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Noguera v. Davis

United States District Court, C.D. California

November 17, 2017

WILLIAM A. NOGUERA, Petitioner,
v.
RON DAVIS, Warden of California State Prison at San Quentin, Respondent.

         DEATH PENALTY CASE

          ORDER

          CHRISTINA A. SNYDER United States District Judge.

         I. BACKGROUND

         Petitioner William A. Noguera is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a judgment of the Superior Court of California, Orange County, following his April 29, 1987 conviction of the first-degree murder (Cal. Pen. Code §187(a)) of Jovita Navarro, the mother of Petitioner's girlfriend, Dominique. (RT 8312.) The financial gain special circumstance allegation (Cal. Pen. Code §190.2, subd. (a)(1)) was found true. (RT 8313.) The jury also found Petitioner used a dangerous and deadly weapon in the murder of Ms. Navarro (Cal. Pen. Code §12022(b)). (RT 8313-15.)

         On May 18, 1987, the penalty phase of Petitioner's capital trial began. The jurors began penalty phase deliberations at 3:05 p.m. on May 21, 1987 and adjourned at 4:30 p.m. (RT 8711.) The following afternoon, on May 22, 1987, the jury returned a verdict of death. (RT 8717-18.) On January 29, 1988, the trial court heard and denied Petitioner's Motion for New Trial and for Modification of the Verdict, heard and denied Petitioner's Request to Strike the Special Circumstance, and sentenced Petitioner to death. (RT 8787-8874.)

         On December 28, 1992, the California Supreme Court affirmed Petitioner's conviction and death sentence on direct appeal. See People v. Noguera, 4 Cal.4th 599 (1992). The California Supreme Court denied Petitioner's petition for rehearing on March 10, 1993. (Dkt. No. 148, Lodgment No. 8.) The United States Supreme Court denied Petitioner's petition for writ of certiorari on June 30, 1994. Noguera v. California, 512 U.S. 1253 (1994).

         Petitioner filed his initial state habeas petition in the California Supreme Court on November 16, 1992. (Dkt. No. 148, Lodgment No. 4.) The California Supreme Court summarily denied the petition on September 29, 1993, with three justices noting their opinions that an order to show cause should issue. In re Noguera, No. S029779. (Dkt. No. 336, Lodgment No. 3.)

         Almost one year later, Petitioner initiated federal habeas corpus proceedings by filing a Request for Appointment of Counsel and Stay of Execution in the United States District Court for the Central District of California. (Dkt. Nos. 1-2.) The Court appointed Rober Bryan and Nicholas C. Arguimbau on January 27, 1995. (Dkt. No. 11.) Petitioner filed a 91-claim federal habeas petition on July 26, 1996, and, just four days later, Mr. Arguimbau filed an Urgent Motion to Withdraw as Counsel. (Dkt. Nos. 99, 101-104.) The Court granted Mr. Arguimbau's Motion on August 5, 1996. (Dkt. No. 106.) On July 7, 1997, Petitioner moved to stay and abey the federal proceedings pending exhaustion of 31 unexhausted claims in state court. (Dkt. No. 154.) After initially dismissing the petition for failure to exhaust state remedies on October 28, 1997, the Court granted in part petitioner's motion for reconsideration on December 23, 1997, but denied Petitioner's Motion to Hold Proceedings in Abeyance. (Dkt. No. 174.)

         On January 12, 1998, Petitioner filed an Amended Petition for Writ of Habeas Corpus, excluding the 31 unexhausted claims. (Dkt. Nos. 175-76.) He filed his first exhaustion petition in the California Supreme Court on March 2, 1998, raising the unexhausted claims. (Dkt. No. 336, Lodgment 4.) While the exhaustion petition was pending in state court, the parties proceeded to litigate the merits of the first amended federal petition.[1] Respondent filed an Answer to the Amended Petition on September 9, 1998; and on February 9, 1999, Petitioner filed a Traverse to the State's Answer to the Amended Petition for Writ of Habeas Corpus. (Dkt. Nos. 180, 187-88.) On February 23, 1999, Petitioner filed a Motion for Evidentiary Hearing, which the Court denied on April 14, 2000, after a December 10, 1999 hearing. (Dkt. Nos. 190, 211, 216.) In its denial order, the Court ruled that Petitioner was not entitled to an evidentiary hearing on Claims 2, 4, and 60 of the first amended petition because those claims were without merit. (Dkt. No. 216.) The Court determined that, as to the remaining claims, the record was sufficiently developed to decide those claims without evidentiary hearing. (Dkt. No. 216.)

         The parties filed supplemental briefs on the remaining claims in the first amended petition and, on August 31, 2001, the parties appeared for oral argument on the remaining claims. (Dkt. Nos. 225, 236, 227, 228, 245.) During oral argument, the Court noted that, on careful examination of the record and in view of changes in the law since the Court's October 28, 1997 Order, some of the claims in the first amended petition which the Court believed to be exhausted, might not be exhausted. The Court invited supplemental briefing, and the parties filed additional briefs on the question. (Dkt. Nos. 247, 248, 250.)

         Meanwhile, the California Supreme Court denied petitioner's exhaustion petition on October 17, 2001. In re Noguera, No. S068360. (Dkt. No. 336 Lodgment 8.) Subsequently, on November 29, 2001, Petitioner filed a Motion for Leave to File Second Amended Petition. (Dkt. No. 249.) On April 9, 2003, the Court dismissed the first amended petition as a partially unexhausted, “mixed” petition and denied the motion to file the second amended petition because it included the same unexhausted claims as the first amended petition. (Dkt. No. 256; see also, Dkt. No. 262.) The Court also invited Petitioner to file a fully exhausted Third Amended Petition; and, on June 9, 2003, Petitioner simultaneously filed petitions in state and federal court. (Dkt. No. 258; Dkt. No. 336, Lodgment 9.) On July 28, 2003, this Court granted Petitioner's Motion to Hold Proceedings in Abeyance Pending Determination by State Court of Petitioner's Exhaustion Petition. (Dkt. Nos. 258, 259, 262, 263.) While Petitioner's third state petition was pending, he filed a fourth state petition on August 29, 2005. (Dkt. No. 336, Lodgment 13.) The third and fourth state habeas petitions were both denied on October 10, 2007. In re Noguera, No. S116529; In re Noguera, No. S136826. (Dkt. No. 336, Lodgments 12 & 15.) Petitioner notified the Court of the denials in a letter dated October 20, 2007, and this Court vacated the stay on November 5, 2007. (Dkt. Nos. 272, 273.)

         On February 22, 2008, this Court again stayed the proceedings in this action due to Petitioner's then-pending request for substitution of federal habeas counsel and, on March 3, 2008, Robert R. Bryan filed a Request to Withdraw as Attorney for Petitioner. (Dkt. Nos. 284, 292.) The Court appointed the Federal Public Defender as advisory counsel on March 4, 2008, and on July 21, 2008, granted Bryan's request to withdraw. (Dkt. No. 286, 305.) The Office of the Federal Public Defender for the Central District of California was appointed as counsel for Petitioner on August 14, 2008. (Dkt. No. 307.)

         Petitioner filed the operative Fourth Amended Petition for Writ of Habeas Corpus on March 9, 2009. (Dkt. Nos. 317, 318.) Respondent filed an Answer on November 6, 2009, and Petitioner filed a Traverse on January 19, 2010. (Dkt. Nos. 330, 338.) The parties began litigating discovery issues in 2010. However, after the United States Supreme Court issued its decision in Cullen v. Pinholster, 563 U.S. 170 (2011), on April 4, 2011, this Court ordered Respondent to file a motion to dismiss, identifying on a claim by claim basis those claims Respondent contends are subject to summary dismissal without discovery or an evidentiary hearing. (Dkt. No. 351.) Respondent filed a Motion to Dismiss on February 6, 2012. (Dkt. No. 355.) Petitioner filed an Opposition to Respondent's Motion to Dismiss on June 20, 2012, and Respondent filed a reply on October 16, 2012. (Dkt. No. 361.) On November 2, 2012, Petitioner filed a Surreply, and Respondent filed a Reply Response to the Surreply on November 26, 2012. (Dkt. Nos. 366, 368.)

         On March 7, 2013, the case was reassigned from the calendar of Judge Stotler to the calendar of Judge Snyder for all further proceedings. (Dkt. No. 369.)

         II. STATEMENT OF FACTS

         This factual summary is taken in large part from the California Supreme Court's summary of the facts in its December 28, 1992 opinion. Pursuant to 28 U.S.C. §§2254(d)(2), (e)(1), the state court's summary of facts is presumed correct. To the extent that Petitioner does not present clear and convincing evidence to the contrary, 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 Evidence

         1.The murder of Jovita Navarro: the prosecution's case

         Sometime between 11:30 on the night of April 23, 1983, and 4:30 the following morning, Jovita Navarro was murdered in the bedroom of her La Habra bungalow. La Habra police found Jovita's body after being summoned by a “911” call from Mindy Jackson, Jovita's next-door neighbor. After securing the area, investigating officers went to the Jackson residence where they interviewed Dominique Navarro, Jovita's 16-year-old daughter. Dominique told them she had returned from a date with her then-18-year-old boyfriend around 2:00 that morning; after chatting briefly with her mother, who was reading in bed, and removing her makeup, Dominique had gone to bed and to sleep. She was awakened a few hours later, she said, by muffled noises coming from her mother's adjacent bedroom.

         After a few minutes, Dominique heard her mother cry out, “get out, mi hija (“hija” is Spanish for “daughter”), get out, mi hija.” Frightened, and unsure what was afoot in the darkened house, Dominique told Mindy Jackson that she sat at the end of her bed for “about 5 to 15 minutes, ” before running blindly down the hall and out the back door. As she ran, she heard a “thumping” sound coming from her mother's bedroom, followed by what sounded like the footsteps of someone close behind her.

         Reaching Mindy Jackson's house, Dominique banged on the door until Jackson answered. In tears and near hysteria, according to Jackson, Dominique said that someone was hurting her mother; she begged Jackson to return to the house with her. Jackson refused. Instead, she managed to telephone 911. Authorities logged in the emergency call at 4:43 a.m.

         To the casual observer, the murder scene suggested that Jovita had been killed in the course of a combined rape and burglary. Her body was found lying across the bed, her feet touching the floor. Her nightgown had been pulled up around her neck, and a pair of blue women's underpants was wadded between her thighs. The contents of the bedroom were in disorder-bedding and blankets had been pulled from the bed and thrown haphazardly on the floor; a jewelry box, normally resting on a dresser, was found upended on the hall floor, its contents of costume jewelry scattered along the hallway.

         Jovita had been badly beaten, mainly on the face and head. She had suffered extensive facial injuries, including dental and eye damage from at least 18 blows to the face and head; her skull had multiple depressed fractures and her scalp had been loosened and torn by the force of the beating; her nose almost touched her left cheek and “defensive wounds” were evident on her arms and hands. On her left thigh, examiners found oval shaped wounds.[2] Blood was spattered on the walls, furniture, and ceiling of the bedroom.

         The pathologist who examined the body testified that the proximate cause of Jovita Navarro's death was not the beating but asphyxiation-induced by pressing a rounded object against her throat with such force that her larynx was crushed, choking off her airway. Extensive cyanosis, or blueing, of her lips and pinpoint hemorrhaging beneath her eyelids confirmed that Jovita had, in effect, been strangled. Had she not died from a lack of oxygen, the pathologist concluded, the severity of the beating would have resulted in her death.

         In the bedroom, La Habra police investigators found a “tonfa, ” a martial arts weapon fashioned from red oak and resembling a police baton; it lay shattered in two pieces, testimony to the savagery of the beating. In a neighboring yard, police recovered a piece of wood shaped like a broom handle, with traces of blood on it. In another yard, they found a bloodstained tan leather glove; bloodstains were also found on a cinder block wall adjoining a nearby lot. The bloodstains on the tonfa, the wooden dowel, and the glove were the same type as Jovita's. An analysis of fibers removed from the brick wall and the glove were consistent with those found on the bedroom blanket.

         La Habra and Orange County authorities began an extensive forensic investigation of the crime scene. As a result, investigators concluded that much of the evidence pointing to a burglary and rape/murder of Jovita had been faked. An autopsy failed to reveal the presence of sperm in Jovita's vagina. An analysis of vaginal swabs was consistent with a finding that the victim might have had intercourse several hours earlier the preceding evening, but there was no external evidence of sexual trauma consistent with a forcible rape. Tests of the blue underwear for semen or other stains indicative of forcible sex were negative.

         Although the bedroom appeared to have been rifled, nothing of value was missing, including a clear plastic change purse stuffed with small bills that the intruder could not have overlooked. The jewelry box had been knocked from its place and its contents scattered, but none of the jewelry had been taken. An analysis of the blood-spattering pattern on the bed linen suggested that it had been removed from the bed and arranged on the floor after the murder, rather than during a struggle. Moreover, the spatter analysis indicated that Jovita had probably been murdered before the contents of the bedroom had been upended. Finally, investigators could find no evidence that Jovita's killer had gained entry into the house by force.

         The on-scene criminalist, examining the body at 6:30 that morning, initially estimated the time of death at between three and six hours prior to his examination, or between 12:30 and 3:30 a.m. Although routine examinations for lividity and rigor mortis-two crude measures used to approximate time of death-confirmed that estimate, it was later revised upward, to 4:45 a.m., based on Dominique's statement to the police that she had heard her mother cry out around 4:30 that morning.

         After conducting an autopsy on the morning of April 24, the examining pathologist concluded on the basis of the quantity and state of the contents of her stomach that Jovita died sometime between 12:30 and 2:30 that morning. Another criminalist, who observed the body at the autopsy, testified that the 4:45 a.m. time of death stated in the certificate of death was based on Dominique's account of the murder. Although that hour was not substantially out of line with the results of the lividity and rigor tests, had it not been for Dominique's statement the condition of the body suggested that death had occurred between three and seven hours earlier, or between 11:30 the preceding evening and 3:30 that morning.[3]

         An inquiry into Jovita's financial circumstances disclosed that she carried $13, 000 in life insurance and at the time of her death had approximately $14, 000 in accumulated retirement benefits from her job as an Orange County welfare clerk. The house, with a market value of around $90, 000, had an existing mortgage balance of $7, 000; Jovita carried mortgage insurance in the event of her death. Dominique was her sole heir.

         As their investigation deepened, police learned from interviews with Margaret Garcia, a coworker, and Mindy Jackson that relations between Jovita and Dominique's boyfriend, the Petitioner, were not always pleasant. Jovita had quarreled with both over Dominique's repeated violations of curfew hours, over her pregnancy and subsequent abortion, and over what Jovita regarded as a steep decline in Dominique's schoolwork and attendance beginning with the onset of her relationship with Petitioner. Garcia and Jackson both testified that Jovita was planning to sell the house and move to the beach, or to enlist Dominique in the Army, in an attempt to separate her from Petitioner. According to Garcia, Jovita had considered hiring a “hit man” to kill Petitioner. About two weeks before her death, Garcia said, Jovita told her that she had awakened in the middle of the night to find the front door open and all the outside lights off. Jovita found Dominique wandering the house; Dominique told her that she had opened the front door, but could not explain why.

         About two or three weeks before Jovita's murder, Jackson had witnessed her screaming into the telephone and had seen Dominique in the bathroom crying. Jovita had slammed down the handset and said that she “hated” Petitioner and didn't want to hear his name again. “If he [Petitioner] is going to use his karate on me, he has another thing coming, ” Jackson reported Jovita as saying.

         Through interviews with Dominique and Petitioner, authorities learned that on the night of Jovita's death the two had gone to a party in West Covina about 7:00. They left around 11:30 that evening, they told police, and went for a hamburger with a friend; after dropping their friend off, they parked for an hour or two, returning to Jovita's house between 1:30 and 2:00 a.m. Dominique let herself in, locked the front door, opened a sliding glass door at the rear of the house in order to let the family dogs out, and turned off the outside lights. After chatting briefly with her mother, she went to bed.

         Petitioner told police that after leaving Dominique's house, he went home. Because he had missed the 1:30 curfew set by his mother, he had to knock on the front door to get in. His grandmother, who was watching television with his mother, let him in. After talking with them and being lectured by his mother about being late, he went to bed.

         La Habra police also interviewed Peter LaCombe, a diesel mechanic employed by the county who had been dating Jovita for about two weeks before her death. LaCombe had spent the evening of April 23 with Jovita at her house. The two ate a substantial dinner around 7:30 and then danced and watched television. Around 11:00 that evening, LaCombe testified, he left for home.

         From interviews with the adjoining neighbor, Mindy Jackson, police learned that Jackson and her husband had entertained a friend, Tom Brooks, on the night of the murder. All three had heard loud noises coming from the Navarro house around 11:00 p.m. Brooks testified that he had gone outside to investigate but had noticed nothing remarkable; the house was dark and the sliding glass door at the rear was closed. Later that night, they heard what Brooks described as “really radical noises” next door. The three had gone outside about 1:45 a.m. They heard Jovita's two dogs barking and growling; there were no lights either outside or inside the Navarro house.

         Despite discrepancies in the accounts given by Dominique and Petitioner and others interviewed, and suspicions presented by the forensic analyses, police made no arrests in the case until late in the year. In December, the police inspector assigned to the investigation, Sergeant Keltner, received a tip from Steve Arce, an acquaintance of Petitioner, that Ricky[4] Abram might have information relevant to the homicide investigation. Keltner interviewed Abram on December 14, 1983, at the Ione Juvenile Detention Facility near Sacramento, where Abram was an inmate. He tape-recorded most of their conversation.

         In substance, Abram testified at trial that he decided to disclose his knowledge of the murder scheme after Keltner told him of his possible criminal liability for Jovita's murder. Abram told the jury that in March 1983, a few weeks after he first met Petitioner, the two had driven in Petitioner's car to pick up Dominique at her house. On the way over, Petitioner told Abram that he intended to kill Dominique's mother. He asked for Abram's help in borrowing a shotgun for that purpose. After picking up Dominique, the three drove to Bob's Big Boy, a nearby restaurant. There, according to Abram, they discussed in detail Petitioner's plan to murder Jovita.

         The murder, Abram testified, would be staged to look as if Jovita had been killed by a burglar in the middle of the night. Dominique's role would be to let the two men into the house; Abram would fake the burglary and take any items of value; Petitioner would kill Jovita with a shotgun blast. Petitioner and Dominique would then have intercourse, Abram said, after which Dominique, feigning a rape, would run hysterically next door to report the break-in and murder/rape. For his part in the crime, Petitioner promised Abram $5, 000 from the $25, 000 obtained from “the mother's insurance.” In addition to his share of the insurance, Abram told the jury, Petitioner promised he could live in Jovita's house with Petitioner and Dominique, since “the house would be passed on to the daughter after the mom's death.”

         After leaving the restaurant and returning Dominique to her house, Petitioner dropped Abram off. In early April, Abram was arrested for auto theft, convicted and imprisoned. He testified that he did not see Petitioner or Dominique again until the trial, regarded the murder scheme as a “joke, ” and did not learn of Jovita's death until Keltner told him.

         Police interviews with others provided additional evidence of Petitioner's involvement in the murder. Steve Arce told the jury of a fight he had with Petitioner around the Easter preceding Jovita's death. Petitioner had used his feet to quickly knock Arce to the ground. Arce had also seen tonfas in Petitioner's car and had seen Petitioner spinning a tonfa in his hand. He had seen Petitioner wearing tan leather motorcycle gloves on occasion, and had seen him with Ricky Abram. He also related an incident about a month before Jovita's death in which Petitioner kicked two individuals in a street encounter, knocking one of them to the ground in “thirty seconds maybe, ” using martial arts techniques. A couple of weeks before the murder, Arce had heard Petitioner complain about Jovita's interference in his relationship with Dominique; Petitioner had said that he wanted “to kill that bitch, ” referring to Jovita.

         In the months following Jovita's death, investigators learned, Dominique spoke frequently with Petitioner by telephone from an uncle's house, where she was now living. Once, the uncle testified, he overheard Dominique complain after completing a call from Petitioner that she did not want to call the family attorney again; she was upset, her uncle said. The attorney, Dominique's cousin, confirmed that Dominique made a growing number of telephone calls to him in the months following Jovita's death; her questions centered on the disposition of the family home and details concerning the amount of Jovita's insurance, the sums due creditors, and any surplus in the estate; Dominique was “very emphatic, ” he testified, that she did not want the house to be sold. That June, the attorney attended a meeting with Petitioner, his mother, Dominique, and another lawyer at which the possibility of Dominique's legal emancipation was discussed.

         In December 1983, authorities arrested Dominique and Petitioner. Charged with one count of conspiracy to commit murder and one count of first degree murder, Dominique was tried as a juvenile, convicted and sentenced to the custody of the Youth Authority; her conviction was affirmed on appeal.

         2.The defense case.

         Petitioner testified in his defense. His relations with Jovita were “fair, ” he said; sometimes they got along well, sometimes not. He had lived at the Navarro residence for a few months in 1982 with Jovita's consent. The three regularly had dinner out about once a month. Petitioner denied any involvement in Jovita's death. He had talked to Ricky Abram once about selling him an automobile engine; they had gone to Bob's Big Boy with Dominique. While they had lunch, Dominique had complained that her mother had restricted her for coming home late. He never saw Abram again. Petitioner had studied martial arts as a young teenager, but had not earned a black belt and had no training in the use of a tonfa; nor had he ever owned one. He had been badly stabbed in the thigh in a fight in June of 1982, still walked with a limp and had difficulty stretching one of his legs. He had never had any knowledge of Jovita's life insurance.

         On the night of Jovita's murder, Petitioner testified, he had gone with Dominique to a party in West Covina. After a hamburger with a friend, the two had parked for awhile. He dropped Dominique off at her house around 2:00 that morning, went home and, after talking with his mother and grandmother, went to bed. About 3:30 a.m., he heard a knock on his window. It was Margaret Noone, a friend; he let her in and she stayed in bed with him for about an hour before leaving by the window. Around 6:00 a.m., Dominique had telephoned; she was very upset; Petitioner dressed and left immediately for her house.

         Petitioner's sister supported his testimony regarding the injury to his leg and the fact that he had never received training in or owned a tonfa. His grandmother confirmed that Petitioner had arrived home around 2:00 on the morning of Jovita's murder.

         Petitioner's mother testified that he returned home at exactly 2:00 on the morning of April 24, 1983-she had been watching a program on Spanish television and remembered the time. She spoke to Petitioner briefly as to why he was late. Later that night, Petitioner's mother heard the sound of voices in her son's room. Through the door, she asked Petitioner who was there; he told her to go to sleep and later refused to tell her the identity of his visitor. Asked about the meeting with Dominique's attorney in June of 1983, at which Dominique's legal emancipation was discussed, Mrs. Noguera testified that she had earlier accompanied Dominique to the Social Security office in an effort to help her receive some benefits-she had been without any income in the five months since her mother's death. A previous attorney had done nothing, and Dominique needed help.

         Margaret Noone testified that around 3:00 a.m. on April 24, 1983, she had climbed into the window of Petitioner's bedroom and stayed for about one and one-half hours. She left when she heard someone knocking on the bedroom door.

         Two of Petitioner's friends testified to prior conversations with Ricky Abram and Steve Arce. Wilbur Boring told the jury that in December of 1983, after he had implicated Petitioner in Jovita's murder, Abram had told him that “he [Petitioner] got what he deserved; he put me in jail so I put him in jail.” Patrick Reese testified that Arce had told him that he cooperated with the police in exchange for immediate release on a felony charge; Arce had observed a pair of nunchuku sticks in Petitioner's possession, not tonfas, and had told Reese that he (Arce) should not have told the police some of the things he told them.

         3. Rebuttal.

         The prosecution recalled Margaret Noone to the stand. She stated that, in testifying on behalf of Petitioner, she had “lied ... [about] basically almost everything” because she “was getting threats if I didn't say something like that [i.e., her alibi testimony] something would happen to me or my family because [Petitioner] has such powerful friends, even though he's in jail.” She had seen nunchuku sticks in Petitioner's car, and he liked to “mess around with them.” Noone told the jury that she had been granted immunity from prosecution by the People.

         In addition, the trial court took judicial notice that Dominique had been called as a witness by the prosecution, had refused to testify, and been adjudged in contempt of court. A deputy marshal testified that shortly after Dominique was held in contempt, he heard Petitioner say to another inmate that Dominique “did a good job and tell her I love her.”

         B. Penalty Phase Evidence

         1. The prosecution's case.

         John Antenucci testified that in August 1983, he placed a newspaper advertisement to sell a used Volkswagen. Accompanied by a friend, Petitioner responded to the advertisement and expressed an interest in buying the automobile. The three went for a test drive, during which Petitioner stopped the car and told Antenucci to get out because his friend “has a gun.” Petitioner's friend displayed a handgun and threatened to shoot Antenucci, who managed to grab the car keys and escape.

         2. The defense case.

         Petitioner called 15 witnesses, including a former employer, his high school girlfriend, and several friends of his family. Several witnesses testified that Petitioner's family was very close until his parents were divorced in 1980. His mother testified that Petitioner, who had hunted, fished, and gone on motorcycle trips with his father, appeared to take the divorce hard; he became quieter, more serious, less playful. She asked the jury to spare her son's life. Petitioner's sister and grandmother also asked the jury not to impose the death penalty.

         Several witnesses testified to Petitioner's participation in the California Blue Jacket Cadette Corps, a youth organization modeled on the Navy. Junior high school authorities testified to his participation in such sports as basketball, track, softball, and football; elementary school employees testified that Petitioner's parents had been involved actively in his schooling.

         III. STANDARDS OF REVIEW

         Because Petitioner's original §2254 habeas petition was filed after April 24, 1996, the Antiterrorism and Effective Death Penalty Act (“AEDPA”), codified in 28 U.S.C. §2254, applies to petitioner's claims. Woodford v. Garceau, 538 U.S. 202, 210 (2003) (holding that applicability of the AEDPA depends on whether the petitioner filed an application for habeas relief seeking an adjudication on the merits before or after the AEDPA's effective date); see also Lindh v. Murphy, 521 U.S. 320, 322 (1997).

         Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner can show that the state'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, 562 U.S. 86, 98 (2011); Williams v. Taylor, 529 U.S. 362, 412-13 (2000). If a petitioner satisfies either subsection (1) or (2) for a claim, then the federal court considers the claim de novo. See Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (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).

         The United States Supreme Court held in Cullen v. Pinholster, that when determining whether a petitioner has satisfied §2254(d), a court may only consider evidence in the state court record. 563 U.S. at 180-81, 185 n. 7. The Court held that “review under §2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Id. at 180-81. Further, the Court found that section 2254(d)(2) “includes the language ‘in light of the evidence presented in the State court proceeding, ' . . . [providing] additional clarity . . . on this point.” Id. at 185 n. 7.

         The “contrary to” and “unreasonable application” clauses of section 2254(d) have separate and distinct meanings. Williams v. Taylor, 529 U.S. at 404. The Supreme Court explained that a state court decision is “contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from our precedent.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (internal quotations omitted). A state court decision is an “unreasonable application” of federal law if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the petitioner's case. Williams v. Taylor, 529 U.S. at 414; Lockyer, 538 U.S. at 75. “The ‘unreasonable application' clause requires the state court decision to be more than incorrect or erroneous. The state court's application of clearly established law must be objectively unreasonable.” Lockyer, 538 U.S. at 75 (internal citation omitted); Richter, 562 U.S. at 101. “While the ‘objectively unreasonable' standard is not self-explanatory, at a minimum it denotes a great[ ] degree of deference to the state courts.” Clark v. Murphy, 331 F.3d 1062, 1068 (9th Cir.), cert. denied, 540 U.S. 968 (2003). The United States Supreme Court made clear in Richter that “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Richter, 562 U.S. at 101 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

         Further, under §2254(d)(2), a decision adjudicated on the merits in a state court will not be overturned on factual grounds unless it is objectively unreasonable in light of the evidence presented in the state-court proceeding. 28 U.S.C. §2254(d)(2). Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary. 28 U.S.C. §2254(e)(1); Cudjo v. Ayers, 698 F.3d 752, 762 (9th Cir. 2012) (“[T]he statement of facts from the last reasoned state court decision is afforded a presumption of correctness that may be rebutted only by clear and convincing evidence.”), cert. denied, 133 S.Ct. 2735 (2013). Thus, this Court must defer to the state court's factual findings unless a defect in the process is so apparent that “any appellate court ... would be unreasonable in holding that the state court's factfinding process was adequate.” Hibbler v. Benedetti, 693 F.3d 1140, 1146-47 (9th Cir. 2012), cert. denied, 133 S.Ct. 1262 (2013); Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.), cert. denied, 543 U.S. 1038 (2004).

         In this case, many of Petitioner's claims were raised in his state petitions to the California Supreme Court, and summarily denied. 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, 562 U.S. at 98; Walker v. Martel, 709 F.3d 925, 939 (9th Cir.), cert. denied, __ U.S. __, 134 S.Ct. 514 (2013). The Supreme Court has stated that “a habeas court must determine what arguments or theories supported or . . . could have supported, the state court's decision;” the court must not “overlook[] arguments that would otherwise justify the state court's result . . .” Richter, 562 U.S. at 102. “Crucially, this is not a de novo review of the constitutional question, ” as “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Walker v. Martel, 709 F.3d at 939 (quoting Richter, 562 U.S. at 102); see also Murray v. Schriro, 745 F.3d 984, 996-97 (9th Cir. 2014). Section 2254(d) provides “a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that the state-court decisions be given the benefit of the doubt.” Pinholster, 563 U.S. at 181 (internal quotations omitted).

         Respondent contends that the California Supreme Court's denial of Petitioner's state habeas petition was, on its face, “on the merits, ” and, as such, Petitioner must overcome §2254(d)'s relitigation bar. Respondent maintains that Petitioner cannot demonstrate that the state court's resolution of his claims was unreasonable under either §2254(d)(1) or (d)(2).

         Petitioner argues, on the other hand, that the California Supreme Court's “process and analysis of his claims were unreasonable in light of California's special procedures for resolving habeas petitions.” (Dkt No. 361, Response at 9.) He notes that the California Supreme Court's failure to issue an OSC in his case, under California law, necessarily means that the Court found that - assuming the truth of Petitioner's allegations and drawing all legitimate inferences in his favor - he had not made a prima facie case for relief on any of his claims. The summary denial, Petitioner suggests, was a final determination that is not entitled to deference because (1) it is not a merits determination such that 2254(d) applies;[5] (2) the California Supreme Court's failure to issue an OSC constitutes an unreasonable interpretation and application of clearly established federal law under §2254(d)(1)[6]; and (3) if the state court based its denial of claims on factual findings or credibility determinations counter to Noguera's allegations and evidence, its decision amounts to an unreasonable determination of facts under §2254(d)(2).[7] As such, Petitioner suggests that §2254(d) and Pinholster have no relevancy to this Court's review of his claims.

         Respondent rejects Petitioner's “process-based” theory as an attempt to “broaden federal review beyond whether state court factual findings were reasonable ‘in light of the evidence presented in the State court proceeding.'” (Dkt. No 365, Response to Opposition at 15.)

         IV. REVIEW OF CLAIMS

         A. Conflict of Interest

         1. Legal Standard

         “Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271 (1981); see also Cuyler v. Sullivan, 446 U.S. 335 (1980). The United States Supreme Court recognizes the unique nature of claims that arise out of a conflict of interest and does not impose on such claims the Strickland v. Washington, 466 U.S. 668, 687 (1984) two-pronged standard for ineffective assistance of counsel claims. Rather, prejudice is presumed if the petitioner demonstrates that his attorney “actively represented conflicting interests” and that “an actual conflict of interest adversely affected his lawyer's performance.” Sullivan, 446 U.S. at 348, 350; see also Wood, 450 U.S. at 272-73; Strickland, 466 U.S. at 692; Mickens v. Taylor, 535 U.S. 162, 168 (2002). Conflicts can also arise from successive representation, particularly when a substantial relationship exists between the cases, such that the “factual contexts of the two representations are similar or related.” Trone v. Smith, 621 F.2d 994, 998 (9th Cir.1980); see also Fitzpatrick v. McCormick, 869 F.2d 1247, 1252 (9th Cir.1989). The Supreme Court, however, has left open the question whether conflicts in successive representation that affect an attorney's performance require a showing of prejudice for reversal. See Mickens, 535 U.S. at 176.

         2. CLAIM 1: Lead Defense Counsel Suffered from a Conflict of Interest Due to His Representation of Petitioner's Mother and Because of Her Financial Control Over the Defense

         In Claim 1, Petitioner alleges that his rights under the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated because his trial attorney, Lorenzo Pereyda, suffered from an undisclosed and unwaived conflict of interest that permeated the entire trial and adversely affected the representation Petitioner received. He argues that counsel's conduct violated his rights to the effective assistance of counsel, an impartial jury, a reliable special circumstance determination, a fair and reliable guilt and penalty determination, confrontation and cross-examination, Equal Protection and Due Process. (Dkt. 317 at 37-49.)

         Petitioner raised this claim in his November 16, 1992, initial state habeas petition (Dkt. No. 148, Lodgment 4 at 57-64), and again in his June 9, 2003, exhaustion petition (Dkt. No. 336, Lodgment 9 at 11-42). On both occasions, the California Supreme Court summarily denied the claim on the merits. (Dkt. No. 336, Lodgments 3 & 12.) In 2003, the California Supreme Court alternatively denied the claim as untimely, successive, and as having previously been raised in the 1992 petition. (Dkt. No. 336, Lodgment 12.)

         In moving to dismiss Claim 1, Respondent contends that Petitioner has failed to meet his burden of showing that the California Supreme Court's resolution of the claim amounted to an unreasonable application of clearly established Federal law, or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding and, as such, Petitioner is barred from relitigating the claims in federal court. 28 U.S.C. §2254(d); Pinholster, 563 U.S. at 181-82. This Court disagrees.

         a. Facts Presented to the California Supreme Court

         (1) Initial State Habeas Petition

         Petitioner first raised the issue of counsel's alleged conflict of interest in Claim III of his initial state habeas petition. In the 1992 petition, Petitioner presented the following facts:

- Petitioner's mother, Sarita Salinas, retained Pereyda in 1979 to represent her in the divorce action she brought against Petitioner's father, Guillermo Noguera.
- Pereyda represented Salinas in very acrimonious proceedings, through which he became privy to confidential information regarding the turmoil that pervaded the Noguera household and the emotional problems of both of Petitioner's parents.
- During their attorney-client relationship, Salinas told Pereyda that her husband was violent, had threatened her with bodily harm and death on many occasions, and had audio tapes detailing sexual acts involving animals. She also confided her concerns that Guillermo's actions were having a negative effect on her children.
- Salinas subsequently retained Pereyda to represent Petitioner in his capital trial.
- Pereyda was unable to present evidence of Petitioner's home life because to do so would have violated his on-going duty of loyalty to Salinas.
In support of Claim III, Petitioner submitted a Declaration of A. Lorenzo Pereyda (Exhibit I), in which Mr. Pereyda stated:
- His law practice included criminal law and general civil litigation, including family law.
- He had never before tried a death penalty case.
- He has known the Noguera family for many years and has Petitioner since he was twelve or thirteen years old.
- He was retained to represent Petitioner's mother in connection with her bitter and acrimonious divorce from Petitioner's father. The litigation began in 1979 and ended in 1983.
- Ms. Salinas told Mr. Pereyda that Guillermo was violent and had a bad temper and that she had concerns that his actions were negatively impacting her children.
- At the time he was retained to represent Petitioner, Mr. Pereyda “was not totally familiar with capital litigation, particularly penalty phase strategy and tactics.”
- Mr. Pereyda never explained to Petitioner that he had a legal conflict due to his prior representation of Salinas; and he never obtained a waiver of that conflict.
- The vast majority of Pereyda's trial preparation in Petitioner's case was spent on guilt-phase issues. Pereyda did no mental health investigation in connection with the guilt phase and did not explore Petitioner's social history to determine how family dynamics may have impacted his culpability.
- Pereyda's strategy for the penalty phase was to focus on the positive aspects of Petitioner's life, and present him in a favorable light. Pereyda did not investigate the case to determine whether Petitioner's troubled background could have contributed to the crime, or mitigated punishment.
- Pereyda was a potential witness during the penalty phase as he could have testified regarding mitigating information he learned about the family during the divorce proceedings.

         (2) Third State Habeas Petition

         Petitioner again raised the conflict of interest issue in his 2003 state habeas petition in which he presented additional facts in support of the claim, including Declarations from his father (Exhibit D), his sister (Exhibit G), his mother (Exhibit AA), and his wife (Exhibit GG). Petitioner alleged that not only was his mother a former client of Mr. Pereyda, to whom he owed an ongoing ethical and legal duty of confidentiality and loyalty, she was also paying Petitioner's legal fees and influencing his representation. In particular, Petitioner alleged:

- In retaining Pereyda, Ms. Salinas still considered him to be her attorney, obligated first to her. (Exhibit AA.) Moreover, she was outspoken regarding her control over Petitioner's defense and Mr. Pereyda's role as protector for her family. (Exhibit GG.)
- Mr. Pereyda had an on-going ethical and legal duty to Ms. Salinas and a fundamental obligation not to reveal information disclosed in confidence during the divorce proceedings.
- Ms. Salinas retained Mr. Pereyda to represent Petitioner on the condition that he not bring out any of the family's problems, but exclusively present the false defense that Petitioner was not the killer. (Exhibit G, Exhibit AA.)
- Ms. Salinas advised Mr. Pereyda that he was not to use any of the information he learned about the family during the divorce proceedings in Petitioner's defense case. (Exhibit AA.)
- Mr. Pereyda could not pursue viable mental health defenses and did not have Petitioner examined by a mental health expert because Ms. Salinas prohibited Mr.
Pereyda from using information he “knew about [Petitioner] and the family . . . in [Petitioner's] defense.” (Exhibit AA.)
- Mr. Pereyda could not question Ms. Salinas regarding her behavior which contributed to Petitioner's mental health problems.
- Mr. Pereyda could not present evidence of the violence and abuse perpetrated by Ms. Salinas and other members of the family. (Exhibit D, Exhibit G.)
- Although Petitioner told his mother that he thought he was crazy, and asked her for help, she told him there would be no mental health examinations, and that he was not crazy. She told him, “just listen to my attorney, who would get him out.” (Exhibit AA.)
- Salinas told Petitioner it did not matter that his defense team knew that he killed Jovita, “[her] attorney was going with the innocence defense.” (Exhibit AA.)
- Petitioner's father did not trust Mr. Pereyda because he was Salinas' divorce attorney. (Exhibit D.)
- Neither Mr. Pereyda nor Mr. Campos attended a special circumstance/penalty conference on the case at which the case could have settled at a penalty less than death. According to Petitioner, “he was not consulted but rather instructed by his mother and his attorneys to refuse any type of settlement. . . . By accepting a plea bargain, his mother stated that everyone would say he committed the homicide and people would look at her as a bad mother.” (Exhibit GG at 7.)
- Mr. Pereyda never disclosed his conflict of interest to Petitioner and there was no waiver. (Exhibit I.)

         In light of the conflict, Petitioner argued, Mr. Pereyda failed to provide petitioner with constitutionally adequate representation.

         b. California Supreme Court's Post Card Denial Was Premised on an “Unreasonable Determination of the Facts” Within the Meaning of §2254(d)(2)

         To demonstrate that the state court erred under §2254(d)(2), “the petitioner must establish that the state court's decision rested on a finding of fact that is ‘objectively unreasonable.'” Hibbler v. Benedetti, 693 F.3d at 1146, quoting Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004) and citing Miller El v. Cockrell, 537 U.S. 322, 340 (2003) and Taylor v. Maddox, 366 F.3d at 999. The question “is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Wood v. Allen, 558 U.S. 290, 301 (2010); Brumfield v. Cain, 135 S.Ct. at 2277.

         In Hibbler, the Ninth Circuit noted that “[c]hallenges under §2254(d)(2) fall into two main categories. First, a petitioner may challenge the substance of the state court's findings and attempt to show that those findings were not supported by substantial evidence in the state court record. Second, a petitioner may challenge the fact-finding process itself on the ground that it was deficient in some material way.” Hibbler, 693 F.3d at 1146 [citations omitted]; see also Taylor v. Maddox, 366 F.3d at 999 (concluding that “unreasonable determination” in §2254(d)(2) may be based on a contention “that the [state court] finding is unsupported by sufficient evidence, that the process employed by the state court is defective, or that no finding was made by the state court at all.” (citations omitted).) “Thus, if a petitioner challenges the substance of the state court's findings. . . ‘[the federal court] must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.'” Hibbler, 693 F.3d at 1146, citing Taylor v. Maddox, 366 F.3d at 1000. “Similarly, when the challenge is to the state court's procedure, ‘mere doubt as to the adequacy of the state court's findings of fact is insufficient; ‘[the court] must be satisfied that any appellate court to whom the defect [in the state court's fact-finding process] is pointed out would be unreasonable in holding that the state court's fact-finding process was adequate.'” Hibbler, 693 F.3d at 1146-47, citing Lambert v. Blodgett, 393 F.3d at 972. It is relevant to remember, Pinholster itself was a summary denial case. “The ultimate issue is whether the state's fact-finding procedures were reasonable; this is a fact-bound and case-specific inquiry.” Hibbler, 693 F.3d at 1147. The state court does not act unreasonably in denying relief without holding an evidentiary hearing “so long as the state court could have reasonably concluded that the evidence already adduced was sufficient to resolve the factual question.” Id.

         This Court finds that Petitioner has satisfied his burden under AEDPA, showing that the state court's decision was premised on either “an unreasonable application of clearly established federal law” or an “unreasonable determination of the facts” within the meaning of §2254(d). On the record before this Court --the record presented to the California Supreme Court in state habeas corpus proceedings -- Petitioner has demonstrated that his trial attorney “actively represented conflicting interests” and that the conflict “adversely affected his lawyer's performance.” Sullivan, 446 U.S. at 350. The evidence presented to the California Supreme Court in two state habeas corpus actions - including declarations from both Mr. Pereyda and Ms. Salinas - indicated that Mr. Pereyda was influenced in his basic strategic decisions by the interests of the third party who hired him, petitioner's mother. Pereyda labored under an actual conflict of interest throughout his representation of Petitioner, triggering the California Supreme Court's duty to inquire further. Assuming Petitioner's allegations, and the declarations submitted in support thereof, to be true (see Pinholster, 563 U.S. at 188 n. 12), nothing more was required for a prima facie case. See Nunes, 350 F.3d at 1054 (taking petitioner's claims “at face value, ” petitioner “clearly made out a prima facie case of ineffective assistance” where petitioner claimed his “attorney gave him the wrong information and advice about the state's plea offer” and that if he had “been informed accurately” he would have taken the plea offer).

         “Under California law, the California Supreme Court's summary denial of a habeas petition on the merits reflects the court's determination that ‘the claims made in th[e] petition do not state a prima facie case entitling the petitioner to relief.' ” Pinholster, 563 U.S. at 188 n. 12 (quoting In re Clark, 5 Cal.4th 750, 770 (1993)). As noted, the evidence Petitioner presented was sufficient to raise a doubt as to Mr. Pereyda's representation and suggest that he labored under a conflict of interest that adversely affected his performance. Sullivan, 446 U.S. at 348. Nevertheless, the California Supreme Court twice summarily rejected the claim. (Dkt. No. 336, Lodged Docs. 3 & 8.) There was no reasonable basis for the California Supreme Court's decisions. See Pinholster, 563 U.S. at 187-88 (where there has been a summary denial, petitioner satisfies §2254 by showing “‘there was no reasonable basis' for the California Supreme Court's decision”) (quoting Richter, 562 U.S. at 98). As such, the California Supreme Court's denials of this claim were based on “an unreasonable application of clearly established federal law” or an “unreasonable determination of the facts” within the meaning of §2254(d), and are not entitled to AEDPA deference.

         This Court must now proceed to evaluate Petitioner's claim de novo. Panetti v. Quarterman, 551 U.S. 930 (2007) (when “the requirement set forth in § 2254(d)(1) is satisfied[, a] federal court must then resolve the [constitutional] claim without the deference AEDPA otherwise requires”); see also Rompilla v. Beard, 545 U.S. 374, 390 (2005) (reviewing the prejudice requirement for an ineffective assistance of counsel claim de novo after identifying a § 2254(d)(1) error in the state court's evaluation of the performance requirement); Wiggins v. Smith, 539 U.S. 510, 534 (2003) (similar); Penry v. Johnson, 532 U.S. 782, 795 (2001) (holding that even if the state court's decision was contrary to Supreme Court case law, “that error would justify overturning Penry's sentence only if Penry could establish that the error” was prejudicial under the pre-AEDPA standard for evaluating prejudice); Williams, 529 U.S. at 406 (explaining that when a federal habeas court identifies a “contrary to” error, it “will be unconstrained by § 2254(d)(1)”).

         Clearly established federal law holds that an actual conflict of interest arises where an attorney represents multiple clients with divergent interests. See, e.g., Sullivan, 446 U.S. at 348; Mickens v. Taylor, 535 U.S. at 166-69; Holloway v. Arkansas, 435 U.S. 475, 487-90 (1978); Glasser v. United States, 315 U.S. 60, 75-76 (1942), superseded by rule on other grounds, Bourjaily v. United States, 483 U.S. 171 (1987). Conflicts can also arise from successive representation. Mickens, 535 U.S. at 175-76; Lewis, 391 F.3d at 989 (applying Sixth Amendment analysis to question of successive representation); Trone v. Smith, 621 F.2d at 998; see also Fitzpatrick v. McCormick, 869 F.2d at 1252. The Sixth Amendment does not protect against a “mere theoretical division of loyalties.” Mickens, 535 U.S. at 171. Rather, it protects against conflicts of interest that adversely affect counsel's performance. Id. at 172 n. 5. Indeed, in Mickens, the Court held that “actual conflict” is defined by the effect a potential conflict had on counsel's performance.

         In Wood v. Georgia, three indigent defendants convicted of distributing obscene materials had their probation revoked for failure to make monthly installment payments on their fines. In reviewing the case, the United States Supreme Court found that the record suggested the root of the problem might be the “divided loyalties of their counsel.” 450 U.S. at 263. At all times during the proceedings against them, the defendants had been represented by a lawyer for their employer (the owner of the “adult” theater and bookstore that purveyed the obscenity), and the employer paid the attorney's fees and had promised to pay the fines. However, when the employer declined to make installment payments on the fines, and because their attorney “ha[d] acted as the agent of the employer and ha[d] been paid by the employer, [the Court found that] the risk of conflict of interest . . . [was] evident.” Id. at 267. The record suggested that the employer's interest in reducing the fines he would have to pay for his indigent employees in the future diverged from the defendants' interest in obtaining leniency or paying lesser fines to avoid imprisonment. The Supreme Court found that the possibility that counsel was actively representing the conflicting interests of the employer and employee-defendants “was sufficiently apparent at the time of the revocation hearing to impose upon the court a duty to inquire further.” Id. at 272. The Court remanded to the trial court “to determine whether the conflict of interest that th[e] record strongly suggest[ed, ] actually existed” because, on the record before it, the Court could not “be sure whether counsel was influenced in his basic strategic decisions by the interests of the employer who hired him.” Id. at 272-73.

         The present record is sufficient to determine that Mr. Pereyda operated under an actual conflict of interest in representing Petitioner. Mr. Pereyda had an on-going ethical and legal duty to Petitioner's mother, and a fundamental obligation not to reveal information disclosed in confidence during the divorce proceedings. Ms. Salinas retained Mr. Pereyda to represent Petitioner with the understanding that she would control the defense and that Mr. Pereyda would not bring out any of the family's problems, but would exclusively present the false defense that Petitioner was not the killer. (Exhibit G, Exhibit AA.) Clearly, Mr. Pereyda could not simultaneously act in the best interest of both clients. In his declaration, Mr. Pereyda admits that he represented Petitioner's mother in her divorce from Petitioner's father; that he never explained to Petitioner that he had a legal conflict due to his prior representation of Petitioner's mother; and that he never obtained a waiver of that conflict. The Court finds that Petitioner has established that Mr. Pereyda did, in fact, have an unwaived conflict of interest in representing Petitioner. The ultimate question, then, is whether the conflict adversely impacted Mr. Pereyda's performance as Petitioner's capital defense attorney. This Court finds that the answer to that question is yes.

         First, Petitioner was adversely affected by Mr. Pereyda's failure to attend a pre-trial special circumstance/penalty conference at which the case could have settled at a penalty less than death. There is no explanation for such a failure, except that facilitating a plea for Petitioner was contrary to his mother's expressed personal interests. Petitioner “was not consulted but rather instructed by his mother and his attorneys to refuse any type of settlement. . . . By accepting a plea bargain, his mother stated that everyone would say he committed the homicide and people would look at her as a bad mother.” (Exhibit GG at 7.)

         Accordingly, Petitioner was negatively impacted by Mr. Pereyda's approach to his guilt-phase defense. Despite overwhelming evidence of Petitioner's participation in the murder, and Mr. Pereyda's personal knowledge of Petitioner's family and mental health problems, Mr. Pereyda failed to investigate and present evidence which could have undermined the prosecution's theory of the case as death eligible. Counsel failed to investigate and discover evidence that Dominique constantly complained to Petitioner about how terrible her mother was to her, and begged him to protect her.[8] Counsel failed to investigate and present evidence that, in the fall of 1982 Dominique had become pregnant with Petitioner's child; Petitioner and Dominique were excited and had shared the news with Petitioner's family; Jovita had subsequently forced Dominique to have an abortion; and the chain of events sent Petitioner into despair.[9] Counsel failed to investigate and present evidence that Petitioner may have suffered from brain-damage and mental illness that may have influenced his decision-making, [10] and was also under the influence of steroids and other substances when he committed the homicide.[11]Rather, despite damaging witness statements from Ricky Abram, Steve Arce, Margaret Garcia, and Mindy Jackson, Mr. Pereyda instead presented a doomed innocence defense accompanied by a coerced alibi witness. While such an approach would normally inspire confusion and curiosity, under the circumstances of Petitioner's representation counsel's rationale is evident. As Ms. Salinas told Petitioner, it did not matter that his defense team knew that he killed Jovita, “[her] attorney was going with the innocence defense.” (Exhibit AA.)

         Furthermore, Petitioner was adversely affected by Mr. Pereyda's failure to adequately investigate and present a thorough mitigation case. At Ms. Salinas's direction, Mr. Pereyda focused his penalty phase presentation on the positive aspects of Petitioner's life. Mr. Pereyda thereby obscured extensive available mitigating evidence, detailing the reality of Petitioner's struggles and challenges, in favor of presenting Ms. Salinas in the most positive light.

         Having considered the arguments and evidence presented in connection with Claim 1 of Petitioner's federal habeas petition, the Court concludes that Petitioner is entitled to habeas corpus relief on his conflict of interest claim. As the Supreme Court has noted, “inherent dangers that arise when a criminal defendant is represented by a lawyer hired and paid by a third party” including: the risk “that the lawyer will prevent his client from . . . taking . . . actions contrary to the [third party's] interest” and the risk that the lawyer will defer to the third-party's goals while sacrificing the defendant's best interests. Wood, 450 U.S. at 268-69. These dangers manifested in Petitioner's case. Mr. Pereyda operated under an actual conflict of interest that adversely affected Petitioner's representation. Claim 1 of Petitioner's federal habeas corpus petition is GRANTED.

         3. CLAIM 3: The Defense Suffered from an Ethical Conflict of Interest Due to Paralegal Irma Soto's Unethical Conduct

         In Claim 3 of Petitioner's Fourth Amended Petition he argues that he was deprived of his Sixth Amendment right to the effective assistance of counsel because Mr. Pereyda failed to properly supervise paralegal Irma Soto. He contends that Ms. Soto carried on a romantic relationship with Petitioner and smuggled mind-altering drugs to him at the Orange County Jail before and during trial, to the detriment of his defense. Petitioner suggests that his use of the drugs “had a debilitating effect upon his mental state and competence” during critical proceedings and the romantic entanglement “negatively affected [Ms. Soto's] relationship with key defense witnesses.” (Dkt. No. 361 at 51, Docket No. 317 at 53.) He argues that counsel were responsible for Ms. Soto's actions which undermined his defense. Simultaneously, Petitioner argues that Ms. Soto's conduct created a conflict of interest that adversely affected Petitioner's representation within the meaning of Sullivan. (Dkt. No. 317 at 55-56.)

         Petitioner raised this claim before the California Supreme Court in Claim 1 of his March 2, 1998, exhaustion petition. (Dkt. No. 336, Lodgment 4.) The California Supreme Court summarily denied the claim on the merits and alternatively denied the claim as untimely on October 17, 2001. (Dkt. No. 336, Lodgment 8.)

         Respondent denies the factual allegations Petitioner makes in support of this claim and argues that Petitioner has failed to establish that the California Supreme Court's resolution of the claim contradicted or unreasonably applied controlling United States Supreme Court authority, or made any unreasonable determination of the facts, and, as such, he is barred from relitigating the claim in federal court. 28 U.S.C. §2254(d); Cullen v. Pinholster, 563 U.S. at 181-82. This Court agrees.

         a. Facts Presented to the California Supreme Court Petitioner alleged the following facts to the California Supreme Court in his 1998 exhaustion petition:

- Irma “Uribe” Soto worked for Mr Pereyda as “a legal employee and legal runner” before and during Petitioner's trial.
- Ms. Soto was privy to confidential and privileged information related to Petitioner and his case, including case files, defense strategy, defense witnesses, anticipated testimony, and potential problems.
- Ms. Soto communicated with witnesses by telephone, correspondence, and in person.
- During pretrial and trial proceedings, Ms. Soto expressed her love for Petitioner and her desire to marry him and have children. She also became involved with his family on a personal level and referred to them as family.
- Ms. Soto had pictures taken of herself, which she gave to Petitioner while he was in the Orange County Jail.
- Ms. Soto led Petitioner's family to believe that she “did everything on the case” and that without her, Petitioner would lose his case and would be executed.
- Ms. Soto obtained a court order allowing her to have contact visits with Petitioner, at which she smuggled mind-altering drugs to Petitioner inside highlighter pens.
- Petitioner ingested the drugs which compounded his pre-existing mental and organic problems, rendering him incompetent during crucial proceedings.
- When Petitioner rejected her overtures, because he was in love with Francesca Mozqueda, Ms. Soto vowed to damage his defense and later bragged about accomplishing her goal.
- Petitioner's family believed that Ms. Soto could see to it that Petitioner was convicted and executed, and urged Ms. Mozqueda to stop seeing him.
- Ms. Soto became romantically involved with one of the defense attorneys and an Orange County jail deputy during Petitioner's trial.
- Petitioner's attorneys knew about Ms. Soto's conduct, but were not concerned.

         In support of the claim, Petitioner submitted declarations from his former brother-in-law, Fabian Perez (Exhibit LL), his sister (Exhibit G), his mother (Exhibit AA), his father (Exhibit D), his wife (Exhibit GG), prisoners from the Orange County Jail (Exhibits EE, FF), Ms. Soto's ex-husband (Exhibit KK), a wife of one of the Orange County Jail prisoners (Exhibit HH), and a friend of Ms. Soto's (Exhibit JJ).

         b. California Supreme Court's Adjudication of Petitioner's Claim Was Neither an “Unreasonable Application of Clearly Established Federal Law” nor anUnreasonable Determination of the Facts” Within the Meaning of §2254(d)

         Accepting the factual allegations in the petition as true, this Court finds that Petitioner is not entitled to relief on either of his claims concerning the improper conduct of Irma Soto. The Court finds that the California Supreme Court's summary denial of the claim was neither an unreasonable application of clearly established federal law, nor an unreasonable determination of the facts, within the meaning of §2254(d), such that Petitioner is entitled to de novo review in federal habeas corpus proceedings.

         While ineffective assistance of counsel claims generally require the petitioner to show deficient representation and prejudice, we “forgo individual inquiry into whether counsel's inadequate performance undermined the reliability of the verdict” in instances “where assistance of counsel has been denied entirely or during a critical stage of the proceeding.” Mickens, 535 U.S. at 166. Circumstances of such magnitude may “arise when the [petitioner's] attorney actively represented conflicting interests.” Id. at 166; see also Sullivan, 446 U.S. at 348. In order to establish a Sixth Amendment violation under the Sullivan exception, the petitioner must demonstrate that “an actual conflict of interest adversely affected his lawyer's performance.” Sullivan, 446 U.S. at 348. As clarified in Mickens, an actual conflict is not “something separate and apart from adverse effect.” Mickens, 535 U.S. at 172 n. 5. Rather, “[a]n ‘actual conflict, ' for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel's performance.” Id. Thus, even if Petitioner can establish an actual conflict of interest, he cannot obtain relief unless he can show that his attorneys conflict adversely affected his performance. Id. at 162.

         While the impropriety of Ms. Soto's alleged conduct during pretrial and trial proceedings, if true, is shocking, Petitioner has failed to demonstrate that Ms. Soto's behavior had any effect on defense counsel's performance, or the outcome of the trial.

         First, with respect Petitioner's claim that Ms. Soto's alleged romantic interest in him during pretrial and trial proceedings amounted to a conflict of interest for his attorneys, this Court finds the Ninth Circuit's holding in Earp v. Ornoski, 431 F.3d 1158, dispositive. In Earp, Petitioner carried on a romantic relationship with one of his trial attorneys before and during his capital trial. In federal habeas corpus, Earp argued that he was deprived of the effective assistance of counsel because his intimate relationship with his counsel created a conflict of interest in her duties as counsel and her personal interests in the relationship. Holding the California Supreme Court's finding of no conflict was neither contrary to, nor an unreasonable application of, clearly established federal law, the Court of Appeals noted, “[t]he Supreme Court has never held that the Sullivan exception applies to conflicts stemming from intimate relations with clients.” Id. at 1184-85 (citations omitted). Here, Ms. Soto's romantic interest in Petitioner did not create a conflict of interest for his trial attorneys. Petitioner presents no evidence suggesting his attorneys failed to act in his best interest nor that Ms. Soto's involvement with Petitioner had any adverse impact on his defense. Rather, Petitioner makes a series of conclusory allegations, unsupported by sufficient evidence. Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995) (conclusory allegations unsupported by a statement of specific facts do not warrant habeas relief); see Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977) (summary disposition of habeas petition appropriate where allegations are vague or conclusory; “the petition is expected to state facts that point to a real possibility of constitutional error”) (citation, internal quotations and brackets omitted); Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (per curiam) (granting a habeas corpus petition “on the basis of little more than speculation” is improper); Cooks v. Spalding, 660 F.2d 738, 740 (9th Cir. 1981) (per curiam) (claim that “amounts to mere speculation” does not warrant habeas corpus relief), cert. denied, 455 U.S. 1026 (1982); see also Rules 2(c)(1), (2), Rules Governing Section 2254 Cases in the United States District Courts (federal habeas corpus petition must “specify all the grounds for relief available to the petitioner” and must “state the facts supporting each ground”).

         Second, with respect to Ms. Soto's alleged smuggling of drugs to Mr. Noguera while he was in the Orange County Jail, Petitioner has failed to provide sufficient evidence his trial attorneys were aware of Ms. Soto's conduct, or that her conduct prejudiced the defense in any way. While Petitioner proffers the declaration of Petitioner's wife, Francesca Mozqueda, in support of his contention that counsel knew of Ms. Soto's drug smuggling, her declaration does not support this supposition. In the declaration Ms. Mozqueda generally states that she “told Mr. Campos what Irma was doing. . . and how damaging it was to Bill's defense . . . [and] Mr. Campos simply said, ‘okay.' ” (Exhibit GG at 8.) Ms. Mozqueda's statement is vague and, if anything, refers to threats Ms. Soto allegedly made to get Ms. Mozqueda to stop seeing Petitioner. “Because Irma was creating a lot of problems for me with my parents (embarrassing my mother with her best friend, telling her family about Bill's case and telling Bill lies about me), I finally told Mr. Campos what Irma was doing.” (Exhibit GG at 8.)

         There is no evidence to support the suggestion that counsel were made aware of illegal drug smuggling activities on the part of their employee and simply responded “okay.” In fact, it is highly dubious that any attorney, upon being informed of their employee's illegal conduct, would turn a blind eye. With respect to “non-lawyer assistants, ” an attorney has an ethical responsibility to “make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer.” ABA Rule 5.3(b). Moreover, “a lawyer shall be responsible for conduct of such person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct ratifies the conduct involved; or (2) the lawyer . . . . knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.” ABA Rule 5.3(c). Ms. Mozqueda's conclusory declaration is insufficient evidence to support Petitioner's allegation that his trial counsel were aware of Ms. Soto's drug smuggling, and did nothing.

         Moreover, Petitioner fails to allege how his decision to ingest illicit drugs violated his constitutional rights or “seriously affected his mental health” so as to implicate questions of competency. Whether or not Ms. Soto smuggled drugs, according to Ms. Mozqueda's declaration, Petitioner sought and obtained illicit drugs from numerous sources and “often called [her] from jail while he was drunk and/or on drugs.” (Exhibit GG at 4, 6-7 (“Bill took drugs before and during the trial. There were two occasions in which two of Bill's friends were caught trying to smuggle drugs into the jail. One involved a girl who mailed marijuana and another a boy. Bill's mother told me she had split open the soles of Bill's shoes and inserted drugs inside. She then had one of Bill's friends take clothing and the shoes to the jail for court the following day.”)

         Petitioner has failed to establish that the California Supreme Court's resolution of Claim 3 contradicted or unreasonably applied clearly established federal law, or made an unreasonable determination of the facts. Claim 3 is DENIED.

         B. Ineffective Assistance of Counsel

         1. Standard for Relief for Ineffective Assistance of Counsel Claims

         The Sixth Amendment guarantees the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. at 686. “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. To establish ineffective assistance of counsel, Petitioner must demonstrate that (1) counsel's performance was deficient and (2) the deficient performance prejudiced the defense. Id. at 687.

         To prove deficient performance, petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. at 688; see also Yarborough v. Gentry, 540 U.S. 1 (2003) (per curium); cf. Bobby v. Van Hook, 558 U.S. 4, 13-14 (2009) (per curium) (Alito, J., concurring) (noting that guidelines such as those promulgated by the American Bar Association, purporting to establish what reasonable attorneys would do, may be helpful but are not the test for determining whether counsel's choices are objectively reasonable). The relevant inquiry is not what defense counsel could have done, but rather whether the choices made by defense counsel were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir.1998), cert. denied, 525 U.S. 1159 (1999). “Judicial scrutiny of counsel's performance must be highly deferential. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight.” See Strickland, 466 U.S. at 689; Wildman v. Johnson, 261 F.3d 832, 838 (9th Cir.2001); Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir.1994). The Court “must indulge a strong presumption that counsel's conduct falls within the wide range of professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689 (internal quotation omitted); Pinholster, 563 U.S. at 191.

         To establish that counsel's deficient performance prejudiced the defense, Petitioner must show “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686. The defendant must show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. at 688.

         As both prongs of the Strickland test must be satisfied to establish a constitutional violation, a failure to satisfy either requires a petitioner's ineffective assistance of counsel claim be denied. Strickland, 466 U.S. at 697. A federal habeas court considering an ineffective assistance claim need not address the prejudice prong of the Strickland test “if the petitioner cannot even establish incompetence under the first prong.” Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir.), cert. denied, 525 U.S. 839 (1998). Conversely, the court “need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland, 466 U.S. at 697.

         As the Supreme Court highlighted in Richter, meeting Strickland's high standard is all the more difficult under the AEDPA. “The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard.” Richter, 562 U.S. at 101. The rule of Strickland, i.e., that a defense counsel's effectiveness is reviewed with great deference, coupled with AEDPA's deferential standard, results in a “doubly” deferential judicial review process. See Pinholster, 563 U.S. at 202; Cheney v. Washington, 614 F.3d 987, 995 (9th Cir.2010).

Surmounting Strickland's high bar is never an easy task. . . . Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is all too tempting to second-guess counsel's assistance after conviction or adverse sentence. The question is whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom.
Establishing that a state court's application of Strickland was unreasonable under §2254(d) is all the more difficult. The standards created by Strickland and §2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so. The Strickland standard is a general one, so the range of reasonable applications is substantial. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under §2254(d). When §2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.

Richter, 562 U.S. at 105 (internal quotations and citations omitted).

         2. CLAIM 4: Petitioner's Trial Counsel Failed to Investigate and Present Available Mental State Defenses, Including Diminished Actuality, Insanity, Intoxication, and Unconsciousness, and to Request Related Instructions

         In Claim 4, Petitioner alleges that his rights under the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments were violated by his trial attorney's failure to investigate and present mental state defenses at the guilt phase of his capital trial. (Dkt. No. 317 at 56-73.)

         Petitioner raised this claim as Claim 2 of his March 2, 1998, exhaustion petition in the California Supreme Court. (Dkt. No. 336, Lodgment 4 at 36-86.) On October 17, 2001, the California Supreme Court summarily denied the claim on the merits and alternatively denied the claim as untimely. (Dkt. No. 336, Lodgment 8.)

         Respondent argues that Petitioner has failed to establish that the California Supreme Court's resolution of the claim contradicted or unreasonably applied controlling United State Supreme Court authority, or made any unreasonable determination of the facts, so as to get out from under the relitigation bar contained in 28 U.S.C. §2254(d). However, because this claim is integrally related to Claim 1, and Petitioner's contention that Mr. Pereyda's conflict of interest prevented him from investigating and presenting any evidence casting Petitioner or the family in a negative light, the Court grants relief with respect to Claim 4.

         3. CLAIM 5: Defense Counsel Failed to Investigate, Seek a Hearing on and Present Evidence that Petitioner was Mentally Incompetent During Crucial Pretrial and Trial Proceedings

         Claim 5 of the Fourth Amended Petition argues that Petitioner's convictions and sentences violate the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, because his trial attorney failed to investigate and present “readily available evidence” that Petitioner was mentally incompetent during crucial pretrial and trial proceedings. (Dkt. No. 317 at 73-78.)

         Petitioner raised this claim before the California Supreme Court in Claim 3 of his March 2, 1998, exhaustion petition. (Dkt. No. 336, Lodgment 4 at 86-96.) The California Supreme Court summarily denied the claim on the merits and alternatively denied the claim as untimely and barred under In re Dixon, 41 Cal.2d 756, 759 (1953) because they should have been raised on appeal. (Dkt. No. 336, Lodgment 8.)

         Respondent contends that Petitioner has failed to establish that the California Supreme Court's resolution of the claim contradicted or unreasonably applied controlling United States Supreme Court authority, or made any unreasonable determination of the facts, and, as such, he is barred from relitigating the claim in federal court. 28 U.S.C. §2254(d); Pinholster, 563 U.S. at 181-82. Because Petitioner fails to provide evidence to buttress his claim of incompetence, this Court finds that the California Supreme Court was not unreasonable in rejecting the claim on the merits.

         a. Facts Presented to the California Supreme Court

         Review of Petitioner's 1998 exhaustion petition reveals a number of conclusory statements alleged as facts in support of Claim 3. For example, Petitioner alleged “[t]here was substantial evidence available to trial counsel that Petitioner was mentally incompetent.” Moreover, Petitioner claimed he “was unable to understand the nature of the criminal proceedings” and “unable to assist counsel in conducting a defense in a rational manner, due to mental disorders, mental illnesses, and the ingestion of mind-altering drugs.” (Dkt. No. 336, Lodgment 4 at 87.) In addition, Petitioner alleged:

- “During relevant court proceedings, Petitioner was irrational and out-of-contact with reality.” - “Petitioner suffered at all relevant times from a debilitating mental illness and thought disorder.” - Counsel did not have Petitioner psychologically or psychiatrically evaluated and reasonable evaluations would have revealed incompetency.
- Had counsel conducted a minimally competent investigation, they would have learned Petitioner was mentally incompetent.
- Petitioner's mental illness was substantially compounded and aggravated by his drug use during pretrial and trial proceedings.
- Petitioner “was in and out of reality.” In support of Claim 3, Petitioner submitted declarations from three former inmates in the Orange County Jail (Exhibits DD, EE, and FF), his mother (Exhibit AA), his wife (Exhibit GG), a psychiatrist (Exhibit B), and a psychologist (Exhibit Y).

         b. California Supreme Court's Adjudication of Petitioner's Claim was Not Unreasonable Within the Meaning of §2254(d)

         Underlying Petitioner's claim of ineffective assistance is the assumption that he was, indeed, incompetent, such that trial counsel's failure to investigate and present evidence of that incompetence was “deficient” performance and “prejudicial.” Thus, in order to find the California Supreme Court's summary denial “unreasonable” within the meaning of §2254(d), this Court must find that Petitioner presented evidence of Petitioner's incompetence. However, as discussed below, infra section IV.C., this Court finds that Petitioner's claim of incompetence is unsupported by the evidence. Claim 5 is DENIED.

         4. CLAIMS 6 and 7: Petitioner's Trial Counsel Unreasonably (1) Failed to Investigate Any Other Motive for the Homicide, Other than that Relied Upon by the Prosecution; (2) Failed to Present Available Evidence that the Homicide Was Caused by Very Different Reasons that Could Not Have Reasonably Resulted in a Finding of First Degree Murder with a Special Circumstance; and (3) Failed to Investigate and Rebut False Prosecution Assertions Regarding the Victim, Jovita Navarro, Her Daughter, Dominique Navarro, and the Homicide

         In Claims 6 and 7, Petitioner alleges that his rights under the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments were violated by his trial attorney's failure to investigate and present evidence in support of alternative motives for the homicide that would have belied the prosecution's first degree murder theory and defeated the financial gain special circumstance allegation that made Petitioner eligible for the death penalty. (Dkt. No. 317 at 78-96.)

         Petitioner raised these issues for the first time in state court in Claim 1 of his initial state habeas petition. (Dkt. No. 148, Lodgment 4 at 10- 36.) The California Supreme Court summarily rejected the claim on the merits. (Dkt. No. 336, Lodgment 3.) Petitioner raised these claims again as Claims 4 and 5 of his March 2, 1998, exhaustion petition in the California Supreme Court. (Dkt. No. 336, Lodgment 4 at 96-138.) On October 17, 2001, the California Supreme Court summarily denied the claims on the merits and alternatively denied the claims as untimely. (Dkt. No. 336, Lodgment 8.)

         Respondent contends that Petitioner has failed to establish that the California Supreme Court's resolution of Claims 6 and 7 contradicted or unreasonably applied controlling United State Supreme Court authority, or made any unreasonable determination of the facts, so as to get out from under the relitigation bar contained in 28 U.S.C. §2254(d).

         Because these claims are integrally related to Claim 1, and Petitioner's contentions that Ms. Salinas controlled the defense and, consequently, Mr. Pereyda's conflict of interest prevented him from investigating and presenting a proper defense or any evidence casting Petitioner or the family in a negative light, the Court grants relief with respect to Claims 6 and 7.

         5. CLAIM 8: Petitioner's Trial Counsel Unreasonably Failed to Object to the Prosecutor's Improper and Prejudicial Arguments and Evidence

         In Claim 8, Petitioner argues that Mr. Pereyda provided constitutionally deficient representation in failing to object to multiple improper arguments made by the prosecutor during penalty phase closing argument. Petitioner cites the trial record and broadly asserts that “counsel had no tactical reason for failing to object to these acts of prosecutorial misconduct, ” such that “counsel's performance fell below an objective standard of reasonableness” and Petitioner suffered prejudice at the guilt and penalty phases of the trial. (Dkt. No. 317 at 100-101.)

         As discussed infra, Petitioner raised the underlying prosecutorial misconduct claims before the California Supreme Court on direct appeal, and argued that his attorneys were ineffective for failing to object. (Dkt. No. 148, Lodgment 1.) The state court found Petitioner had forfeited all but one of the prosecutorial misconduct claims due to the failure to object, and also found all of the claims to be without merit because, in each instance, the prosecutor acted properly. People v. Noguera, 4 Cal.4th 599, 638, 643-47 (1992). Petitioner raised the prosecutorial misconduct claims again in his June 9, 2003, exhaustion petition. (Dkt. No. 336, Lodgment 9.) The California Supreme Court summarily denied the claims on the merits and alternatively denied the claims as untimely, repetitive, and Dixon barred. (Dkt No. 336, Lodgment 12.) Petitioner raised the ineffective assistance claim for the first time as Claim 9 in his initial state habeas petition, and again as Claim 3 of the 2003 exhaustion petition. (Dkt. No. 148, Lodgment 4 at 88-91; Dkt. No. 336, Lodgment 9 at 93-96.) On both occasions, the Court summarily denied the claim on the merits and, with respect to the exhaustion petition, alternatively denied the claim as untimely and successive. (Dkt. No. 336, Lodgments 3 & 12.)

         Respondent argues that Petitioner has failed to meet his burden of showing that the California Supreme Court's resolution of Claim 8 contradicted or unreasonably applied controlling United States Supreme Court authority, or made any unreasonable determination of the facts, and, as such, he is barred from relitigating the claim in federal court. 28 U.S.C. §2254(d); Pinholster, 563 U.S. at 181-82. This Court agrees.

         Because there was no reversible misconduct on the part of the prosecutor in making his penalty phase closing argument, as discussed infra, it was not deficient performance for defense counsel to fail to object. Strickland and its progeny do not require trial counsel to make futile objections; thus, the decisions of Petitioner's counsel were reasonable under these circumstances. See Sanders, 21 F.3d at 1456; Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989) (finding that a challenge to a futile objection fails both prongs of Strickland). Moreover, as the Ninth Circuit explained in United States v. Necoechea, 986 F.2d 1273 (9th Cir. 1993), “[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 ‘wide range' of permissible professional legal conduct.” Id. at 1281. Under Nechoechea, trial counsel's decision not to object to the prosecutor's comments, possibly to avoid highlighting them, was a reasonable strategic decision. Cunningham v. Wong, 704 F.3d 1143, 1159 (9th Cir.), cert. Denied, ___ U.S. __, 134 S.Ct. 169 (2013).

         Under Strickland's second prong, even if counsel should have objected, there is no reasonable likelihood that the outcome of the proceeding would have been different. The trial judge properly instructed the jury that closing arguments are not evidence. (CT 1379; RT 8678.) Petitioner has failed to demonstrate that the California Supreme Court's denial of this claim contradicted or unreasonably applied controlling United States Supreme Court authority, or amounted to an unreasonable determination of the facts under section 2254(d). Claim 8 is DENIED.

         6. CLAIM 9: Petitioner's Trial Counsel Unreasonably Failed to Seek Recusal of the Trial Judge

         In Claim 9, Petitioner argues that his trial counsel provided constitutionally deficient representation in failing to seek recusal of the trial judge. Petitioner suggests that the trial court made inappropriate remarks throughout the trial which demonstrated a bias against the defense. (Dkt. No. 317 at 101-107.)

         Petitioner raised this claim for the first time in state court as Claim 6 of his March 1998 exhaustion petition. (Dkt. No. 336, Lodgment 4 at 139-42.) The California Supreme Court summarily denied the claim on the merits and alternatively denied the claim as untimely. (Dkt. No. 336, Lodgment 8.)

         Respondent argues that Petitioner has failed to show that the California Supreme Court's resolution of the claim contradicted or unreasonably applied controlling United States Supreme Court authority, or made an unreasonable determination of the facts. 28 U.S.C. §2254(d).

         Under California law, “[a] judge shall be disqualified if . . . [f]or any reason . . . [a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” Code Civ. Proc. § 170.1, subd. (a)(6)(A)(iii). “The standard for disqualification ... is fundamentally an objective one.” United Farm Workers of America v. Superior Court, 170 Cal.App.3d 97, 104 (1985). Thus, “[d]isqualification is mandated if a reasonable person would entertain doubts concerning the judge's impartiality.” Christie v. City of El Centro, 135 Cal.App.4th 767, 776 (2006). “While this objective standard clearly indicates that the decision on disqualification not be based on the judge's personal view of his own impartiality, it also suggests that the litigants' necessarily partisan views not provide the applicable frame of reference.” United Farm Workers, 170 Cal.App.3d at 104 (fn.omitted). “[M]ost matters relating to judicial disqualification [do] not rise to a constitutional level.” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876 (2009). “[T]he due process clause should not be routinely invoked as a ground for judicial disqualification. Rather, it is the exceptional case presenting extreme facts where a due process violation will be found.” People v. Freeman, 47 Cal.4th 993, 1005 (2010).

         In making his claim regarding the trial court's alleged bias in favor of the prosecution, and against the defense, Petitioner cites: remarks the judge made to the jury regarding the prosecutor's wife's pregnancy-related problems; his comment during a bench conference, after limiting cross-examination of prosecution witness Abram, referencing the inevitable appeal; an inappropriate comment the judge made during cross-examination of prosecution witness Jackson; and a statement the court made outside the presence of the jury regarding Petitioner's alibi witness. Petitioner argues that the court's “comments injected an inappropriate note of levity into proceedings where Petitioner's life was at stake, and they put Petitioner's counsel on notice of the court's bias against Petitioner and the need to make a motion for recusal.” (Dkt. No. 317 at 107.) Petitioner argues that this bias violated his due process right to a fair trial.

         To demonstrate ineffective assistance of counsel for failure to seek recusal, a petitioner must show that his attorney provided constitutionally deficient representation and, as a result, the petitioner suffered prejudice. There is a “strong presumption that counsel's conduct falls within the wide range of acceptable professional assistance.” Strickland, 466 U.S. at 689.

         Petitioner has failed to demonstrate that the California Supreme Court's denial of this claim contradicted or unreasonably applied controlling United States Supreme Court authority, or amounted to an unreasonable determination of the facts under section 2254(d). The state court could have reasonably concluded that none of the judge's remarks biased the jury in the prosecution's favor, such that the judge should have been recused, and such that trial counsel's failure to object to the remarks constituted ineffective representation. Failure to make a futile objection does not constitute ineffective assistance of counsel. See, e.g., James v. Borg, 24 F.3d 20, 27 (9th Cir.), cert. denied, 513 U.S. 935 (1994); Morrison v. Estelle, 981 F.2d 425, 429 (9th Cir. 1992), cert. denied, 508 U.S. 920 (1993). Moreover, the California Supreme Court could have reasonably concluded that Petitioner failed to meet his burden of demonstrating that he suffered prejudice from the judge's remarks. Claim 9 is DENIED.

         7. CLAIM 10: Trial Counsel Failed to Investigate and Present Available Mitigating Evidence at the Penalty Phase

         In Claim 10, Petitioner alleges that his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments were violated by his trial attorney's failure to investigate and present available mitigating evidence at the penalty phase. (Dkt. No. 317 at 107-21.)

         Petitioner first raised this claim in state court as Claim 2 of his initial state habeas petition. (Dkt. No. 148, Lodgment 4 at 36-57.) On September 29, 1993, the California Supreme Court summarily denied the claim on the merits. (Dkt. No. 336, Lodgment 3.) Petitioner raised the claim again as Claim 4 of his June 2003, exhaustion petition in the California Supreme Court. (Dkt. No. 336, Lodgment 9 at 50-74.) The California Supreme Court again summarily denied the claim on the merits and, alternatively, denied the claim as untimely, barred for having previously been raised and rejected in a prior petition, and successive. (Dkt. No. 336, Lodgment 12.)

         Respondent contends that Petitioner has failed to establish that the California Supreme Court's resolution of the claim contradicted or unreasonably applied controlling United State Supreme Court authority, or made any unreasonable determination of the facts, so as to get out from under the relitigation bar contained in 28 U.S.C. §2254(d).

         Because these claims are integrally related to Claim 1, and Petitioner's contention that Mr. Pereyda's conflict of interest prevented him from investigating and presenting any evidence casting Petitioner or the family in a negative light, the Court grants relief with respect to Claim 10.

         8. CLAIM 11: Trial Counsel Failed to Investigate and Present Evidence that Would Have Significantly Undermined the Credibility of the Prosecution's Key Witness, Ricky Abram

         In Claim 11, Petitioner argues that his trial counsel provided constitutionally deficient representation in failing to investigate and present evidence undermining the credibility of the prosecution's “key witness, ” Ricky Abram. Petitioner suggests counsel could have presented psychiatric evidence from Mr. Abram's medical file from California Youth Authority and expert testimony suggesting Mr. Abram was an unreliable witness. (Dkt. No. 317 at 123-28.) Petitioner argues that but for his counsel's failure to impeach Abram, the jury “would have been unable to convict Petitioner of first degree homicide or sentence him to death based on Abram's weak testimony.” (Dkt. No. 317 at 129.)

         Petitioner first raised this claim in state court as Claim 4 of his initial state habeas petition. (Dkt. No. 148, Lodgment 4 at 64-76.) On September 29, 1993, the California Supreme Court summarily denied the claim on the merits. (Dkt. No. 336, Lodgment 3.) Petitioner raised the claim again as Claim 5 of his June 2003, exhaustion petition in the California Supreme Court. (Dkt. No. 336, Lodgment 9 at 74-90.) The California Supreme Court summarily denied the claim on the merits and, alternatively, denied the claim as untimely and successive. (Dkt. No. 336, Lodgment 12.)

         Respondent contends that Petitioner has failed to establish that the California Supreme Court's resolution of the claim contradicted or unreasonably applied controlling United State Supreme Court authority, or made any unreasonable determination of the facts, so as to get out from under the relitigation bar contained in 28 U.S.C. §2254(d). Respondent notes that trial counsel sought to undermine Mr. Abram's credibility at trial, including questioning him regarding his mental state after he was arrested, held in custody, and medicated due to stress, depression, and emotional and sleeping problems.[12] (RT 5028-30, 5034-35, 5069-70.) Mr. Abram testified that he was housed in the hospital unit, taking anti-depressants and other medication which caused him to be drowsy for long periods of time.[13] (RT 5071, 5073.) He admitted he was going through some memory loss, but denied telling an investigator that he had “made up some rather wild stories.” (RT 5036-38.)

         In evaluating the reasonableness of a state court's rejection of a claim of ineffective assistance of counsel, this Court must give trial counsel “the benefit of the doubt” and must “affirmatively entertain the range of possible reasons” he may have had for proceeding as he did. Pinholster, 563 U.S. at 196. Nevertheless, assuming without deciding that counsel provided deficient representation in failing to present available evidence that could have undermined the credibility of Mr. Abram, Petitioner has not demonstrated that the California Supreme Court was unreasonable in finding he suffered no prejudice.

         At trial, Abram testified consistently with statements he made to police, regarding a meeting he had with Petitioner and Dominique in March 1983. On the way to pick up Dominique at her house, Petitioner asked Abram for his help in Petitioner's plan to kill Jovita. After they picked up Dominique, the three drove to Bob's Big Boy, where they all discussed the plan to murder Jovita. According to Abram, Petitioner wanted the murder scene to look like Jovita had been killed by a burglar in the middle of the night, and Dominique raped. Petitioner would kill Jovita with a shotgun and have intercourse with Dominque, while Abram staged the house, taking any items of value. Dominique's role was to let the two men in the house and, after the murder, to run hysterically to neighbors, reporting the break-in, rape, and murder. Abram testified that Petitioner promised him $5, 000 (from the $25, 000 sum Petitioner and Dominique expected to get from Jovita's insurance) and the opportunity to live in Jovita's house with Petitioner and Dominique because “the house would be passed on to the daughter after the mom's death.” In early April, Abram was arrested for auto theft, convicted and imprisoned. He was in custody at the time Jovita was murdered, and did not learn of her death until Detective Keltner interviewed him on December 14, 1983, at the Ione Juvenile Detention Facility. (RT 4930-80.)

         The evidence presented at trial corroborated Abram's statements and testimony about the robbery/murder plan he discussed with Petitioner and Dominique at Big Boy. After the killing, Dominique ran to neighbors, acting hysterically and claiming an intruder had entered. (RT 5437, 5445.) Moreover, there was evidence Dominique was very interested in the financial benefits to her resulting from her mother's death. (RT 6162, 6164.) There was no evidence introduced at trial that supported a motive for Abram to lie or wrongly implicate Petitioner. Moreover, there was no evidence that Abram's statement to police was provided to him by detectives. At time of his interview, Abram's California Youth Authority supervisor, Jeff Harada, was present. (RT 5108, 5110-11.) Harada testified that Detective Keltner did not provide details of the crime before he began recording Abram's statement. (RT 5124.)

         While perhaps Petitioner's trial counsel could have presented additional evidence impeaching Abram, this Court does not find that the California Supreme Court was unreasonable in determining that this cumulative evidence would not have changed the jury's verdict. Evidence that Mr. Abram suffered from Borderline Personality Disorder and was treated for mental health problems while in the California Youth Authority would not have resulted in a different verdict in this case. The California Supreme Court's finding of no constitutional error was not an unreasonable application of clearly established federal law under section 2254(d)(1), nor an unreasonable determination of the facts under section 2254(d)(2). Claim 11 is DENIED.

         9. CLAIM 12: Trial Counsel Failed to Present Evidence that Prosecution Expert Witness Norman Sperber Perjured Himself

         In Claim 12, Petitioner argues that trial counsel provided constitutionally deficient representation in failing to present evidence that one of the prosecution's bite-mark experts, Dr. Norman Sperber, perjured himself when he testified that he was the chief forensic dentist for the FBI. (Dkt. No. 317 at 132, citing RT 6206.) Petitioner contends that, because there were dueling experts on the bite mark issue, and “the credibility of the experts testifying on the issue was a key factual determination for the jury, ” impeachment of Dr. Sperber would have undermined the prosecution's case, providing the jury reasonable doubt regarding the origin of Jovita's leg injury, and altering the verdict in Petitioner's trial. (Dkt. No. 317 at 133.)

         Petitioner first raised this claim in state court as Claim 7 of his initial state habeas petition. (Dkt. No. 148, Lodgment 4 at 84-87.) On September 29, 1993, the California Supreme Court summarily denied the claim on the merits. (Dkt. No. 336, Lodgment 3.) Petitioner raised the claim again as Claim 6 of his June 2003, exhaustion petition in the California Supreme Court. (Dkt. No. 336, Lodgment 9 at 90-93.) The California Supreme Court summarily denied the claim on the merits and, alternatively, denied the claim as untimely and successive. (Dkt. No. 336, Lodgment 12.)

         Respondent contends that Petitioner has failed to establish that the California Supreme Court's resolution of the claim contradicted or unreasonably applied controlling United State Supreme Court authority, or made any unreasonable determination of the facts, so as to get out from under the relitigation bar contained in 28 U.S.C. §2254(d). Respondent suggests that it is not clear that Dr. Sperber provided false testimony and, in fact, “his testimony in context suggests otherwise” because his work with the FBI “was but part of a long curriculum vitae” that demonstrated he “was a consultant to a number of organizations.” (Dkt. No. 330 at 42.) Respondent argues that “[e]vidence he was a consultant to the FBI, rather than a regular employee, would not have contradicted his trial testimony, ....would not have impeached him... [and] would have had no effect on the trial.” (Dkt. No. 330 at 43.)

         An examination of the trial record reveals that Dr. Sperber testified in Petitioner's trial on March 19, 1987. (RT 6186.) After discussing Dr. Sperber's occupation as “a dentist in general practice, ” the prosecutor asked Dr. Sperber about his specialty in forensic odontology. (RT 6202.) Dr. Sperber explained his area of expertise to the jury, and the prosecutor followed up by asking Dr. Sperber if he was “associated at all with any coroner's facilities.” (RT 6205.) In response, Dr. Sperber indicated that he was the chief forensic dentist for San Diego and Imperial Counties, for the missing persons system for the California Department of Justice, and for the United States Department of Justice, in particular, the FBI. (RT 6205-06.) With reference to the FBI, Dr. Sperber described his involvement in creating a national system for identifying people who are either alive or dead. (RT 6206.)

         While Petitioner contends the evidence demonstrates that prosecution's expert provided false testimony, this Court cannot agree. In context, it is clear that Dr. Sperber did not claim to be an “employee” of the FBI. Rather, and in fact, he told the jury that he had a general dentistry practice and was associated various law enforcement agencies, including the FBI, for which he created computer systems designed to help identify individuals through dental data. The testimony related to his work with the FBI was part of a list of roles he played in various state and federal law enforcement agencies. While Dr. Sperber did state that he was “chief forensic dentist” for the FBI, there is no reason to believe that this testimony misled the jury to think that Dr. Sperber was an FBI employee, rather than a consultant, nor is there reason to believe that this was the jury's understanding. As such, the California Supreme Court was not unreasonable in finding that Petitioner's trial attorney did not provide deficient representation in failing to present evidence that Dr. Sperber “perjured himself.” Moreover, Petitioner failed to demonstrate that he suffered any prejudice from counsel's alleged failure. As Respondent points out, evidence Dr. Sperber was a consultant to the FBI would not have contradicted or impeached him and would not have resulted in a different verdict in this case. The California Supreme Court's finding of no constitutional error was not an unreasonable application of clearly established federal law under section 2254(d)(1), nor an unreasonable determination of the facts under section 2254(d)(2). Claim 12 is DENIED.

         10. CLAIM 13: Petitioner's Trial Counsel Unreasonably Failed to Make Adequate Objections to Prejudicial and Inadmissible Testimony During the Guilt Phase of Trial In Claim 13, Petitioner argues that his trial attorney failed to make “adequate objections” to “highly prejudicial arguments and evidence” during the guilt phase of the trial. (Dkt No. 317 at 135.) He cites 17 examples in subclaims (a)-(q). (Dkt. No. 317 at 136-38.)

         Petitioner first raised this claim as Claim 7 of his June 2003, exhaustion petition in the California Supreme Court. (Dkt. No. 336, Lodgment 9 at 93-96.) The California Supreme Court summarily denied the claim on the merits and, alternatively, denied the claim as untimely and successive. (Dkt. No. 336, Lodgment 12.)

         Respondent contends that Petitioner has failed to establish that the California Supreme Court's resolution of the claim contradicted or unreasonably applied controlling United State Supreme Court authority, or made any unreasonable determination of the facts, so as to get out from under the relitigation bar contained in 28 U.S.C. §2254(d).

         “An attorney's failure to object to the admission of inadmissible evidence is not necessarily ineffective” but is presumed to be sound trial strategy which a Petitioner must overcome. Morris v. California, 966 F.2d 448, 456 (9th Cir. 1991), cert. denied, 506 U.S. 831 (1992). Trial counsel may have chosen not to object, but this Court “need not determine the actual explanation for trial counsel's failure to object, so long as his failure to do so falls within the range of reasonable representation.” Id.; see e.g., United States v. Molina, 934 F.2d 1440, 1448 (9th Cir. 1991) (“From a strategic perspective...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.”). Moreover, a petitioner must demonstrate that any objection-assuming sustained-would have altered the outcome at trial. See Jackson v. Brown, 513 F.3d 1057, 1082 (9th Cir. 2008) (“[E]ven if [counsel's] failure to object was deficient, we cannot find that, but for his errors, there is a reasonable probability that the jury would not have still convicted [the petitioner].”).

         a. Failure to Object to Motion in Limine

         Petitioner claims that his trial attorney should have objected to the prosecutor's motion to preclude the defense from mentioning in opening statements, Ricky Abram's California Youth Authority psychiatric records and his misdemeanor record. (Dkt. 317 at 136.) Petitioner's claim is conclusory. See James v. Borg, 24 F.3d at 26 (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”); Jones v. Gomez, 66 F.3d at 205 (habeas relief not warranted where claims for relief are unsupported by facts); see also Gentry v. Sinclair, 705 F.3d 884, 899-900 (9th Cir.) (rejecting ineffective assistance of counsel claim based on counsel's failure to offer mitigating evidence of petitioner's mental condition because petitioner failed to provide declaration or affidavit from counsel addressing reason counsel failed to present such evidence), cert. denied, __ U.S. __, 134 S.Ct. 102 (2013). He fails to explain why counsel should have brought this information up during opening statements, and does not demonstrate that he suffered any prejudice from counsel's decision not to oppose the motion in limine. Petitioner has not demonstrated that the California Supreme Court's ruling, finding that he failed to make a showing of ineffective assistance of counsel for failure to object to the motion in limine, was (1) contrary to, or an unreasonable application of clearly established federal law; or (2) premised upon an unreasonable determination of the facts in light of the evidence presented. Accordingly, habeas relief is not warranted. See 28 U.S.C. § 2254(d)(1) & (2).

         b. Failure to Object to Lack of Foundation

         Petitioner argues that trial counsel should have objected to La Habra Police Officer Dennis Guy Serles's testimony regarding Dominique Navarro's bedroom because it lacked foundation. (Dkt. No. 317 at 136, citing RT 4410.) Officer Serles testified that he was the first officer to respond to the crime scene on April 24, 1983. (RT 4394-95.) He waited for backup, and once Sergeant Keltner arrived, they entered the residence together. (RT 4395-96.) In relevant part, Officer Serles testified that he saw signs of struggle in Jovita Navarro's bedroom, but not in any other rooms in the house, including Dominique's bedroom. (RT4410-11.) Petitioner's claim that counsel provided ineffective assistance in failing to make a foundation objection to Officer Serles's testimony is conclusory. The California Supreme Court's conclusion that Petitioner did not demonstrate that trial counsel's performance fell below an objective standard of reasonableness, and that the outcome of Petitioner's trial would not have been effected by a foundation objection, was not contrary to or an unreasonable application of Strickland. Accordingly, Petitioner is not entitled to habeas corpus relief on this claim.

         c. Failure to Object to Leading Questions

         Petitioner claims that trial counsel provided ineffective representation in failing to object to the prosecutor's use of leading questions during his examination of pathologist Richard I. Fukomoto. (Dkt. No. 317 at 136.) Petitioner's claim is conclusory. Not only does Petitioner fail to provide specific examples of the questions he finds objectionable, he fails to indicate how he was prejudiced by counsel's failure to object.[14] Petitioner has not demonstrated that the California Supreme Court's ruling, finding that he failed to make a showing of ineffective assistance of counsel for failure to object to the ...


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