect that counsel would delay trial indefinitely in the hope that he might turn up at a later date. Accordingly, the claim fails.

Moreover, as previously stated, Richardson's testimony would not have impeached Evans. Evans' allegation that Petitioner had admitted to killing Paris could have occurred out of Richardson's hearing when Petitioner spoke to Evans behind his truck. Also, Richardson's testimony would only have bolstered and corroborated much of Evans' testimony, particularly Evans' statement that Petitioner was the person who actually killed Paris, and Petitioner's statement that he had hit the girl with the baseball bat.

b. Evans' Inculpatory Statements

Petitioner next claims Ligda should have presented evidence and testimony concerning Evans' own inculpatory statements.

i. Statements to James Beck

On May 22, 1990, Evans and Beck were left alone in an interrogation room and surreptitiously recorded. Pet. Exhs., vol. 3, p. 787. Much of the conversation was unintelligible because both Evans and Beck often whispered. Id. at 780-91. Counsel for LaMarsh and Willey had a portion of the tape recording enhanced and retranscribed so that some of the unintelligible remarks could be understood. The tape recording was played for the jury at the Willey-LaMarsh retrial. Id. at 810. In one particular passage, Evans made a statement that was interpreted in two different ways, as follows:

B [Beck]: I don't see why we should be behind bars, we didn't do anything. You know. They said you snuck out the window when this shit was happening, it's a good thing because it could have happened to you, while it was happening. Boy that was a trip.
E [Evans]: [defense interpretation]: (Whispers) And I also killed somebody.[prosecution interpretation]: (Whispers) And I also told them.... (Unintelligible 13 seconds of whispering)
B [Beck]: Huh, that's good. Ahhh. I told them where I was too and they don't believe me. Because Gerald was sick, you know, so he and Jennie went to Oakdale, she was at his mom's when she called, so me and Rick went over there and stayed in a motel room. They don't believe me. (Unintelligible) do something, it's the truth man, so it's a trip man, I didn't see anyone after I went to Oakdale.

Id. at 797.

Petitioner maintains that Ligda should have impeached Evans with her admission that she had killed someone. However, this statement was completely disputed even after it was enhanced and retranscribed. Certainly, the context of the statement appears to support the prosecution's interpretation, since Beck replied to Evans' statement by stating "I told them where I was too. " Id. In any case, the statement could not have had any effect in impeaching Evans. The jury already knew she was a participant in the raid on the home, and they were warned to view her testimony with caution, and that her testimony had to be corroborated. And as previously discussed, even if the jury believed Evans had participated in the murders, this did not exculpate Petitioner from his responsibility.

Petitioner further argues that a comparison of Petitioner's trial with the Willey-LaMarsh retrial shows that had Ligda impeached Evans with this statement, Petitioner would have received the same or less penalty imposed on Willey and LaMarsh. As already discussed, it is inappropriate to compare the two trials since there were vast differences. Moreover, as Respondent notes, the jury were unable to reach a verdict in the initial trial of Willey and LaMarsh when the enhanced recording was not presented, but they were convicted on retrial when the recording was presented.

ii. Statements to Sherry Trammel and Michell Mercer

Petitioner contends that Ligda was ineffective in failing to impeach Evans with the statements made by Sherry Trammel and Michell Mercer.

With respect to Trammel, as discussed above, no declaration was submitted, and it is unknown whether Trammel would have testified if called or what her testimony would have been. Petitioner cannot demonstrate prejudice where he fails to demonstrate that the witness could have been called to testify, state with specificity what that witness would have testified to, or show that the witness was actually available and willing to testify. Alcala, 334 F.3d at 872-73. Petitioner only speculates as to her testimony. See Dows, 211 F.3d at 486; Bragg, 242 F.3d at 1088 (mere speculation of possible helpful information from potential witnesses is not sufficient to show ineffective assistance of counsel).

As to Mercer, it is unknown whether Ligda knew about her, whether he investigated her, or whether he would have found her testimony helpful. Counsel cannot be blamed for failing to put on a witness he did not or should not have known about. Moreover, Mercer admittedly was biased against Evans and this would have undermined the impeachment value of her testimony. In addition, even if Mercer's testimony was accepted as true, it did not call Petitioner's own culpability into question. As previously stated, the jury was instructed that Evans' testimony as an accomplice had to be corroborated.

iii. Statements to Ivy Martin

Petitioner claims Ligda failed to locate, interview and present the testimony of Ivy

Martin. She was Evans' cellmate with whom Evans' drafted her handwritten statement of July 12, 1990. According to her declaration of August 8, 2004, Martin would have testified that Evans told her she participated in the murders, that she "helped drag the girl out from under the table, " and "described in great detail how James Beck slit the girl's throat." Pet. Exhs., vol. 2, pp. 460-64. Martin would also have testified that Evans used her as a sounding board to help her come up with a story and was "bouncing stories off me to see which ones sounded the best." Id.

Respondent correctly points out that there was an entirely reasonable and valid explanation in the record for Ligda's decision not to call Martin: her preliminary testimony was completely different from the statements she provided in her more recent declaration. During the preliminary hearing and while Petitioner's case was still joined with his codefendants, Evans testified that Martin had assisted her in writing her statement. CT 444-45. Later during the hearing, Martin testified that she had helped Evans write her statement. CT 708. Martin stated she did so because Evans wasn't a very good speller, Evans liked the way Martin wrote, and the statement needed to be very neat. CT 708-09. Martin testified that she wrote down what Evans told her and occasionally changed a word for a more formal word, but she did not alter the context. CT 709-10. She testified that Evans told her "it was very important that she told the truth, because she was going to have to take a lie detector test." CT 716. She further testified that Evans told her "that if she was not honest in this statement and they caught her in a lie, that they would use somebody else." CT 720. Martin also stated that she talked to Evans just once concerning the events before she wrote the statement. CT 721. When asked whether she sat down and conversed with Evans about what would sound best, she stated: "No." CT 722. Evans cried and appeared to be under stress while Martin was writing down her statement. CT 723. Martin testified that the statement was consistent with everything Evans had told her about the event, and Evans had not said anything that was not included in the statement. CT 723. Martin also stated that Evans never indicated she wished to exaggerate the role of any other individual involved in the case. CT 724.

Therefore, prior to trial, Ligda knew only that Martin's testimony would bolster and reaffirm Evans' testimony. "An attorney need not pursue an investigation that would be fruitless, much less one that might be harmful to the defense." Richter, 131 S.Ct. at 789-90 (citing Strickland, 466 U.S. at 691). Even if Ligda had some reason to believe Martin would change her testimony, she would have been impeached with her preliminary hearing testimony.

c. Forensic Pathology Evidence

Petitioner next alleges counsel was ineffective in failing to impeach Evans' testimony by showing that her own involvement in the killings was strongly suggested by the forensic pathology evidence and Evans' own statements. Petitioner states Evans' testimony concerning the knives that were involved in the killing, coupled with the pathologist's testimony, suggest that Evans herself was involved in killing Paris.

Evans testified that the group brought four knives with them to the house: a Ka-Bar knife, an M-9 bayonet, a Wildcat knife, and a smaller survival knife. Evans testified that during the preparation, Cruz sharpened his Ka-Bar knife, Cruz handed Willey the Wildcat knife, and Cruz gave Evans the smaller survival knife. RT 1260, 1265, 1269. When Beck came in through the window of the house, Evans saw that he carried the M-9 bayonet knife. RT 1293. The only knife recovered by law enforcement was the Ka-Bar knife, together with a baton and "The Edge" bat. RT 864.

Paris sustained numerous lacerations and stab wounds to her body, including: contusions and lacerations of the scalp, a stab wound to the neck, a slicing wound to the neck, a cut and slicing wound to the chest wall, cut wounds on the right hand and left finger, stab and cut wounds on the right thigh, a stab wound to the right chest, and multiple other contusions and abrasions to her body. RT 938. The pathologist, William Ernoehazy, determined that the stab wound to the right thigh, the stab wound to the chest, and the multiple slicing wounds to the neck were caused by the Ka-Bar knife. RT 938-45. This was consistent with Evans' testimony that Petitioner used the Ka-Bar knife handed to him by Cruz to stab Paris in the side and then cut her throat repeatedly. Petitioner points however to the small stab wound to the neck. Ernoehazy testified that he did not believe that this wound had been caused by the Ka-Bar knife because it was "a little too small" for the Ka-Bar knife. RT 944. Ernoehazy noted that the wound had been caused by a single-edged knife. RT 944. Petitioner points out that the only other knife identified by Evans that is single-edged that was smaller than the Ka-Bar was the small survival knife she carried. The Wildcat knife was serrated and the M-9 bayonet was larger than the Ka-Bar. While Evans described her knife as being single-edged and smaller than the Ka-Bar, she stated it was serrated on one side. RT 1269. Ernoehazy could not determine if the knife that caused the smaller stab wound in question had any serrations. RT 944. Petitioner rests his claim on the inference that the small stab wound must have been caused by Evans utilizing her small survival knife.

There is nothing in the record regarding Ligda's perception or strategy concerning the weapons. Therefore, the Court must "affirmatively entertain the range of possible reasons" he may have had for his action or omission. Pinholster, 131 S.Ct. at 1407. From the record, it can be concluded that Ligda knew the following facts in reviewing the forensic evidence. As noted above, Paris sustained multiple wounds including cuts, stabs, lacerations, abrasions and contusions. Ernoehazy was uncertain as to what objects caused many of these wounds. However, the fatal wounds to the chest and neck, and the large stab wound to the leg, were all consistent with the Ka-Bar knife. RT 938, 940-45. Ligda knew that Evans would and in fact did testify that Petitioner caused these wounds. Evans testified that Petitioner hit Paris a few times, that Cruz then handed Petitioner the Ka-Bar knife, that Petitioner then stabbed Paris in the side, and then held her up by the hair while he sawed at her throat until it felt like her head was going to fall off. RT 1313-14, 1524-26. Ligda also knew that this account was completely consistent with what Petitioner had told the polygraph examiner and the detective in the excluded statements. Ligda further knew that Petitioner had provided his own description of what occurred in the house: that LaMarsh had been beating Raper; that Beck had been beating Colwell, and Cruz had been beating Paris. RT 1436-37. When Petitioner was asked specifically whether he witnessed Evans hit anyone or do anything, he stated he had not. Pet. Exhs., vol. 6, p. 1839. He further stated that he had not seen Evans at the house during the attack, but that he recalled she had been waiting for the men in the car upon their return from the house. Id. at 1792, 1835-37. Eyewitnesses who saw Ritchey being attacked and men leaving the house did not see a female. RT 1023, 1046-52.

Therefore, Ligda could not have had any reason to suspect that Evans was involved in the attack on Paris. All of the evidence led to the only conclusion that Evans had left the house when she stated she had: immediately upon letting the men in from the bedroom window. As Respondent persuasively notes, if in fact Evans had any involvement in the attack on Paris, certainly Petitioner would have stated so to Ligda or provided some declaration to that effect.

Moreover, delving into the mystery of the small stab wound could easily have caused more damage to the defense than aid. Had Ligda made an issue of the small wound, he could have drawn more attention to the fact that the fatal neck and chest wounds were consistent with the Ka-Bar knife. Also, Ligda knew that Petitioner had admitted to stabbing Paris at least once in the side and repeatedly slicing her throat. And given that Ernoehazy could not determine what did cause the small stab wound, the idea that it might have been caused by Evans and her small survival knife, in the face of the evidence noted above, would have been speculative at best.

Also, there were other plausible explanations for the small stab wound. The four knives Petitioner cites were only the knives that Evans had seen. There may have been others she had not seen. As Respondent notes, there was evidence at Petitioner's codefendants' trials that Petitioner was seen carrying a bat and a knife. Pet. Exhs., vol. 7 pp. 1891, 1895; vol. 3, p. 854. In addition, Petitioner's own expert states that the Ka-Bar knife could have been responsible for the wound. Pet. Exhs., vol. 1, p. 60. Since the Ka-Bar knife has a tapered point, if it was inserted only a short distance, the wound would have been consistent with application of the Ka-Bar knife. Id.

Petitioner also claims counsel should have impeached Evans concerning her testimony that Petitioner had "sawed at" Paris' throat. RT 1314. Petitioner states that Ernoehazy testified that the cutting wounds to the throat were not consistent with a "sawing" motion since the four separate slicing cuts appeared to be made by applying the knife, lifting it, and then applying it in the same direction. RT 942-43. This argument is unavailing. It is entirely reasonable for a lay observer to refer to the repeated motions of applying the knife, lifting it, moving it back into position, and again applying it, as a "sawing" motion while a professional pathologist would describe the cuts in as precise terms as possible. A reasonable jurist could reasonably conclude that counsel's failure to challenge Evans on this point did not present a prima facie case of ineffective assistance.

Therefore, Petitioner fails to demonstrate that no reasonable jurist could have found that he failed to make a prima facie showing that Ligda erred by failing to impeach Evans on the forensic pathology evidence.

d. Evans' Plea Agreement

Petitioner further claims counsel rendered ineffective assistance with respect to Evans by counsel's failure to impeach her with last minute changes in her plea agreement. Petitioner notes that the first plea agreement signed on October 1, 1990, included six specific items to be fulfilled. Items five and six were: "(5) You did not personally kill any of the victims, " and "(6) You were not personally armed with a weapon at the scene of the murder." Pet. Exhs., vol. 3, pp. 733-35.

After Petitioner's preliminary hearing, Evans notified Detective Deckard that "she was concerned about some information that she forgot to tell anyone about." Pet. Exhs., vol. 3, p. 885. She advised Deckard that she remembered she had a small survival knife in her possession during the incident. Id. at 885. She informed Deckard that Cruz had given her the knife before they had left, and that she had placed it in her jacket but had not taken it out until the weapons were collected at the apartment. Id. Evans testified about these facts at trial. RT 1269, 1307.

On August 21, 1991, shortly before Petitioner's trial, Evans signed a second plea agreement. The plea agreement contained the following obligations:

(1) You make yourself available as a witness in the case at all trials, re-trials, and other court appearances as required.
(2) You testify fully and fairly as to your knowledge of the facts out of which the charges arose.

Pet. Exhs., vol. 3, p. 730. Petitioner argues that the changed plea agreement reflects the prosecution's belief that Evans might have personally killed a victim. He faults counsel for having failed to bring this to the jury's attention.

Based on the record, the Court finds nothing unusual about the second agreement that would have necessitated further inquiry at trial by Ligda. As noted by Respondent, the first agreement was signed early on in the investigation and it spells out the status of the investigation and the requirements at that time. For instance, the agreement required that Evans provide complete statements to the investigating detectives. Id. at 734. It further required that Evans' testimony be corroborated by other evidence. Id. at 734. Prior to trial, the prosecution needed a document which accurately reflected the agreement but did not contain inadmissible and extraneous information so it could be admitted to the jury. Thus, the "finalized" second agreement did not contain the history of the investigation like the first agreement did. Id. at 730. It did not contain information such as the fact that Evans had submitted to a polygraph examination, or that her testimony would need to be corroborated. Id. In addition, the second agreement required that Evans testify "fully and fairly" rather than "truthfully, " thus avoiding any unfair suggestion that the prosecution could vouch for Evans' truthfulness.

Petitioner takes issue with the removal of the two conditions, that Evans did not kill anyone and that Evans was not armed. However, as correctly argued by Respondent, these were facts to be decided by the jury. Having them stated as facts in the agreement might have bolstered the credibility of Evans' testimony. Moreover, as stated above, it was not just those two items that were removed. The entire agreement was made in summary form so as to convey the terms of the agreement without any unnecessary and inadmissible information. A fair-minded jurist could conclude that Petitioner failed to make a prima facie case that Ligda erred by failing to inquire into the plea agreements terms.

e. Inconsistencies in Evans' Testimony

Petitioner claims Ligda failed to challenge Evans based on numerous inconsistencies in statements she had provided.

i. Survival Knife

Petitioner argues that Ligda should have impeached Evans with the fact that she had not disclosed her possession of the small survival knife until after the preliminary hearing. As Respondent points out, this would not have impeached Evans since it was she who brought this fact to the detective's attention long before trial and despite the fact it could have invalidated her plea agreement.

ii. Evans' Statements of Blood and Screaming

Petitioner next highlights an inconsistency between Evans' initial statement on May 22,

1990, and her testimony at trial. In the initial statement, Evans told Detective Ottoboni that while she was in the house she walked down the hallway and saw blood on the kitchen floor and saw Paris hiding under the kitchen table. Pet. Exhs., vol. 5, pp. 1222, 1226. At trial, Evans testified that prior to leaving the house, she heard a woman screaming. RT 1294-95.

There is no inconsistency here. In the initial statement, Evans was specifically asked what details she had viewed. Pet. Exhs., vol. 5, pp. 1221-30. At trial, Evans was specifically asked whether she had heard any voices. RT 1294-95. She was not asked if she had seen a Paris hiding under the table or if she had seen blood. Moreover, if Ligda had asked these questions at trial and Evans had answered them as she did in her initial statement, Ligda would only have succeeded in highlighting for the jury a picture of Paris cowering under a table just prior to Evans hearing her screaming in vain for her life as she left, and after Petitioner and Beck had gone down that hallway.

iii. Cross-examination

Petitioner next argues that there were numerous other inconsistencies in the cross-examinations of Evans in all of the trials of Petitioner and his codefendants. Petitioner does not point to any inconsistency in particular. He merely incorporates the cross-examinations and apparently expects the Court to identify each inconsistency and determine whether counsel's failure to cross-examine Evans on each point constitutes ineffectiveness. The Court declines to do so and there can be no doubt the California Supreme Court did the same.

iv. Financial Benefits

Petitioner faults counsel for failing to cross-examine Evans concerning the financial benefits she received for testifying. The record shows Evans received temporary housing when she was released from jail, she received help in paying for meals at Denny's, and she was provided assistance in relocating her residence. CT 869-70, 931-33. There is nothing remarkable about providing a witness with assistance with housing and meals while the witness is assisting the prosecution. Ligda's failure to pursue impeachment on this subject cannot be considered ineffectiveness.

f. Prejudice

Even if any of the above instances can be considered deficient performance, Petitioner fails to demonstrate prejudice. Evans' detailed testimony was corroborated by several witnesses as well as the forensic evidence.

Much of Evans' account was corroborated by Petitioner's May 23, 1990, interview with Detective Deckard. Petitioner stated he would often receive beatings by other members of the group. RT 1452. He stated he was fearful of Cruz and Beck. RT 1452. He stated the initial plan was to remove the occupants from the house. RT 1452-53. He stated they initially met in LaMarsh's trailer. RT 1434. Petitioner stated he did not participate in the preparatory conversations at the trailer; he only listened. RT 1434, 1453. He stated Evans sketched a drawing of the house for the group. RT 1435, 1453. The plan was to get everyone into a room and beat them up. RT 1453. Cruz gave out the assignments. RT 1434. Petitioner's particular assignment was to guard the hallway and not let anyone escape. RT 1435, 1453-54. It was not his understanding that anyone was to be killed. RT 1454. Evans was to go in first and let the others in through a bedroom window. RT 1435. Petitioner stated the group was armed with bats and clubs. RT 1436. He stated they approached the house by car, and Evans and LaMarsh were let out of the car while the rest of the group parked the car across the street. RT 1436. Once inside the house, Petitioner saw LaMarsh beating on Franklin, Beck beating a male in the kitchen, and Cruz beating on another individual in the vicinity of the kitchen table. RT 1436-37. Petitioner admitted he had struck one of the individuals in the kitchen two or three times in the leg with a baseball bat. RT 1438-39. Petitioner stated he saw the victims bleeding badly. RT 1440. He had not seen Evans in the house during the attack. Pet. Exhs., vol. 6, p. 1792.

Petitioner stated that after the incident in the house, the group ran to the car. RT 1441. Petitioner discarded his bat along the way. RT 1442. Evans was already waiting in the car. RT 1441. The group then went to Willey's house, changed clothes, and left for a motel in Oakdale. RT 1441. All of these statements by Petitioner were consistent and corroborated Evans' testimony.

Donna Alvarez testified that she was sleeping in one of the bedrooms on the night of the murders when Evans woke her and told her she needed to leave the room. RT 1089-90. Alvarez stated she then went into the living room. RT 1090. When she returned to the bedroom, she saw LaMarsh who then took out a gun and ordered everyone into the living room. RT 1091-92, 1101-02. She ran into the kitchen and hid behind a counter and then heard people wrestling. RT 1093. She was able to escape by running out of the garage. RT 1095. While she was escaping, she heard a girl scream. RT 1095. Alvarez's statements are also consistent and corroborate Evans' testimony.

Earl Creekmore lived near the Elm Street house. RT 1043. On the night of the murders, Creekmore heard someone running down the side of his house and into his air conditioner, inferably the escaping Alvarez or Ritchey. RT 1044. Creekmore went out the front door and heard people fighting. RT 1045. He witnessed two people beating on one person in the street. RT 1046-47. The two individuals fit the description of Cruz and Willey, and the body of Ritchey was located where Creekmore indicated the victim had been attacked. RT 1048-49. Willey and Cruz took turns beating Ritchey. RT 1050. Cruz went inside the house, returned, grabbed Ritchey by the shirt, and made a cutting motion to his throat. RT 1050-51. Creekmore's testimony was also consistent with Evans' account.

William Duvall, another neighbor, was awakened by the sound of someone hitting one of his windows. RT 1020. When he looked out the window, he saw a female, presumably the escaping Alvarez, crossing his lawn on her hands and knees. RT 1022. Thereafter, he witnessed four males jogging double time towards the railroad tracks in a single file line. RT 1024-25. This account was consistent with Evans' testimony.

Willey's girlfriend, Patricia Badgett, confirmed that the group came to Willey's apartment after the murders. RT 1118-19. Willey asked her to help them come up with an alibi. RT 1120.

Petitioner's girlfriend, Mary Gardner, testified that she was with Petitioner after the murders occurred until he was arrested. RT 1063-65. Petitioner admitted that he had been with the group when the murders occurred. RT 1066. He also told her that Evans was a "weak link" and she would "turn testimony." RT 1066. Gardner testified that Petitioner stated the group was supposed to leave no witnesses. RT 1066. He stated that they deserved to die, that they had been warned, and that they should not have been there. RT 1066.

The forensic evidence also corroborated Evans' account. A baton, bat, and the Ka-Bar knife were recovered. RT 864. Blood stains on the bat and the Ka-Bar knife matched the blood of victim Paris. RT 1171. Fibers recovered from the baton matched fibers from the carpet inside the car Evans had said the group took to the Elm Street house. RT 1149-50. All of the injuries sustained by the victims were consistent with the weapons Evans said the group carried with them. RT 918 et seq.

In light of the corroborating evidence, Petitioner has failed to show that no reasonable jurist could have found that he failed to make a prima facie showing of prejudice as a result of counsel's alleged failure to investigate, develop evidence, confront, and cross-examine Evans.

6. Claim 1E

In his next claim for relief, Petitioner alleges trial counsel rendered ineffective assistance by failing to retain and present the testimony of a competent mental health expert at the guilt phase.

Prior to trial, Petitioner consulted two experts concerning cults and their practices: former detective Randy Cerny and sociologist Richard Ofshe. Vieira, 35 Cal.4th at 291. In his declaration, Ligda explained that he "did not request funds for a neuropsychologist or a psychiatrist because I did not see the need for one and Dr. Ofshe did not suggest that such experts would be useful." Pet. Exhs., vol. 14, p. 4060. He stated, "I believed that Dr. Ofshe was qualified to assess Ricky Vieira's mental state and I relied upon Dr. Ofshe." Id. Ligda stated that he did not know that Petitioner had brain damage, brain dysfunction, or suffered from neurofibromatosis. Id. If he had, he states he would have presented the evidence before the jury as mitigation. Id.

During the guilt phase of the trial, Ligda attempted to call Cerny to testify that, due to cult leader Cruz's "mind control techniques, " Petitioner was "unable to form the mental state required for first degree murder." Vieira, 35 Cal.4th at 291. The trial court ruled that Cerny could testify as a cult expert on the general subject of cults and whether or not Petitioner was a cult member. RT 1623-24. However, the court ruled that Ligda could not offer Cerny for the purpose he proposed, which was to aid the jury in determining whether or not Petitioner had the required mental state. RT 1624. Citing California Penal Code § 28, the court ruled that Cerny was not qualified as an expert to testify that mind control exercised within a cult is a mental disease, mental defect, or mental disorder. RT 1624. Therefore, his testimony on that point was irrelevant and inadmissible. RT 1624.

Ligda continued to argue that Cerny's testimony would be relevant to show, not that Petitioner suffered from a mental disease, defect or disorder, but that Cerny's testimony concerning mind control by a cult member might lead the jury to conclude that Petitioner lacked the mental state required for first degree murder. Ligda specifically stated:

I'm not saying that Ricky Vieira has a mental disease, defect, or disorder at all. We never contended that. There's no evidence that he does. But we do contend that a jury would be entitled to reach a conclusion that because of mind control he was unable to form the mental states required for these particular crimes.

RT 1626.

The court stood by its earlier ruling. RT 1626.

Petitioner claims Ligda erred by attempting to present expert testimony from Randy Cerny instead of retaining a qualified mental health expert and providing that expert with relevant materials. He maintains that Ligda "was on notice that Petitioner was a particularly vulnerable and mentally challenged individual." Pet. Mem. at 58. Petitioner argues that expert testimony was necessary regarding the subjects of "mind control, duress, psychological vulnerability, and other mental state factors relevant to the mens rea of the charged offenses." Pet. Mem. at 59. In support of this argument, Petitioner points to the declarations of clinical psychologist Patrick O'Reilly, psychologist Natasha S. Khazanov, and psychiatrist and neurologist Jeff Victoroff.

According to Petitioner's experts, Petitioner suffered from various organic brain impairments. Petitioner's medical records showed that at age 15, he was diagnosed with "cafe au lait spots, " which is an early symptom of neurofibromatosis, a disfiguring disease that causes the development of tumors on nerve endings. Pet. Exhs., vol. 1, p. 75. Khazanov stated that research has shown that people with this disorder have a higher frequency of executive functioning problems, social problems, attentional impairment, anxiety or depression, and other problems suggesting brain impairment. Id. Khazanov stated Petitioner might have such impairments. Id. Also noted were various physical injuries in the past such as a concussion injury when Petitioner was ten years old, and fractures of the right clavicle when he was nine and again at eighteen. Id. at 76-77, 87.

Dr. Victoroff further noted the following findings concerning Petitioner: 1) He had been subjected to fetal exposure to alcohol; (2) He suffers from neurofibromatosis; (3) He has a history of polysubstance abuse; (4) He has a history of learning disability and cognitive impairment; (5) He suffers from a dependent personality disorder; (6) He has a left eye visual impairment; (7) He experiences episodes of olfactory hallucinations and altered consciousness; (8) He exhibits a Glabellar reflex consistent with frontal lobe damage or dysfunction; and (9) He has mild weakness in the left finger. Id. at 96-97.

Tests administered to Petitioner showed he possesses normal intelligence and normal memory functions with exception for visual memory of faces. Id. at 77-78. Several neuropsychological tests were administered and the results indicated the likely presence of organic brain dysfunction, specifically frontal lobe impairment. Id. at 78-81.

Dr. Khazanov concluded that Petitioner's "ability to appreciate the criminality of his conduct, to conform his conduct to the requirements of the law, to control his behavior, or to comprehend the consequences of that behavior was severely impaired." Id. at 83. Dr. Victoroff stated his findings "describe a man whose brain is simply not equipped with the capacity for judgment, decision making, and restraint necessary for stable, healthy social functioning." Id. at 96. He concluded that Petitioner's "organic brain damage, personality disorder, and family influences made him much less able than the average person to resist the draw of a cult leader, to judge whether what he was told to do was rational, or to escape when he realized that his life was in danger unless he complied with Mr. Cruz's orders." Id. at 109.

As Petitioner correctly notes, "trial counsel has a duty to investigate a defendant's mental state if there is evidence to suggest that the defendant is impaired." Douglas v. Woodford, 316 F.3d 1079, 1085 (9th Cir. 2003); see also Seidel v. Merkle, 146 F.3d 750, 755-56 (9th Cir. 1998) (counsel was ineffective in failing to conduct any investigation into defendant's psychiatric history and therefore neglected to pursue a potentially successful defense where there were abundant signs in the record that defendant suffered from mental illness). In this case, despite Petitioner's expert's conclusion that his organic brain impairments "were probably present at the time of trial, " the pretrial record contains no evidence that Petitioner suffered from a mental illness or disorder. Pet. Exhs., vol. 3, p. 18. Ligda himself admitted as much in his argument to have Cerny testify:

Im not saying that Ricky Vieira has a mental disease, defect, or disorder at all. We never contended that. There's no evidence that he does.

RT 1626. It is true that Petitioner was repeatedly beaten, humiliated, and treated like a slave within the cult, but this was accepted as normal within the cult hierarchy. Other members, such as Steve Perkins, were similarly treated. RT 1872. These facts do not signify Petitioner suffered from a mental illness. The record does not show that Petitioner suffered from any mental impairments at or prior to trial. There is no evidence that Ligda had problems communicating with Petitioner, or that Petitioner was unable to assist Ligda in his defense. There is no evidence that Petitioner had a history of requiring psychological care. Even Petitioner's own experts state that Petitioner possesses normal intelligence and memory, that he presents as pleasant, cooperative, alert, attentive and oriented, and he has no issue communicating. Pet. Exhs, vol. 3, pp. 76-78, 93. The Supreme Court has not held that defense counsel must investigate a defendant's mental health at the guilt stage of trial when there is no indication of a mental impairment. Thus, a fair-minded jurist could conclude that Ligda did not act unreasonably by failing to investigate whether Petitioner was not only a member of Cruz's cult but also mentally ill.

Even assuming counsel acted unreasonably in failing to investigate and present a mental health defense at the guilt phase, Petitioner cannot demonstrate prejudice. In order to establish a prima facie case of prejudice, Petitioner must show a reasonable probability that, had counsel presented a mental health defense, the result of the guilt phase of the trial would have been different. Since Petitioner was found guilty of first degree murder and conspiracy to commit murder, he only suffered prejudice if the mental health defense would have been successful to show that "because of his mental illness..., he did not in fact form the intent unlawfully to kill (i.e., did not have malice aforethought), " or form the intent to conspire to commit the murders. See People v. Saille, 54 Cal.3d 1103, 1117 (1991) (emphasis in original), (cited in Sully v. Ayers, 725 F.3d 1057, 1070 (9th Cir. 2013)).

Petitioner has presented evidence that he suffered from some form of organic brain impairment, specifically to the frontal lobe, that was not presented at the guilt phase of the trial. This does not mean he has shown a reasonable probability that the jury's consideration of this impairment would have changed its determination of guilt. None of the experts suggested that Petitioner's mental health impairment would not allow him to premeditate or deliberate. Even if Petitioner was particularly susceptible to indoctrination and domination by Cruz due to his mental health impairment, this does not show that Petitioner did not intend to kill the victims, that he did not act with malice, or that he did not premeditate or deliberate.

Moreover, there was significant evidence that Petitioner formed the intent for murder and conspiracy to commit murder. There is no question that Petitioner was present for the planning of the attack. Petitioner was included in the attack plan without objection. When weapons were distributed, Petitioner willingly accepted his. The stated goal of the attack was to "doem and leave no witnesses." Vieira, 35 Cal.4th at 275. Immediately after the plan was made, Petitioner danced around swinging his bat to hard rock music in a sort of pep rally. Id. He put on a camouflage mask and accompanied the group in the car to the house. Id. Petitioner entered the bedroom window according to plan. Id. He secured the hallway so that no one could escape, pursuant to the plan. Id. When Cruz told Petitioner to shut Paris up, he hit her with a baseball bat several times. Id. When that failed, Cruz handed Petitioner his Ka-Bar knife, and Petitioner stabbed her in the side. Id. When this did not work, he grabbed her by her hair and sliced her throat repeatedly until "it felt like her head was going to come off." Id. He laughed when he told Evans about this. Id. at 275-76. He fled the scene of the murders with the group and discarded his bat along the way. RT 1441-42. In a later conversation with his girlfriend, Petitioner admitted he had been at the murder scene. Vieira, 35 Cal.4th at 276. He blamed LaMarsh for allowing Alvarez to escape, stating the plan had been to leave no witnesses. Id. When his girlfriend became upset, Petitioner stated the victims all deserved to die, that they had been warned and should not have been there. Id. In light of the strong evidence of Petitioner's premeditation, deliberation, and malice, a reasonable jurist could have found he failed to establish a prima facie case of prejudice. The claim is therefore denied.

7. Claim 1F

In his next claim for relief, Petitioner contends Ligda was ineffective in failing to call Cerny as a fact witness during the guilt phase of the trial. Cerny, at the time a deputy sheriff for the Stanislaus County Sheriff's Department, investigated the Cruz group in 1985 in connection with another case. The investigation "was based on information received from Rosemary McLaughlin." Pet. Exhs., vol. 14, p. 4075. Petitioner argues that Cerny's testimony at trial would have assisted a mental health expert in explaining to the jury that Cruz was the leader of an undue influence cult that exercised tight control over its members.

Cerny's testimony concerning the 1985 incident would not have been relevant to the case since Petitioner did not join the group until 1987 or 1988. RT 1807-08, 1811, 1837, 1867. Moreover, Ligda had presented evidence concerning the cult and Petitioner's treatment within the cult through Evans' direct testimony, her cross-examination, Deckard's testimony, and various other witnesses. RT 1336-43, 1351-52, 1366, 1451-52, 1536, 1564-67, 1581. Thus, to the extent Cerny's testimony of events in 1985 would have been at all relevant, it would have been cumulative. A fair-minded jurist could have found that Petitioner failed to make a prima facie showing of ineffectiveness or prejudice. The claim is denied.

8. Claim 1G

Petitioner alleges trial counsel performed ineffectively in failing to adequately investigate, retain competent experts, develop evidence, and confront and cross-examine the forensic pathologist, Dr. William Ernoehazy, on issues of bias and incompetence with regard to the four autopsies performed on the victims. Petitioner argues that Ernoehazy was biased toward the prosecution and shaped his testimony to conform to the prosecution's theory of the case. He claims Ernoehazy performed the autopsies incompetently and claims Ligda should have cross-examined him on an alleged inconsistency in the direction of the slicing wound to Paris' throat, should have cross-examined him on the number of knives used in the crime, and should have cross-examined him on his conclusion that Paris was alive when her throat was cut.

Respondent is correct that for the most part, Petitioner's claim is a criticism of Ligda's cross-examination of a witness and as such is virtually unchallengeable. Henderson v. Norris, 118 F.3d 1283, 1287 (8th Cir. 1997) (citing Willis v. United States, 87 F.3d 1004, 1006 (8th Cir. 1996)) ("We have recently observed that 2017there are a few, if any, cross-examinations that could not be improved upon. If that were the standard of constitutional effectiveness, few would be the counsel whose performance would pass muster.'"); Phoenix v. Matesanz, 233 F.3d 77, 83 (1st Cir. 2000) (Choices concerning cross-examination are "prototypical examples of unchallengeable strategy"). With respect to his claim that counsel failed to retain his own competent experts, the record reflects Ligda did in fact request and receive funds to have Delta Pathology review Ernoehazy's reports, and the review was completed prior to trial. Pet. Exhs., vol. 6, pp. 1755-56. Therefore, the allegation that Petitioner failed to retain his own expert is without merit. As for Petitioner's challenges to Ligda's cross-examination of Ernoehazy, the Court will address Petitioner's specific instances of alleged error.

a. Bias

Petitioner claims Ernoehazy was biased toward the prosecution and law enforcement. Petitioner's facts do not support this claim. Ernoehazy was a physician and surgeon who had performed autopsies for Stanislaus County for nearly twenty years. RT 919. Prior to that, he had served as a medical examiner and coroner for approximately eleven years. RT 920. He was certified by the American Board of Pathology in anatomical, clinical and forensic pathology. RT 920. Ernoehazy had viewed three of the victims at the house and later performed autopsies on all four victims. RT 921-22.

Petitioner claims Ernoehazy was biased because he continued to testify under contract with the county for some time after retirement; he earned a substantial portion of his income as a result of that contract; he worked closely with the Stanislaus County Sheriff's Office and even wore sheriff's office insignia; and he never raised his rates during the two decades he served as the county's pathologist. Pet. Mem. at 70. These facts merely show a dedicated employee. Given the fact that Ernoehazy worked alongside the sheriff's office for nearly twenty years on homicide cases, it is not surprising that he may have developed friendships or familiarity with the officers. None of these facts demonstrate bias.

Petitioner also submits declarations from three attorneys who represented defendants in trials in which Ernoehazy testified. These declarations are irrelevant. Ligda cannot be faulted for failing to survey the legal community. Even if he had uncovered these experiences of other attorneys, there is nothing he could have done with them at trial.

b. Competence

Petitioner also complains that Ligda failed to inquire into Ernoehazy's professional competence. Petitioner states that Ernoehazy was known to perform about 800 autopsies a year, although accreditation standards stated that an autopsy physician cannot be required to perform more than 350 per year. Pet. Exhs., vol. 6, pp. 1537, 1549. Petitioner's allegation is inaccurate. The Modesto Bee article concerning Ernoehazy's death stated that Ernoehazy, during his time with the Stanislaus County Coroner's Office, "decided the cause of death while performing as many as 800 autopsies a year." Id. at 1537. However, the Modesto Bee article reporting Ernoehazy's retirement from the Stanislaus County Coroner's Office stated that Ernoehazy "decide[d] the cause of death in as many as 800 cases a year." Id. at 1517. Deciding the cause of death does not require an autopsy. Id. at 1522. More importantly, Ernoehazy was a certified forensic pathologist. Thus, it would have been very difficult for Ligda to cast doubt on his competence by referring to accreditation standards.

Petitioner claims Ernoehazy performed incompetently by conducting autopsies of the four victims in a single day. Petitioner cites the declaration of Dr. Donald Reay, who states that it is "general practice within the field of forensic pathology that pathologist should attempt to perform no more than one homicide autopsy per day." Pet. Exhs., vol. 1, p. 59. However, Dr. Reay concedes that "[t]his goal sometimes cannot be achieved, particularly when there are multiple victims in the same incident, and I have myself performed numerous homicide autopsies in one day." Id. (emphasis added). He states in such cases a support staff of three or four should be present to assist the pathologist. Id. Ernoehazy had two assistants for Paris' autopsy. Pet. Exhs., vol. 6, p. 1574. Petitioner also faults Ernoehazy because he "never bothered to measure the length, width, or depth of any wound. Pet. Mem. at 71. Reference to Ernoehazy's report reveals this is untrue. Pet. Exhs., vol. 6, pp. 1574-76. Therefore, Petitioner has not demonstrated any incompetence on Ernoehazy's part.

c. Wounds to Paris' Throat

Petitioner claims Ligda should have cross-examined Ernoehazy on an alleged inconsistency between his conclusion in his report and his testimony at trial. Petitioner states Ernoehazy wrote in his report that the throat slashing wound began on the right side of her neck and proceeded to the left. However, Petitioner claims, at trial Ernoehazy testified that the wound had almost certainly been inflicted from right to left, thus making this wound more consistent with the prosecution's theory that Petitioner, who was right-handed, inflicted the wound.

In the autopsy report, Ernoehazy describes the cut throat "which begins below the right mandibular corner and extends all the way onto the left side of the neck. On the left, there is a marked dovetailing. The slicing wound measures approximately 7 inches in length, and it shows at least 5 separate components with slight scalloping of the edges." Id. at 1574. There is no indication from the report that Ernoehazy was describing how the wound was inflicted. It appears he was simply describing the wound as he moved from right to left. Likewise, at trial he appeared to be testifying only as to the location of the cuts, not the direction the knife was applied. The prosecutor first showed Ernoehazy a photograph of the right side of the throat. RT 942. Ernoehazy described the wounds as they appeared on the photograph. RT 942-43. The prosecutor then drew his attention to another photograph depicting the left side of the victim's neck, stating: "All right. Now, Dr. Ernoehazy, on the opposite side of this young lady's neck were there additional cuts?" RT 943. Dr. Ernoehazy responded: "Well, this one wound does actually begin most likely on the left side and comes across that way." RT 943. Viewed in context, it appears Ernoehazy was merely clarifying that there were no additional cuts on the left side, but a continuation of the cuts from the right side to the left side. There is no inconsistency that shows proof of altered testimony demonstrating bias.

In any case, Ligda's failure to cross-examine on the alleged disparity could not have prejudiced Petitioner. Ernoehazy never testified that the wound was inflicted by a right- or left-handed person, and the prosecutor never attempted to use this evidence to show who had inflicted the wound. Therefore, there was no theory for Ernoehazy to bolster. In addition, the direction was immaterial because there was no evidence showing where a perpetrator stood in relation to the victim, other than Petitioner's own statement to Evans that he grabbed Paris by her hair to cut her throat and Petitioner's excluded statement to the polygraph examiner that he stood behind her while she lay on her stomach on the floor to cut her throat. Clearly, Ligda could not use the excluded statement, and Evans' statement was only to the effect that Petitioner grabbed her hair. Evans did not state where Petitioner was in relation to the victim when he grabbed her hair and cut her throat.

d. Number of Knives

Petitioner faults Ligda for failing to question Ernoehazy about the changes in his testimony concerning the number of knives used on the victims. During cross-examination, Ernoehazy testified that "there's a minimum of four" knives shown by the wounds. RT 956. Ligda asked how this was determined and Ernoehazy pointed to the autopsy report of Ritchey. RT 957. On redirect examination, Ernoehazy stated he had misinterpreted his report when he previously testified regarding the knives. RT 983. He clarified that when he read his report, he believed the two paragraphs referred to three different knives; however, when he later reviewed his report he realized that the two paragraphs concerned different stab wounds but only two knives. RT 983-84. Ernoehazy was not conforming his testimony to the prosecution's theory; rather, he was correcting his testimony to reflect his original findings. As pointed out by Respondent, his findings were made long before the prosecution developed a theory of the case. In addition, Ernoehazy never testified that a fourth knife did not exist because the type of instrument used to inflict some of the wounds could not be determined. His testimony only revealed that there were at least three knives used.

In any case, Petitioner cannot demonstrate prejudice. As discussed above in claim 1D, evidence that a fourth knife was used would not have altered the outcome. There were other plausible explanations for the small stab wound to Paris' neck, and even if it was established that a fourth knife was used and that knife was wielded by Evans, it would not have changed the fact that the fatal wounds suffered by Paris were inflicted by Petitioner's use of the Ka-Bar knife.

e. Blood Evidence

Petitioner also claims Ligda failed to cross-examine Ernoehazy concerning his finding that Paris was still alive when her throat was cut. Petitioner points to Dr. Reay's declaration wherein Dr. Reay notes that a wound which severed the carotid arteries of the victim while the victim was still alive would have caused a substantial initial ejection of blood. Pet. Exhs., vol. 1, p. 62. Reay states that it would have been very difficult for a person who inflicted such a wound to avoid getting any blood on his clothes. Id. Petitioner points to the fact that some of his clothes were tested and only his blood was found.

This argument fails because it was not established that the clothes that were tested were indeed the clothes Petitioner wore on the night of the murders. Four items of clothing were tested, but they were either identified by Petitioner when he was arrested at his girlfriend's house as clothes he had worn, or Detective Deckard selected them because he believed they contained possible blood stains. RT 1178, 1193-95, 1209-10. Moreover, Evans testified that all members of the group made a concerted effort to clean the blood from themselves, their clothing, and their shoes, and to conceal their weapons once they arrived at Willey's apartment. RT 1306-09. In addition, had Ligda pursued this issue, the prosecutor could have questioned Evans whether she saw blood on Petitioner at any time. During the preliminary hearing, she stated she saw blood on Petitioner's hands and clothes when they gathered in Willey's apartment. CT 864.

f. Conclusion

In light of the foregoing, Petitioner fails to show that no reasonable jurist could have found that he failed to make a prima facie showing of ineffective assistance or that he suffered prejudice. The claim is denied.

9. Claim 1H

Petitioner claims trial counsel performed ineffectively in failing to investigate, retain and present an expert, develop evidence and cross-examine witnesses concerning the content of two tape recordings of witnesses: the recorded conversation between Evans and Beck, and Petitioner's May 23, 1990, interview with Detectives Deckard and Bennett.

a. Evans-Beck Tape

Petitioner contends Ligda was ineffective in failing to have the tape recording of a conversation between Evans and Beck enhanced and transcribed. This claim was already addressed and rejected as part of claim 1D above.

b. Petitioner's May 23, 1990, Interview

Petitioner contends Ligda should have had the May 23, 1990, interview analyzed by an expert and compared with the original transcript. He argues that the expert would have determined that Petitioner did not state, "I completely condoned it, " as Deckard had testified. RT 1443; Pet. Exhs., vol. 6, p. 1847.

i. Background

On May 23, 1990, Petitioner was arrested and interviewed by Detective Bennett and

Detective Deckard of the Stanislaus County Sheriff's Office. RT 1433. Petitioner waived his Miranda rights and spoke with the detectives. RT 1433-34; Pet. Exhs., vol. 6, pp. 1777-78. Petitioner eventually admitted his involvement in the attack on the occupants of the Elm Street house. RT 1434-39; Pet. Exhs., vol. 6, pp. 1782-1812.

Ligda filed motions to exclude this statement along with the other statements Petitioner had provided. CT 1098, 1103-04, 1127, 1129-30. Initially the Court ruled that the statement was admissible because it was voluntary and Petitioner had been given his Miranda advisements. RT 161. Subsequently, Ligda argued that portions of the statement should be excluded because statements the detectives had made concerning what others had told them about the murders were inadmissible. RT 247. The parties agreed that the audiotape and the transcript would not be used. RT 267. Instead, the prosecutor would ask questions directly of the detectives regarding the statements Petitioner made. RT 267. During Deckard's testimony, the prosecutor asked him whether Petitioner had "indicate[d] whether or not he had condoned the activity that took place." RT 1443. After refreshing his recollection with the transcript, Deckard stated: "Rick's statement was, 2017I completely condoned it.'" RT 1443; Pet. Exhs., vol. 6, p. 1847.

ii. Deficient Performance

Petitioner claims counsel should have retained an expert to examine and enhance the audio recording and compare it to the transcript. Petitioner did so in 2006, and according to the expert's declaration, Petitioner did not state "I completely condoned it." Rather, he stated "I con... what-a-ya-call it, condoned it?" Pet. Exhs., vol. 1, pp. 132-33. The expert further states that Petitioner's inflection "appears to be rising at the end of the sentence, suggesting that he may be asking a question or does not understand the word." Id. at 133. Based on this, Petitioner claims his statement was only a question, not an admission. He further claims the statement reflects he did not understand the terms he was using.

Respondent persuasively argues that it is significant that Petitioner never submitted his own declaration to the state court concerning his statement. As Respondent points out, Petitioner knew what he said. If it was different from what the transcript set forth or what Deckard had testified, it is critical to know when, if ever, he brought the problem to Ligda's attention. Without any such declaration or evidence supporting the claim, the California Supreme Court could only have assumed that Petitioner did not disagree with the transcript or Deckard's testimony. Respondent points out that when Petitioner disagreed with Gardner's testimony concerning his post-crime statements, he immediately and urgently informed Ligda. RT 2093, 2095, 2098. Ligda responded by calling witnesses to dispute Gardner's account. RT 1536, 1538, 1541, 1547, 1692-96, 2096. It can only be assumed that if Petitioner had notified Ligda of Deckard's misrepresentation of his statement, there would be evidence in the record to support his claim.

In fact, the record appears to support the conclusion that Petitioner accepted the version set forth in the transcript. Ligda understood that Petitioner's statement that he condoned the crimes was damaging, and so he developed a strategy to deal with the statement. He argued to the jury:

Ricky was not a part of any planning... And although he did concede that he condoned the plan in his statement to the police on the 23rd, it was the same condoning of a plan that a slave gives to a master's plan, a private to a lieutenant, not because their heart's in it but because that's the pecking order.

RT 1703.

Ligda attempted to argue that although Petitioner stated he condoned the plan, at most it was an agreement to beat up the individuals at the Elm Street house. The point is that if Petitioner knew he didn't declare that he condoned the plan, he certainly would or should have brought it to Ligda's attention, especially when Ligda had to explain to the jury what Petitioner meant when he made the statement. But there is no evidence that Petitioner disputed the transcript or Deckard's testimony at trial or that he alerted Ligda to the misrepresentation. Therefore, Ligda cannot be faulted for failing to challenge Deckard concerning his testimony, and there is no reason Ligda should have retained an expert to review the transcript for accuracy.

In addition, Petitioner claims Ligda should have retained a linguistics expert with expertise in the field of pragmatics to analyze the audio recording. Petitioner claims the expert could have pointed out how the transcript and Deckard's testimony "distorted" Petitioner's response. He further claims the expert could have shown that Petitioner was "exhausted, sleep-deprived, deprived, and thoroughly manipulated and coerced" during the interview. The argument is without merit. Ligda did in fact elicit testimony that the interview began after midnight, that Petitioner was tired, and that his eyes were red. RT 1450-51. Also, Petitioner's argument stands at odds with Ligda's trial strategy insofar as Ligda had argued for and succeeded in excluding the recording and the transcript of the May 23 statement. In addition, as discussed above, based on the record there was no reason for Ligda to conclude an expert was necessary. It can only be concluded that Petitioner failed to make a prima facie showing of ineffectiveness to the California Supreme Court.

iii. Prejudice

Even if Ligda had erred by failing to retain an expert, Petitioner cannot demonstrate prejudice. Assuming Petitioner's expert is correct that Deckard's testimony and the transcript are incorrect and Petitioner actually said, "I con... what-a-ya-call it, condoned it?", and the words were said in the form of a question, the outcome of the trial would not have been any different.

The full exchange, with Petitioner's version substituted, is as follows:

DECKARD: There's one problem that is facing you Rick, that's you are involved in a multiple murder, by law you are guilty of murder. Do you realize that?
[PETITIONER]: Yes I do.
DECKARD: Your [sic] guilty, you conspired.
[PETITIONER]: Withholding information.
DECKARD: Not withholding information, your [sic] conspired with these other people.
[PETITIONER]: I con... what-a-ya-call it, condoned it?
DECKARD: Conspiracy you planned it with these other people to go over there to hurt or kill these people. By your own admissions you, this is what happened and in conjunction with other evidence we have on you, see you got a serious problem.
[PETITIONER]: I know I got a serious problem, I know what happened was serious.

Pet. Exhs., vol. 6, pp. 1847-48.

In viewing the statement in context, it does not appear that Petitioner was confused at all by the words, as he now argues. As pointed out by Respondent, it was Petitioner who used the word "condoned." The detectives did not use the word, and Petitioner used it appropriately. In context, it is clear that Petitioner was not confusing the terms "conspire" and "condone"; rather, as Respondent persuasively argues, it appears Petitioner was inquiring what acts he had done that would show he conspired with the group. When Deckard stated Petitioner had conspired, Petitioner offered the fact that he withheld information, essentially inquiring whether it was that fact that made him guilty of conspiracy. Deckard replied that it wasn't that he withheld information, but that he "conspired with these people." Petitioner then suggested or questioned whether it was because he condoned it. He was not attempting to define a word. He was attempting to find out which of his actions made him guilty. Whether it was a question or a statement, the admission that he condoned it still lies within. This is confirmed by the next exchange where Deckard informed him that he's guilty because he "planned it with these other people to go over there to hurt or kill these people." Petitioner responded that he knows he has a serious problem and that what happened was serious.

In sum, a fair-minded jurist could conclude that Petitioner failed to make a prima facie showing that Ligda's alleged error prejudiced him.

10. Claim 1I

Petitioner alleges counsel erred in failing to retain an expert in knives and cutlery. He points to the small knife wound on the neck of Paris. He argues that an expert would have demonstrated that the only knife capable of inflicting this wound was the fourth knife carried by Evans. In support, he offers the declarations of knife expert Bernard Levine and forensic pathologist Donald Reay. Pet. Exhs., vol. 1, pp. 42-63.

The small knife wound was discussed in depth in claims 1D and 1G above. In sum, the experts' testimonies would not have altered the outcome of the trial. The experts do not dispute that the fatal wounds to Paris' side and neck were caused by the Ka-Bar knife which was utilized by Petitioner. Thus, even if the experts could show that Evans caused the small knife wound, it would not change the fact that Petitioner caused the fatal wounds. Moreover, Petitioner's experts could not have shown that the wound was caused by Evans' knife. Also, Petitioner's forensic pathologist noted that the wound would be consistent with application of the Ka-Bar if it had been inserted two inches or less. Pet. Exhs., vol. 1, p. 60.

Petitioner also points to the scratch marks which appeared on the arm and face of Ritchey. He argues that the wound could not have been made by the Ka-Bar or M-9 bayonet and must have been made by a knife with a unique serration pattern. Pet. Exhs., vol. 1, p. 59. However, Dr. Reay concluded that the scratch pattern could have been made by a Texas Wildcat knife. Id. It is undisputed that Willey carried a Wildcat knife. Therefore, the expert's testimonies would not have aided the defense.

In sum, Petitioner has failed to show that no reasonable jurist could have found that he failed to make a prima facie showing that Ligda's rendered ineffective assistance in failing to retain a knife expert, or that Petitioner suffered prejudice as a result. The claim is denied.

11. Claim 1J

Petitioner contends trial counsel was ineffective in failing to retain a competent expert to conduct a poll of prospective jurors, compile and analyze the data, and testify at the hearing on a change of venue.

a. Background

On July 23, 1991, an in camera hearing was held with Ligda, Ramon Magana, counsel for LaMarsh, and Kent Faulker, counsel for Beck, present. Pet. Exhs., vol. 7, p. 1851. Ligda, joined with counsel for the other defendants, made a request for county funds to engage the National Jury Project to determine whether the mass media coverage of the crime had made it impossible to obtain a fair and impartial jury for the defendants. Id. at 1853. Ligda stated he had used court funds to make an initial inquiry with the National Jury Project, but that additional funds would be needed to conduct a survey. Id. at 1855. Magana and Faulkner joined in the request and stated that Ligda's choice in experts was a very well recognized authority. Id. at 1855. The court denied the request and stated that to the extent a survey was to be done, the investigators that the Court had already approved of in the case could conduct it. Id. at 1858.

Ligda then retained Alan Peacock to conduct the survey to support Petitioner's motion for change of venue. Vieira, 35 Cal.4th at 280. Peacock was a licensed private investigator who had experience conducting polls. RT 166. He testified in the hearing on Petitioner's motion for change of venue. RT 165-79. After considering Petitioner's motion, the trial court determined, based on the recently decided California Supreme Court case of People v. Coleman, 48 Cal.3d 112 (1989), that there was a reasonable likelihood that Petitioner would receive a fair trial in Stanislaus County. Vieira, 35 Cal.4th at 280-81; RT 204. The Court reserved final judgment until voir dire revealed the actual state of knowledge of the prospective jury pool. Vieira, 35 Cal.4th at 281; RT 204. Twice during jury selection, Ligda renewed his motion for change of venue, but the motions were denied. Vieira, 35 Cal.4th at 281.

Petitioner raised this issue in a motion for new trial and also claimed that Ligda was ineffective in presenting his motion for change of venue. Id. at 281. In support of the motion, specially appointed counsel Kirk McCallister argued that Peacock lacked professional qualifications. Id. He referred to the survey conducted by Dr. Stephen Schoenthaler in the codefendants' trials. Id. He claimed the Schoenthaler survey was properly conducted, and pointed out that the judge granted the motion for change of venue in those cases based on the survey. Id. The court denied the motion for new trial, finding greater publicity in the codefendants' subsequent trials, as a result of the publicity from Petitioner's trial. Id. at 281-82.

b. Deficient Performance

Ligda's performance was not unreasonable. He requested experts of his choice and those experts were well-regarded, but his request was denied. He supported his request with a large amount of legal research, tapes of television coverage, copies of newspaper articles, and data compiled by Peacock concerning the prospective jury pool. CT 1148-1206. Petitioner makes no argument that Ligda could have done more in support of his motion.

When the trial court denied the motion, it referred counsel to the various investigators who had already been approved in the case. Ligda reasonably chose to do what the court had advised and retained one of the investigators in the case who had knowledge conducting surveys. A reasonable jurist could certainly have found that Petitioner failed to make a prima facie case that Ligda erred.

c. Prejudice

Petitioner also fails to demonstrate prejudice. As Respondent correctly notes, the trial court determined that Peacock was in fact competent. RT 2060. The court concluded that neither Ligda nor Peacock had erred. RT 2060. The trial court stated, "[I]n my ruling on the motion for change of venue, Ive assumed that the study done by the defense was completely proper." RT 205. The court did not deny the motion based on any deficiencies in the survey conducted by Peacock. RT 2060. The court specifically noted that Peacock's compilation and submission of raw data in support of the motion was the most common method used at the time. RT 2059-60. Moreover, the trial court stated the Schoenthaler survey would have made no difference in Petitioner's motion for change of venue. The trial court explained:

The big difference between Mr. Vieira's case and the Cruz-Beck-LaMarsh-Willey case, where the change of venue was granted, was the extensive trial and post-trial publicity in Mr. Vieira's case, which notified the public that Mr. Vieira had been convicted, what the testimony actually was that was presented in his case, and, in particular, how that testimony pointed the finger of guilt or, at least, the main culprit as Mr. Cruz.

RT 2060.

The trial court found:

Taking judicial notice of Dr. Schoenthaler's testimony at the Cruz motion, and giving it the same effect here as it was given there, the court still would not have granted the change of venue motion for Mr. Vieira because of the distinction in the pretrial publicity I just referred to.

RT 2061.

The California Supreme Court also concluded that there is no reasonable likelihood that Petitioner did not receive a fair trial despite the publicity in the case. Vieira, 35 Cal.4th at 282-83. In sum, Petitioner fails to show that no reasonable jurist could have found that he failed to make a prima facie showing of prejudice as a result of counsel's alleged failures. The claim is denied.

12. Claim 1K

Petitioner next claims trial counsel failed to seek and obtain discovery and impeach witnesses Donna Alvarez and Michelle Evans regarding the fact that the prosecution had provided financial and other benefits in exchange for their testimony. He further claims the prosecution brought pressure to bear on Evans to compel her testimony.

a. Financial benefits

According to the record, Ligda knew of the alleged benefits Evans received at the preliminary hearing. Evans testified that she received a motel room, meals at Denny's and assistance in relocating her residence. CT 931-33. Evans further testified that the assistance provided her did not influence her testimony in the case. CT 933. Although Ligda knew of the alleged benefits, his reasons for not inquiring into them further are unknown. Therefore, the Court must "affirmatively entertain the range of possible reasons" he may have had for his action or omission. Pinholster, 131 S.Ct. at 1407.

It is clear that these financial benefits were nothing more than incidental expenses. The expenses consisted of lodging, meals, travel, and a per diem. Pet. Exhs., vol. 6, pp. 1620-37. They were necessary expenses that would not have been incurred but for the trial. Payments made to assist the witnesses with these expenses is hardly remarkable. If anything, it would be expected. A fair-minded jurist could conclude that Ligda would not have found it helpful to pursue this subject at trial.

Petitioner also complains that Ligda failed to obtain documents that Evans had received the benefit of being placed in the California Department of Justice Witness Protection Program for a period of two months. Pet. Exhs., vol. 6, pp. 1635, 1642-49. Clearly, eliciting this fact from Evans could only have harmed the defense. The most obvious inference from the fact that she was placed in a witness protection program is that her potential testimony against the codefendants had placed her at risk of retaliation by the codefendants. This is confirmed in the witness protection documents:

During the preliminary hearing, Michelle Lee Evans's grandmother, Mrs. Piper, received threats that her granddaughter Michelle Evans would be killed and her throat cut in the same fashion as the victims of the homicides. There was also a box placed on the front yard of Mrs. Piper containing a toy doll with its throat cut and a note stating, "Mommy, don't testify." These threats were implied to be received as threats against Michelle Lee Evans's six year old daughter who is residing with Mrs. Piper in Ripon, CA.

Pet. Exhs., vol. 6, p. 1642.

Clearly, Ligda did not act unreasonably in failing to use Evans' participation in a witness protection program. Doing so would have been very damaging to the defense, and would only have served to bolster Evans' credibility.

b. Law Enforcement Pressure

Petitioner also claims counsel failed to discover that Evans' testimony had been coerced by law enforcement officers who threatened to take away custody of her daughter. During the codefendants' two trials, Evans testified that she had lost custody of her daughter as a result of being arrested in this case. Pet. Exhs., vol. 4, p. 1164. She stated she was concerned and wanted to regain custody. Id. at 1164-65.

Ligda's reasons are unknown, but it is clear his omission was not unreasonable. Had the defense explored Evans' motive to testify based on the custody issue, the prosecution could have introduced evidence of the various threats made against Evans and her daughter to show she had a motive not to testify, thereby bolstering her credibility. Pet. Exhs., vol. 5, pp. 1341-42. Therefore, a fair-minded jurist could conclude that Petitioner failed to make a prima facie case that Ligda rendered ineffective assistance. The claim is denied.

13. Claim 1L

Petitioner claims counsel performed ineffectively in failing to move to suppress the box of a Ka-Bar knife found during a search of the trailer shared by Petitioner and James Beck. He claims the evidence linked Petitioner to the Ka-Bar knife and permitted the jury to form the false impression that Petitioner may have carried or used the knife to cut some of the victims.

In order to prevail on a claim of ineffective assistance of counsel for counsel's failure to move to suppress evidence, Petitioner must demonstrate that "(1) the overlooked motion to suppress would have been meritorious and (2) there is a reasonable probability that the jury would have reached a different verdict absent the introduction of the unlawful evidence." Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1170 (9th Cir. 2003) (citing Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)).

On May 21, 1990, the day after the killings, a search warrant affidavit was filed for the premises at "4510 Finney Road, Apartment 7, Salida, California." Pet. Exhs., vol. 6, p. 1655. The affidavit described the structure and included, inter alia, "any garages, storage rooms, outbuildings, trailers and trash containers of any kind located on the above described premises." Id. As one of his grounds for new trial, Petitioner argued that counsel was ineffective for failing to move to suppress the knife box. CT 1590-92. Petitioner noted that his codefendants had made such a motion in their cases and the motion had been granted. CT 1591-92. In ruling on the motion for new trial, the court determined that the suppression motion would have been granted had counsel so moved. RT 2089. The trial court determined that in this one instance Ligda had erred; however, the court found no prejudice "in view of the overwhelming evidence of Petitioner's guilt, aside from the K[a]-Bar knife box...." RT 2090. In his declaration, Ligda stated he did not make a motion to suppress because he "did not think there were grounds for such a motion." Pet. Exhs., vol. 14, p. 4060.

Assuming counsel erred, Petitioner fails to demonstrate a prima facie case of prejudice. The knife box itself was insignificant compared to the other evidence connecting Petitioner to the Ka-Bar knife.

Sylvia Zavala, an employee of the Crescent Supply Company, testified that she had sold a Ka-Bar knife to Cruz and Beck on or about March 13, 1990. RT 991-993. A Ka-Bar knife was one of the knives Evans had stated was used in the murders. RT 1260. She testified that Cruz had been sharpening a Ka-Bar knife on the night of the murders. RT 1260. After the murders, the group met at Willey's apartment and took inventory of the weapons. RT 1304-08. The Wildcat knife, the M-9 bayonet, and the small survival knife were placed on the table. RT 1306-07. Those knives were never recovered. RT 1309. The Ka-Bar knife, the Edge bat, and the police baton were missing. RT 1307. Evans stated that Petitioner had told the group he had thrown the missing weapons down when he was fleeing. RT 1307-08. The Ka-Bar knife, a sheath that fit the Ka-Bar knife, the Edge bat, and a Bianchi police baton were recovered by law enforcement in a grassy area where the group had parked their vehicle. RT 850-53, 859, 863-67. The items were tested, and Paris' blood was found on the bat and the Ka-Bar knife. RT 1171.

Evans testified that she spoke to Petitioner the day after the murders. RT 1313. Petitioner told her that Cruz had told him to "shut the girl up." RT 1313. Petitioner hit Paris a few times but that didn't succeed in silencing her, so Cruz handed Petitioner his Ka-Bar knife whereupon Petitioner stabbed her. RT 1313. That also didn't work so Petitioner grabbed her hair and began sawing at her throat until "it felt like her head was going to come off." RT 1313-14. The forensic pathologist testified that the wounds to Paris' side and throat were consistent with the Ka-Bar knife. RT 938-45.

In light of the above, there was little that the knife box added. Had the knife box been excluded, the evidence still showed that Cruz and Beck had purchased a Ka-Bar knife, that Cruz had possession of a Ka-Bar knife on the night of the murder, that the group carried with them a Ka-Bar knife to the Elm Street house, that Cruz handed Petitioner a Ka-Bar knife to use on Paris, that Petitioner stabbed and cut Paris using a Ka-Bar knife, that a Ka-Bar knife was found near the scene, and that Paris' blood was found on the recovered Ka-Bar knife. Accordingly, Petitioner fails to demonstrate that no reasonable jurist could have found he failed to make a prima facie showing of prejudice as a result of Ligda's failure to move for suppression of the knife box. The claim is denied.

14. Claim 1M

Petitioner next claims that counsel failed to make timely and complete objections in numerous instances. Respondent contends that Petitioner fails to overcome the presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. Respondent further argues that Petitioner's numerous subclaims are conclusory and could have been reasonably rejected as such by the state court. The court will address each instance in turn.

a. Sais

Petitioner complains that Ligda failed to make a timely and complete objection to testimony regarding two martial arts weapons called "sais." The sais were seized pursuant to a search of Cruz's cabin. RT 904. Ligda objected to the admission of the sais into evidence on the basis of relevance. RT 1199-1200, 1527. The trial court overruled the objection and the sais were admitted into evidence. RT 1527. Petitioner argues that Ligda should have also objected on the basis that the items were more prejudicial than probative under California Evidence Code § 352 because "[t]he sais had nothing to do with the case." Pet. Mem. at 89.

Petitioner's argument is not well-taken. Evans testified that during the meeting when the group planned and prepared for the murders, she had seen Willey dancing and swinging the sais around with hard rock music playing in the background. RT 1260-61. At the same time, she saw Petitioner dancing with a bat in his hands. RT 1261-62. Therefore, discovery of the sais corroborated Evans' testimony. In addition, the sais were relevant to show how the group members, and Willey and Petitioner in particular, were excited over the conspiracy and the upcoming confrontation. Petitioner cannot show that any additional objection would have been sustained.

Moreover, Petitioner cannot demonstrate prejudice. Even if the sais were not received into evidence, there was still testimony that Willey wielded the sais while Petitioner wielded a bat while dancing in preparation for the attack on the Elm Street house. As Respondent states, admission of the sais was inconsequential compared to the testimony of Petitioner's actions in dancing around with a bat which was later recovered with Paris' blood on it.

b. Newspaper Article

Patricia Badget, Willey's girlfriend, testified that she had seen Willey and his roommate looking at a Modesto Bee article on the day after the murders. RT 1133-34. She remembered that the headline read "Four Die in Salida Rampage." RT 1143. Out of the presence of the jury, Ligda objected to the introduction of the newspaper into evidence, and the prosecution withdrew the exhibit. RT 1144. Petitioner claims counsel performed ineffectively in failing to object and move to strike the questioning concerning the newspaper. He claims the newspaper's "lurid headline and front page photograph were profoundly prejudicial and re-exposed the jury to the prejudicial pretrial publicity." Pet. Mem. at 90.

Petitioner fails to show counsel erred or that he was prejudiced as a result of counsel's alleged error. As noted above, counsel did object and the article was not admitted into evidence. There is no evidence that the jury was shown the photograph when the prosecutor showed the article to the witness. RT 1133-34, 1142-44. Even if he had, it was hardly prejudicial when compared with the autopsy photographs that were admitted. As for the newspaper headline, it was also not prejudicial. The jury was well aware of the fact that four people were killed in the crime, and the characterization of the crime as a "rampage" was accurate and not excessive or unduly prejudicial.

c. California Penal Code § 128

Petitioner faults counsel for failing to object to the prosecutor's repeated references to California Penal Code § 128, which he states is an unconstitutional statute. Cal. Penal Code § 128 provides:

Every person who, by willful perjury or subornation of perjury procures the conviction and execution of any innocent person, is punishable by death or life imprisonment without the possibility of parole. The penalty shall be determined pursuant to Sections 190.3 and 190.4.

Cal. Penal Code §128.

At trial, the prosecutor questioned Evans whether she understood that if she committed perjury and Petitioner were executed as a result, that she would face the death penalty herself. RT 1218. Evans stated she understood this. RT 1218-19.

The prosecutor's comments were not objectionable. As noted by Respondent, it is an accurate statement of California law. Additionally, in California it is proper to ask a witness in a capital case whether he or she is aware of the law. People v. Dickey, 35 Cal.4th 884, 911-12 (2005). Thus, any objection would have been overruled.

d. Polygraph Examination

Petitioner next argues that counsel failed to object to repeated references to polygraph examinations in violation of California Evidence Code § 351.1(a), which states:

Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court, unless all parties stipulate to the admission of such results.

Cal. Penal Code § 351.1(a).

Petitioner states that discussions of plans to have him take a polygraph were made without objection throughout the preliminary examination, in a motion in limine, and in several hearings on in limine motions.

None of these references occurred in front of the jury. Petitioner attempts to argue that the references somehow prejudiced the trial judge. This is a frivolous argument, since it was necessary for Ligda to refer to the polygraph examination in order to exclude Petitioner's statements made during the pretest phase of the examination and immediately after the examination. In addition, Petitioner cannot demonstrate prejudice:

In the course of ruling on motions for a change of venue or to exclude evidence and in dealing with other routine matters, it is inevitable that a judge will become aware of information that is not presented to the jury. As an aspect of the presumption that judicial duty is properly performed, we presume, nonetheless, in other proceedings that the court knows and applies the correct statutory and case law and is able to distinguish admissible from inadmissible evidence, relevant from irrelevant facts, and to recognize those facts which properly may be considered in the judicial decisionmaking process.

People v. Coddington, 23 Cal.4th 529, 644 (2000).

e. Leading Questions and Prior Consistent Statements

Petitioner contends counsel failed to object to the prosecutor's repeated references to prior consistent statements to bolster the credibility of his witnesses. Petitioner states that California Evidence Code § 791 does not allow for admission of prior consistent statements unless the witness' credibility has been challenged or a prior inconsistent statement has been offered.

The challenged statements concerned the identification of Petitioner and his codefendants by three witnesses. Petitioner cannot demonstrate prejudice with respect to the manner the identification evidence was elicited insofar as identification of the perpetrators was not a contested issue at trial.

f. Alvarez's Identification of LaMarsh

Petitioner alleges counsel failed to object to Detective Deckard's testimony concerning the manner in which Alvarez identified LaMarsh from a photograph. Deckard had testified that when Alvarez had been shown LaMarsh's photograph in a "six-pack" lineup, "she immediately became hysterical and pointed to number five [LaMarsh] and said, 2017That's him!" Pet. Mem. at 94; RT 1205.

Any objection would have been overruled. The manner of her identification was relevant to the reliability of her identification and admissible as a spontaneous statement pursuant to California Evidence Code § 1240. In addition, Petitioner cannot demonstrate prejudice since LaMarsh's identity as one of the perpetrators was not contested.

g. Zavala's Testimony Regarding Sale of Knife

Petitioner claims counsel failed to object to the testimony of Sylvia Zavala concerning knives she sold to Cruz and Beck. He alleges counsel should have interposed an objection based on lack of foundation since Zavala did not actually sell the knives in question, she could not testify that the particular knife in evidence was actually sold by her store, she could not tell from the receipt whether the knife sold by the store was the Ka-Bar knife, and she could not identify the Ka-Bar box as one sold by her store because all Ka-Bar boxes looked the same.

There were no grounds for an objection because her testimony was supported by the facts. She stated she worked at Crescent Supply Company. RT 989. She testified that Cruz and Willey often came into the store in the early part of 1990. RT 990-991. She testified that she recalled showing Cruz and Beck a Ka-Bar knife that they were interested in purchasing on or about March 13, 1990. RT 991-92. She stated she showed them the knife, then went to the back of the store while her associate Lisa completed the sale. RT 992. She identified a receipt from that date signed by her associate. RT 992-994. She testified that the selling price of a Ka-Bar knife was $42.50, and the receipt showed a transaction for sale of a knife for $42.50. RT 992; People's Ex. 32B. She testified that the Ka-Bar knife recovered at the scene was the type of knife she sold to Cruz and Beck. RT 994. In light of the foregoing, Zavala's testimony that Crescent Supply Company sold a Ka-Bar knife to Cruz and Beck was amply supported.

In addition, Petitioner cannot demonstrate prejudice from counsel's alleged failure to object. There was overwhelming evidence apart from the sale of the knife demonstrating that Cruz possessed a Ka-Bar knife and it was used by Petitioner to kill Paris.

h. May 23, 1990 Interview

In completely conclusory fashion, Petitioner next claims counsel performed ineffectively in failing to lodge a full and complete objection on all grounds to the admission of Petitioner's May 23, 1990, interview. The claim is devoid of any supporting facts or argument. Moreover, the record shows counsel argued strenuously to have Petitioner's five statements, including the May 23, 1990, statement, excluded. He was successful in excluding the three most damaging statements. As to the May 23 statement, the prosecutor agreed that only the detectives would testify regarding the statement and the audiotape would be excluded. Petitioner fails to state what additional grounds Ligda could have based his objection. The California Supreme Court could have reasonably rejected this claim summarily.

i. Crime Scene

Like the subclaim above, Petitioner makes a conclusory allegation that counsel failed to object to admission of evidence of the crime scene in view of the indications that the crime scene had been compromised. Petitioner offers no support to his allegation that the crime scene was compromised. This state court could have also summarily dismissed this claim.

j. Hearsay Statements

Petitioner next claims counsel failed to object to the prosecutor's use of hearsay statements of Petitioner's codefendants. The challenged hearsay statements were elicited from Evans and they included: (1) Cruz's statement that "[w]ere going to go over there and do them and leave no witnesses" (RT 1253-59, 1278); (2) Beck's statement that "it seems kind of like a waste to only get three dudes and a chick" (RT 1312); (3) Cruz stating that he hoped "that Little Debbie and Fat Cat were there" (RT 1312); (4) Cruz's statement: "[Y]ou know, what we just did was really serious" (RT 1310); (5) LaMarsh's statement: "I must have scared that girl when I pulled out my gun. That's probably why she hid" (RT 1311); (6) Willey stating he saw a man standing twenty feet away, to which Cruz responded, "[Y]ou mean you didn't kill him too?" (RT 1311); (7) Cruz stating "I know which one you want" when handing Willey the Wildcat knife (RT 1265); (8) Cruz's expressions of anger at Petitioner for throwing down weapons before the group reached the car after the killings (RT 1307); and (9) Willey's statement that he had gotten rid of the weapons (RT 1315).

Petitioner's claim is without merit since all of these hearsay statements were made during and in furtherance of the conspiracy. As such, under California law, they were admissible provided there was independent evidence to establish the existence of a conspiracy. Cal. Evid. Code § 1223; People v. Sanders, 11 Cal.4th 475, 516 (1995). In this case, there was ample evidence of a conspiracy, including but not limited to: Petitioner's statement and Evans testimony providing an account of the planning meeting; the distribution of weapons; the assignments given each member; the travel of the group to the house together; the group members carrying out their assignments; the group's flight to Willey's apartment to clean up; their joint attempt to create alibis; and their plan to conceal the evidence.

Under California law,
Once independent proof of a conspiracy has been shown, three preliminary facts must be established: (1) that the declarant was participating in a conspiracy at the time of the declaration; (2) that the declaration was in furtherance of the objective of that conspiracy; and (3) that at the time of the declaration the party against whom the evidence is offered was participating or would later participate in the conspiracy.'"

People v. Sanders, 11 Cal.4th 475, 516 (1995) (quoting People v. Hardy, 2 Cal.4th 86, 139 (1992)). Here, it is clear that the statements were all made when the declarants were in the midst of the conspiracy. Second, the statements were made in furtherance of the objective of the conspiracy, which was to kill the occupants of the Elm Street house. Finally, Petitioner was an active member of the conspiracy. Accordingly, Ligda could not object on hearsay grounds.

Petitioner also claims his right to confront the witnesses against him was violated, citing Crawford v. Washington, 541 U.S. 36, 51-52 (2004). The Confrontation Clause of the Sixth Amendment states: "In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him." The Confrontation Clause is binding on the States under the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403 (1965). However, as Respondent correctly notes, the Supreme Court has held that "the Confrontation Clause's reach" is "limited" "to testimonial statements." Michigan v. Bryant, ___ U.S. ___, ___, 131 S.Ct. 1143, 1152 (2011). Crawford provided some examples of "testimonial" statements: "ex parte in-court testimony or its functional equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, " "extrajudicial statements... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." Crawford, 541 U.S. at 51-52. The statements Petitioner challenges were nontestimonial in nature. They were made between conspirators and friends in the midst of the conspiracy. They were not formal pretrial statements that the declarants would expect to be used at a trial. Thus, Petitioner's claim fails.

k. Evans' Testimony

Last, Petitioner claims counsel erred by failing to move to suppress Evans' testimony concerning his comments about his actions in cutting Paris' throat on the ground that it was the "fruit of the illegally obtained statement Petitioner made to a polygraph examiner and to Detective Deckard on June 18, 1990." Pet. Mem. at 96.

At Petitioner's June 18, 1990, pretest interview with the polygraph examiner, and subsequently at his interview with Deckard, Petitioner admitted he had stabbed Paris in the side and had cut her throat repeatedly. CT 988-89; 1132. Both statements were consistent with what Evans stated Petitioner had told her the night after the murders. RT 1312-16. Petitioner notes that Evans did not initially inform the detectives of Petitioner's involvement in Paris' death. He argues that she learned of his statements later and then added it to her own. However, this is pure speculation. There is no evidence in the record that her statement was the product of Petitioner's interviews, or even that Evans knew of the interviews.

Petitioner characterizes the statements he provided during the pretest phase of the polygraph examination and his subsequent statement to Deckard as "illegally obtained, " but this is incorrect. The statements were not excluded because they were illegally obtained; rather, they were excluded under state law because they were made in the course of negotiating a plea agreement. RT 163, 259; CT 1252.

Accordingly, there were no grounds for a suppression motion, and thus there is no basis for Petitioner's claim of ineffective assistance. To the extent he believes Evans had created her narrative based on her knowledge of Petitioner's statement, his avenue was cross-examination. In fact, Ligda did argue to the jury that Evans had fabricated her statement. RT 1712-14. He had cross-examined Evans on her changing accounts of what happened that night, as well as her knowledge that Petitioner had also been negotiating a plea deal. RT 1447-49; 1515. Ligda obviously could not go further and ask Evans whether she knew of Petitioner's admission that he had stabbed Paris and cut her throat. Therefore, Petitioner fails to demonstrate that no reasonable jurist could have found that he failed to make a prima facie case that Ligda erred in failing to move to suppress Evans' testimony. The claim is denied.

15. Claim 1N

Petitioner next claims counsel performed ineffectively by failing to object to several instances of misconduct in the prosecutor's argument to the jury.

Ligda's strategy concerning the prosecutor's closing argument is unknown, as the subject was not addressed in his declaration. In the absence of any objection by Ligda to the prosecutor's remarks, as the Supreme Court suggested in Richter, "[t]here is a 2017strong presumption' that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than 2017sheer neglect.'" 131 S.Ct. at 790. As will be discussed, Petitioner fails to overcome this presumption and the general presumption that counsel acted outside the wide range of reasonable professional assistance.

Generally, counsel are "given latitude in the presentation of their closing arguments, and courts must allow the prosecution to strike hard blows based on the evidence presented and all reasonable inferences therefrom." Ceja v. Stewart, 97 F.3d 1246, 1253-1254 (9th Cir. 1996) (quoting United States v. Baker, 10 F.3d 1374, 1415 (9th Cir. 1993)); see also United States v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991) (A prosecutor has wide latitude during closing argument to make reasonable inferences based on the evidence). Further, as the Ninth Circuit has explained, "[b]ecause many lawyers refrain from objecting during opening statement and closing argument, absent egregious misstatements, the failure to object during closing argument and opening statement is within the 2017wide range' of permissible professional legal conduct." Cunningham v. Wong, 704 F.3d 1143, 1159 (9th Cir. 2013) (quoting United States v. Necoechea, 968 F.2d 1273, 1281 (9th Cir. 1993)). "From a strategic perspective, for example, many trial lawyers refrain from objecting during closing argument to all but the most egregious misstatements by opposing counsel on the theory that the jury may construe their objections to be a sign of desperation or hyper-technicality." Molina, 934 F.2d at 1448; see also Jaffe v. Brown, 473 F.Appx. 557, 559-60 (9th Cir. 2012) ("Whether to enter formal objections during a prosecutor's closing arguments is a strategic decision that many trial counsel approach differently").

Even if a petitioner demonstrates that trial counsel's failure to object to the prosecutor's closing argument was outside the range of reasonable professional assistance, and the objection would have been sustained, the petitioner must still show a reasonable probability that the trial court's corrective actions would have resulted in a more favorable verdict. See, e.g., Weygandt v. Ducharme, 774 F.2d 1491, 1493 (9th Cir. 1985) (rejecting ineffective assistance claim because it was not reasonably probable that the result of the trial would have been different had counsel objected to the prosecutor's improper closing argument).

a. Comments Regarding Plea Agreement

Petitioner first alleges counsel should have objected to the prosecutor's comments which "explain[ed] and justif[ied] his decision to enter into a plea agreement with Michelle Evans." Pet. Mem. at 98. Petitioner claims that by doing so, the prosecutor referred to facts not in evidence.

The prosecutor's remarks concerning Evans' plea agreement consisted mostly of explaining the value of and need for her testimony in the case. The prosecutor acknowledged that she was involved in the crime and certainly no angel, but she had specific first-hand knowledge of the event that was important. The prosecutor also argued that her account was credible based on the corroborating evidence. Ligda could reasonably conclude that these remarks were based on the facts in evidence. As previously discussed, the prosecution and the defense explored the plea agreement in detail when Evans testified. At one point, the prosecutor stated:

So it comes a point in these cases when the prosecution looks at the case and says, what evidence does the jury need to hear? And you make a decision. And in some cases you agree to give consideration to somebody in exchange for their testimony. That's exactly what happened in this case.

RT 1719.

It can be reasonably concluded that this statement was based on facts that were in evidence. Evans testified that she had an agreement with the District Attorney's office that called for her to testify in exchange for consideration involving the charges pending against her. RT 1211. In addition, the written plea agreement was entered into evidence. Pet. Exhs., vol. 3, p. 730. Certainly, it cannot be concluded that the prosecutor's remarks were an egregious misstatement of the facts or so objectionable as to deprive Petitioner of a fair trial. A fair-minded jurist could conclude that Petitioner failed to make a prima facie showing of error. In addition, there was no prejudice, since Petitioner cannot show that an objection would have been sustained or that the trial court's corrective actions would have resulted in a more favorable verdict.

b. Remarks Concerning Cal. Penal Code § 128

Petitioner next argues that counsel failed to object to the prosecutor's remarks concerning Cal. Penal Code § 128. He contends the prosecutor improperly vouched for Evans.

As discussed in the previous claim, it is not improper for counsel to ask a witness in a capital case whether he or she is aware that perjury or subornation of perjury which results in conviction and execution of an innocent person could expose the perjurer to the death penalty. People v. Dickey, 35 Cal.4th 884, 912 (2005). Ligda therefore had no grounds for objection.

c. Remarks Regarding "Conscience of the Community"

Petitioner complains that counsel failed to object when the prosecutor told the jury that their role was to act as "the conscience of the community." RT 1732. Petitioner argues that the statement was objectionable as an appeal to the passions and prejudices of the jury, as an appeal based on public policy grounds, and as an appeal claiming a greater social good.

The prosecutor's statement was not objectionable. Referring to the jury as the "conscience of the community" or as representatives of the community is not improper. People v. Ledesma, 39 Cal.4th 641, 741 (2006) (citing Caldwell v. Mississippi, 472 U.S. 320, 333 (1985)) (jury is called upon to "decide that issue on behalf of the community"). Therefore, there were no grounds for objection.

d. Conclusion

In sum, Petitioner has failed to demonstrate that no reasonable jurist could have found that he failed to make a prima facie showing that Ligda erred in failing to object to the prosecutor's remarks, or that he suffered prejudice therefrom. The claim is denied.

16. Claim 1O

Petitioner next claims counsel erred by failing to argue competently and persuasively to the jury based upon the facts presented at trial.

"The right to effective assistance extends to closing arguments." Yarborough v. Gentry, 540 U.S. 1, 5 (2003). The Supreme Court set forth the following guiding principles in reviewing defense counsel's performance in closing arguments:

[C]ounsel has wide latitude in deciding how best to represent a client, and deference to counsel's tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage. Closing arguments should "sharpen and clarify the issues for resolution by the trier of fact, " but which issues to sharpen and how best to clarify them are questions with many reasonable answers. Indeed, it might sometimes make sense to forgo closing argument altogether. Judicial review of a defense attorney's summation is therefore highly deferential-and doubly deferential when it is conducted through the lens of federal habeas.

Id. (citation omitted).

a. Counsel's Performance at Closing

Ligda's strategy at closing is unknown, and Petitioner points only to the trial record in support of his claim. In such case, counsel is "strongly presumed" to make decisions in the exercise of professional judgment. Strickland, 466 U.S. at 690. A review of the record reveals that counsel's argument to the jury was coherent, reasonable, and consistent with his strategy throughout the guilt phase.

Acknowledging the overwhelming evidence that Petitioner was part of a conspiracy, Ligda argued that the conspiracy was at most an agreement to go over and beat people up. RT 1691-92, 1705. He noted Petitioner's previous statements to that effect, and he noted that even Evans believed the intent of the group was to beat up the Elm Street occupants, not murder them. RT 1691-92, 1698, 1702. Ligda further argued that Petitioner could not have premeditated and deliberated on the murders, first because he was not part of any plan to kill anyone, and second because he had no free will and was in fear for his life if he challenged Cruz. RT 1698-99; 1703-05. Ligda attempted to diminish Petitioner's role in the conspiracy. Acknowledging the fact that Petitioner was at the preparation meeting, Ligda argued that Petitioner was tired, was never consulted during the planning, contributed nothing, said nothing, and was essentially acting as a slave obeying a master. RT 1703. Ligda supported his argument by citing numerous witnesses. RT 1703-05. Ligda pointed out that the only evidence that Petitioner did anything more than beat someone was Evans, and Ligda attacked her credibility on several fronts. RT 1706, 1709-14. He argued that her testimony should be disregarded because it wasn't corroborated. RT 1709. He argued that her changing stories showed she was lying in her account of Petitioner's statement. RT 1710. He argued that she lied in order to get out of jail and avoid a trial where the prosecutor might ask for life. RT 1710. He noted that Evans offered her full account only after she heard that Petitioner was negotiating a plea agreement. RT 1712-13. Ligda concluded by asking the jury to find Petitioner guilty only of what he argued the evidence showed, which was conspiracy to commit assault and one count of second degree murder. RT 1715-16.

Although Petitioner was found guilty, it is not because Ligda presented an ineffective closing statement. Given the record in this case, Ligda's overall strategy and argument was reasonable. "The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight." Yarborough, 540 U.S. at 8.

b. Evans' Knife

Petitioner alleges that Ligda should have argued that the stab wound to Paris' neck was caused by Evans' knife. As previously discussed, the evidence did not support this argument.

c. Petitioner's Errand

Petitioner contends counsel should have argued that Petitioner was not in the trailer during the planning session because he was on a "fool's errand" for Cruz. According to witnesses Deanna Messinger and Kevin Brasuell, Petitioner came to their trailer at 11:00 p.m. shortly before the murders. RT 1004-06, 1569. Petitioner was dressed in camouflage pants and a dark cap and carried a baseball bat. RT 1006, 1017. Brasuell stated Petitioner asked for spray paint. RT 1004-05, 1569. No other evidence made reference to spray paint.

This argument is meritless. Petitioner stated that he was in fact present for the entirety of the meeting. RT 1434-35. Evans also provided the same account. RT 1248-59. Moreover, if counsel had brought attention to this evidence, it could easily have bolstered the prosecutor's argument that Petitioner, armed with a bat and dressed in camouflage and a black cap, was actively participating in the conspiracy. The evidence would also have provided further corroboration to Evans' account. Other adverse inferences could have been drawn from it as well, such as the prosecutor's position at the motion for new trial that Petitioner was attempting to obtain the spray paint in order to paint his bat to dull its shiny appearance. RT 2128. It was reasonable for Ligda not to draw attention to this evidence.

d. Conclusion

In sum, a fair-minded jurist could have found that Petitioner failed to make a prima facie showing that counsel rendered ineffective assistance in his closing remarks, or that Petitioner was prejudiced. The claim is denied.

17. Claim 1P

Petitioner claims his prior counsel, John Grisez, rendered ineffective assistance by failing to attend a polygraph examination of Petitioner during ...


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