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Jernigan v. Edward

United States District Court, S.D. California

November 7, 2017

MARC EXTER JERNIGAN, Petitioner,
v.
MERRIAN EDWARD, Respondent.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE DENYING PETITION FOR WRIT OF HABEAS CORPUS [ECF NO. 1]; ORDER DENYING REQUEST FOR EVIDENTIARY HEARING [ECF NO. 28] AND DENYING MOTION FOR DISCOVERY [ECF NO. 30]

          Hon. Ruben B. Brooks, United States Magistrate Judge

         Petitioner Marc Exter Jernigan, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (the “Petition”) challenging his conviction in San Diego Superior Court case no. SCD258695 for murder. (ECF No. 1.)[1] Jernigan raises numerous claims in the 1479-page Petition he filed in this Court.

         The Court has read and considered the Petition, the Answer and Memorandum of Points and Authorities in Support of the Answer (“Answer”) [ECF No. 19], the Reply to the Respondent's Answer [ECF No. 26], the lodgments and other documents filed in this case, and the legal arguments presented by both parties. For the reasons discussed below, the Court RECOMMENDS that the Petition [ECF No. 1] be DENIED. The Court DENIES his request for an evidentiary hearing and for discovery [ECF Nos. 28, 30].

         I. FACTUAL BACKGROUND

         The victim in this case is June George. In 1984, June lived in La Mesa with her daughter, Kathy, and Kathy's stepfather, Fred George. (Lodgment No. 7, People v. Jernigan, D060746, slip op. at 3 (Cal.Ct.App. Dec. 18, 2013).) Kathy began dating Petitioner while the two attended Helix High School. Within three months, the relationship became intense and they began a sexual relationship. (Id.) She and Jernigan talked about living together and getting married, and they opened a joint checking account. (Id. at 3-4.) Kathy was the only one working and depositing money into the account, however, and over time this became an issue in their relationship. (Id. at 4.) Jernigan also became controlling and possessive. (Id.) Kathy talked to her mother, June, about the problems in the relationship, and June told Kathy that she should break up with Petitioner. (Id.) Kathy told Jernigan about June's advice. (Id.)

         About two weeks before June's murder, Kathy broke up with Petitioner and closed their joint checking account. (Id. at 4-5.) Before doing so, she told Jernigan that June was going to receive $1, 500, which she did not plan on sharing with her husband Fred, but she did not tell him where June was going to store the money. (Id. at 4.) Petitioner was upset about the closing of the account and the breakup. (Id. at 5.)

         On August 8, 1986, the day of the murder, Kathy arrived home at about 5:20 p.m. to find several relatives standing outside her home waiting for June. (Id.) June had planned to host a family reunion at her home that evening. (Id.) Kathy went into the house and found her mother's body on the floor of the kitchen. (Id.) June had been stabbed nearly eighty times and there were signs of a struggle. (Id.) Her purse was found on the bedroom floor and its contents had been dumped out. (Id. at 6.) During June's autopsy, the tip of a knife was found imbedded in her skull. (Id. at 5.) Police later determined that a chef's knife with a broken tip, found in a kitchen drawer, was the murder weapon. (Id.) Police seized a blood-stained towel; a blood-stained bedspread; a purse and its contents, including a wallet and an eyeglass case; and a blood-stained tissue in the bathroom. (Id.) They also found a pink stain on the bathroom counter. (Id.)

         Jernigan was interviewed the night of the murder. (Id.) He told police he did not know of anyone who would want to kill June and that he did not have any ill feelings toward June, Kathy, or their family. (Id.) Police took Petitioner's fingerprints, and although La Mesa Police Officer Quinn testified at trial that he saw scratches on Petitioner's arms, he did not record that in his contemporaneous police report. (Id.)

         In 1994, approximately eight years later, police interviewed Jernigan again. He told officers that on the day of the murder, he had planned to return a music tape to a friend who lived near Kathy and then stop by Kathy's house, but when he arrived, he saw the police tape and returned home. (Id. at 7.) Police had previously determined that the murder occurred sometime between 2:00 p.m. and 5:20 p.m. (Id. at 5.) Jernigan told police he was at the scene after 5:30 p.m., and when he got home, his mother told him the police wanted to talk to him, so he returned to the scene. (Id. at 7.)

         During the 1994 interview, Jernigan also told police that in 1986, Detective Burke interviewed him the day after the murder. (Id.) Jernigan told Burke he was doing laundry the afternoon of the murder and that there was another man from his apartment complex in the laundry room as well. (Id. at 7-8.) Petitioner told police that in 1994 Burke did not appear to be interested in locating the other man. (Id. at 8.)

         In an attempt to solve this case, Detective Brown, of the Metropolitan Task Force, sent evidence samples to the California Department of Justice (DOJ) for DNA testing. (Id.) Criminalist Colleen Spurgeon found the bedspread stains contained at least two individuals' DNA, and the major contributor to those stains matched Jernigan's DNA profile. (Id. at 9.) Spurgeon also found a Y chromosome present in one of the samples from the bathroom stain, indicating DNA from at least one male was present. (Lodgment No. 3, Rep.'s Tr. vol. 35, 7168-69, July 21, 2011.) After receiving the test results, Brown interviewed Jernigan again. (Lodgment No. 7, People v. Jernigan, D060746, slip op. at 8.) He asked Jernigan whether there was any chance his blood would be found on June's wallet, bedspread, or in her bedroom, and Jernigan said “no.” (Id.) Jernigan told Brown his fingerprints would probably be found all over June's house, however, because he had been in the home many times while he and Kathy were dating. (Id.) He also told Brown he and Kathy had sex in Kathy's room, the living room, and the den, but not in June's bedroom. (Id.)

         In late 2003 and early 2004, criminalist Connie Milton, from the San Diego County Sheriff's Office, performed more DNA testing on evidence from June George's murder. (Lodgment No. 3, Rep.'s Tr. vol. 39, 7720, 7724, July 28, 2011.) She tested a receipt, two business cards, a checkbook, and a red leather purse belonging to June. (Id. at 7728-29.) The only DNA results she obtained were from a stain on the purse which tested positive for the presence of blood. (Id. at 7730-31.) Milton obtained a partial DNA profile but could not identify anyone with it. (Id. at 7731.) Jernigan was excluded as the source, however. (Id. at 7815.)

         Milton tested more items in late 2005 and 2006. (Id. at 7734.) The bathroom stain tested positive for the presence of human blood, but Milton did not do any further testing on it. (Id. at 7739.) Instead, because a Y chromosome was present, she recommended the stain be retested using Y-STR DNA testing to obtain further results. (Id. at 7739-40.) One bedspread stain had a mixture of DNA with a major contributor and low-level minor contributor. Jernigan was identified as the major contributor with a frequency of occurrence of one in 290 sextillion of the African-American population.[2] (Id. at 7741-43.) Milton also found DNA on a stain from the eyeglass case. There was no mixture present, but Milton was able to obtain a low level partial DNA profile from the stain which matched Jernigan at four allele locations. (Id. at 7743-44.) The estimated frequency of occurrence for three of those alleles was one in 130, 000; the calculation of frequency was based on the fact that Jernigan has a rare allele at a particular locus, which was found on the eyeglass case. (Id. at 7765-67.)

         Milton also tested nine stains from the towel found in the bathroom. (Id. at 7751.) She was able to identify only June's DNA in stains B, E, G, H, I, and F. (Id. at 7753-61.) Stains A and D, however, were a mixture of at least two people, with the major contributor matching Jernigan's DNA. The frequency of the match for stain A was one in 290 sextillion African-Americans and for stain D was one in 280 trillion African-Americans. (Id. at 7762-63, 7765.) Stain C was a single source of Petitioner's DNA with a frequency of one in 6.5 sextillion African-Americans. (Id. at 7763, 7765.)

         In 2007, Milton performed a third round of DNA testing on items of evidence. On a plastic photo holder from June's wallet, Milton found a rare allele consistent with Jernigan's DNA profile. (Id. at 7767-69.) She tested a second stain on the bedspread and found a mixture of DNA from at least two people. (Id. at 7770.) The major contributor was Petitioner, at a frequency of one in 340 sextillion of the African-American population. (Id.) She also tested two stains on June's wallet; both contained a single source of DNA which matched Jernigan. The frequency for stain A was one in 340 sextillion for the African-American population, and for stain B, it was one in 7.8 sextillion. (Id. at 7774-76.) Also in 2007, Amy Rogala, of the San Diego Police's Crime Laboratory, performed DNA testing on evidence in Jernigan's case. In particular, she performed Y-STR DNA testing on the bathroom stain Milton had previously tested and recommended for Y-STR testing. Rogala found June's DNA but also found a low level DNA profile from which June's husband and stepson were excluded but from which Petitioner was not. (Lodgment No. 7, People v. Jernigan, No. D060746, slip op. at 9.)

         The final round of DNA testing was completed in 2009. (Lodgment No. 3, Rep.'s Tr. vol. 40, 8047, Aug. 1, 2011) Byron Sonnenberg, a criminalist at the San Diego County Sheriff's Office, tested five new areas on the towel found in June's bathroom. (Id. at 8047.) During the first round of testing, stains one, two, and four contained a single source of DNA that matched June's profile. (Id. at 8048.) Stains three and five, however, contained a mixture of DNA. The major contributor of DNA to the stains was June, and there was insufficient DNA to determine the minor contributor. (Id. at 8051.) Sonnenberg noted, however, that Petitioner has four rare alleles in his DNA profile. (Id.) Sonnenberg did a second round of testing and tested an additional twenty-eight stains. Of those, twenty-seven stains contained DNA. (Id. at 8053.) In twenty-six of the twenty-seven stains, June was either the major contributor or the sole contributor of DNA. (Id. at 8053-54.) The remaining stain matched Jernigan's DNA profile at a frequency of one in 340 septillion for the African-American population due to the rarity of four of his alleles. (Id. at 8056.)

         At trial, Jernigan attacked the validity of the DNA testing, particularly the testing done by Milton. During the test run Milton performed on the tissue, bedspread stains, and eyeglass case stain in 2005-2006, Milton obtained an “unexpected result.” (Lodgment No. 3, Rep.'s Tr. vol. 39, 7745.) A control sample called a “reagent blank, ” which should have contained no DNA, instead tested positive for a low level partial DNA profile. (Id. at 7748.) In an attempt to locate the source of the partial DNA profile, Milton took one of the reagents she had used and performed DNA testing on it. (Id. at 7749.) She was able to obtain a full male DNA profile, indicating the reagent was contaminated. (Id. at 7749-50.) She compared the DNA profile to other lab workers as well as to male samples from other casework which were in the lab at the time she did the testing in June George's case. (Id. at 7750.) The DNA profile did not match any of the lab workers or evidence samples. (Id.) Milton testified that the unknown male DNA profile from the reagent blank did not affect the validity of her 2005-2006 testing because there was “no indication of that unknown male showing up in any of those evidence samples.” (Id.) Defense counsel elicited information on cross examination showing Milton had six other “unexpected result” incidents while she worked as a criminalist at the Sheriff's office. (Id. at 7842-49.) Milton had also failed a proficiency test in 2010 when she inadvertently switched tubes of DNA. (Id. at 7782.) Following her failed test, she passed 10 additional proficiency tests. (Id. at 7781.) Milton testified she was confident she did not switch the DNA samples of June and Jernigan for two reasons. First, one sample was male and one was female, and any sample switch would have been obvious due to the gender marker present in DNA. (Id. at 7782.) Second, her test results were consistent with Colleen Spurgeon's results. (Id.)

         Jernigan also presented evidence from his DNA expert, Marc Taylor. Taylor testified generally about the reliability of DNA results when there are mixtures of DNA, and partial profiles are obtained. (See Lodgment No. 3, Rep.'s Tr. vol. 43, 10443-66, Aug. 4, 2011.) In addition, Taylor pointed out that Milton had not run the appropriate controls during several tests. (Id. at 10430-31, 10490-91, 10492-93.) Taylor admitted, however, that he did not disagree with the conclusions of Spurgeon, Milton, Rogala and Sonnenberg. (Id. at 10509-12.)

         II. PROCEDURAL BACKGROUND

         On July 27, 2006, the San Diego County District Attorney's Office filed an information charging Marc Exter Jernigan with one count of murder. (Lodgment No. 1, Clerk's Tr. vol. 1, 0004-05.) Petitioner also was alleged to have personally used a deadly weapon during the murder, within the meaning of California Penal Code § 12022(b). (Id.) Following a jury trial, Jernigan was convicted of first degree murder. (Lodgment No. 3, Rep.'s Tr. vol. 46, 11121, Aug. 10, 2011.) The jury also found Petitioner had used a deadly weapon during the commission of the crime. (Id. at 11121-22.) Petitioner was sentenced to twenty-five years to life imprisonment plus one year. (Lodgment No. 1, Clerk's Tr. vol. 9, 2254-55.)

         Jernigan appealed his conviction and sentence. (See Lodgment No. 5, Appellant's Opening Brief, People v. Jernigan, No. D060746 (Cal.Ct.App. Dec. 18, 2013).) The appellate court upheld Jernigan's conviction and granted him relief on his sentencing claim.[3] (Lodgment No. 7, People v. Jernigan, No. D060746, slip op. at 2.) Petitioner filed a petition for review with the California Supreme Court. (See Lodgment No. 8, Petition for Review, People v. Jernigan, No. [S215964] (Cal. Jan. 21, 2014).) The California Supreme Court summarily denied the petition for review. (Lodgment No. 9, People v. Jernigan, No. S215964, order at 1 (Cal. Mar. 27, 2014).)

         Jernigan filed a habeas corpus petition in the San Diego Superior Court. (Lodgment No. 10, Jernigan v. State of California, No. EHC 1031 (Cal. Super. Ct. filed Feb. 24, 2015) (petition for writ of habeas corpus).) It was denied on April 13, 2015. (Lodgment No. 11, In re Jernigan, No. EHC 1031, order at 1 (Cal. Super. Ct. Apr. 13, 2015).) Petitioner then filed a habeas corpus petition with the California Court of Appeal. (Lodgment No. 12, Jernigan v. State of California, [No. D067991] (Cal.Ct.App. filed May 5, 2015) (petition for writ of habeas corpus at 1).) The court of appeal denied the petition on June 4, 2015. (Lodgment No. 13, In re Jernigan, No. D067991, slip op. at 1-2.) Petitioner next filed a habeas corpus petition with the California Supreme Court; it was denied on November 10, 2015. (Lodgment No. 14, Jernigan v. State of California, [No. S227932] (Cal. filed July 20, 2015) (petition for writ of habeas corpus at 1); Lodgment No. 15, [In re Jernigan], California Courts, Appellate Courts Case Information, http://appellatecases.courtinfo.ca.gov/ (visited Dec. 28, 2015).)

         Jernigan constructively filed a habeas corpus petition in this Court on November 24, 2015 [ECF No. 1], and a “Notice of Request for Ruling on Petition for Writ of Habeas Corpus Relief” on May 26, 2016 [ECF No. 25]. Respondent filed an Answer on June 2, 2016 [ECF No. 19], and lodgments in support of the Answer on June 3, 2016 [ECF Nos. 20-22]. Jernigan filed a Traverse on June 27, 2016 [ECF No. 26]. On August 18, 2016, Petitioner filed a “Motion Requesting an Evidentiary Hearing” [ECF No. 28], and on September 22, 2016, he filed a “Motion Requesting Additional Discovery” [ECF No. 30]. On December 13, 2016, this Court issued an Order denying the Notice of Request for Ruling on Petition for Writ of Habeas Corpus Relief, explaining that the matter was fully briefed and a Report and Recommendation on the merits would be issued [ECF No. 33]. The Order also denied the Motion Requesting an Evidentiary Hearing and Motion Requesting Additional Discovery without prejudice, noting that the issues raised in those motions were more appropriately addressed in the Report and Recommendation [id.].

         III. STANDARD OF REVIEW

         This Petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Woodford v. Garceau, 538 U.S. 202, 204 (2003) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). Under AEDPA, a habeas petition will not be granted with respect to any claim adjudicated on the merits by the state court unless that adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C.A. § 2254(d) (West 2006); Early v. Packer, 537 U.S. 3, 7-8 (2002) (quoting 28 U.S.C.A. § 2254(d)). In deciding a state prisoner's habeas petition, a federal court is not called upon to decide whether it agrees with the state court's determination; rather, the court applies an extraordinarily deferential review, inquiring only whether the state court's decision was objectively unreasonable. Yarborough v. Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004).

         A federal habeas court may grant relief under the “contrary to” clause if the state court applied a rule different from the governing law set forth in Supreme Court cases, or if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. Bell v. Cone, 535 U.S. 685, 694 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). The court may grant relief under the “unreasonable application” clause if the state court correctly identified the governing legal principle from Supreme Court decisions but unreasonably applied those decisions to the facts of a particular case. Id. (citing Williams, 529 U.S. at 407-08). The “unreasonable application” clause requires that the state court decision be more than incorrect or erroneous; to warrant habeas relief, the state court's application of clearly established federal law must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (citations omitted). The Court may also grant relief if the state court's decision was based on an unreasonable determination of the facts. 28 U.S.C.A. § 2254(d)(2).

         Where there is no reasoned decision from the state's highest court, the Court “looks through” to last reasoned state court decision and presumes it provides the basis for the higher court's denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991). If the dispositive state court order does not “furnish a basis for its reasoning, ” federal habeas courts must conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000), overruled on other grounds by Andrade, 538 U.S. at 75-76; accord Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). A state court, however, need not cite Supreme Court precedent when resolving a habeas corpus claim. See Early, 537 U.S. at 8. “[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent], ” the state court decision will not be “contrary to” clearly established federal law. Id. Clearly established federal law, for purposes of § 2254(d), means “the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Andrade, 538 U.S. at 71-72 (citations omitted).

         IV. DISCUSSION

         A. Grounds for Relief

         Jernigan raises fifty-four claims in the Petition he has filed in this Court. Jernigan has grouped his claims by “sections.” For ease of analysis, the Court has grouped his claims by topic and addresses them as follows.

         1. Scientific Fraud, Misconduct, Negligence, and Creation of False Evidence

         In what Petitioner describes as section one, grounds two through five and seven [ECF No. 1, Attach. #1, 14-15]; section two, grounds nine through fourteen [id. at 17-18]; section three, grounds sixteen through twenty-three [id. at 19-20]; and section four, grounds one, two, and six [ECF No. 1, Attach. #3, 113-60; id. Attach. #4, 1-174; id. Attach. #5, 30-110], Petitioner alleges criminalist Connie Milton's DNA testing was produced through scientific fraud, misconduct, and negligence, and that criminalist Shelley Webster was incompetent and negligent in her review of Milton's work; he also claims it was false. In what Jernigan describes as section one, ground four [ECF No. 1, Attach. #1, 15]; section two, ground fifteen [id. Attach. #1, 18]; section four, grounds three through five [id. Attach. #3, 109-10]; section six, ground one [id. Attach. #6, 139]; and section seven, grounds one, two, four, five, and seven [id. Attach. #7, 33-34], Jernigan alleges that Milton and criminalist Chuck Merritt created false evidence. Respondent argues that the state court's resolution of these claims was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Answer 12-15, ECF No. 19.)

         The claims in sections one through six of Jernigan's Petition were raised in the habeas corpus petitions he filed with the California Court of Appeal and the California Supreme Court. (Lodgment No. 12, Jernigan v. State of California [No. D067991] (petition for writ of habeas corpus at 3-4 and attachments); Lodgment No. 14, Jernigan v. State of California, [No. S227932] (petition for writ of habeas corpus at 3-4 and attachments).) The claims in Petitioner's section seven were asserted in the habeas corpus petition he filed with the California Supreme Court. (Lodgment No. 14, Jernigan v. State of California, [No. S227932] (petition for writ of habeas corpus at 3-4 and attachments).) The Supreme Court summarily denied the claims in sections one through six and section seven. (Lodgment No. 15, [In re Jernigan], California Courts, Appellate Courts Case Information, http://appellatecases.courtinfo.ca.gov/ (visited Dec. 28, 2015).) As to those claims, this Court must therefore “look through” to the state appellate court's opinion denying the claims to determine whether the denial was contrary to, or an unreasonable application of, clearly established Supreme Court law. See Ylst, 501 U.S. at 805-06; see also Williams, 529 U.S. at 412-13. For the claims raised in section seven of his federal petition, and only in the habeas petition filed with the California Supreme Court, this Court conducts an independent review of the record to “determine what arguments or theories . . . could have supported, the state court's decision . . . and . . . whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Harrington, 562 U.S. at 102; see also Himes, 336 F.3d at 853 (“[Court] perform[s] an ‘independent review of the record' to ascertain whether the state court decision was objectively unreasonable.”)

         Petitioner's claims must be divided into two separate inquires. First, whether Milton's DNA results were a product of fraud, misconduct, or negligence and should therefore not have been admitted at trial; and second, whether Milton's DNA results and Merritt's test results were intentionally fraudulent and therefore were “false evidence” which should not have been admitted at trial. Each question is governed by different legal standards.

         a. Scientific Fraud, Misconduct, and Negligence

         In section one, grounds two through five and seven; section two, grounds nine through fourteen; section three, grounds sixteen through twenty-three; and section four, grounds one, two, and six, Jernigan alleges that Milton's scientific errors, misconduct, fraud, and negligence rendered all of her DNA results unreliable and therefore they should not have been admitted at his trial. (ECF No. 1, Attach. #1, 95-99, 100-11, 122-49, 184-99; id. Attach. #2, 1-7, 23-136, 149-59; id. Attach. #3, 1-107, 113-60; id. Attach. #4, 1-174; id. Attach. #5, 30-110.) He points to a laundry list of irregularities in Milton's DNA testing as support for his claims: (1) During Milton's 2005-2006 testing of the bedspread, tissue, and eyeglass case, she got an “unexpected result” when a blank control which should not have contained any DNA instead was contaminated by an unknown source of DNA (section one, grounds two, three, five, and seven); (2) during Milton's 2005-06 DNA testing, she did not report results from one of the testing wells containing a standard DNA control sample, well B-3, which rendered her DNA tests invalid; (3) Milton did not follow established DNA lab protocol when she continued her DNA testing despite contamination or failure of well B-3; (4) she had two cancelled test runs on the 310 Genetic Analyzer during her 2005-06 DNA testing; (5) Milton did not follow established DNA lab protocol when she restarted those test runs without troubleshooting the cause of the cancelled runs; (6) uncorrected laser and capillary problems with the 310 Genetic Analyzer during the 2005-06 DNA testing rendered the DNA tests Milton performed in January and February of 2006 invalid and improperly excluded other suspects; (7) supervisors in the San Diego Sheriff's Crime Lab did not appropriately supervise and review her work and did not appropriately discipline Milton for her errors; (8) Milton did not disclose the cancelled runs or the capillary and laser problems with the 310 Genetic Analyzer to supervisors; (9) neither Milton nor the San Diego Sheriff's Crime Lab follow established lab protocols; and (10) the Crime Lab did not properly review or supervise Milton's work. (Id.)

         Jernigan has submitted voluminous documents to support his claims, including Milton's DNA testing notes, worksheets, testing run printouts, raw DNA data, reports, memos, pages from various manuals that pertain to DNA lab protocol and DNA testing instruments, and transcripts of portions of testimony by Milton at trial and at a hearing on the motion to exclude evidence. (ECF No. 1, Attach. #1, 97-99, 102-11, 115-21, 124-49, 186-99; id. Attach. #2, 1-7, 27-52, 56-84, 88-92, 95-106, 109-28, 130-36, 153-73, 177-94, 199-202; id. Attach. #3, 1-5, 9-21, 24-65, 68-74, 78-91, 94-111, 115-85; id. Attach. #4, 1-153, 156-74; id. Attach. #5, 31-110.) Most of the documents provided by Jernigan are “bates stamped, ” indicating they were provided during discovery.

         The state appellate court did not address Jernigan's scientific fraud, misconduct, and negligence claims directly, casting them solely in terms of claims of false evidence. (See Lodgment No. 13, In re Jernigan, No. D067991, slip op. at 1-2; Lodgment No. 15, [In re Jernigan], California Courts, Appellate Courts Case Information, http://appellatecases.courtinfo.ca.gov/ (visited Dec. 28, 2015).) The San Diego Superior Court, however, concluded that Jernigan's claims based on “numerous instances of criminalist Milton's negligence, misconduct, violations of protocol and/or fraud” were “barred because they could have been, but were not, raised at trial or on appeal.” (Lodgment No. 11, In re Jernigan, No. EHC 1031, order at 3-4.) Although these claims may be barred by procedural default, “a habeas court may, in its discretion, reach the merits of a habeas claim . . . despite a State's waiver of the defense.” Boyd v. Thompson, 147 F.2d 1124, 1127 (9th Cir. 1998); see also Batchelor v. Cupp, 693 F.2d 859, 864 (9th Cir. 1982) (deciding the merits rather than adjudicating procedural default).

         Here, the Court will analyze the merits of Jernigan's claims alleging that criminalist Milton's actions constituted scientific fraud, misconduct, and negligence. Because there is no last reasoned state court opinion to which this Court can defer, the Court must conduct an independent review of the record to “determine what arguments or theories . . . could have supported, the state court's decision . . . and . . . whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Harrington, 562 U.S. at 102; see also Himes, 336 F.3d at 853.

         The erroneous admission of evidence under state law is not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67 (1991). To the extent Petitioner argues the state court's admission of Milton's DNA testing was contrary to state law, he is not, therefore, entitled to relief. In any event, Milton's DNA evidence was admissible under California law. Milton used polymerase chain reaction (PCR), short tandem repeat (STR), both the Profiler Plus and the Identifiler kits, and a 310 Genetic Analyzer in her testing. (Lodgment No. 3, Rep.'s Tr. vol. 30, 7732, July 28, 2011.) California employs the test enunciated in People v. Kelly, 17 Cal.3d 24, 30, 549 P.2d 1240, 1244, 130 Cal.Rptr. 144, 148 (1976), to determine the admissibility of new or novel scientific testing.[4]California courts have concluded that the results of PCR and STR DNA analysis, Profiler Plus and Identifiler kits, and from 310 Genetic Analyzers are admissible under the Kelly test. People v. Morganti, 43 Cal.App.4th 643, 669, 50 Cal.Rptr.2d 837, 853 (1996) (PCR analysis); People v. Allen, 72 Cal.App.4th 1093, 1099-1100, 85 Cal.Rptr.2d 655, 659-60 (1999) (PCR and STR testing); People v. Hill, 89 Cal.App.4th 48, 58-59, 107 Cal.Rptr.2d 110, 117-18 (2001) (same); People v. Lazerus, 238 Cal.App.4th 734, 779, 190 Cal.Rptr.3d 195, 233 (2015) (PCR-STR DNA analysis, Profiler Plus, and Identifiler kits); People v. Smith, 107 Cal.App.4th 646, 671-72, 132 Cal.Rptr.2d 230, 249-50 (2003) (DNA profiling involving mixed samples and the 310 Genetic Analyzer).[5]

         Errors in testing go to the weight, not the admissibility of the evidence. “‘[T]he Kelly/Frye rule tests the fundamental validity of a new scientific methodology, not the degree of professionalism with which it is applied. [Citation.] Careless testing affects the weight of the evidence and not its admissibility, and must be attacked on cross-examination or by other expert testimony.' [Citation].” People v. Cooper, 53 Cal.3d 771, 814, 281 Cal.Rptr. 90, 113, 809 P.2d 865, 888 (1991) (alterations in original) (quoting People v. Farmer, 47 Cal.3d 888, 913, 254 Cal.Rptr. 508, 765 P.2d 940 (1989)). The same is true in the federal system. See United States v. Hicks, 103 F.3d 837, 846 (9th Cir. 1996), overruled on other grounds by United States v. Grace, 526 F.3d 499, 503 (9th Cir. 2008); United States v. Goodrich, 739 F.3d 1091, 1098 (8th Cir. 2014).

         Jernigan contends the admission of Milton's DNA evidence nevertheless violated his due process rights. While the Supreme Court has made few rulings on the question of when the admission of evidence violates due process, the Ninth Circuit has noted that habeas relief is warranted “only when it results in the denial of a fundamentally fair trial in violation of the right to due process.” Briceno v. Scribner, 555 F.3d 1069, 1077 (9th Cir. 2009) (citing Estelle, 502 U.S. at 67-68); see also Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009); Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995) (stating that the due process inquiry in federal habeas review is whether the admission of evidence was arbitrary or so prejudicial so as to render the trial fundamentally unfair). “A writ of habeas corpus will be granted . . . only where the ‘testimony is almost entirely unreliable and . . . the factfinder and the adversary system will not be competent to uncover, recognize, and take due account of its shortcomings.'” Mancuso v. Olivarez, 292 F.3d 939, 956 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 899 (1983), overruled on other grounds by Slack v. McDaniel, 529 U.S. 473 (2000). “Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process.” Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991).

         Admittedly, DNA contamination from an unknown source was detected in Milton's 2005-06 DNA tests of the tissue, bedspread, and towel. This did not, however, render her DNA testing “entirely unreliable” such that the jury would have been unable to “uncover, recognize, and take due account of its shortcomings.” Mancuso, 292 F.3d at 956. Milton acknowledged on cross examination that a reagent which was not supposed to contain DNA instead tested positive for DNA. (Lodgment No. 3, Rep.'s Tr. vol. 39, 7745-46.) Nevertheless, Milton was able to obtain a full male profile from the unknown DNA and determined that it did not match any individuals in Jernigan's case, any of the male criminalists or lab technicians, nor any of the other male DNA samples that had recently been tested in the lab. (Id. at 7748-50, 7844-45.) While this was a breach in testing protocols, Milton testified that she determined the unknown male profile was not present in any of the evidence samples from Petitioner's case and it did not affect the reliability of the tests or her conclusions about what the tests showed. (Id. at 7750.) In addition, she discussed the lab protocols she followed during her testing and the reports she made to supervisors following the unexpected result. Milton also acknowledged she had obtained unexpected results in other cases. (Id. at 7844-55, 7858.)

         Jernigan contends Milton's failure to report the results from a testing well, well B-3 containing a standard DNA sample labeled “standard 8” used as a control, rendered her results unreliable. Jernigan's exhibits do not support his claim. The pages from the manual he provides state that “‘[i]f the standard and amplification data meet the criteria listed above, the sample run can be accepted as valid.'” (ECF No. 1, Attach. #1, 37; id. at 35-43.) Well B-4 also contained a standard DNA sample labeled “standard 8, ” and Milton reported results from well B-4. (See ECF No. 1, Attach. #1, 47-52.) Jernigan has not established that a test failure of one of the wells containing standard 8, well B-3, would have rendered Milton's DNA testing unreliable in light of the fact that a second well, well B-4, which also contained standard 8, did produce results.

         Jernigan also complains that Milton's test results were unreliable because of cancelled test runs, laser problems, and capillary failures which occurred during the DNA analysis Milton performed with the 310 Genetic Analyzer in 2005-06. Milton's 2005-06 testing revealed a mixture of DNA on June's bedspread with the major contributor being Jernigan, a partial single source DNA profile that matched Jernigan on the eyeglass case, two stains on the towel that were mixtures with Jernigan being the main contributor, and one stain on the towel that was a single source matching Jernigan. (Lodgment No. 3, Rep.'s Tr. vol. 39, 7741-44, 7751, 7761-64.) Petitioner has submitted pages from various manuals and official lab protocols for the San Diego County Sheriff's Department and contends that Milton's failure to stop the testing, determine the problem, and restart her testing after the cancelled test runs and capillary failures render her DNA results unreliable. But the documents he has provided do not state that DNA test results are unreliable and are not to be reported if test runs are cancelled, there are issues with the lasers, or capillaries fail. (ECF No. 1, Attach. #1, 97-99, 102-11, 115-21, 124-49, 186- 99; id. Attach. #2, 1-7, 27-52, 56-84, 88-92, 95-96, 109-28, 130-36, 153-73, 177-94, 199-202; id. Attach. #3, 1-5, 9-21, 24-65, 68-74, 78-91, 94-111, 115-85; id. Attach. #4, 1-153, 156-74; id. Attach. #5, 31-110.) In addition, at a pretrial hearing on a motion to dismiss for the delay in charging Jernigan, Milton explained that a “failed run” of the DNA samples on the 310 Genetic Analyzer does not affect the evidence contained in the machine or compromise the results because the samples remained in their tubes. (Lodgment No. 1, Rep.'s Tr. 172-73, January 3 & 4, 2008). Milton likened the process to identifying fingerprints in a computer database: if a criminalist runs a fingerprint through a computer database and the computer crashes during the search, the fingerprint is not affected. (Id. at 173.) Moreover, Spurgeon also found Jernigan's DNA on June's bedspread; and Sonnenberg found Jernigan's DNA on the towel in a single source stain, bolstering the reliability of Milton's testing. (Lodgment No. 3, Rep.'s Tr. vol. 35, 7175; id. vol. 40, 8055-56.)

         Milton's failure to follow lab protocols and her performance on proficiency tests were explored at trial on cross examination; the jury was able to “uncover, recognize, and take due account” of any effect that failure to follow protocols had on test results. See Mancuso, 292 F.3d at 956. She testified she passed proficiency tests twice a year from 2000 until 2009. (Lodgment No. 3, Rep.'s Tr. vol. 39, 7777-80.) In 2010, three years after the last DNA testing she performed in Jernigan's case, Milton did not pass a proficiency test, which she attributed in part to the fact that she had stopped doing case work after her promotion to supervising criminalist in 2008. (Id. at 7781.) After the 2010 proficiency test, she took and passed ten additional proficiency tests. (Id.) She testified she could not have made the same mistake she made during the 2010 test - switching two reference samples - because in Jernigan's case, any switch in the DNA samples would have been immediately obvious given she was working with male (Petitioner's) and female (June's) DNA at the time. (Id. at 7782.) Moreover, Milton's testing in Petitioner's case ended in 2007, three years before the 2010 proficiency test.

         Finally, Jernigan's DNA expert testified at length about the problems and weaknesses he saw in the DNA testing, including the difficulty in identifying a DNA profile from a stain containing either a partial DNA profile or a mixture of more than one person's DNA, weaknesses in the population tables criminalists used to estimate the frequency of a particular DNA profile, and contamination and breaches of testing protocol that occurred during Milton's testing. (Lodgment No. 3, Rep.'s Tr. vol. 43, 10439-505.) In particular, he noted it was very difficult to identify a DNA profile from the bedspread stains and the sink stain because they contained a mixture of DNA from at least two individuals, (id. at 10443-44, 10450), the stain found on the eyeglass case was of an extremely low quantity, (id. at 10691-92), and the lack of a control sample from the eyeglass case meant there was no way to determine whether the DNA that was found came from the blood in the stain or from the background, (id. at 10492-93). He agreed, however, that Jernigan could not be excluded as the source of DNA from the eyeglass case stain. (Id.) And, on cross examination, Jernigan's expert admitted that he agreed with all of the DNA testing in the case. (Id. at 10511-12.)

         There were problems with Milton's DNA testing. Those weaknesses, however, were thoroughly exposed and explored at Petitioner's trial. Milton's DNA testing was not “almost entirely unreliable, ” nor was it so flawed that “the factfinder and the adversary system [was not] competent to uncover, recognize, and take due account of its shortcomings.” Mancuso, 292 F.3d at 956. This is not a situation where there were “no permissible inferences the jury [could have drawn] from the evidence.” Jammal, 926 F.2d at 920. Accordingly, the state court's denial of these claims was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. See 28 U.S.C.A. § 2254(d)(1). Nor was it based on an unreasonable determination of the facts. See id.(d)(2). Jernigan is not entitled to relief as to his claims of scientific fraud, misconduct, and negligence as stated in section one, grounds two through five and seven [ECF No. 1, Attach. #1, 14-15]; section two, grounds nine through fourteen [id. at 17-18]; section three, grounds sixteen through twenty-three [id. at 19-20]; and section four, grounds one, two, and six [id. at 108-09].

         b. Admission of False Evidence

         In what Petitioner labels as section one, ground four; section two, ground fifteen; section four, grounds three through five; section six, ground one; and section seven, grounds one, two, four, five, and seven, Jernigan contends false evidence was admitted at his trial. (ECF No. 1, Attach. #1, 112-21; id. Attach. #2, 137-48; id. Attach. #4, 175-85; id. Attach. #5, 1-29; id. Attach. #6, 142-67; id. Attach. #7, 35-53, 66-75, 79-143; id. Attach. #8, 1-104.) Specifically, he claims Milton falsified a memo she sent to her supervisors at the San Diego Sheriff's Crime lab regarding her DNA testing by failing to document the various errors she made. (ECF No. 1, Attach. #1, 112-21; id. Attach. #2, 137-48.) Jernigan also claims Milton falsified her 2006-07 DNA tests by failing to report results from the B-3 testing well. (ECF No. 1, Attach. #4, 175-85; id. Attach. #5, 1-29.) Jernigan also contends District Attorney (D.A.) Investigator Howard and La Mesa Police Department Sergeant Vince Brown testified falsely that there was no evidence Petitioner had given a blood sample to police in 1986. (ECF No. 1, Attach. #6, 142-67.) Finally, Jernigan argues San Diego Sheriff Criminalist Chuck Merritt testified falsely that human blood was found under one of June George's fingernails and that he did not have a sample of Petitioner's blood during Merritt's1986 testing. The false testimony, according to Jernigan, invalidates both Merritt's blood testing and all the DNA testing that occurred after Merritt's testing. (ECF No. 1, Attach. #7, 35-53, 66-75, 79-143; id. Attach. #8, 1-104.) The state appellate court addressed Jernigan's false evidence claims as follows:

It is not at all clear that false evidence was introduced at Jernigan's trial. The alleged errors in the DNA testing procedures were known before trial and considered by experts retained by Jernigan. It appears these experts concluded that although some of the DNA analysis was “sloppy, ” the end result was accurate.
Even assuming that Jernigan's allegations of the falsity of evidence are true, however, he does not establish a reasonable probability of a different outcome in the absence of the allegedly false evidence. His challenges concern only the testing performed by one criminalist, Connie Milton. As discussed on direct appeal, three other scientists performed independent DNA analyses and also located Jernigan's DNA in the blood samples from the crime scene. Thus, even if Jernigan successfully discredits Milton's analysis, overwhelming evidence would still exist that Jernigan's blood was found at the crime scene.

(Lodgment No. 13, In re Jernigan, No. D067991, slip op. at 1-2.)

         False evidence claims are governed by Napue v. Illinois, 360 U.S. 264 (1959). “A claim under Napue will succeed when ‘(1) the testimony (or evidence) was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (3) the false testimony was material.'” Jackson v. Brown, 513 F.3d 1057, 1071-72 (9th Cir. 2008) (citation omitted). If there is “‘any reasonable likelihood that the false testimony could have affected the judgment of the jury'” the conviction must be set aside. Id. at 1076 (quoting Hayes v. Brown, 399 F.3d 972, 985 (9th Cir. 2005).).

         Jernigan's claims regarding Milton are not really false evidence claims. Rather, Petitioner essentially alleges the jury was not told certain information about Milton's testing. Specifically, Petitioner states the jury was not told that (1) in a memo she provided to her supervisors regarding the “unexpected result, ” i.e., unknown DNA found in a blank control, Milton had failed to include information about cancelled test runs during 2005-2006 testing, and (2) she either did not report any results from the standard human DNA contained in well B-3 of her December 20, 2005 test run or destroyed the results from that well. (See ECF No. 1, Attach. #1, 50-52.) As noted above in section IV(A)(1)(a) of this Report and Recommendation, any irregularities in Milton's testing went to the weight, not the admissibility of the DNA testing. The prosecution was not required to present evidence of cancelled test runs, memoranda that did not reflect the entirety of the testing process, or results from failed controls. That duty fell to defense counsel. The documents Jernigan presents to support this claim are bates stamped, meaning the defense was in possession of this information prior to trial. (See Lodgment No. 11, In re Jernigan, No. EHC 1031, order at 4 (stating that evidence of “Milton's negligence, misconduct, violations of protocol and/or fraud” was “turned over to the defense in discovery[]”.) Whether defense counsel properly exercised his duty of representation by exposing the weaknesses in Milton's testing and testimony is addressed below in section IV(A)(3) of this Report and Recommendation.

         In any event, Jernigan does not meet any of the three prongs of Napue with regard to Milton's testimony. First, Jernigan has not established that Milton's testimony at trial was false. Milton did not testify falsely about the memos she wrote to supervisors about the contamination. The exhibits Petitioner has provided regarding lab protocol or the procedures for performing DNA testing and interpreting DNA the results state that results are unreliable if a well containing a standard human DNA sample does not quantitate correctly. Milton did not testify she had no problems or errors during her DNA testing, did not deny there were cancelled test runs, and did not deny she did not report the results from well B-3.

         Second, there is no evidence that the prosecution knew or should have known Milton's testimony was false. Indeed, the evidence is to the contrary. The prosecution disclosed evidence showing the cancelled test runs, unexpected results, and unreported data from well B-3, and it did not represent that Milton's testing was without error. (See ECF No. 1, Attach. #1, 47-52, 76-83, 98-99, 109, 116, 120, 126-27, 199; id. Attach. #2, 141, 182-92; id. Attach. #3, 2-5, 12-21.) Rather, Milton testified on both direct examination and cross examination about the “unexpected result” and indicated it did not affect the conclusions she arrived at in her report on the DNA results. (Lodgment No. 3, Rep.'s Tr. vol. 39, 7745-50, 7778-82, 7842-59.) Milton was also questioned about her training, her failure to pass a proficiency exam, and other instances in which she had experienced “unexpected results.” (Id.)

         Third, Petitioner has not established any alleged false testimony by Milton was material. Milton testified that the presence of the unknown DNA in the tube that was supposed to contain no DNA did not affect her results because there was no evidence the unknown DNA had contaminated the evidence tubes. (Id. at 7748-50.) In addition, Jernigan's exhibits show Milton testified that cancelled runs do not affect the validity of DNA results. (ECF No. 1, Attach. #2, 50-51.) Jernigan's exhibits do not establish that cancelled runs invalidate DNA test results. Furthermore, defense counsel was in possession of the evidence establishing the unexpected result, the cancelled runs, and the missing well B-3 data. (Lodgment No. 3, Rep.'s Tr. vol. 43, 10438-40.)

         Defense DNA expert Marc Taylor reviewed the testing materials before testifying. He testified about the various errors and problems with Milton's testing, but conceded in the end that the testing, though imperfect, and Milton's conclusions were accurate. (Id.) Moreover, well B-3 contained a standard DNA sample, labeled “standard 8, ” used as a control during testing. Well B-4 also contained a standard DNA sample labeled “standard 8, ” and Milton reported results from well B-4. (ECF No. 1, Attach. #1, 47-52.) Jernigan has not established that a test failure of well B-3, containing standard 8, affected the DNA testing and results from well B-4, which contained standard 8, and produced results that identified Jernigan's DNA at the murder scene. Finally, Milton's DNA evidence was not the only DNA evidence connecting Jernigan to the murder. Other criminalists placed Jernigan at the murder scene as well. Colleen Spurgeon found two mixed blood stains from the bedspread which matched Petitioner; Bryon Sonnenberg found one blood stain on the towel which matched Petitioner; and Amy Rogala concluded that Jernigan could not be excluded from a bathroom counter bloodstain. (Lodgment No. 3, Rep.'s Tr. vol. 35, 7175; id. vol. 40, 8055-56; id. vol. 33, 6817.)

         Jernigan also claims D.A. Investigator Howard and La Mesa Police Sergeant Vince Brown both falsely testified at trial. Jernigan stated that after being interviewed briefly on August 8, 1986, the day of the murder, he went to the La Mesa Police Department the next day to give a blood sample. (Lodgment No. 3, Rep.'s Tr. vol. 42, 8346, Aug. 3, 2011). He could not remember the name of the individual who took his blood sample. (Id.) He also admitted on cross examination that he had not seen any documentation that his blood sample was taken in 1986. (Id. at 8415-16.) Howard and Brown also testified they had not seen any documentation that Jernigan's blood had been taken by the La Mesa Police. (Lodgment No. 3, Rep.'s Tr. vol. 43, 10346; id. vol. 45, 10898-99.)

         Jernigan has provided three exhibits he claims establish he provided police with a blood sample on August 8, 1986, the day of the murder. Exhibit E to section six, ground one, of his Petition is a County of San Diego Sheriff's Department Case and Item Listing. (ECF No. 1, Attach. #6, 160-63.) The first entry is titled “Vials Known Blood Sample: Marc Jernigan, ” and it lists the date seized as August 8, 1986, the day of the murder. (Id. at 162.) Exhibit F to section six, ground one, is a San Diego County Sheriff's Department Case, Item and Inquiry Report which also shows an item titled “Vials Known Blood Sample Marc Jernigan, ” and a date seized of August 8, 1986. (Id. at 164-65.) Exhibit G to section six, ground one, is a San Diego Sheriff's Department Case and Item Report that lists “Vials Known Blood Sample March Jernigan, ” and a seizure date of August 8, 1986. (Id. at 166-67.)

         The evidence Jernigan has provided differs from his testimony at trial. The murder took place August 8, 1986. Jernigan testified he gave blood the following day, August 9, 1986. (Lodgment No. 3, Rep.'s Tr. vol. 42, 8346.) The documents Petitioner has provided show a seizure date for his blood vials of August 8, 1986, not August 9, 1986. Moreover, Exhibit E lists the same seizure date of August 8, 1986, for blood vials of June George, David George, and Kathy Keller. (ECF No. 1, Attach. # 6, 160-63.) Charles (Chuck) Merritt obtained June George's blood sample following her August 9, 1986 autopsy. (Lodgment No. 3, Rep.'s Tr. vol. 33, 6732; id. vol. 35, 7092.) La Mesa Police Officer Vince Brown testified he began working on the June George murder case in 2000, and as part of his investigation, he asked David George and Kathy Keller for blood samples; he received them on January 31, 2001. (Lodgment No. 3, Rep.'s Tr. vol. 37, 7308-11, July 25, 2011.) Keller confirmed this as well. (Lodgment No. 3, Rep.'s Tr. vol. 38, 7560, July 27, 2011.) Another portion of Howard's investigation was in February of 2005. (See Lodgment No. 3, Rep.'s Tr. vol. 45, 10806.) Thus, the “seizure date” reflected in the San Diego County Sheriff's Department's documents does not correspond to the date the item was seized, at least with regard to the blood samples. Jernigan has not established Howard's and Brown's testimony was false. Jernigan has also not established his claim that Merritt falsely testified he didn't have Petitioner's blood at the time he performed his testing in 1986. (ECF No. 1, Attach. #7, 35-46.)

         Jernigan has not demonstrated that the evidence, even if false, was material. He contends the testimony weakened his credibility before the jury. But the most damning evidence against Jernigan was the DNA evidence, and Petitioner has not shown what effect, if any, the existence of a blood sample from 1986 would have had on the jury's decision.

         Jernigan next claims Merritt testified falsely about testing he performed on the fingernail scrapings from June George. (Id.) He contends Merritt's case notes show that he did not test all of the fingernail scrapings for blood, although Merritt testified that he had found human blood in all of them. (Id.) According to Jernigan, this calls into question all of Merritt's testimony and all of the subsequent DNA evidence based in part on Merritt's original conclusion that the fingernail scrapings, the bathroom stain, the bedspread stains, and the towel stains tested positive for the presence of human blood. (Id.) Even if Merritt's testimony about the fingernail scrapings was at odds with his notes, this does not establish that all of his testing and evidence were false. Moreover, the evidence was not false because Milton also tested the fingernail scrapings, a bathroom stain, bedspread stains, and towel stains, and they tested positive for the presence of human blood. (Id. at 138-43; Lodgment No. 3, Rep.'s Tr. vol. 39, 7735, 7739, 7753, 7767.) Nor was the fingernail scraping evidence material, because it did not implicate or exonerate Jernigan. No identifiable DNA was found in the fingernail scrapings other than June George's; she was the “major DNA profile.” (Lodgment No. 3, Rep.'s Tr. vol. 39, 7735-36.)

         Finally, although not entirely clear, Jernigan appears to suggest a broken seal on one of the envelopes containing Kathy Keller's blood sample means all of the DNA testing cannot be trusted. In support of this claim, Petitioner has attached a copy of a portion of transcript from the chain of custody hearing during which criminalist Spurgeon testified that when she prepared the blood for testing, she observed that a seal on an internal envelope containing Kathy Keller's blood sample was broken. (ECF No. 1, Attach. #8, 67-76.) Criminalist Spurgeon testified that when she received Keller's blood sample for testing, it came in a padded envelope. Inside that envelope were two manila envelopes, one that contained nothing and a second that contained another manila envelope. Inside the second manila envelope was a third envelope on which the seal was broken, and inside that envelope was Kathy Keller's blood sample. (Lodgment No. 3, Rep.'s Tr. vol. 35, 7171-72, 7201.) Spurgeon's notes indicate the blood sample was in a vial inside a plastic bag which had an intact evidence seal. (ECF No. 1, Attach. #8, 70-71, 73.) In an abundance of caution, after obtaining a DNA profile for Keller from the blood vial, Spurgeon was asked to run a second set of tests using an oral swab from Keller and obtained the same DNA profile. (Lodgment No. 3, Rep.'s Tr. vol. 35, 7172.) There is no evidence, therefore, the broken seal resulted in any false evidence being introduced at Petitioner's trial.

         In sum, Jernigan has not established that the DNA evidence admitted at his trial violated his due process rights or that there was any false evidence admitted at his trial. Petitioner's alleged evidentiary discrepancies were not material. The Court finds that the state court decision on these claims was objectively reasonable. Accordingly, the denial of those claims was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. See 28 U.S.C.A. § 2254(d)(1). Nor was it based on an unreasonable determination of the facts. See id.(d)(2). He is not entitled to relief as to those claims.

         2. Withholding Exculpatory Evidence and Prosecutorial Misconduct

         In section five, grounds one and two of his Petition, (ECF No. 1, Attach. #6, 13-14), Jernigan alleges the prosecutor withheld exculpatory evidence; and in section six, grounds two, three, and five, he alleges the prosecutor committed misconduct. (Id. at 139-40.) In section five, grounds one and two, Petitioner contends prosecutors did not disclose they possessed bloody root hairs obtained from June George's body, her clothing, and the body bag in which her body was transported, and tape lifts of trace evidence from the bedspread; Jernigan claims this evidence was exculpatory. (Id. at 16-83.) In section six, grounds two and three, Petitioner claims the prosecutor committed misconduct when she presented evidence that Jernigan did not give a blood sample to police in 1986. (Id. at 168-200.) In section six, ground five, Jernigan contends the prosecutor presented false testimony about the location of the serological samples in the case and that Fred George did not give a blood sample to police in the 1980's or 1990's. (Id. at 205-21.) Respondent argues the state court's denial of these claims was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Answer 19-20, ECF No. 19.)

         a. Withholding Exculpatory Evidence

         In section five, grounds one and two, Jernigan contends the prosecution withheld exculpatory evidence, specifically bloody root hairs found on June George's body and “trace evidence” from the bedspread. (ECF No. 1, Attach. #6, 16-83.) In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that a prosecutor must disclose all material evidence to the defendant. In order to establish a Brady violation, Jernigan must prove three elements: (1) the evidence was suppressed by the prosecution, either willfully or inadvertently, (2) the withheld evidence was either exculpatory or impeachment material, and (3) the evidence was material to the defense. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Benn v. Lambert, 283 F.3d 1040, 1052-53 (9th Cir. 2002) (citing United States v. Bagley, 473 U.S. 667, 676, 678 (1985); United States v. Agurs, 427 U.S. 97, 110 (1976)).

         In Strickler, the Supreme Court held that in addition to exculpatory or impeaching evidence they are actually aware of, prosecutors “‘[have] a duty to learn of any favorable evidence known to the others acting on the government's behalf in [the] case, including the police.'” 527 U.S. at 281 (quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995)). “Evidence is deemed prejudicial, or material, only if it undermines confidence in the outcome of the trial.” Benn, 283 F.3d at 1053 (citing Bagley, 473 U.S. at 676; Agurs, 427 U.S. at 111-12). “Moreover, we analyze all of the suppressed evidence together, using the same type of analysis that we employ to determine prejudice in ineffective assistance of counsel cases.” Id. (citing Bagley, 473 U.S. at 682; United States v. Shaffer, 789 F.2d 682, 688-89 (9th Cir. 1986)). “The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles, 514 U.S. at 434.

         Jernigan raised his Brady claims in the habeas corpus petition he filed in the California Supreme Court, which denied the petition without a citation of authority. (Lodgment No. 14, Jernigan v. State of California, [No. S227932] (petition for writ of habeas corpus [ECF No. 22, Attach. #27 at 95-154 to Attach. #28 at 1-13, 97-98]; Lodgment No. 15, [In re Jernigan], California Courts, Appellate Courts Case Information, http://appellatecases.courtinfo.ca.gov/ (visited 5/31/17).) This Court must therefore “look through” to the last reasoned state court decision deciding these claims to determine whether their denial was contrary to, or an unreasonable application of, clearly established Supreme Court law. See Ylst, 501 U.S. at 805-06. In denying the petition for habeas relief, the state appellate court analyzed Jernigan's Brady claims as follows:

Jernigan also contends the prosecution withheld certain exculpatory evidence from the defense in violation of Brady v. Maryland (1963) 373 U.S. 83. To establish a Brady violation, Jernigan must show that the prosecution failed to disclose exculpatory evidence and that the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. (People v. Salazar (2005) 35 Cal.4th 1031, 1042-1043.) Jernigan makes no such showing. At most, he points to certain evidence collected by various law enforcement officers several decades ago that allegedly was not shown to his attorneys. He has no evidence that any of this evidence was exculpatory, i.e., favorable to Jernigan, or that, if it had been disclosed, there is a reasonable probability the jury would have reached a different verdict. Jernigan's speculative claim that certain pieces of evidence may have been exculpatory is insufficient to state a prima facie case for relief.

(Lodgment No. 13, In re Jernigan, No. D067991, slip op. 2.)

         The state appellate court correctly concluded Jernigan had not established the elements of a Brady claim. First, the evidence was not suppressed by the prosecution. Jernigan points to exhibits A and E of section five, ground one, to support his Brady claim. Exhibit A contains reports and notes indicating bloody root hairs and trace evidence were obtained from June George's clothing and the bags used to contain her body. (ECF No. 1, Attach. #6, 21-37.) Exhibit E is D.A. Investigator Howard's notes indicating he visited the Riverside Department of Justice in August of 2006 with District Attorney Andrea Freshwater. (Id. at 50-62.) Both of these exhibits, however, are Bates-stamped, indicating they were provided to the defense during discovery. (Id. at 21-62.)

         Jernigan raised this claim in the habeas corpus petition he filed in the superior court. There, he alleged that he was not provided additional “bloody” items of physical evidence that prosecutors knew were exculpatory. (See Jernigan v. State, No. EHC 1031 (petition for writ of habeas corpus at 340-41 [ECF No. 22, Attach. #17, 73-74]).) The San Diego Superior Court denied the Brady claim with the following explanation:

Here, [petitioner] purports to deduce from several exhibits that the “‘bloody' root hairs, fibers and trace evidence from the victim's bloodstained bedspread” exist. He also asserts that these items were not turned over to the defense. However, as petitioner shows in his “ground” 3 (IAC), the exhibits purportedly showing the existence of those items were in defense counsel's possession. Moreover, petitioner's exhibits bear Bates-stamp numbers. Thus, this Brady claim was waived when it was not raised in the trial court.

(Lodgment No. 11, In re Jernigan, No. EHC 1031, order at 8.)

         Second, Jernigan has provided no evidence the bloody root hairs and trace evidence from the bedspread were exculpatory. As Howard's May 10, 2007 report indicates, in 2005, the investigation was focused on identifying evidence to subject to new DNA testing techniques. (ECF No. 1, Attach. #6, 46-49.) Milton's DNA testing occurred in late 2005 and early 2006, and by early 2006, Howard had obtained enough DNA evidence to secure an arrest warrant for Jernigan. (Id. at 31-33.) Howard's notes indicate that, in July of 2006, he, Freshwater, and Merritt visited the San Diego Sheriff's Office crime lab to view the purse, the purse contents, towels swatches and bedspread, presumably to identify additional items to subject to DNA testing. (Id. at 61.) Milton tested the purse, wallet, plastic photo card holder, and the bedspread in 2007. (Lodgment No. 3, Rep.'s Tr. vol. 39, 7767-76.) In any event, the exhibits Jernigan has provided do not establish the bloody root hairs and trace evidence were exculpatory. Petitioner simply speculates that, if tested, they might have yielded exculpatory evidence. And, because there was no exculpatory value to the allegedly suppressed evidence, he also has not established the third element of a Brady claim, materiality. See Strickler, 527 U.S. at 281-82.

         In section six ground two, Jernigan alleges the prosecution withheld other exculpatory evidence, namely that he gave blood to law enforcement in 1986. (ECF No. 1, Attach. #6, 168-200.) Petitioner has not met the elements of Brady for this claim either. He refers to exhibits E, F, and G of section six, ground one, as support for this claim. (Id.) First, as with the preceding claim, Jernigan has not established the evidence was suppressed because the documents he claims support his claim are all bates-stamped indicating they were given to the defense during discovery. (Id.) Moreover, as discussed in section IV(A)(1)(b) of this Report and Recommendation, the evidence does not support a conclusion that the blood sample Jernigan claims he gave to police in 1986 was suppressed by the prosecution. Second, there is no evidence the allegedly suppressed blood sample was exculpatory. Jernigan gave a DNA sample in 2005, so it is not clear how a blood sample from 1986 would have changed the outcome of the DNA testing and subsequent trial. (ECF No. 1, Attach. #3, 96.) The existence of such a sample may have contradicted testimony by Lee, Quinn, and Howard who testified on rebuttal that Jernigan did not give a blood sample to police in the 1980's. (Lodgment No. 3, Rep.'s Tr. vol. 45, 10883, 10886, 10898.) Nevertheless, this impeachment evidence was not material. Although it would have bolstered Jernigan's testimony that he gave a blood sample to police in the 1980's, it would have done nothing to counter the strong DNA evidence linking Jernigan to the murder.

         b. Prosecutorial Misconduct

         Jernigan alleges the prosecutor committed misconduct in several ways. In section six, ground three, of his Petition, Jernigan contends the prosecutor presented false evidence by offering the testimony of Lee, Quinn, McElroy, and Howard who testified there was no evidence that Jernigan had given a blood sample to police in the 1980's. (ECF No. 1, Attach. #6, 170-200.) Petitioner also contends in this claim that the prosecutor committed misconduct when she asked him on cross examination whether he had seen any documentary evidence supporting his claim that he gave a blood sample to police in the 1980's. (Id.) Jernigan replied that he had not seen any such documents, but the prosecutor had in her possession, according to Jernigan, evidence that established such a blood sample existed. (Id.)

         In section six, ground five, Petitioner lists three additional “acts” of prosecutorial misconduct. As act one, he maintains the prosecutor knowingly allowed Howard to testify that sixteen serological samples from the case were at the La Mesa Police Department in 2004, while knowing that at a hearing on a motion to determine whether law enforcement had maintained a proper chain of custody for the evidence, Howard had testified the sixteen serological samples were at the San Diego Sheriff's Department in 2004. (Id. at 205-09.) As act two, he argues the prosecutor committed misconduct when she allowed Howard to testify that a sheriff's department item history report assisted him in determining where certain items of evidence in the June George murder case were located. Petitioner claims the item history report could not have assisted Howard in this manner because the report did not track items once they left the possession of the sheriff's department. Jernigan contends there is no documentation as to where the sixteen serological samples were in 2004. (Id. at 209-11.) As act three, Petitioner asserts the prosecutor committed misconduct when she presented testimony by Howard, Lee, Quinn, and McElroy that there was no evidence the victim's husband, Fred George, gave a blood sample to law enforcement in the 1980's or 1990's. (Id. at 211-14.) Jernigan contends that documents he has provided establish Sergeant Burke knew Fred George's blood type when he submitted items of evidence for testing to the Riverside Department of Justice laboratory in 1988. (Id. at 228-32.) Petitioner speculates that Fred George gave law enforcement a blood sample in 1988.

         Jernigan raised his prosecutorial misconduct claims in the habeas corpus petition he filed in the California Supreme Court, which summarily denied the petition. (Lodgment No. 14, Jernigan v. State of California, [No. S227932] (petition for writ of habeas corpus [ECF No. 22, Attach. #28, 99-129, 134-50]); Lodgment No. 15, [In re Jernigan], California Courts, Appellate Courts Case Information, htpp://appellatecases. courtinfo.ca.gov/ (visited Dec. 28, 2015).) This Court must therefore “look through” to the last reasoned state court decision that addressed these claims to determine whether the denial was contrary to, or an unreasonable application of, clearly established Supreme Court law. See Ylst, 501 U.S. at 805-06. Although Jernigan raised his prosecutorial misconduct claims in the habeas corpus petition he filed in the state appellate court, that court did not address the claims in its order denying the petition. (See Lodgment No. 12, Jernigan v. State of California, [No. D067991] (petition for writ of habeas corpus), No. 13, In re Jernigan, No. D067991, slip op. at 1-2.) Accordingly, the San Diego Superior Court's opinion denying the petition is the last reasoned state court decision.

         The superior court addressed the merits of the claims Jernigan raises in section six, ground five, but found the claims raised in section six, ground three, were procedurally barred because they were not raised in the trial court or on direct appeal. (Lodgment No. 11, In re Jernigan, EHC1031, order at 9-10.) Nevertheless, the Court will exercise its discretion to decide the merits of this claim rather than determine whether it is procedurally defaulted. See Batchelor, 693 F.2d at 864. As to the claim raised in section six, ground five, therefore, this Court must conduct an independent review of the record to “determine what arguments or theories . . . could have supported, the state court's decision . . . and . . . whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Harrington, 562 U.S. at 102; see also Himes, 336 F.3d at 853.

         Not every misstep by a prosecutor descends to the level of misconduct. “[I]t ‘is not enough that the prosecutors' remarks [or actions] were undesirable or even universally condemned.'” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Darden v. Wainwright, 699 F.2d 1031, 1036 (11th Cir. 1983)). Rather, a prosecutor commits misconduct when his or her actions “‘so [infect] the trial with unfairness as to make the resulting conviction a denial of due process.'” Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). “[T]he appropriate standard of review for such a claim on writ of habeas corpus is ‘the narrow one of due process, and not the broad exercise of supervisory power.'” Id. (quoting Donnelly, 416 U.S. at 642).

         Jernigan's claim in section six, ground three, that the prosecutor committed misconduct by presenting false testimony that there was no evidence Jernigan had given a blood sample to police in the 1980's is a restatement of the same as his false evidence claim the Court addressed in section IV(A)(1)(b) of this Report and Recommendation. (See ECF No. 1, Attach. #6, 160-63.) As the Court has already concluded, Petitioner has not established the testimony by Howard, Lee, Quinn, and McElroy was false because with regard to the blood samples, the “seizure date” reflected in the San Diego County Sheriff's Department's documents does not correspond to the date the blood was obtained. (See Lodgment No. 3, Rep.'s Tr. vol. 33, 6732 (testimony of Chuck Merritt); id., Rep.'s Tr. vol. 35, 7092 (testimony of Chuck Merritt); id., Rep.'s Tr. vol. 37, 7308-11) (testimony of Vince Brown); id., Rep.'s Tr. vol. 38, 7560 (testimony of Kathy Keller).) Further, questioning Jernigan about whether there was documentary evidence to support his claim that he had given blood in the 1980's was well within the appropriate bounds of cross examination. See Sassounian v. Roe, 230 F.3d 1097, 1106-07 (9th Cir. 2000) (Prosecutor's comments about a defense witness's lies did not constitute prosecutorial misconduct.)

         Petitioner's next prosecutorial claim concerns testimony about where serological samples were stored. (ECF No. 1, Attach. #6, 205-09.) Jernigan claims the prosecutor knowingly presented contradictory testimony by Howard about the location in 2004 of sixteen serological samples, when Howard began investigating the case. (Lodgment No. 3, Rep.'s Tr. vol. 41, 8123-24, Aug. 2, 2011.) Jernigan claims Howard testified at the chain of custody hearing that the serological samples were at the San Diego Sheriff's Department, but at the trial, he testified the samples were at the La Mesa Police Department. (ECF No. 1, Attach. #6, 205-09.) Petitioner contends the prosecutor committed misconduct by putting on this contradictory testimony. Addressing this claim, the superior court wrote:

1. “Prosecutorial Misconduct Act #1”: This alleged act of prosecutorial misconduct arises from Howard's testimony regarding the location of certain serological samples.
In 2007, Howard testified at a “chain of custody hearing” that on December 17, 2004, “the 16 serological items were not at the La Mesa Police Department, they were at the Sheriff's Department.” (Petition, Vol. 4, “Section” 6, Exh. O, p. 465:11-23.)
In 2011, Howard testified during trial that “serological samples that included the cutouts from the bedspread of June and Fred George, . . . the tissue that had been collected from the bathroom trash can by Chuck Merritt the evening of August 8th, 1986, as well as the victim's blood” “were located within the freezer section in the evidence room of the La Mesa Police Department” “at the time [Howard was] on the case following the testing by the Department of Justice.” (Id., Exh. P. p. 8129:12-25.) During trial, Howard also testified that “La Mesa PD” had “that envelope containing the bath stains, ” the “right fingernail scrapings, ” “the eyeglass case from the purse, ” “the red towel, ” “the photo card holder, ” and “the cutout with the latent print with flecks of blood” (id., Exh. H. pp. 8186:4-8, 8186:12-14, 8186:24-8187:5) but that the San Diego Sheriff's Office Evidence Control Section had “that red purse, ” “the wallet, ” and vials of know blood belonging to four individuals (id., pp. 8186:15-23, 8187:6-13.)
Petitioner alleges the 2011 testimony “was a deliberate perjured evidence testimony statement that was being intentionally perpetrated by the prosecution team upon the jury at trial. And this was a deliberate act of obstructing justice specifically by Prosecutor Schall, for knowingly allowing Investigator Howard to testify ‘differently', without addressing his prior under oath evidence testimony statement.” (Petition, Vol. 4, p. 413, emphasis in original.) “At trial because of the knowingly allowed use by the prosecution team of known to be perjured evidence testimony statements[, ] [t]he actual location ‘whereabouts' of the critical serological samples during Investigator Howard's initial evidence inventory being at the LMPD on December 17, 2004, still remain unknown. It is unknown to [sic] if the serological samples were actually ‘missing' and that this fact was being covered up by the prosecution (which would be an obstruction of justice), or if the serological samples were even in the possession of ‘any' secure law enforcement agency on December 17, 2004.” (Id., p. 414, emphasis in original.)
Petitioner contends the “Item History Report” and “Case and Item Report” from the San Diego Sheriff (Petition, Exh. Q) “absolutely document that the 16 serological samples were not in the possession of the Sheriff's property storage facility or any of it's [sic] employees during the entire year of 2004” (Petition, Vol. 4, p. 423, emphasis in original) and also suggests that they were in the possession of the La Mesa Police Department (ibid.)
Petitioner claims he was prejudiced by Howard's false testimony before the jury in 2011. However, he has not alleged facts sufficient to support the claim that the 2011 testimony was false. He has not shown the “16 serological items” addressed in the 2007 testimony correspond to the specific items address in the 2011 testimony. Even if he had made this showing he has not shown the date of inspection (12/17/04) at issue in 2007 was also at issue in 2011. Finally, petitioner's own interpretation of his Exhibit Q undermines an allegation that the 2011 testimony was false.
Moreover, even if petitioner had shown the 2011 testimony was false, this claim was waived by failing to raise it at trial when the contradiction between Howard's 2007 and 2011 testimony was known. (See People v. Marshall (1966) 13 Cal.4th 799, 830-831, accord People v. Carrasco (2014) 59 Cal.4th 924, 967.)

(Lodgment No. 11, In re Jernigan, No. EHC 1031, order at 12-13.)

         Jernigan is correct that Howard's testimony appears to be contradictory. At the chain of custody hearing, Howard testified he went to the La Mesa Police Department on December 17, 2004, to view evidence, but he did not view the sixteen serological samples there because they were at the San Diego Sheriff's Department. (Lodgment No. 3, Rep.'s Tr. Mot, Hrg. vol. 4, 465, May 1, 2007.) At trial, he testified the La Mesa Police Department had the serological samples in 2004 and that in February of 2005, he transported them to the Sheriff's Department for testing. (Lodgment No. 3, Rep.'s Tr. vol. 41, 8130, 8186.) Nevertheless, “‘the fact that a witness may have made an earlier inconsistent statement, or that other witnesses have conflicting recollections of events, does not establish that the testimony offered at trial was false.'” Boutlinghouse v. Hall, 583 F.Supp.2d 1145, 1166 (C.D. Cal. 2008) (quoting United States v. Croft, 124 F.3d 1109, 1119 (9th Cir. 1997)). “The question whether witnesses lied or erred in their perceptions or judgments is properly left to the jury.” Id. (citing United States v. Zuno-Arce, 44 F.3d 1420, 1422-23 (9th Cir. 1995); United States v. Scheffer, 523 U.S. 303, 313 (1998)).

         Petitioner next claims the prosecutor committed misconduct when she presented misleading testimony by Howard that the San Diego Sheriff's “item history report” assisted him in determining where the sixteen serological samples were located. (ECF No. 1, Attach. #6, 209-11.) Jernigan contends the item history report could not have helped Howard locate the sixteen serological samples at the La Mesa Police Department because the item history report only tracked items of evidence which were in the possession of the Sheriff's Department and did not track where those items were sent or eventually ended up. (Id.) The superior court addressed this claim as follows:

2. “Prosecutorial Misconduct Act #2”: This alleged act of prosecutorial misconduct again arises from Howard's testimony regarding the location of “the 16 serological samples.”
At the trial in 2011, Howard was asked, “based upon using that form [i.e., the item history report for the San Diego County Sheriff] and looking at items of evidence with La Mesa Police Department” (Petition, Vol. 4, “section” 6, Exh. H, p. 8186:2-3) to state where certain items of evidence were located. According to petitioner, the “item history report” used by Howard is in Exhibit Q to the petition. Furthermore, petitioner contends, this “item history report” did not track evidence once it had left the San Diego Sheriff's possession. However, petitioner does not show that Howard's testimony was inconsistent with the Sheriff's “item history report.” Nor does petition cite evidence to support his assertion that “the 16 serological samples were known to the prosecution team on December 17, 2004, as not being in the possession of ‘any' secure law enforcement agency on December 17, 2004 . . . .” (Petition, Vol. 4, p. 417, emphasis in original.) Consequently, petitioner has not adequately alleged “Prosecutorial Misconduct Ad #2.”

(Lodgment No. 11, In re Jernigan, No. EHC 1031, order at 13-14.)

         Investigator Howard testified at trial on redirect examination regarding the serological samples as follows:

Q. All right.
Counsel went through certain inventory items and I believe you testified you used the Metropolitan Task Force, MTF, list that they had to check off whether or not certain items were accounted for, correct?
A. Yes. My initial meeting at La Mesa PD, yes, I did.
Q. 2004?
A. 2004.
Q. You also testified that there was something you used from the Sheriff's crime lab to assist you in determining if they had ...

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