Ernest DeWayne Jones v. Robert K. Wong

Filing 28

ANSWER to Petition for Writ of Habeas Corpus filed by Respondent Robert K. Wong.(Tetef, Herbert)

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EDMUND G. BROWN JR.
Attorney General of California
DANE R. GILLETTE
Chief Assistant Attorney General
PAMELA C. HAMANAKA
Senior Assistant Attorney General
A. SCOTT HAYWARD
Deputy Attorney General
HERBERT S. TETEF
Deputy Attorney General
State Bar No. 185303
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Respondent

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IN THE UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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ERNEST DEWAYNE JONES,

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Petitioner, DEATH PENALTY CASE
v.

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ROBERT K. WONG, Acting Warden
of California State Prison at San
Quentin,

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Respondent.

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CV-09-2158-CJC
ANSWER TO PETITION FOR
WRIT OF HABEAS CORPUS
The Honorable Cormac J. Carney, U.S.
District Judge

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TABLE OF CONTENTS
Page
Procedural And Jurisdictional Statement .................................................................. 1
A.
Custody ....................................................................................... 1
B.
Trial Court Proceedings .............................................................. 1
C.
State Post-Conviction Proceedings............................................. 2
1.
Appeal To The California Supreme Court ....................... 2
2.
California Supreme Court Habeas Corpus Petitions ........ 2
D.
Federal Habeas Corpus Proceedings .......................................... 3
Preamble To Answer ................................................................................................. 3
Statement Of Facts ..................................................................................................... 5
Affirmative Defenses ............................................................................................... 14
A.
Failure To Allege Violation Of Federal Law ........................... 15
B.
Lack Of Subject Matter Jurisdiction......................................... 15
C.
Procedural Default .................................................................... 15
D.
Non-Retroactivity: The Teague Doctrine ................................ 17
E.
Harmless Error .......................................................................... 17
The Standard Of Review ......................................................................................... 17
Claims For Relief ..................................................................................................... 20
Claim One: Ineffective Assistance Of Trial Counsel At Guilt
And Penalty Phases ............................................................................. 20
Claim Two: Irreconcilable Conflict With Trial Counsel .................... 22
Claim Three: Failure To Disclose Exculpatory Evidence .................. 24
Claim Four: Incompetence To Stand Trial ......................................... 26
Claim Five: Medicated At Trial .......................................................... 27
Claim Six: Trial Judge’s Conflict Of Interest And Psychological
Impairment .......................................................................................... 29
Claim Seven: Inadequate Inquiry Into Juror Bias ............................... 30
Claim Eight: Unreasonable Rulings On Cause Challenges ................ 32
Claim Nine: Insufficiency Of The Evidence ...................................... 33
Claim Ten: Inflammatory Propensity Evidence ................................. 35
Claim Eleven: Denial Of Petitioner’s Right To Testify About
His Mental Health History .................................................................. 37
Claim Twelve: Erroneous Jury Instructions And Verdict Forms ....... 39
Claim Thirteen: Unreliable DNA Evidence........................................ 41
Claim Fourteen: Prosecutorial Misconduct ........................................ 43
Claim Fifteen: Prejudicial Aggravating Evidence .............................. 46
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TABLE OF CONTENTS
(continued)
Page
Claim Sixteen: Ineffective Assistance Of Trial Counsel At
Penalty Phase ...................................................................................... 48
Claim Seventeen: Admission Of Prejudicial Penalty Phase
Evidence .............................................................................................. 49
Claim Eighteen: Juror Misconduct ..................................................... 51
Claim Nineteen: Outbursts By Victim’s Daughters ........................... 52
Claim Twenty: Inflammatory Photographs Of The Victim ................ 54
Claim Twenty-One: Erroneous Penalty Phase Instructions................ 55
Claim Twenty-Two: Erroneous Penalty Phase Instructions And
Arbitrary Death Penalty Scheme ........................................................ 57
Claim Twenty-Three: Death Sentence Is Cruel And Unusual
Given Petitioner’s Mental Retardation And Mental Impairments...... 59
Claim Twenty-Four: Constitutional And International Law
Violations Because Of The Failure To Narrow The Class Of
Offenders Eligible For The Death Penalty ......................................... 60
Claim Twenty-Five: Use Of Race, Gender, And Other
Unconstitutional Considerations In Decision To Seek The Death
Penalty ................................................................................................. 62
Claim Twenty-Six: Unlawful Death Sentence Because
International Law Bars Imposition Of The Death Penalty On
Mentally Disordered Individuals ........................................................ 64
Claim Twenty-Seven: Constitutional And International Law
Violations Because Of Lengthy Period Of Confinement Under
Sentence Of Death .............................................................................. 66
Claim Twenty-Eight: Ineffective Assistance Of Appellate
Counsel................................................................................................ 67
Claim Twenty-Nine: Inaccurate And Incomplete Appellate
Record ................................................................................................. 70
Claim Thirty: Multiple Constitutional Errors Cumulatively
Rendered Petitioner’s Trial Unfair...................................................... 72
Conclusion ............................................................................................................... 74

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TABLE OF AUTHORITIES

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Page
CASES
Atkins v. Virginia
536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) ................................. 59
Bell v. Cone
535 U.S. 685, 122 S. Ct. 1843, 152 L. Ed. 2d (2002) ................................. passim
Bell v. Cone
543 U.S. 447, 125 S. Ct. 847, 160 L. Ed. 2d 881 (2005) .................................. 19
Bennett v. Mueller
322 F.3d 573 (9th Cir. 2003) ....................................................................... passim
Bragg v. Galaza
242 F.3d 1082 (9th Cir. 2001) .............................................................................. 5
Carey v. Musladin
549 U.S. 70, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006) ..................................... 19
Clark v. Murphy
331 F.3d 1062 (9th Cir. 2003) ...................................................................... 18, 19
Dugger v. Adams
489 U.S. 401, 109 S. Ct. 1211, 103 L. Ed. 2d 435 (1989) ........................... 40, 54
Early v. Packer
537 U.S. 3, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002) ................................. 18, 19
Engle v. Isaac
456 U.S. 107, 102 S. Ct. 1558, 71 L. Ed. 783 (1982) .................................. 40, 54
Estelle v. McGuire
502 U.S. 62, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991) ............................... 40, 54
Hernandez v. Small
282 F.3d 1132 (9th Cir. 2002) ............................................................................ 19
Holland v. Jackson
542 U.S. 649, 124 S. Ct. 2736, 159 L. Ed. 2d 683 (2004) ......................... passim

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TABLE OF AUTHORITIES
(continued)
Page
In re Dixon
41 Cal. 2d 756, 264 P.2d 513 (1953)........................................................... passim
In re Harris
5 Cal. 4th 813, 21 Cal. Rptr. 2d 373 (1993) ................................................ passim
In re Lindley
29 Cal. 2d 709, 177 P.2d 918 (1947).................................................................. 34
In re Seaton
34 Cal. 4th 193, 17 Cal. Rptr. 3d 633 (2004) ............................................... 44, 62
Jones v. California
540 U.S. 952, 124 S. Ct. 395, 157 L. Ed. 2d 286 (2003) ..................................... 2
Lambert v. Blodgett
393 F.3d 943 (9th Cir. 2004) .................................................................. 18, 19, 20
Lockyer v. Andrade
538 U.S. 63, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003) ............................. 18, 19
Miller-el v. Cockrell
537 U.S. 322, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003) .......................... passim
Miller-El v. Dretke
545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005) ................................. 20
Ortiz v. Stewart
149 F.3d 923 (9th Cir. 1998) .............................................................................. 70
People v. Jones
29 Cal. 4th 1229, 131 Cal. Rptr. 2d 468 (2003) .......................................... passim
Price v. Vincent
538 U.S. 634, 123 S. Ct. 1848, 155 L. Ed. 2d 877 (2003) ................................. 17
Rice v. Collins
546 U.S. 333, 126 S. Ct. 969, 163 L. Ed. 2d 824 (2006) ................................... 20
Schriro v. Landrigan
550 U.S. 465, 127 S. Ct. 1933, 167 L. Ed. 2d 836 (2007) .......................... passim
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TABLE OF AUTHORITIES
(continued)

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Page
Taylor v. Maddox
366 F.3d 992 (9th Cir. 2004) ........................................................................ 19, 20
Teague v. Lane
489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989) .......................... passim
Williams v. Taylor
529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) ........................... 18, 19
Woodford v. Visciotti
537 U.S. 19, 123 S. Ct. 357, 154 L. Ed. 2d 279 (2002) ..................................... 17
Wright v. Van Patten
552 U.S. 120, 128 S. Ct. 743, 169 L. Ed. 2d 583 (2008) ................................... 18
STATUTES
28 U.S.C. § 2254............................................................................................... passim
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) .... 3, 17, 18, 19

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Cal. Penal Code
§ 187 ..................................................................................................................... 1
§ 190.2 .................................................................................................................. 1
§ 190.3 ................................................................................................................ 68
§ 261 ..................................................................................................................... 1
§ 667.5 .................................................................................................................. 1
§ 12022 ................................................................................................................. 1

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COURT RULES

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Local Rule 83-17.7 .................................................................................................... 1

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OTHER AUTHORITIES
CALJIC No. 4.21.1 ............................................................................................ 15, 39

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Vincent Cullen, the Acting Warden of the California State Prison in San

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Quentin, California,1 by and through his attorneys of record, files this Answer to the

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Petition for Writ of Habeas Corpus filed on March 10, 2010, and hereby generally

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and specifically denies each and every allegation therein, including but not limited

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to the allegations contained in subject headings, subheadings, and footnotes, except

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as expressly set forth herein. Respondent answers the Petition by admitting,

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denying, and affirmatively alleging as follows:

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Dated: April 6, 2010

Respectfully submitted,

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EDMUND G. BROWN JR.
Attorney General of California
DANE R. GILLETTE
Chief Assistant Attorney General
PAMELA C. HAMANAKA
Senior Assistant Attorney General
A. SCOTT HAYWARD
Deputy Attorney General

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/s/ Herbert S. Tetef
HERBERT S. TETEF
Deputy Attorney General
Attorneys for Respondent

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Respondent notes that Vincent Cullen is now the Acting Warden of the
California State Prison in San Quentin, California. Pursuant to Federal Rule of
Civil Procedure 25(d), Respondent respectfully requests that he be substituted as
Respondent in this matter.
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PROCEDURAL AND JURISDICTIONAL STATEMENT

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A.

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Petitioner, Ernest Dewayne Jones, is in the custody of the California

Custody

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Department of Corrections and Rehabilitation in San Quentin, California, pursuant

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to the judgment and conviction in People v. Ernest Dwayne Jones, Los Angeles

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County Superior Court case number BA063825.

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Petitioner received a fair guilt and penalty trial by an impartial jury. No errors

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of federal constitutional dimension occurred in connection with his criminal

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proceedings. The convictions for which he is held in custody and his sentence of

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death are valid and proper and do not violate the Constitution or laws or treaties of

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the United States. Petitioner is entitled to no relief on any of the claims or

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subclaims alleged in the Petition for Writ of Habeas Corpus.

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B.

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On February 1, 1995, a jury convicted Petitioner of the first degree murder

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(Cal. Penal Code § 187(a); count 1) and forcible rape (Cal. Penal Code § 261(a)(2);

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count 3) of Julia Ann Miller. As to the murder, the jury found true a special

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circumstance that it was committed while Petitioner was engaged in the

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commission of a rape (Cal. Penal Code § 190.2(a)(17)). As to both offenses, the

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jury found that Petitioner personally used a knife (Cal. Penal Code § 12022(b)) and

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had served a prior prison term (Cal. Penal Code § 667.5(a)&(b)).2 (CT at 365,

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367.)

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Trial Court Proceedings

On February 16, 1995, following a penalty trial, the jury fixed the penalty for
the murder at death. (CT at 428.) On April 7, 1995, the court pronounced a
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Respondent is filing, concurrently with this Answer, a Notice of Lodging
(“NOL”), which describes the documents being lodged pursuant to Local Rule 8317.7, including the Clerk’s Transcript (“CT”), the Reporter’s Transcript (“RT”),
and the briefs, opinion, and/or orders filed in connection with Petitioner’s direct
appeal (case number S046117) and the habeas corpus proceedings (case numbers
S110791, S159235, & S180926) in the California Supreme Court. All further
references to particular lodged documents herein will be to “NOL” letter and
number (e.g., NOL A1) or “CT” or “RT” unless otherwise specifically indicated.
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judgment of death in accordance with the jury’s verdict. In addition, it imposed a

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prison sentence of twelve years for the rape, which was stayed. (CT at 512, 515-

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16.)

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C.

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State Post-Conviction Proceedings
1.

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Appeal to the California Supreme Court

On March 17, 2003, the California Supreme Court affirmed the judgment of

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conviction and death sentence on direct appeal (case number S046117). People v.

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Jones, 29 Cal. 4th 1229, 131 Cal. Rptr. 2d 468 (2003). (NOL B4.) On October 14,

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2003, the United States Supreme Court denied a petition for writ of certiorari.

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Jones v. California, 540 U.S. 952, 124 S. Ct. 395, 157 L. Ed. 2d 286 (2003). (NOL

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B7.)

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2.

California Supreme Court Habeas Corpus Petitions

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On October 21, 2002, Petitioner filed his first petition for writ of habeas

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corpus in the California Supreme Court (case number S110791). (NOL C1.) On

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October 16, 2007, Petitioner filed his second petition for writ of habeas corpus in

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the California Supreme Court (case number S159235). (NOL D1.) On March 11,

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2009, the California Supreme Court denied both petitions for writ of habeas corpus.

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(NOL C7 & D6.) On March 11, 2010, the day after he filed the instant Petition for

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Writ of Habeas Corpus, Petitioner filed a third petition for writ of habeas corpus in

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the California Supreme Court (case number S180926). (NOL E1.) That petition is

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pending.3

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///

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At the time Petitioner filed his third habeas corpus petition in the California
Supreme Court, he also filed a motion in the California Supreme Court to defer
briefing on the petition pending resolution of exhaustion issues in the instant federal
proceedings. In the motion, Petitioner indicated that he would withdraw the state
petition if it were determined that all claims in the instant federal Petition are
exhausted. Since Respondent is not asserting that any claims in the instant federal
Petition are unexhausted, Respondent anticipates that Petitioner will be
withdrawing the California Supreme Court habeas petition.
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D.

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On March 27, 2009, Petitioner filed in this Court a request for appointment of

Federal Habeas Corpus Proceedings

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counsel, a request for stay of execution and status conference, and a notice of

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intention to file a petition for writ of habeas corpus. On March 31, 2009, this Court

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issued an order staying execution of the death sentence until ninety days after the

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appointment of counsel. On April 14, 2009, current counsel was appointed to

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represent Petitioner in these proceedings.

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On March 10, 2010, Petitioner filed the instant Petition for Writ of Habeas
Corpus (“Petition” or “Pet.”), which contains thirty claims for relief.

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PREAMBLE TO ANSWER

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The Petition is subject to 28 U.S.C. § 2254 et seq., as amended by the

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Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).4 The

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California Supreme Court denied each of Petitioner’s claims and subclaims on the

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merits. As a result, Petitioner cannot obtain federal habeas relief because the

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California Supreme Court’s denial of each claim and subclaim was not contrary to

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any clearly established Supreme Court authority, did not involve an unreasonable

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application of clearly established Supreme Court authority, and did not involve an

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unreasonable determination of the facts based on the evidence presented to it within

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the meaning of § 2254(d). As to each claim for which no clearly established

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Supreme Court authority existed at the time of the California Supreme Court’s

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denial of the claim, federal habeas relief is precluded by § 2244(d). As to each

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claim and subclaim that fails to allege a cognizable claim in a federal habeas

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proceeding, or fails to allege a prima facie federal constitutional claim for relief, the

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claim fails.

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As to the statements contained in the “Introduction” section of the Petition,

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Respondent denies, or lacks sufficient knowledge to admit or deny, every allegation

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All further statutory references are to Title 28 of the United States Code
unless otherwise specified.
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contained in the “Introduction” section. As to the statements contained in the

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“Procedural History and Background” section of the Petition, Respondent denies, or

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lacks sufficient knowledge to admit or deny, every allegation contained in the

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“Procedural History and Background” section. As to the statements contained in

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the “Jurisdiction” section of the Petition, Respondent denies, or lacks sufficient

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knowledge to admit or deny, every allegation contained in the “Jurisdiction”

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section. In addition, as to the factual allegations made in support of Petitioner’s

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thirty claims for relief (including all subclaims), Respondent denies, or lacks

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sufficient knowledge to admit or deny, every factual allegation made in support of

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Petitioner’s thirty claims for relief (including all subclaims); alternatively,

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Respondent denies that the alleged facts, if true, entitle Petitioner to federal habeas

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relief. Additionally, Respondent does not respond to argumentative or conclusory

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statements in the Petition, because these statements do not require an admission or

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denial.

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Further, Petitioner is not entitled to an evidentiary hearing on any claim or

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subclaim alleged in the Petition because a proper application of § 2254(d) requires

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that each claim be adjudicated on the basis of the record before the California

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Supreme Court. Holland v. Jackson, 542 U.S. 649, 652, 124 S. Ct. 2736, 159 L.

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Ed. 2d 683 (2004) (per curiam) (“we have made clear that whether a state court’s

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decision is unreasonable must be assessed in light of the record the court had before

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it”), citing Yarborough v. Gentry, 540 U.S. 1, 124 S. Ct. 1, 157 L. Ed. 2d 1 (2003),

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Miller-el v. Cockrell, 537 U.S. 322, 348, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003),

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Bell v. Cone, 535 U.S. 685, 697 n.4, 122 S. Ct. 1843, 152 L. Ed. 2d (2002) (Bell I)

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(declining to consider evidence not presented to state court in determining whether

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its decision was contrary to federal law). Permitting an evidentiary hearing to allow

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Petitioner to more fully develop the factual basis of a claim would render any such

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claim unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

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Landrigan, 550 U.S. 465, 474, 127 S. Ct. 1933, 167 L. Ed. 2d 836 (2007)
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(“Because the deferential standards prescribed by § 2254(d) control whether to

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grant habeas relief, a federal court must take into account those standards in

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deciding whether an evidentiary hearing is appropriate.”). Moreover, no

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evidentiary hearing should be held because, to the extent that any of Petitioner’s

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claims is not fully factually developed, he failed to exercise “due diligence” within

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the meaning of § 2254(e), and he cannot otherwise meet the stringent requirements

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of § 2254(e)(2).

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STATEMENT OF FACTS
The Respondent’s Brief filed in connection with Petitioner’s direct appeal in

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the California Supreme Court included a statement of facts. Respondent

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respectfully incorporates the factual statement from that brief herein, which

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includes citations to the Reporter’s Transcript. (See NOL B2 at 3-22.)

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In addition, the California Supreme Court recited the facts of this case in its

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opinion on direct appeal. The California Supreme Court’s findings in this regard

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are factual determinations that are both reasonable within the meaning of § 2254(d)

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and presumed correct within the meaning of § 2254(e)(1). Bragg v. Galaza, 242

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F.3d 1082, 1087 (9th Cir. 2001). Because the California Supreme Court’s factual

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determinations were reasonable in light of the evidence presented to it, Petitioner is

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not entitled to federal habeas relief. Moreover, because Petitioner has not and

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cannot rebut the presumption of correctness by clear and convincing evidence, this

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Court must accept those findings. 28 U.S.C. § 2254(e)(1). The following is the

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California Supreme Court’s statement of facts, including the guilt phase evidence

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and penalty phase evidence. The court’s reference to “defendant” is to Petitioner.

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A. Guilt Phase

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1. The People’s Case

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Shortly after midnight on August 25, 1992, in Los Angeles, Chester

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Miller returned home from work and noticed the family station wagon

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was missing from the driveway. Mr. Miller went into his house and
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found his wife, Julia, lying dead at the foot of their bed. Mrs. Miller’s

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robe was open, her nightgown was bunched above her waist, and she was

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naked from the waist down. A telephone cord and a purse strap had been

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used to tie Mrs. Miller’s arms over her head, and a nightgown had been

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used to loosely tie her ankles together. Mrs. Miller had been gagged with

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two rags, one in her mouth and another around her face. Two kitchen

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knives were sticking out of her neck. Pieces of three other knives were

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found on or around her body.

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Defendant and the Millers’ daughter, Pam, lived together in an

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apartment about two and one-half miles from the Millers. Around 6:00

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p.m. on the previous day, August 24, 1992, Pam had been on the phone

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with her mother. Defendant had interrupted Pam to ask her whether her

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parents were at home. Pam told defendant that her father was at work,

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but that her mother was home.

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Around 7:40 p.m. the same evening, defendant left the apartment.

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Pam later noticed defendant had apparently switched off the ringer on

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their phone, something he had never done before. At 9:30 p.m.,

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defendant returned to the apartment, smoked a joint of marijuana and

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cocaine, and then left again at 10:00 p.m. He had again switched off the

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phone ringer. Defendant returned in 20 minutes and rolled some more

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“joints.”

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Pam always slept with the television on, but this night defendant

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told her to turn it off because he had things on his mind. Around

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midnight she woke up and saw defendant looking out the window. At

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some point in the evening he had changed clothes. At 1:00 a.m., their

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doorbell rang. Defendant told Pam not to answer it. Hearing her name

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called, Pam looked out of the bedroom window and saw her

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grandmother, who told her to open the apartment door. When defendant
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did so, Pam’s grandfather said her mother had been killed. Pam

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repeatedly asked defendant to accompany her to her grandparents’ house,

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but defendant refused, saying he would come when he got his sister’s car.

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When Pam arrived at her grandparents’ house, she called her friend

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Shamaine Love. Pam told Love that Mrs. Miller had been killed. Love,

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a childhood friend of Pam’s, as well as a drug dealer who regularly sold

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cocaine to her and to defendant, lived near Mr. and Mrs. Miller. Love

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told Pam that several times during the day Mrs. Miller had been

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murdered defendant had been to Love’s house to buy drugs from her.

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Two of defendant’s trips to Love’s house were in the afternoon; on both

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occasions he paid for the drugs in cash. Shortly after sunset, which

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would have been sometime between 7:30 and 7:55 p.m., defendant had

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again visited Love, this time paying for cocaine and marijuana with a

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gold chain. Later that night defendant again bought cocaine from Love,

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paying for it with a pearl necklace, pearl earrings, and a pearl bracelet.

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Pam identified the pearl jewelry, and later the gold chain, as Mrs.

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Miller’s. Pam took the pearl jewelry to the Miller house and showed it to

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detectives there. Pam told the officers that she knew who had killed her

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mother and that they should go to the apartment.

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At 3:00 a.m., police officers staked out the Millers’ station wagon,

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which they found parked around the corner from the apartment. Shortly

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thereafter defendant got into the station wagon and drove away. The

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officers followed in their marked patrol car. Defendant looked back in

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the officers’ direction, reached into the backseat, and brought a rifle into

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the front seat. Defendant then sped up, and the officers gave chase, their

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lights and sirens on. Defendant ran red lights and stop signs. Other

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patrol cars joined in pursuit. Defendant hit a traffic island and blew out

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the tires on the driver’s side of the station wagon. He continued driving
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on the rims, however, and entered a freeway. First the wheels and then

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the rims on the station wagon disintegrated, forcing defendant to stop.

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The pursuit lasted 40 minutes. Defendant was ordered out of the station

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wagon, but instead he placed the rifle to his chest and shot himself. A

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subsequent search of the apartment revealed that the front and back doors

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had been barricaded with furniture.

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The deputy medical examiner with the Los Angeles County

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Coroner’s Office who performed the autopsy on Mrs. Miller’s body

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concluded, on the basis of the following evidence, that she had been

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stabbed to death. Two knives were sticking out of Mrs. Miller’s neck.

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She also had 14 stab wounds in her abdomen and one in her vagina, but

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the fatal stab wound, which penetrated to the spine, was the one in the

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middle of her chest. Aside from the stab wound, there was no evidence

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of trauma to the vaginal region.

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At the crime scene, a criminalist with the Los Angeles County

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Coroner's Office took swabs of Mrs. Miller’s vagina. Another criminalist

17

found a great abundance of intact spermatozoa on the vaginal swab,

18

leading him to conclude that ejaculation occurred no more than five to 10

19

hours before Mrs. Miller’s death. A blood sample was taken from

20

defendant. A molecular biologist for Cellmark Diagnostics performed

21

deoxyribonucleic acid (DNA) testing on the blood sample taken from

22

defendant and on the vaginal swabs taken from Mrs. Miller. This testing

23

yields banding patterns that are, with the exception of identical twins,

24

unique to every individual. There is only one chance in 78 million that a

25

random individual would have the same DNA banding pattern as

26

defendant. The tests showed that the banding pattern in the DNA from

27

defendant’s blood sample matched the banding pattern of the semen on

28

the vaginal swab taken from Mrs. Miller.
8

1

Defendant’s prior conviction for sexually assaulting Dorothea H.

2

Previously, defendant had lived with Glynnis H. and their infant son

3

in a garage behind the home of Glynnis’s mother, Dorothea H. (Mrs. H.).

4

After defendant and Glynnis broke up and Glynnis moved away, Mrs. H.

5

told defendant to move out of the garage. On March 29, 1985, around

6

6:30 a.m., Mrs. H. heard the gate to her backyard rattle and then heard a

7

window in the bedroom nearest the garage, the bedroom Glynnis had

8

used, break. Mrs. H. investigated and found defendant standing in her

9

hallway. Appearing desperate, defendant asked Mrs. H. where Glynnis

10

and the infant were. When he learned they were not there, defendant,

11

telling her not to scream, took Mrs. H. into her bedroom. Defendant

12

gagged Mrs. H. and bound her arms and legs. The binding permitted Mrs.

13

H.’s legs to be separated a bit. Defendant then raped and sodomized her.

14

After the assault, while defendant was resting on the bed, the

15

doorbell rang. After peeking outside, defendant untied Mrs. H., told her

16

not to say anything, and stood behind her as she opened the door. It was

17

a delivery from the United Parcel Service - a package from Glynnis

18

containing a photograph of Glynnis, defendant and their infant. When he

19

saw the photograph, defendant began crying. He told Mrs. H. he was not

20

going to kill her because Mrs. H., who was a teacher, could take care of

21

the baby financially.

22

Defendant then took a knife from the kitchen drawer, placed it

23

against his stomach, and asked Mrs. H. to kill him. When Mrs. H. said

24

she couldn’t, that it would be against her religion, defendant bound her to

25

her bed, took $40 dollars from her purse, and asked her for her

26

neighbor’s phone number, saying that after he left he would call her

27

neighbor. Defendant did so, and the neighbor released Mrs. H.

28

As a result of this incident, defendant was convicted of first degree
9

1

burglary [citations], residential robbery [citations], assault with a deadly

2

weapon [citation], rape [citation], and sodomy [citation]. In April 1986,

3

defendant was sentenced to prison for 12 years, and he was paroled in

4

1991, 10 months before the murder of Mrs. Miller.

5

2. The Defense Case

6

Defendant testified as follows: Around 3:00 p.m. on the day he

7

killed Mrs. Miller, defendant, feeling depressed, bought rock cocaine and

8

marijuana from Shamaine Love, paying $20 in cash. He went to the

9

apartment and smoked some of the drugs, and not having used drugs for

10

seven years, became very high and paranoid. Pam came home to the

11

apartment around 5:30 p.m. She was also high on drugs. Giving

12

defendant a gold chain, pearl necklace, pearl earrings, and a pearl

13

bracelet, Pam told defendant to use the jewelry to buy drugs from

14

Shamaine Love. Defendant had seen Pam with Mrs. Miller’s jewelry

15

before, but he did not recognize this jewelry as belonging to Mrs. Miller.

16

After Pam spoke on the phone with her mother, defendant took the bus to

17

Shamaine Love’s house, arriving around 7:30 p.m., and bought cocaine

18

from her, paying $125 in cash plus the jewelry.

19

After waiting at a bus stop for 30 or 40 minutes, defendant decided

20

to walk to the Millers’ nearby home and ask Mrs. Miller for a ride back

21

to the apartment. He did so for two reasons: He was feeling the effects of

22

the drugs and liquor he had consumed throughout the day, and Love had

23

told him police were patrolling the neighborhood. Mrs. Miller invited

24

defendant into her house and agreed to give him a ride to the apartment.

25

A few weeks earlier, defendant had broken his thumb in six places.

26

Defendant had previously given Mrs. Miller a more innocuous

27

explanation - that he had broken it in the course of horseplay with Pam -

28

but now Mrs. Miller asked him how he had really broken it. Defendant
10

1

admitted that when Pam had come home late one night, he had

2

confronted her, she had walked away from him, and he had grabbed at

3

her waist and missed, jamming his thumb into the door frame.

4

Upon hearing this, Mrs. Miller became very angry. She told

5

defendant she would kill him if he hurt Pam, and that she would lie to his

6

parole officer to get him sent back to prison, a threat she had made on a

7

previous occasion. Mrs. Miller took a knife from the kitchen drawer.

8

Defendant pushed her. “You bastard,” Mrs. Miller said, “My husband

9

don’t put his hands on me.” As Mrs. Miller came at defendant with the

10

knife, defendant responded by grabbing a knife out of the kitchen drawer

11

himself. Defendant told Mrs. Miller he did not want to hurt her. Mrs.

12

Miller swung at defendant with her knife, missing him. Defendant

13

swung back at her, cutting her arm. “Just wait until I get my gun,” Mrs.

14

Miller said, running to her bedroom. Defendant followed Mrs. Miller

15

and as she was taking a rifle out of the bedroom closet, defendant

16

grabbed her from behind and spun her around. Mrs. Miller lost her grip

17

on the rifle and fell to the floor. As defendant stood over her, Mrs. Miller

18

said, “Give it to me.”

19

Defendant then “kind of slipped back into [his] childhood” and had

20

a vision of walking into a room where his mother was with a man “who

21

wasn’t [his] father.” He picked up a knife and began stabbing Mrs.

22

Miller. The next thing defendant knew he was curled up in a ball, crying,

23

and Mrs. Miller was tied up on the floor with knives sticking out of her

24

neck. Defendant remembered nothing after the first few stabs, but he

25

admitted that he must have been the one who tied Mrs. Miller up,

26

sexually assaulted her, and killed her. He insisted he had not come to the

27

Miller house with the intention of robbing, raping, or killing Mrs. Miller.

28

After the killing, defendant “started experiencing things that [he]
11

1

had not experienced for a while.” He was “hearing . . . things in [his]

2

head telling [him] to do certain things. [He] guess[ed] you could call it

3

paranoia, thinking someone was coming to kill [him].” He grabbed a

4

second rifle and bullets from the bedroom closet with the intention of

5

taking his life. Defendant drove the Millers’ station wagon to the

6

apartment and parked around the corner, leaving the rifle in the station

7

wagon. He locked all the windows and doors in the apartment, believing

8

someone was coming to kill him, yet he went outside later to smoke some

9

of the drugs he had purchased from Shamaine Love. When Pam’s

10

grandparents informed her of Mrs. Miller’s death, and she left with them,

11

defendant barricaded the doors of the apartment.

12

When defendant left the apartment he intended to drive the station

13

wagon off a cliff and kill himself. Following the police chase, after the

14

station wagon was disabled, a voice inside his head said, “They're going

15

to kill you.” Defendant then put the rifle to his chest and pulled the

16

trigger. He was hospitalized for three weeks, recovering from the wound,

17

and for the first week he was unconscious and on a respirator.

18
19

With regard to his prior conviction for sexually assaulting Mrs. H.,
defendant testified he was “not denying any of that.”

20

B. Penalty Phase

21

1. The People’s Case

22

Mr. and Mrs. Miller were married for 30 years, and he died eight

23

months after Mrs. Miller was murdered. In Pam’s opinion, Mr. Miller

24

“grieved himself to death.”

25
26

Gloria Hanks, defendant’s sister, testified that defendant told her he
“didn’t give a fuck about Pam or her family.”

27

During the entire year they lived together, defendant did not tell

28

Pam he heard voices; he did not, in Pam’s opinion, act like someone who
12

1

was hearing voices; and he did not display such behavior when he

2

returned to the apartment after killing Mrs. Miller.

3

The rape of Kim J.

4

On May 28, 1984, Kim J. attended a barbecue party given by

5

defendant’s sister, Gloria Hanks. Kim and defendant smoked marijuana

6

together at the party, and then they went to Kim’s house and smoked

7

some more. Kim considered defendant to be like a brother. However,

8

when she suggested it was time for him to leave, defendant grabbed her

9

by the throat, told her he would kill her if she screamed, and then raped

10

her at knifepoint. While defendant was attacking Kim “he seemed to be

11

in a trance. His eyes got big and glassy and his whole demeanor

12

changed. [¶] It was like he took on a new person, like he was in a trance,

13

and then afterwards, he seemed to snap back.” Defendant apologized and

14

asked Kim whether she was going to tell anyone. She said she would

15

not, but later, urged by her mother to do so, Kim called the police. She

16

testified against defendant at a preliminary hearing, but then dropped the

17

charges because she had known defendant “practically all of his life” and

18

she was “best friends with two of his sisters.” “[F]or whatever reason I

19

was thinking he needs a second chance.”

20
21

2. The Defense Case
In the words of an aunt, defendant’s home life was a “living hell.”

22

Defendant’s father and mother were alcoholics. They also used

23

marijuana in front of their children. The father and mother had “pretty

24

rough fights” with one another, and on one occasion the mother stabbed

25

the father in the hand. The mother had numerous affairs. Once, the

26

father caught the mother in bed with one of the father’s friends, and

27

defendant and his sister were in the bed at the time. After that incident,

28

the father began beating the mother and “stomped her in her vagina.”
13

1

When the father left the family, the mother and her boyfriend drank

2

heavily and often the family had no money for food. The mother beat the

3

children. “Whatever she had in her hands, she might hit them with it.”

4

In defendant’s presence, defendant’s mother told his father that defendant

5

was not in fact his child.

6

In the opinion of James Park, a corrections consultant and retired

7

Department of Corrections employee, defendant was likely to be a good

8

prisoner and unlikely to become involved in violence. Mr. Park based his

9

opinion on the following factors: Younger prisoners are more likely to be

10

violent, and at 30, defendant was older; during his previous eight-year

11

prison term, defendant had relatively few infractions, and only one for

12

fighting; finally, defendant had completed the requirements for a high

13

school degree.

14

In the opinion of Dr. Claudewell S. Thomas, a psychiatrist

15

appointed by the court at the request of the defense, defendant suffered

16

from schizoaffective schizophrenia, a major psychiatric disorder. In

17

reaching his diagnosis, Dr. Thomas interviewed defendant and reviewed

18

various documents: a 1985 report by a psychologist concluding that

19

defendant’s mental processes were intact and he was not psychotic; a

20

1985 report by a psychiatrist concluding defendant suffered from a

21

chronic underlying depressive mental illness exacerbated by alcohol and

22

drug abuse; a report by a psychologist who examined defendant in 1994

23

concluding that defendant was schizophrenic.

24

(NOL B4; People v. Jones, 29 Cal. 4th at 1238-44.)

25

AFFIRMATIVE DEFENSES

26

Respondent alleges the following affirmative defenses, as applicable, to each

27

claim in the Petition.

28

///
14

1

A.

2

Federal habeas corpus relief, as a matter of law, is available to a prisoner in

Failure to Allege Violation of Federal Law

3

state custody only if he demonstrates that he is being held in custody “in violation

4

of the Constitution or laws or treaties of the United States.” 28 U.S.C. §§ 2241(c)

5

& 2254(a). As a matter of law, such relief is not available for errors in the

6

application of state law.

7

Since none of Petitioner’s claims allege facts which, even if true, would

8

amount to a “violation of the Constitution or laws or treaties of the United States,”

9

federal habeas corpus relief is not available on any of his claims.

10
11

To the extent that Petitioner’s claims are based upon purported errors in the
application of state law, federal habeas corpus relief is unavailable.

12

B.

13

Because the “federal question” requirement -- i.e., that a prisoner demonstrate

14

he is being held in state custody in “violation of the Constitution or laws or treaties

15

of the United States” -- is jurisdictional, Petitioner’s failure to allege facts in

16

support of any of his claims which, if true, would amount to a “violation of the

17

Constitution or laws or treaties of the United States” deprives this Court of subject

18

matter jurisdiction.

19

Lack of Subject Matter Jurisdiction

Any claims that are based solely on purported violations of state statutes or the

20

state constitution are likewise not cognizable on federal habeas corpus and are

21

outside this Court’s subject matter jurisdiction.

22

C.

23

The California Supreme Court found that Petitioner had defaulted a number of

Procedural Default

24

the claims and subclaims contained in the pending Petition. Specifically, on direct

25

appeal, the California Supreme Court found that Petitioner had waived his claim

26

that prior crimes evidence was erroneously admitted at trial (NOL B4; People v.

27

Jones, 29 Cal. 4th at 1255; see Pet. Claim Ten, Subclaims 1 through 5), waived his

28

claim that CALJIC No. 4.21.1 erroneously told the jury that voluntary intoxication
15

1

or mental disorder could not be considered in determining whether Petitioner had

2

the specific intent to commit rape (NOL B4; People v. Jones, 29 Cal. 4th at 1258;

3

see Pet. Claim Twelve, Subclaim 6), waived his claim that the guilt phase verdict

4

form was fatally ambiguous (NOL B4; People v. Jones, 29 Cal. 4th at 1259; see

5

Pet. Claim Twelve, Subclaim 8), and waived his claim that the prosecutor

6

committed misconduct in implying that Petitioner was a member of a prison gang

7

(NOL B4; People v. Jones, 29 Cal. 4th at 1262-63; see Pet. Claim Fourteen,

8

Subclaim 11). Accordingly, relief on those claims is barred.

9

In denying Petitioner’s first habeas corpus petition, the California Supreme

10

Court found that, to the extent they were not raised on appeal, and except insofar as

11

they alleged ineffective assistance of counsel, Subclaim 6b of Claim Three (NOL

12

C1 paragraph 1 of Claim “G”), Claim Seven (NOL C1 Claim “L”), Claim Nine

13

(NOL C1 Claim “K”), Claim Ten (NOL C1 Claim “C”), Claim Twelve (NOL C1

14

Claim “M”), Claim Fourteen, with the exception of Subclaims 8a(3) and 12 (NOL

15

C1 Claim “I” with the exception of paragraph 5(c), and Claim “Q” with the

16

exception of paragraph 2), Claim Fifteen (NOL C1 Claim “U”), and Claim Twenty-

17

One (NOL C1 Claim “R”) were barred by In re Harris, 5 Cal. 4th 813, 825 & n.3,

18

826-29, 21 Cal. Rptr. 2d 373 (1993) and In re Dixon, 41 Cal. 2d 756, 759, 264 P.2d

19

513 (1953). (NOL C7.) Accordingly, relief on those claims is barred.

20

In denying Petitioner’s first habeas corpus petition, the California Supreme

21

Court also found that, except to the extent they alleged ineffective assistance of trial

22

counsel, Subclaim 8a(3) of Claim Fourteen (NOL C1 Claim “I” paragraph 5(c)) and

23

Claim Twenty-Five (NOL C1 Claim “Y”) were denied because Petitioner failed to

24

raise them in the trial court, citing In re Seaton, 34 Cal. 4th 193, 17 Cal. Rptr. 3d

25

633 (2004). (NOL C7.) Accordingly, relief on those claims is barred.

26

In denying Petitioner’s first habeas corpus petition, the California Supreme

27

Court also found that, to the extent it alleged insufficiency of the evidence, Claim

28

Nine (NOL C1 Claim “K”) was not cognizable on habeas corpus, citing In re
16

1

Lindley, 29 Cal. 2d 709, 723, 177 P.2d 918 (1947). (NOL C7.) Accordingly, relief

2

on that claim is barred.

3

The various procedural default doctrines invoked by the California Supreme

4

Court are independent of federal law and adequate to bar review on federal habeas

5

corpus. Accordingly, the identified claims, as having been procedurally defaulted,

6

are barred from review by this Court and should be dismissed.

7

D.

8

The non-retroactivity doctrine forecloses federal habeas corpus relief as to the

9

Non-Retroactivity: The Teague Doctrine

constitutional provisions alleged by Petitioner in support of each of his claims

10

because, at the time his conviction became final, existing precedent did not

11

“compel” the result he now seeks. See Teague v. Lane, 489 U.S. 288, 299-301,

12

310, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). None of the recognized exceptions

13

to this doctrine applies to any of the claims.

14

E.

15

Even if Petitioner has alleged an error that is potentially cognizable on federal

Harmless Error

16

habeas corpus, any such error was harmless under the governing standards of

17

harmless error review and therefore cannot be grounds for federal habeas relief.

18
19

THE STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 became effective

20

on April 24, 1996. When a state court adjudicates a claim on the merits, the

21

AEDPA bars federal habeas corpus relief on that claim unless the state-court

22

adjudication was either (1) “contrary to, or involved an unreasonable application of,

23

clearly established Federal law, as determined by the Supreme Court of the United

24

States,” or (2) “based on an unreasonable determination of the facts in light of the

25

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Price v.

26

Vincent, 538 U.S. 634, 638-39, 123 S. Ct. 1848, 155 L. Ed. 2d 877 (2003). This is

27

a “‘highly deferential standard for evaluating state-court rulings’ which demands

28

that state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti,
17

1

537 U.S. 19, 24, 123 S. Ct. 357, 154 L. Ed. 2d 279 (2002) (per curiam) (quoting

2

Lindh v. Murphy, 521 U.S. 320, 333 n.7, 117 S. Ct. 2059, 138 L. Ed. 2d 481

3

(1997)).

4

A state court decision is “contrary to” federal law if it either “applies a rule

5

that contradicts the governing law” as set forth in Supreme Court opinions, or

6

reaches a different decision from a Supreme Court opinion when confronted with

7

materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.

8

Ct. 1495, 146 L. Ed. 2d 389 (2000); accord Bell I, 535 U.S. at 694; Clark v.

9

Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). A state court makes an

10

“unreasonable application” of federal law if the state court identifies the correct

11

governing legal principle from the Supreme Court’s decisions but unreasonably

12

applies that principle to the facts of the prisoner’s case. Williams v. Taylor, 529

13

U.S. at 413; Bell I, 535 U.S. at 694; accord Lockyer v. Andrade, 538 U.S. 63, 71,

14

123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003) (“AEDPA does not require a federal

15

habeas court to adopt any one methodology in deciding the only question that

16

matters under § 2254(d)(1) -- whether a state court decision is contrary to, or

17

involved an unreasonable application of, clearly established federal law”).

18

It is not enough merely to show that the state court was incorrect. Federal

19

habeas corpus relief is not available simply because a federal court independently

20

concludes “that the relevant state-court decision applied clearly established federal

21

law erroneously or incorrectly. Rather, that application must also be unreasonable.”

22

Williams v. Taylor, 529 U.S. at 411; accord Lockyer v. Andrade, 538 U.S. at 75-76;

23

Early v. Packer, 537 U.S. 3, 11, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002); Bell I,

24

535 U.S. at 694; Lambert v. Blodgett, 393 F.3d 943, 978 (9th Cir. 2004) (“we may

25

not review state court judgments on the same terms as we do for direct appeals”).

26

If there is no Supreme Court precedent that controls a legal issue raised by a

27

petitioner in state court, the state court’s decision cannot be contrary to, or an

28

unreasonable application of, clearly established federal law. See Wright v. Van
18

1

Patten, 552 U.S. 120, 126, 128 S. Ct. 743, 169 L. Ed. 2d 583 (2008); Carey v.

2

Musladin, 549 U.S. 70, 77, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006). Decisions of

3

the Supreme Court are the only ones that can form the basis justifying habeas relief;

4

lower federal courts cannot themselves establish such a principle to satisfy the

5

AEDPA bar. Clark v. Murphy, 331 F.3d at 1069; Hernandez v. Small, 282 F.3d

6

1132, 1140 (9th Cir. 2002) (any principle on which a petitioner seeks to rely must

7

be found in the holdings, as opposed to dicta, of the Supreme Court decisions).

8

Under the AEDPA, “clearly established federal law” is the “governing legal

9

principle or principles set forth by the Supreme Court at the time the state court

10

renders its decision.” Lockyer v. Andrade, 538 U.S. at 71; see also Williams v.

11

Taylor, 529 U.S. at 412.

12

A state court’s failure to cite any federal law in its opinion does not run afoul

13

of the AEDPA. In fact, a state court need not even be aware of applicable Supreme

14

Court precedents “so long as neither the reasoning nor the result of the state-court

15

decision contradicts them.” Early v. Packer, 537 U.S. at 8; Bell v. Cone, 543 U.S.

16

447, 455, 125 S. Ct. 847, 160 L. Ed. 2d 881 (2005) (per curiam) (Bell II) (federal

17

courts are not free to presume that a state court did not comply with constitutional

18

dictates on the basis of nothing more than a lack of citation; federal courts must

19

presume that the state court applied the same constitutionally sufficient review it

20

used in earlier cases absent some contrary indication).

21

In addition, under § 2254(d)(2), a state court’s findings of fact are binding in

22

federal court unless the federal court determines that the state court’s factual

23

findings were unreasonable in light of the evidence presented in state court. Taylor

24

v. Maddox, 366 F.3d 992, 1000-01 (9th Cir. 2004) (federal court first undertakes

25

“intrinsic review” of state court’s fact-finding under § 2254(d)(2); during this

26

process, the federal court “must be particularly deferential”); Lambert v. Blodgett,

27

393 F.3d at 972 (§ 2254(d)(2) applies to challenges based on state court record).

28

The burden a petitioner faces in attempting to show an unreasonable determination
19

1

of the facts based on the evidence presented is “daunting -- one that will be satisfied

2

in few cases.” Taylor v. Maddox, 366 F.3d at 1000; see also Rice v. Collins, 546

3

U.S. 333, 336-42, 126 S. Ct. 969, 163 L. Ed. 2d 824 (2006) (federal court

4

misapplied settled rules that limit its role and authority by setting aside reasonable

5

state-court determinations of fact in favor of its own debatable interpretation of the

6

record).

7

The state court’s factual findings are also entitled to a “presumption of

8

correctness” and are controlling unless the petitioner rebuts the presumption by

9

clear and convincing extrinsic evidence. See 28 U.S.C. § 2254(e)(1); Lambert v.

10

Blodgett, 393 F.3d at 973 (“the only evidence eligible to meet the ‘clear and

11

convincing’ burden is new evidence presented exclusively in federal court”); see

12

also Miller-El v. Dretke, 545 U.S. 231, 240, 125 S. Ct. 2317, 162 L. Ed. 2d 196

13

(2005).

14
15
16
17

CLAIMS FOR RELIEF
CLAIM ONE: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AT GUILT
AND PENALTY PHASES
In Claim One, Petitioner claims various federal constitutional violations on the

18

ground that he was denied the effective assistance of trial counsel at the guilt and

19

penalty phases of his trial.5 (Pet. at 21-92.) Petitioner raised part of this claim in

20
21
22
23
24
25
26
27
28

5

Petitioner claims trial counsel rendered ineffective assistance by: (1) failing
during the guilt phase to investigate, develop, and present compelling expert and
lay witness testimony about Petitioner’s mental state (Pet. at 22-37); (2) failing to
develop and present a coherent and persuasive defense to the rape count, the rape
felony murder theory, and the rape special circumstance (Pet. at 37-47); (3)
pleading Petitioner guilty to the crime of rape during his closing argument (Pet. at
47-48); (4) failing to reasonably investigate and present potential challenges to the
admissibility of the DNA testimony (Pet. at 48-58); (5) failing to enter a plea of not
guilty by reason of insanity and investigating and presenting such a defense (Pet. at
58-60); (6) failing to conduct an adequate voir dire of potential jurors and ensure
the selection of a jury capable of a fair and reliable determination of guilt and
penalty (Pet. at 60-63); (7) failing to investigate the criminal background and the
status of pending cases against critical prosecution witnesses (Pet. at 64-67); (8)
failing to investigate Petitioner’s prior crimes, develop a strategy for addressing the
prosecution’s use of the prior crimes, and ensure that the jury was not
impermissibly influenced by the prior crimes (Pet. at 67-71); (9) failing to advise
(continued…)
20

1

his opening brief on appeal in the California Supreme Court.6 (NOL B1 at 126-43.)

2

The California Supreme Court rejected the claim on the merits in its reasoned

3

published opinion on appeal. (NOL B4; People v. Jones, 29 Cal. 4th at 1251, 1254-

4

55.) Petitioner also raised the claim in his first habeas corpus petition in the

5

California Supreme Court. (NOL C1 at 66-166 (Claim “D”).) The California

6

Supreme Court rejected the claim on the merits in its unpublished order denying the

7

petition. (NOL C7.)

8

Petitioner is precluded from obtaining federal habeas relief because the

9

California Supreme Court’s denial of each claim and subclaim was not contrary to

10

any clearly established Supreme Court authority, did not involve an unreasonable

11

application of clearly established Supreme Court authority, and did not involve an

12

unreasonable determination of the facts based on the evidence presented to it within

13

the meaning of § 2254(d). To the extent that no governing clearly established

14

Supreme Court authority existed at the time of the California Supreme Court’s

15

denial of the claim, federal habeas relief is precluded by § 2254(d). To the extent

16

that Petitioner overcomes the § 2254 bar, the claim fails under a de novo standard

17

of review. To the extent that the claim fails to allege a cognizable claim in a federal

18

habeas proceeding, or fails to allege a prima facie federal constitutional claim for

19

relief, it fails.

20
21
22
23
24
25
26
27
28

(…continued)
Petitioner about possible ramifications stemming from his testimony and failing to
prepare Petitioner for testifying (Pet. at 71-75); (10) failing to request necessary
jury instructions and verdict forms during the guilt phase (Pet. at 75-81); (11)
failing to object to numerous instances of prosecutorial misconduct in the guilt and
penalty phases (Pet. at 81-89); and (12) having a disabling conflict of interest (Pet.
at 89-91).
6
On appeal, Petitioner claimed that trial counsel rendered ineffective
assistance by: (1) failing to call live witnesses when challenging the admission of
the DNA evidence; (2) failing to cross-examine the DNA expert at trial; (3)
withdrawing his objection to the prior crimes evidence; and (4) failing to call an
expert at the guilt phase to testify about Petitioner’s inability to form specific intent.
(NOL B1 at 126-43.)
21

1

As to the factual allegations made in support of Claim One, Respondent

2

denies, or lacks sufficient knowledge to admit or deny, every allegation;

3

alternatively, Respondent denies that the alleged facts, if true, entitle Petitioner to

4

federal habeas relief. Further, Petitioner is not entitled to an evidentiary hearing on

5

this claim, including all subclaims, because a proper application of § 2254(d)

6

requires that the claim be adjudicated on the basis of the record before the

7

California Supreme Court. Holland v. Jackson, 542 U.S. at 652 (“we have made

8

clear that whether a state court’s decision is unreasonable must be assessed in light

9

of the record the court had before it”), citing Yarborough v. Gentry, 540 U.S. 1,

10

Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at 697 n.4 (declining

11

to consider evidence not presented to state court in determining whether its decision

12

was contrary to federal law). Permitting an evidentiary hearing to allow Petitioner

13

to more fully develop the factual basis of the claim would render his claim

14

unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

15

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

16

2254(d) control whether to grant habeas relief, a federal court must take into

17

account those standards in deciding whether an evidentiary hearing is

18

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

19

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

20

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

21

stringent requirements of § 2254(e)(2).

22

CLAIM TWO: IRRECONCILABLE CONFLICT WITH TRIAL COUNSEL

23

In Claim Two, Petitioner claims various federal constitutional violations on

24

the ground that he had an irreconcilable conflict with his trial attorney and that the

25

trial court conducted an inadequate hearing into the nature of the alleged conflict.

26

(Pet. at 92-98.) Petitioner raised this claim in his opening brief on appeal in the

27

California Supreme Court. (NOL B1 at 96-108.) The California Supreme Court

28
22

1

rejected the claim on the merits in its reasoned published opinion on appeal. (NOL

2

B4; People v. Jones, 29 Cal. 4th at 1244-46.)

3

Petitioner is precluded from obtaining federal habeas relief because the

4

California Supreme Court’s denial of each claim and subclaim was not contrary to

5

any clearly established Supreme Court authority, did not involve an unreasonable

6

application of clearly established Supreme Court authority, and did not involve an

7

unreasonable determination of the facts based on the evidence presented to it within

8

the meaning of § 2254(d). To the extent that no governing clearly established

9

Supreme Court authority existed at the time of the California Supreme Court’s

10

denial of the claim, federal habeas relief is precluded by § 2254(d). To the extent

11

that Petitioner overcomes the § 2254 bar, the claim fails under a de novo standard

12

of review. To the extent that the claim fails to allege a cognizable claim in a federal

13

habeas proceeding, or fails to allege a prima facie federal constitutional claim for

14

relief, it fails.

15

As to the factual allegations made in support of Claim Two, Respondent

16

denies, or lacks sufficient knowledge to admit or deny, every allegation;

17

alternatively, Respondent denies that the alleged facts, if true, entitle Petitioner to

18

federal habeas relief. Further, Petitioner is not entitled to an evidentiary hearing on

19

this claim, including all subclaims, because a proper application of § 2254(d)

20

requires that the claim be adjudicated on the basis of the record before the

21

California Supreme Court. Holland v. Jackson, 542 U.S. at 652 (“we have made

22

clear that whether a state court’s decision is unreasonable must be assessed in light

23

of the record the court had before it”), citing Yarborough v. Gentry, 540 U.S. 1,

24

Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at 697 n.4 (declining

25

to consider evidence not presented to state court in determining whether its decision

26

was contrary to federal law). Permitting an evidentiary hearing to allow Petitioner

27

to more fully develop the factual basis of the claim would render his claim

28

unexhausted, and a sound application of § 2254(d) impossible. Schriro v.
23

1

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

2

2254(d) control whether to grant habeas relief, a federal court must take into

3

account those standards in deciding whether an evidentiary hearing is

4

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

5

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

6

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

7

stringent requirements of § 2254(e)(2).

8

CLAIM THREE: FAILURE TO DISCLOSE EXCULPATORY EVIDENCE

9

In Claim Three, Petitioner claims various federal constitutional violations on

10

the ground that the prosecutor failed to disclose exculpatory evidence, including

11

medical records for Petitioner, witness impeachment evidence, and materials

12

concerning the DNA laboratory. (Pet. at 98-107.) Petitioner raised this claim in his

13

first and second habeas corpus petitions in the California Supreme Court. (NOL C1

14

at 262-66 (Claim “G”); NOL D1 at 5-10.) The California Supreme Court rejected

15

the claim on the merits in its unpublished orders denying the first and second

16

habeas corpus petitions. (NOL C7; NOL D6.) In its unpublished order denying the

17

first habeas corpus petition, the California Supreme Court also rejected the claim on

18

the ground that, to the extent it was not raised on direct appeal, and except insofar

19

as it alleged ineffective assistance of counsel, it was barred by In re Harris, 5 Cal.

20

4th at 825 & n.3, 826-29 and In re Dixon, 41 Cal. 2d at 759. (NOL C7.) As a

21

result, Claim Three is procedurally barred from consideration on the merits herein

22

because California’s Harris bar and Dixon bar are independent and adequate, and

23

Petitioner has not and cannot demonstrate that a fundamental miscarriage of justice

24

would occur if the claim was not considered on the merits. Bennett v. Mueller, 322

25

F.3d 573, 583 (9th Cir. 2003).

26

In addition, Petitioner is precluded from obtaining federal habeas relief

27

because the California Supreme Court’s denial of each claim and subclaim was not

28

contrary to any clearly established Supreme Court authority, did not involve an
24

1

unreasonable application of clearly established Supreme Court authority, and did

2

not involve an unreasonable determination of the facts based on the evidence

3

presented to it within the meaning of § 2254(d). To the extent that no governing

4

clearly established Supreme Court authority existed at the time of the California

5

Supreme Court’s denial of the claim, federal habeas relief is precluded by §

6

2254(d). To the extent that Petitioner overcomes the § 2254 bar, the claim fails

7

under a de novo standard of review. To the extent that the claim fails to allege a

8

cognizable claim in a federal habeas proceeding, or fails to allege a prima facie

9

federal constitutional claim for relief, it fails.

10

As to the factual allegations made in support of Claim Three, Respondent

11

denies, or lacks sufficient knowledge to admit or deny, every allegation;

12

alternatively, Respondent denies that the alleged facts, if true, entitle Petitioner to

13

federal habeas relief. Further, Petitioner is not entitled to an evidentiary hearing on

14

this claim, including all subclaims, because a proper application of § 2254(d)

15

requires that the claim be adjudicated on the basis of the record before the

16

California Supreme Court. Holland v. Jackson, 542 U.S. at 652 (“we have made

17

clear that whether a state court’s decision is unreasonable must be assessed in light

18

of the record the court had before it”), citing Yarborough v. Gentry, 540 U.S. 1,

19

Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at 697 n.4 (declining

20

to consider evidence not presented to state court in determining whether its decision

21

was contrary to federal law). Permitting an evidentiary hearing to allow Petitioner

22

to more fully develop the factual basis of the claim would render his claim

23

unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

24

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

25

2254(d) control whether to grant habeas relief, a federal court must take into

26

account those standards in deciding whether an evidentiary hearing is

27

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

28

extent that Petitioner’s claim is not fully factually developed, he failed to exercise
25

1

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

2

stringent requirements of § 2254(e)(2).

3

CLAIM FOUR: INCOMPETENCE TO STAND TRIAL

4

In Claim Four, Petitioner claims various federal constitutional violations on

5

the ground that he was incompetent to stand trial. (Pet. at 107-24.) Petitioner

6

raised this claim in his first habeas corpus petition in the California Supreme Court.

7

(NOL C1 at 240-53 (Claim “E”).) The California Supreme Court rejected the claim

8

on the merits in its unpublished order denying the first habeas corpus petition.

9

(NOL C7.)

10

Petitioner is precluded from obtaining federal habeas relief because the

11

California Supreme Court’s denial of each claim and subclaim was not contrary to

12

any clearly established Supreme Court authority, did not involve an unreasonable

13

application of clearly established Supreme Court authority, and did not involve an

14

unreasonable determination of the facts based on the evidence presented to it within

15

the meaning of § 2254(d). To the extent that no governing clearly established

16

Supreme Court authority existed at the time of the California Supreme Court’s

17

denial of the claim, federal habeas relief is precluded by § 2254(d). To the extent

18

that Petitioner overcomes the § 2254 bar, the claim fails under a de novo standard

19

of review. To the extent that the claim fails to allege a cognizable claim in a federal

20

habeas proceeding, or fails to allege a prima facie federal constitutional claim for

21

relief, it fails.

22

As to the factual allegations made in support of Claim Four, Respondent

23

denies, or lacks sufficient knowledge to admit or deny, every allegation;

24

alternatively, Respondent denies that the alleged facts, if true, entitle Petitioner to

25

federal habeas relief. Further, Petitioner is not entitled to an evidentiary hearing on

26

this claim, including all subclaims, because a proper application of § 2254(d)

27

requires that the claim be adjudicated on the basis of the record before the

28

California Supreme Court. Holland v. Jackson, 542 U.S. at 652 (“we have made
26

1

clear that whether a state court’s decision is unreasonable must be assessed in light

2

of the record the court had before it”), citing Yarborough v. Gentry, 540 U.S. 1,

3

Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at 697 n.4 (declining

4

to consider evidence not presented to state court in determining whether its decision

5

was contrary to federal law). Permitting an evidentiary hearing to allow Petitioner

6

to more fully develop the factual basis of the claim would render his claim

7

unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

8

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

9

2254(d) control whether to grant habeas relief, a federal court must take into

10

account those standards in deciding whether an evidentiary hearing is

11

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

12

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

13

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

14

stringent requirements of § 2254(e)(2).

15

CLAIM FIVE: MEDICATED AT TRIAL

16

In Claim Five, Petitioner claims various federal constitutional violations on

17

the ground that he was involuntarily medicated at the time of trial, which affected

18

his cognitive functioning and his appearance to the jury. (Pet. at 124-30.)

19

Petitioner raised this claim in his first habeas corpus petition in the California

20

Supreme Court. (NOL C1 at 254-61 (Claim “F”).) The California Supreme Court

21

rejected the claim on the merits in its unpublished order denying the first habeas

22

corpus petition. (NOL C7.)

23

The non-retroactivity doctrine forecloses federal habeas corpus relief as to the

24

constitutional provisions alleged by Petitioner in support of this claim because, at

25

the time his conviction became final, existing precedent did not “compel” the result

26

he now seeks. See Teague v. Lane, 489 U.S. at 299-301. And, in any event, none

27

of the recognized exceptions to the non-retroactivity doctrine apply to this claim.

28
27

1

Petitioner is also precluded from obtaining federal habeas relief because the

2

California Supreme Court’s denial of each claim and subclaim was not contrary to

3

any clearly established Supreme Court authority, did not involve an unreasonable

4

application of clearly established Supreme Court authority, and did not involve an

5

unreasonable determination of the facts based on the evidence presented to it within

6

the meaning of § 2254(d). To the extent that no governing clearly established

7

Supreme Court authority existed at the time of the California Supreme Court’s

8

denial of the claim, federal habeas relief is precluded by § 2254(d). To the extent

9

that Petitioner overcomes the § 2254 bar, the claim fails under a de novo standard

10

of review. To the extent that the claim fails to allege a cognizable claim in a federal

11

habeas proceeding, or fails to allege a prima facie federal constitutional claim for

12

relief, it fails.

13

As to the factual allegations made in support of Claim Five, Respondent

14

denies, or lacks sufficient knowledge to admit or deny, every allegation;

15

alternatively, Respondent denies that the alleged facts, if true, entitle Petitioner to

16

federal habeas relief. Further, Petitioner is not entitled to an evidentiary hearing on

17

this claim, including all subclaims, because a proper application of § 2254(d)

18

requires that the claim be adjudicated on the basis of the record before the

19

California Supreme Court. Holland v. Jackson, 542 U.S. at 652 (“we have made

20

clear that whether a state court’s decision is unreasonable must be assessed in light

21

of the record the court had before it”), citing Yarborough v. Gentry, 540 U.S. 1,

22

Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at 697 n.4 (declining

23

to consider evidence not presented to state court in determining whether its decision

24

was contrary to federal law). Permitting an evidentiary hearing to allow Petitioner

25

to more fully develop the factual basis of the claim would render his claim

26

unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

27

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

28

2254(d) control whether to grant habeas relief, a federal court must take into
28

1

account those standards in deciding whether an evidentiary hearing is

2

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

3

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

4

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

5

stringent requirements of § 2254(e)(2).

6
7
8

CLAIM SIX: TRIAL JUDGE’S CONFLICT OF INTEREST AND
PSYCHOLOGICAL IMPAIRMENT
In Claim Six, Petitioner claims various federal constitutional violations on the

9

ground that the judge who presided over some of the pretrial proceedings “had a

10

conflict of interest and disabling psychological condition that prevented him from

11

being an unbiased decision-maker.” (Pet. at 130-34.) Petitioner raised this claim in

12

his first habeas corpus petition in the California Supreme Court. (NOL C1 at 378-

13

82 (Claim “W”).) The California Supreme Court rejected the claim on the merits in

14

its unpublished order denying the first habeas corpus petition. (NOL C7.)

15

Petitioner is precluded from obtaining federal habeas relief because the

16

California Supreme Court’s denial of each claim and subclaim was not contrary to

17

any clearly established Supreme Court authority, did not involve an unreasonable

18

application of clearly established Supreme Court authority, and did not involve an

19

unreasonable determination of the facts based on the evidence presented to it within

20

the meaning of § 2254(d). To the extent that no governing clearly established

21

Supreme Court authority existed at the time of the California Supreme Court’s

22

denial of the claim, federal habeas relief is precluded by § 2254(d). To the extent

23

that Petitioner overcomes the § 2254 bar, the claim fails under a de novo standard

24

of review. To the extent that the claim fails to allege a cognizable claim in a federal

25

habeas proceeding, or fails to allege a prima facie federal constitutional claim for

26

relief, it fails.

27
28

As to the factual allegations made in support of Claim Six, Respondent denies,
or lacks sufficient knowledge to admit or deny, every allegation; alternatively,
29

1

Respondent denies that the alleged facts, if true, entitle Petitioner to federal habeas

2

relief. Further, Petitioner is not entitled to an evidentiary hearing on this claim,

3

including all subclaims, because a proper application of § 2254(d) requires that the

4

claim be adjudicated on the basis of the record before the California Supreme

5

Court. Holland v. Jackson, 542 U.S. at 652 (“we have made clear that whether a

6

state court’s decision is unreasonable must be assessed in light of the record the

7

court had before it”), citing Yarborough v. Gentry, 540 U.S. 1, Miller-el v.

8

Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at 697 n.4 (declining to consider

9

evidence not presented to state court in determining whether its decision was

10

contrary to federal law). Permitting an evidentiary hearing to allow Petitioner to

11

more fully develop the factual basis of the claim would render his claim

12

unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

13

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

14

2254(d) control whether to grant habeas relief, a federal court must take into

15

account those standards in deciding whether an evidentiary hearing is

16

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

17

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

18

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

19

stringent requirements of § 2254(e)(2).

20

CLAIM SEVEN: INADEQUATE INQUIRY INTO JUROR BIAS

21

In Claim Seven, Petitioner claims various federal constitutional violations on

22

the ground that the trial court “permitted an improper and one-sided voir dire of the

23

jurors and failed to ensure that the prospective jurors’ biases were revealed.” (Pet.

24

at 134-37.) Petitioner raised this claim in his first habeas corpus petition in the

25

California Supreme Court. (NOL C1 at 282-84 (Claim “L”).) The California

26

Supreme Court rejected the claim on the merits in its unpublished order denying the

27

first habeas corpus petition. In that same order, the California Supreme Court also

28

rejected the claim on the ground that, to the extent it was not raised on direct
30

1

appeal, and except insofar as it alleged ineffective assistance of counsel, it was

2

barred by In re Harris, 5 Cal. 4th at 825 & n.3, 826-29 and In re Dixon, 41 Cal. 2d

3

at 759. (NOL C7.) As a result, Claim Seven is procedurally barred from

4

consideration on the merits herein because California’s Harris bar and Dixon bar

5

are independent and adequate, and Petitioner has not and cannot demonstrate that a

6

fundamental miscarriage of justice would occur if the claim was not considered on

7

the merits. Bennett v. Mueller, 322 F.3d at 583.

8
9

In addition, Petitioner is precluded from obtaining federal habeas relief
because the California Supreme Court’s denial of each claim and subclaim was not

10

contrary to any clearly established Supreme Court authority, did not involve an

11

unreasonable application of clearly established Supreme Court authority, and did

12

not involve an unreasonable determination of the facts based on the evidence

13

presented to it within the meaning of § 2254(d). To the extent that no governing

14

clearly established Supreme Court authority existed at the time of the California

15

Supreme Court’s denial of the claim, federal habeas relief is precluded by §

16

2254(d). To the extent that Petitioner overcomes the § 2254 bar, the claim fails

17

under a de novo standard of review. To the extent that the claim fails to allege a

18

cognizable claim in a federal habeas proceeding, or fails to allege a prima facie

19

federal constitutional claim for relief, it fails.

20

As to the factual allegations made in support of Claim Seven, Respondent

21

denies, or lacks sufficient knowledge to admit or deny, every allegation;

22

alternatively, Respondent denies that the alleged facts, if true, entitle Petitioner to

23

federal habeas relief. Further, Petitioner is not entitled to an evidentiary hearing on

24

this claim, including all subclaims, because a proper application of § 2254(d)

25

requires that the claim be adjudicated on the basis of the record before the

26

California Supreme Court. Holland v. Jackson, 542 U.S. at 652 (“we have made

27

clear that whether a state court’s decision is unreasonable must be assessed in light

28

of the record the court had before it”), citing Yarborough v. Gentry, 540 U.S. 1,
31

1

Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at 697 n.4 (declining

2

to consider evidence not presented to state court in determining whether its decision

3

was contrary to federal law). Permitting an evidentiary hearing to allow Petitioner

4

to more fully develop the factual basis of the claim would render his claim

5

unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

6

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

7

2254(d) control whether to grant habeas relief, a federal court must take into

8

account those standards in deciding whether an evidentiary hearing is

9

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

10

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

11

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

12

stringent requirements of § 2254(e)(2).

13

CLAIM EIGHT: UNREASONABLE RULINGS ON CAUSE CHALLENGES

14

In Claim Eight, Petitioner claims various federal constitutional violations on

15

the ground that the trial court unreasonably sustained and denied challenges for

16

cause to prospective jurors. (Pet. at 137-42.) Petitioner raised this claim in his

17

opening brief on appeal in the California Supreme Court. (NOL B1 at 35-61.) The

18

California Supreme Court rejected the claim on the merits in its reasoned published

19

opinion on appeal. (NOL B4; People v. Jones, 29 Cal. 4th at 1246-50.)

20

Petitioner is precluded from obtaining federal habeas relief because the

21

California Supreme Court’s denial of each claim and subclaim was not contrary to

22

any clearly established Supreme Court authority, did not involve an unreasonable

23

application of clearly established Supreme Court authority, and did not involve an

24

unreasonable determination of the facts based on the evidence presented to it within

25

the meaning of § 2254(d). To the extent that no governing clearly established

26

Supreme Court authority existed at the time of the California Supreme Court’s

27

denial of the claim, federal habeas relief is precluded by § 2254(d). To the extent

28

that Petitioner overcomes the § 2254 bar, the claim fails under a de novo standard
32

1

of review. To the extent that the claim fails to allege a cognizable claim in a federal

2

habeas proceeding, or fails to allege a prima facie federal constitutional claim for

3

relief, it fails.

4

As to the factual allegations made in support of Claim Eight, Respondent

5

denies, or lacks sufficient knowledge to admit or deny, every allegation;

6

alternatively, Respondent denies that the alleged facts, if true, entitle Petitioner to

7

federal habeas relief. Further, Petitioner is not entitled to an evidentiary hearing on

8

this claim, including all subclaims, because a proper application of § 2254(d)

9

requires that the claim be adjudicated on the basis of the record before the

10

California Supreme Court. Holland v. Jackson, 542 U.S. at 652 (“we have made

11

clear that whether a state court’s decision is unreasonable must be assessed in light

12

of the record the court had before it”), citing Yarborough v. Gentry, 540 U.S. 1,

13

Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at 697 n.4 (declining

14

to consider evidence not presented to state court in determining whether its decision

15

was contrary to federal law). Permitting an evidentiary hearing to allow Petitioner

16

to more fully develop the factual basis of the claim would render his claim

17

unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

18

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

19

2254(d) control whether to grant habeas relief, a federal court must take into

20

account those standards in deciding whether an evidentiary hearing is

21

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

22

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

23

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

24

stringent requirements of § 2254(e)(2).

25

CLAIM NINE: INSUFFICIENCY OF THE EVIDENCE

26

In Claim Nine, Petitioner claims various federal constitutional violations on

27

the ground that there was insufficient evidence to support the rape conviction, rape

28

felony murder conviction, and rape special circumstance. (Pet. at 143-44.)
33

1

Petitioner raised this claim in his first habeas corpus petition in the California

2

Supreme Court. (NOL C1 at 279-81 (Claim “K”).) The California Supreme Court

3

rejected the claim on the merits in its unpublished order denying the first habeas

4

corpus petition. In that same order, the California Supreme Court also rejected the

5

claim on the ground that, to the extent it was not raised on direct appeal, and except

6

insofar as it alleged ineffective assistance of counsel, it was barred by In re Harris,

7

5 Cal. 4th at 825 & n.3, 826-29 and In re Dixon, 41 Cal. 2d at 759. In addition, in

8

that same order, the California Supreme Court also rejected the claim on the ground

9

that, to the extent it alleged insufficiency of the evidence, it was not cognizable on

10

habeas corpus, citing In re Lindley, 29 Cal. 2d at 723. (NOL C7.) As a result,

11

Claim Nine is procedurally barred from consideration on the merits herein because

12

California’s Harris bar, Dixon bar, and Lindley bar are independent and adequate,

13

and Petitioner has not and cannot demonstrate that a fundamental miscarriage of

14

justice would occur if the claim was not considered on the merits. Bennett v.

15

Mueller, 322 F.3d at 583.

16

In addition, Petitioner is precluded from obtaining federal habeas relief

17

because the California Supreme Court’s denial of each claim and subclaim was not

18

contrary to any clearly established Supreme Court authority, did not involve an

19

unreasonable application of clearly established Supreme Court authority, and did

20

not involve an unreasonable determination of the facts based on the evidence

21

presented to it within the meaning of § 2254(d). To the extent that no governing

22

clearly established Supreme Court authority existed at the time of the California

23

Supreme Court’s denial of the claim, federal habeas relief is precluded by §

24

2254(d). To the extent that Petitioner overcomes the § 2254 bar, the claim fails

25

under a de novo standard of review. To the extent that the claim fails to allege a

26

cognizable claim in a federal habeas proceeding, or fails to allege a prima facie

27

federal constitutional claim for relief, it fails.

28
34

1

As to the factual allegations made in support of Claim Nine, Respondent

2

denies, or lacks sufficient knowledge to admit or deny, every allegation;

3

alternatively, Respondent denies that the alleged facts, if true, entitle Petitioner to

4

federal habeas relief. Further, Petitioner is not entitled to an evidentiary hearing on

5

this claim, including all subclaims, because a proper application of § 2254(d)

6

requires that the claim be adjudicated on the basis of the record before the

7

California Supreme Court. Holland v. Jackson, 542 U.S. at 652 (“we have made

8

clear that whether a state court’s decision is unreasonable must be assessed in light

9

of the record the court had before it”), citing Yarborough v. Gentry, 540 U.S. 1,

10

Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at 697 n.4 (declining

11

to consider evidence not presented to state court in determining whether its decision

12

was contrary to federal law). Permitting an evidentiary hearing to allow Petitioner

13

to more fully develop the factual basis of the claim would render his claim

14

unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

15

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

16

2254(d) control whether to grant habeas relief, a federal court must take into

17

account those standards in deciding whether an evidentiary hearing is

18

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

19

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

20

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

21

stringent requirements of § 2254(e)(2).

22

CLAIM TEN: INFLAMMATORY PROPENSITY EVIDENCE

23

In Claim Ten, Petitioner claims various federal constitutional violations on the

24

ground that inflammatory propensity evidence was admitted during the guilt phase

25

of the trial, the trial court failed to properly instruct the jury on the limited purpose

26

of the evidence, trial counsel acted unreasonably with regard to the evidence, and

27

the prosecutor committed misconduct with regard to the evidence. (Pet. at 144-54.)

28

Petitioner raised part of this claim in his opening brief on appeal in the California
35

1

Supreme Court.7 (NOL B1 at 62-79, 133-35.) The California Supreme Court

2

rejected part of the claim as waived and part of the claim on the merits.8 (NOL B4;

3

People v. Jones, 29 Cal. 4th at 1255-56.) Petitioner also raised the claim in his first

4

habeas corpus petition in the California Supreme Court. (NOL C1 at 54-65 (Claim

5

“C”).) The California Supreme Court rejected the claim on the merits in its

6

unpublished order denying the petition. In that same order, the California Supreme

7

Court also rejected the claim on the ground that, to the extent it was not raised on

8

direct appeal, and except insofar as it alleged ineffective assistance of counsel, it

9

was barred by In re Harris, 5 Cal. 4th at 825 & n.3, 826-29 and In re Dixon, 41 Cal.

10

2d at 759. (NOL C7.) As a result, Claim Ten is procedurally barred from

11

consideration on the merits herein because California’s waiver bar, Harris bar, and

12

Dixon bar are independent and adequate, and Petitioner has not and cannot

13

demonstrate that a fundamental miscarriage of justice would occur if the claim was

14

not considered on the merits. Bennett v. Mueller, 322 F.3d at 583.

15

In addition, Petitioner is precluded from obtaining federal habeas relief

16

because the California Supreme Court’s denial of each claim and subclaim was not

17

contrary to any clearly established Supreme Court authority, did not involve an

18

unreasonable application of clearly established Supreme Court authority, and did

19

not involve an unreasonable determination of the facts based on the evidence

20

presented to it within the meaning of § 2254(d). To the extent that no governing

21

clearly established Supreme Court authority existed at the time of the California

22

Supreme Court’s denial of the claim, federal habeas relief is precluded by §

23

2254(d). To the extent that Petitioner overcomes the § 2254 bar, the claim fails

24
25
26
27
28

7

On appeal, Petitioner claimed that prior crimes evidence was erroneously
admitted at trial and that trial counsel was ineffective for withdrawing his objection
to the evidence. (NOL B1 at 62-79, 133-35.)
8
The California Supreme Court found that Petitioner had waived his claim
that prior crimes evidence was erroneously admitted at trial and rejected on the
merits the claim that trial counsel was ineffective for withdrawing his objection to
the evidence. (NOL B4; People v. Jones, 29 Cal. 4th at 1255-56.)
36

1

under a de novo standard of review. To the extent that the claim fails to allege a

2

cognizable claim in a federal habeas proceeding, or fails to allege a prima facie

3

federal constitutional claim for relief, it fails.

4

As to the factual allegations made in support of Claim Ten, Respondent

5

denies, or lacks sufficient knowledge to admit or deny, every allegation;

6

alternatively, Respondent denies that the alleged facts, if true, entitle Petitioner to

7

federal habeas relief. Further, Petitioner is not entitled to an evidentiary hearing on

8

this claim, including all subclaims, because a proper application of § 2254(d)

9

requires that the claim be adjudicated on the basis of the record before the

10

California Supreme Court. Holland v. Jackson, 542 U.S. at 652 (“we have made

11

clear that whether a state court’s decision is unreasonable must be assessed in light

12

of the record the court had before it”), citing Yarborough v. Gentry, 540 U.S. 1,

13

Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at 697 n.4 (declining

14

to consider evidence not presented to state court in determining whether its decision

15

was contrary to federal law). Permitting an evidentiary hearing to allow Petitioner

16

to more fully develop the factual basis of the claim would render his claim

17

unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

18

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

19

2254(d) control whether to grant habeas relief, a federal court must take into

20

account those standards in deciding whether an evidentiary hearing is

21

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

22

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

23

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

24

stringent requirements of § 2254(e)(2).

25
26
27
28

CLAIM ELEVEN: DENIAL OF PETITIONER’S RIGHT TO TESTIFY ABOUT
HIS MENTAL HEALTH HISTORY
In Claim Eleven, Petitioner claims various federal constitutional violations on
the ground that the trial court refused to permit him to testify about his mental
37

1

health history at the guilt phase of his trial. (Pet. at 154-61.) Petitioner raised this

2

claim in his opening brief on appeal in the California Supreme Court. (NOL B1 at

3

109-25.) The California Supreme Court rejected the claim on the merits in its

4

reasoned published opinion on appeal. (NOL B4; People v. Jones, 29 Cal. 4th at

5

1252-53.)

6

The non-retroactivity doctrine forecloses federal habeas corpus relief as to the

7

constitutional provisions alleged by Petitioner in support of this claim because, at

8

the time his conviction became final, existing precedent did not “compel” the result

9

he now seeks. See Teague v. Lane, 489 U.S. at 299-301. And, in any event, none

10

of the recognized exceptions to the non-retroactivity doctrine apply to this claim.

11

Petitioner is also precluded from obtaining federal habeas relief because the

12

California Supreme Court’s denial of each claim and subclaim was not contrary to

13

any clearly established Supreme Court authority, did not involve an unreasonable

14

application of clearly established Supreme Court authority, and did not involve an

15

unreasonable determination of the facts based on the evidence presented to it within

16

the meaning of § 2254(d). To the extent that no governing clearly established

17

Supreme Court authority existed at the time of the California Supreme Court’s

18

denial of the claim, federal habeas relief is precluded by § 2254(d). To the extent

19

that Petitioner overcomes the § 2254 bar, the claim fails under a de novo standard

20

of review. To the extent that the claim fails to allege a cognizable claim in a federal

21

habeas proceeding, or fails to allege a prima facie federal constitutional claim for

22

relief, it fails.

23

As to the factual allegations made in support of Claim Eleven, Respondent

24

denies, or lacks sufficient knowledge to admit or deny, every allegation;

25

alternatively, Respondent denies that the alleged facts, if true, entitle Petitioner to

26

federal habeas relief. Further, Petitioner is not entitled to an evidentiary hearing on

27

this claim, including all subclaims, because a proper application of § 2254(d)

28

requires that the claim be adjudicated on the basis of the record before the
38

1

California Supreme Court. Holland v. Jackson, 542 U.S. at 652 (“we have made

2

clear that whether a state court’s decision is unreasonable must be assessed in light

3

of the record the court had before it”), citing Yarborough v. Gentry, 540 U.S. 1,

4

Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at 697 n.4 (declining

5

to consider evidence not presented to state court in determining whether its decision

6

was contrary to federal law). Permitting an evidentiary hearing to allow Petitioner

7

to more fully develop the factual basis of the claim would render his claim

8

unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

9

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

10

2254(d) control whether to grant habeas relief, a federal court must take into

11

account those standards in deciding whether an evidentiary hearing is

12

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

13

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

14

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

15

stringent requirements of § 2254(e)(2).

16
17
18

CLAIM TWELVE: ERRONEOUS JURY INSTRUCTIONS AND VERDICT
FORMS
In Claim Twelve, Petitioner claims various federal constitutional violations on

19

the ground that the guilt phase jury instructions and guilt phase verdict forms were

20

“conflicting, confusing, inaccurate, and incomplete.” (Pet. at 161-73.) Petitioner

21

raised this claim in his opening brief on appeal in the California Supreme Court.

22

(NOL B1 at 144-72.) The California Supreme Court rejected the claim on the

23

merits in its reasoned published opinion on appeal. It also rejected part of the claim

24

as waived.9 (NOL B4; People v. Jones, 29 Cal. 4th at 1256-60.) Petitioner also

25
26
27
28

9

The California Supreme Court found that Petitioner had waived his claim
that CALJIC No. 4.21.1 erroneously told the jury that voluntary intoxication or
mental disorder could not be considered in determining whether Petitioner had the
specific intent to commit rape and waived his claim that the guilt phase verdict
form was fatally ambiguous. (NOL B4; People v. Jones, 29 Cal. 4th at 1258-59.)
39

1

raised the claim in his first habeas corpus petition in the California Supreme Court.

2

(NOL C1 at 285-89; Claim “M”).) The California Supreme Court rejected the

3

claim on the merits in its unpublished order denying the petition. In that same

4

order, the California Supreme Court also rejected the claim on the ground that, to

5

the extent it was not raised on direct appeal, and except insofar as it alleged

6

ineffective assistance of counsel, it was barred by In re Harris, 5 Cal. 4th at 825 &

7

n.3, 826-29 and In re Dixon, 41 Cal. 2d at 759. (NOL C7.) As a result, Claim

8

Twelve is procedurally barred from consideration on the merits herein because

9

California’s waiver bar, Harris bar, and Dixon bar are independent and adequate,

10

and Petitioner has not and cannot demonstrate that a fundamental miscarriage of

11

justice would occur if the claim was not considered on the merits. Bennett v.

12

Mueller, 322 F.3d at 583.

13

To the extent this claim turns on state law, it fails to present a federal

14

constitutional question cognizable herein. § 2254(a); Estelle v. McGuire, 502 U.S.

15

62, 68, 72, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991) (federal habeas courts do not

16

grant relief, as a state appellate court might, simply based on a violation of state

17

law); Dugger v. Adams, 489 U.S. 401, 409, 109 S. Ct. 1211, 103 L. Ed. 2d 435

18

(1989) (“the availability of a claim under state law does not of itself establish that a

19

claim was available under the United States Constitution”); Engle v. Isaac, 456

20

U.S. 107, 119, 102 S. Ct. 1558, 71 L. Ed. 783 (1982).

21

In addition, Petitioner is precluded from obtaining federal habeas relief

22

because the California Supreme Court’s denial of each claim and subclaim was not

23

contrary to any clearly established Supreme Court authority, did not involve an

24

unreasonable application of clearly established Supreme Court authority, and did

25

not involve an unreasonable determination of the facts based on the evidence

26

presented to it within the meaning of § 2254(d). To the extent that no governing

27

clearly established Supreme Court authority existed at the time of the California

28

Supreme Court’s denial of the claim, federal habeas relief is precluded by §
40

1

2254(d). To the extent that Petitioner overcomes the § 2254 bar, the claim fails

2

under a de novo standard of review. To the extent that the claim fails to allege a

3

cognizable claim in a federal habeas proceeding, or fails to allege a prima facie

4

federal constitutional claim for relief, it fails.

5

As to the factual allegations made in support of Claim Twelve, Respondent

6

denies, or lacks sufficient knowledge to admit or deny, every allegation;

7

alternatively, Respondent denies that the alleged facts, if true, entitle Petitioner to

8

federal habeas relief. Further, Petitioner is not entitled to an evidentiary hearing on

9

this claim, including all subclaims, because a proper application of § 2254(d)

10

requires that the claim be adjudicated on the basis of the record before the

11

California Supreme Court. Holland v. Jackson, 542 U.S. at 652 (“we have made

12

clear that whether a state court’s decision is unreasonable must be assessed in light

13

of the record the court had before it”), citing Yarborough v. Gentry, 540 U.S. 1,

14

Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at 697 n.4 (declining

15

to consider evidence not presented to state court in determining whether its decision

16

was contrary to federal law). Permitting an evidentiary hearing to allow Petitioner

17

to more fully develop the factual basis of the claim would render his claim

18

unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

19

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

20

2254(d) control whether to grant habeas relief, a federal court must take into

21

account those standards in deciding whether an evidentiary hearing is

22

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

23

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

24

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

25

stringent requirements of § 2254(e)(2).

26

CLAIM THIRTEEN: UNRELIABLE DNA EVIDENCE

27

In Claim Thirteen, Petitioner claims various federal constitutional violations

28

on the ground that unreliable and prejudicial DNA evidence was admitted at trial.
41

1

(Pet. at 173-96.) Petitioner raised part of the claim in his opening brief on appeal in

2

the California Supreme Court.10 (NOL B1 at 80-95.) The California Supreme

3

Court rejected the claim on the merits in its reasoned published opinion on appeal.

4

(NOL B4; People v. Jones, 29 Cal. 4th at 1250-52.) Petitioner also raised the claim

5

in his first habeas corpus petition in the California Supreme Court. (NOL C1 at 20-

6

53 (Claim “B”).) The California Supreme Court rejected the claim on the merits in

7

its unpublished order denying the petition.

8

Petitioner is precluded from obtaining federal habeas relief because the

9

California Supreme Court’s denial of each claim and subclaim was not contrary to

10

any clearly established Supreme Court authority, did not involve an unreasonable

11

application of clearly established Supreme Court authority, and did not involve an

12

unreasonable determination of the facts based on the evidence presented to it within

13

the meaning of § 2254(d). To the extent that no governing clearly established

14

Supreme Court authority existed at the time of the California Supreme Court’s

15

denial of the claim, federal habeas relief is precluded by § 2254(d). To the extent

16

that Petitioner overcomes the § 2254 bar, the claim fails under a de novo standard

17

of review. To the extent that the claim fails to allege a cognizable claim in a federal

18

habeas proceeding, or fails to allege a prima facie federal constitutional claim for

19

relief, it fails.

20

As to the factual allegations made in support of Claim Thirteen, Respondent

21

denies, or lacks sufficient knowledge to admit or deny, every allegation;

22

alternatively, Respondent denies that the alleged facts, if true, entitle Petitioner to

23

federal habeas relief. Further, Petitioner is not entitled to an evidentiary hearing on

24

this claim, including all subclaims, because a proper application of § 2254(d)

25

requires that the claim be adjudicated on the basis of the record before the

26
27
28

10

On appeal, Petitioner claimed that the trial court erred in taking judicial
notice of evidence to prove that the DNA procedure was generally accepted in the
scientific community. (NOL B1 at 80-95.)
42

1

California Supreme Court. Holland v. Jackson, 542 U.S. at 652 (“we have made

2

clear that whether a state court’s decision is unreasonable must be assessed in light

3

of the record the court had before it”), citing Yarborough v. Gentry, 540 U.S. 1,

4

Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at 697 n.4 (declining

5

to consider evidence not presented to state court in determining whether its decision

6

was contrary to federal law). Permitting an evidentiary hearing to allow Petitioner

7

to more fully develop the factual basis of the claim would render his claim

8

unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

9

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

10

2254(d) control whether to grant habeas relief, a federal court must take into

11

account those standards in deciding whether an evidentiary hearing is

12

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

13

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

14

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

15

stringent requirements of § 2254(e)(2).

16

CLAIM FOURTEEN: PROSECUTORIAL MISCONDUCT

17

In Claim Fourteen, Petitioner claims various federal constitutional violations

18

on the ground that the prosecutor committed misconduct during the guilt and

19

penalty phases of the trial, including presenting false testimony, making false and

20

prejudicial arguments, referring to facts not in evidence, misstating the law,

21

introducing irrelevant and inflammatory victim impact evidence, characterizing

22

Petitioner as a gang member, characterizing Petitioner’s failure to take advantage of

23

psychiatric treatment as aggravating evidence, and making improper victim impact

24

arguments. (Pet. at 196-207.) Petitioner raised part of this claim in his opening

25

brief on appeal in the California Supreme Court.11 (NOL B1 at 202-11.) The

26

California Supreme Court rejected the claim as waived and on the merits in its

27
28

11

On appeal, Petitioner claimed that the prosecutor committed misconduct
in characterizing Petitioner as a gang member. (NOL B1 at 202-11.)
43

1

reasoned published opinion on appeal. (NOL B4; People v. Jones, 29 Cal. 4th at

2

1262-63.) Petitioner also raised the claim in his first habeas corpus petition in the

3

California Supreme Court. (NOL C1 at 272-76, 320-25 (Claims “I” and “Q”).)

4

The California Supreme Court rejected the claim on the merits in its unpublished

5

order denying the petition. In that same order, the California Supreme Court also

6

rejected part of the claim on the ground that, to the extent it was not raised on direct

7

appeal, and except insofar as it alleged ineffective assistance of counsel, it was

8

barred by In re Harris, 5 Cal. 4th at 825 & n.3, 826-29 and In re Dixon, 41 Cal. 2d

9

at 759.12 Further, in that same order, the California Supreme Court also rejected

10

part of the claim on the ground that, with the exception that it alleged ineffective

11

assistance of trial counsel, Petitioner failed to raise it in the trial court, citing In re

12

Seaton, 34 Cal. 4th 193.13 (NOL C7.) As a result, Claim Fourteen is procedurally

13

barred from consideration on the merits herein because California’s waiver bar,

14

Harris bar, Dixon bar, and Seaton bar are independent and adequate, and Petitioner

15

has not and cannot demonstrate that a fundamental miscarriage of justice would

16

occur if the claim was not considered on the merits. Bennett v. Mueller, 322 F.3d at

17

583.

18

In addition, Petitioner is precluded from obtaining federal habeas relief

19

because the California Supreme Court’s denial of each claim and subclaim was not

20

contrary to any clearly established Supreme Court authority, did not involve an

21

unreasonable application of clearly established Supreme Court authority, and did

22

not involve an unreasonable determination of the facts based on the evidence

23

presented to it within the meaning of § 2254(d). To the extent that no governing

24

clearly established Supreme Court authority existed at the time of the California

25
26
27
28

12

The California Supreme Court denied Claim Fourteen, with the exception
of Subclaims 8a(3) and 12 (NOL C1 Claim “I” with the exception of paragraph
5(c), and Claim “Q” with the exception of paragraph 2), as barred by Harris and
Dixon.13(NOL C7.)
The California Supreme Court denied Subclaim 8a(3) of Claim Fourteen
(NOL C1 Claim “I” paragraph 5 (c)) under Seaton.
44

1

Supreme Court’s denial of the claim, federal habeas relief is precluded by §

2

2254(d). To the extent that Petitioner overcomes the § 2254 bar, the claim fails

3

under a de novo standard of review. To the extent that the claim fails to allege a

4

cognizable claim in a federal habeas proceeding, or fails to allege a prima facie

5

federal constitutional claim for relief, it fails.

6

As to the factual allegations made in support of Claim Fourteen, Respondent

7

denies, or lacks sufficient knowledge to admit or deny, every allegation;

8

alternatively, Respondent denies that the alleged facts, if true, entitle Petitioner to

9

federal habeas relief. Further, Petitioner is not entitled to an evidentiary hearing on

10

this claim, including all subclaims, because a proper application of § 2254(d)

11

requires that the claim be adjudicated on the basis of the record before the

12

California Supreme Court. Holland v. Jackson, 542 U.S. at 652 (“we have made

13

clear that whether a state court’s decision is unreasonable must be assessed in light

14

of the record the court had before it”), citing Yarborough v. Gentry, 540 U.S. 1,

15

Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at 697 n.4 (declining

16

to consider evidence not presented to state court in determining whether its decision

17

was contrary to federal law). Permitting an evidentiary hearing to allow Petitioner

18

to more fully develop the factual basis of the claim would render his claim

19

unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

20

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

21

2254(d) control whether to grant habeas relief, a federal court must take into

22

account those standards in deciding whether an evidentiary hearing is

23

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

24

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

25

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

26

stringent requirements of § 2254(e)(2).

27

///

28

///
45

1

CLAIM FIFTEEN: PREJUDICIAL AGGRAVATING EVIDENCE

2

In Claim Fifteen, Petitioner claims various federal constitutional violations on

3

the ground that unnoticed, irrelevant, and prejudicial aggravating evidence was

4

introduced at the penalty phase of the trial and that his trial attorney unreasonably

5

failed to investigate and rebut the aggravating evidence. (Pet. at 207-23.)

6

Petitioner raised part of this claim in his opening brief on appeal in the California

7

Supreme Court.14 (NOL B1 at 182-90.) The California Supreme Court rejected the

8

claim on the merits in its reasoned published opinion on appeal. (NOL B4; People

9

v. Jones, 29 Cal. 4th at 1265-67.) Petitioner also raised the claim in his first habeas

10

corpus petition in the California Supreme Court. (NOL C1 at 371-74 (Claim “U”).)

11

The California Supreme Court rejected the claim on the merits in its unpublished

12

order denying the petition. In that same order, the California Supreme Court also

13

rejected the claim on the ground that, to the extent it was not raised on direct

14

appeal, and except insofar as it alleged ineffective assistance of counsel, it was

15

barred by In re Harris, 5 Cal. 4th at 825 & n.3, 826-29 and In re Dixon, 41 Cal. 2d

16

at 759. (NOL C7.) As a result, Claim Fifteen is procedurally barred from

17

consideration on the merits herein because California’s Harris bar and Dixon bar

18

are independent and adequate, and Petitioner has not and cannot demonstrate that a

19

fundamental miscarriage of justice would occur if the claim was not considered on

20

the merits. Bennett v. Mueller, 322 F.3d at 583.

21

In addition, Petitioner is precluded from obtaining federal habeas relief

22

because the California Supreme Court’s denial of each claim and subclaim was not

23

contrary to any clearly established Supreme Court authority, did not involve an

24

unreasonable application of clearly established Supreme Court authority, and did

25

not involve an unreasonable determination of the facts based on the evidence

26
27
28

14

On appeal, Petitioner claimed that the testimony of his sister about a
statement that Petitioner made that was offered to show lack of remorse was
improperly admitted at the penalty phase. (NOL B1 at 182-90.)
46

1

presented to it within the meaning of § 2254(d). To the extent that no governing

2

clearly established Supreme Court authority existed at the time of the California

3

Supreme Court’s denial of the claim, federal habeas relief is precluded by §

4

2254(d). To the extent that Petitioner overcomes the § 2254 bar, the claim fails

5

under a de novo standard of review. To the extent that the claim fails to allege a

6

cognizable claim in a federal habeas proceeding, or fails to allege a prima facie

7

federal constitutional claim for relief, it fails.

8
9

As to the factual allegations made in support of Claim Fifteen, Respondent
denies, or lacks sufficient knowledge to admit or deny, every allegation;

10

alternatively, Respondent denies that the alleged facts, if true, entitle Petitioner to

11

federal habeas relief. Further, Petitioner is not entitled to an evidentiary hearing on

12

this claim, including all subclaims, because a proper application of § 2254(d)

13

requires that the claim be adjudicated on the basis of the record before the

14

California Supreme Court. Holland v. Jackson, 542 U.S. at 652 (“we have made

15

clear that whether a state court’s decision is unreasonable must be assessed in light

16

of the record the court had before it”), citing Yarborough v. Gentry, 540 U.S. 1,

17

Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at 697 n.4 (declining

18

to consider evidence not presented to state court in determining whether its decision

19

was contrary to federal law). Permitting an evidentiary hearing to allow Petitioner

20

to more fully develop the factual basis of the claim would render his claim

21

unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

22

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

23

2254(d) control whether to grant habeas relief, a federal court must take into

24

account those standards in deciding whether an evidentiary hearing is

25

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

26

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

27

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

28

stringent requirements of § 2254(e)(2).
47

1
2

CLAIM SIXTEEN: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AT
PENALTY PHASE

3

In Claim Sixteen, Petitioner claims various federal constitutional violations on

4

the ground that he was denied the effective assistance of trial counsel at the penalty

5

phase of his trial.15 (Pet. at 223-339.) Petitioner raised this claim in his first habeas

6

corpus petition in the California Supreme Court. (NOL C1 at 167-239 (Claim

7

“D”).) The California Supreme Court rejected the claim on the merits in its

8

unpublished order denying the first habeas corpus petition. (NOL C7.)

9

Petitioner is precluded from obtaining federal habeas relief because the

10

California Supreme Court’s denial of each claim and subclaim was not contrary to

11

any clearly established Supreme Court authority, did not involve an unreasonable

12

application of clearly established Supreme Court authority, and did not involve an

13

unreasonable determination of the facts based on the evidence presented to it within

14

the meaning of § 2254(d). To the extent that no governing clearly established

15

Supreme Court authority existed at the time of the California Supreme Court’s

16

denial of the claim, federal habeas relief is precluded by § 2254(d). To the extent

17

that Petitioner overcomes the § 2254 bar, the claim fails under a de novo standard

18

of review. To the extent that the claim fails to allege a cognizable claim in a federal

19

habeas proceeding, or fails to allege a prima facie federal constitutional claim for

20

relief, it fails.

21

As to the factual allegations made in support of Claim Sixteen, Respondent

22

denies, or lacks sufficient knowledge to admit or deny, every allegation;

23

alternatively, Respondent denies that the alleged facts, if true, entitle Petitioner to

24

federal habeas relief. Further, Petitioner is not entitled to an evidentiary hearing on

25
26
27
28

15

Petitioner claims trial counsel rendered ineffective assistance by: (1)
conducting a deficient penalty phase investigation (Pet. at 224-327); (2) failing to
retain, consult, and prepare mental health experts (Pet. at 327-37); and (3) failing to
investigate and challenge the prosecution’s improper victim impact evidence (Pet.
at 337-38).
48

1

this claim, including all subclaims, because a proper application of § 2254(d)

2

requires that the claim be adjudicated on the basis of the record before the

3

California Supreme Court. Holland v. Jackson, 542 U.S. at 652 (“we have made

4

clear that whether a state court’s decision is unreasonable must be assessed in light

5

of the record the court had before it”), citing Yarborough v. Gentry, 540 U.S. 1,

6

Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at 697 n.4 (declining

7

to consider evidence not presented to state court in determining whether its decision

8

was contrary to federal law). Permitting an evidentiary hearing to allow Petitioner

9

to more fully develop the factual basis of the claim would render his claim

10

unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

11

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

12

2254(d) control whether to grant habeas relief, a federal court must take into

13

account those standards in deciding whether an evidentiary hearing is

14

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

15

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

16

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

17

stringent requirements of § 2254(e)(2).

18
19
20

CLAIM SEVENTEEN: ADMISSION OF PREJUDICIAL PENALTY PHASE
EVIDENCE
In Claim Seventeen, Petitioner claims various federal constitutional violations

21

on the ground that the trial court, during the penalty phase, permitted the

22

prosecution to elicit irrelevant and prejudicial facts concerning Petitioner’s minor,

23

non-violent jail infractions and precluded Petitioner from presenting evidence to

24

mitigate such information. (Pet. at 339-43.) Petitioner raised this claim in his

25

opening brief on appeal in the California Supreme Court. (NOL B1 at 191-201.)

26

The California Supreme Court rejected the claim on the merits in its reasoned

27

published opinion on appeal. (NOL B4; People v. Jones, 29 Cal. 4th at 1260-62.)

28
49

1

Petitioner is precluded from obtaining federal habeas relief because the

2

California Supreme Court’s denial of each claim and subclaim was not contrary to

3

any clearly established Supreme Court authority, did not involve an unreasonable

4

application of clearly established Supreme Court authority, and did not involve an

5

unreasonable determination of the facts based on the evidence presented to it within

6

the meaning of § 2254(d). To the extent that no governing clearly established

7

Supreme Court authority existed at the time of the California Supreme Court’s

8

denial of the claim, federal habeas relief is precluded by § 2254(d). To the extent

9

that Petitioner overcomes the § 2254 bar, the claim fails under a de novo standard

10

of review. To the extent that the claim fails to allege a cognizable claim in a federal

11

habeas proceeding, or fails to allege a prima facie federal constitutional claim for

12

relief, it fails.

13

As to the factual allegations made in support of Claim Seventeen, Respondent

14

denies, or lacks sufficient knowledge to admit or deny, every allegation;

15

alternatively, Respondent denies that the alleged facts, if true, entitle Petitioner to

16

federal habeas relief. Further, Petitioner is not entitled to an evidentiary hearing on

17

this claim, including all subclaims, because a proper application of § 2254(d)

18

requires that the claim be adjudicated on the basis of the record before the

19

California Supreme Court. Holland v. Jackson, 542 U.S. at 652 (“we have made

20

clear that whether a state court’s decision is unreasonable must be assessed in light

21

of the record the court had before it”), citing Yarborough v. Gentry, 540 U.S. 1,

22

Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at 697 n.4 (declining

23

to consider evidence not presented to state court in determining whether its decision

24

was contrary to federal law). Permitting an evidentiary hearing to allow Petitioner

25

to more fully develop the factual basis of the claim would render his claim

26

unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

27

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

28

2254(d) control whether to grant habeas relief, a federal court must take into
50

1

account those standards in deciding whether an evidentiary hearing is

2

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

3

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

4

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

5

stringent requirements of § 2254(e)(2).

6

CLAIM EIGHTEEN: JUROR MISCONDUCT

7

In Claim Eighteen, Petitioner claims various federal constitutional violations

8

on the ground that there were several instances of juror misconduct at his trial.

9

(Pet. at 343-58.) Petitioner raised this claim in his first habeas corpus petition in

10

the California Supreme Court. (NOL C1 at 293-316 (Claim “O”).) The California

11

Supreme Court rejected the claim on the merits in its unpublished order denying the

12

first habeas corpus petition. (NOL C7.)

13

Petitioner is precluded from obtaining federal habeas relief because the

14

California Supreme Court’s denial of each claim and subclaim was not contrary to

15

any clearly established Supreme Court authority, did not involve an unreasonable

16

application of clearly established Supreme Court authority, and did not involve an

17

unreasonable determination of the facts based on the evidence presented to it within

18

the meaning of § 2254(d). To the extent that no governing clearly established

19

Supreme Court authority existed at the time of the California Supreme Court’s

20

denial of the claim, federal habeas relief is precluded by § 2254(d). To the extent

21

that Petitioner overcomes the § 2254 bar, the claim fails under a de novo standard

22

of review. To the extent that the claim fails to allege a cognizable claim in a federal

23

habeas proceeding, or fails to allege a prima facie federal constitutional claim for

24

relief, it fails.

25

As to the factual allegations made in support of Claim Eighteen, Respondent

26

denies, or lacks sufficient knowledge to admit or deny, every allegation;

27

alternatively, Respondent denies that the alleged facts, if true, entitle Petitioner to

28

federal habeas relief. Further, Petitioner is not entitled to an evidentiary hearing on
51

1

this claim, including all subclaims, because a proper application of § 2254(d)

2

requires that the claim be adjudicated on the basis of the record before the

3

California Supreme Court. Holland v. Jackson, 542 U.S. at 652 (“we have made

4

clear that whether a state court’s decision is unreasonable must be assessed in light

5

of the record the court had before it”), citing Yarborough v. Gentry, 540 U.S. 1,

6

Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at 697 n.4 (declining

7

to consider evidence not presented to state court in determining whether its decision

8

was contrary to federal law). Permitting an evidentiary hearing to allow Petitioner

9

to more fully develop the factual basis of the claim would render his claim

10

unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

11

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

12

2254(d) control whether to grant habeas relief, a federal court must take into

13

account those standards in deciding whether an evidentiary hearing is

14

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

15

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

16

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

17

stringent requirements of § 2254(e)(2).

18

CLAIM NINETEEN: OUTBURSTS BY VICTIM’S DAUGHTERS

19

In Claim Nineteen, Petitioner claims various federal constitutional violations

20

on the ground that the jury was exposed to repeated outbursts by the victim’s

21

daughters. (Pet. at 359-63.) Petitioner raised this claim in his first habeas corpus

22

petition in the California Supreme Court. (NOL C1 at 290-92 (Claim “N”).) The

23

California Supreme Court rejected the claim on the merits in its unpublished order

24

denying the first habeas corpus petition. (NOL C7.)

25

Petitioner is precluded from obtaining federal habeas relief because the

26

California Supreme Court’s denial of each claim and subclaim was not contrary to

27

any clearly established Supreme Court authority, did not involve an unreasonable

28

application of clearly established Supreme Court authority, and did not involve an
52

1

unreasonable determination of the facts based on the evidence presented to it within

2

the meaning of § 2254(d). To the extent that no governing clearly established

3

Supreme Court authority existed at the time of the California Supreme Court’s

4

denial of the claim, federal habeas relief is precluded by § 2254(d). To the extent

5

that Petitioner overcomes the § 2254 bar, the claim fails under a de novo standard

6

of review. To the extent that the claim fails to allege a cognizable claim in a federal

7

habeas proceeding, or fails to allege a prima facie federal constitutional claim for

8

relief, it fails.

9

As to the factual allegations made in support of Claim Nineteen, Respondent

10

denies, or lacks sufficient knowledge to admit or deny, every allegation;

11

alternatively, Respondent denies that the alleged facts, if true, entitle Petitioner to

12

federal habeas relief. Further, Petitioner is not entitled to an evidentiary hearing on

13

this claim, including all subclaims, because a proper application of § 2254(d)

14

requires that the claim be adjudicated on the basis of the record before the

15

California Supreme Court. Holland v. Jackson, 542 U.S. at 652 (“we have made

16

clear that whether a state court’s decision is unreasonable must be assessed in light

17

of the record the court had before it”), citing Yarborough v. Gentry, 540 U.S. 1,

18

Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at 697 n.4 (declining

19

to consider evidence not presented to state court in determining whether its decision

20

was contrary to federal law). Permitting an evidentiary hearing to allow Petitioner

21

to more fully develop the factual basis of the claim would render his claim

22

unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

23

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

24

2254(d) control whether to grant habeas relief, a federal court must take into

25

account those standards in deciding whether an evidentiary hearing is

26

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

27

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

28
53

1

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

2

stringent requirements of § 2254(e)(2).

3

CLAIM TWENTY: INFLAMMATORY PHOTOGRAPHS OF THE VICTIM

4

In Claim Twenty, Petitioner claims various federal constitutional violations on

5

the ground that irrelevant and inflammatory photographs of the victim were

6

introduced at trial. (Pet. at 363-66.) Petitioner raised this claim in his first habeas

7

corpus petition in the California Supreme Court. (NOL C1 at 277-78 (Claim “J”).)

8

The California Supreme Court rejected the claim on the merits in its unpublished

9

order denying the first habeas corpus petition. (NOL C7.)

10

To the extent this claim turns on state law, it fails to present a federal

11

constitutional question cognizable herein. § 2254(a); Estelle v. McGuire, 502 U.S.

12

at 68; Dugger v. Adams, 489 U.S. at 409; Engle v. Isaac, 456 U.S. at 119.

13

Further, Petitioner is precluded from obtaining federal habeas relief because

14

the California Supreme Court’s denial of each claim and subclaim was not contrary

15

to any clearly established Supreme Court authority, did not involve an unreasonable

16

application of clearly established Supreme Court authority, and did not involve an

17

unreasonable determination of the facts based on the evidence presented to it within

18

the meaning of § 2254(d). To the extent that no governing clearly established

19

Supreme Court authority existed at the time of the California Supreme Court’s

20

denial of the claim, federal habeas relief is precluded by § 2254(d). To the extent

21

that Petitioner overcomes the § 2254 bar, the claim fails under a de novo standard

22

of review. To the extent that the claim fails to allege a cognizable claim in a federal

23

habeas proceeding, or fails to allege a prima facie federal constitutional claim for

24

relief, it fails.

25

As to the factual allegations made in support of Claim Twenty, Respondent

26

denies, or lacks sufficient knowledge to admit or deny, every allegation;

27

alternatively, Respondent denies that the alleged facts, if true, entitle Petitioner to

28

federal habeas relief. Further, Petitioner is not entitled to an evidentiary hearing on
54

1

this claim, including all subclaims, because a proper application of § 2254(d)

2

requires that the claim be adjudicated on the basis of the record before the

3

California Supreme Court. Holland v. Jackson, 542 U.S. at 652 (“we have made

4

clear that whether a state court’s decision is unreasonable must be assessed in light

5

of the record the court had before it”), citing Yarborough v. Gentry, 540 U.S. 1,

6

Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at 697 n.4 (declining

7

to consider evidence not presented to state court in determining whether its decision

8

was contrary to federal law). Permitting an evidentiary hearing to allow Petitioner

9

to more fully develop the factual basis of the claim would render his claim

10

unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

11

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

12

2254(d) control whether to grant habeas relief, a federal court must take into

13

account those standards in deciding whether an evidentiary hearing is

14

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

15

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

16

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

17

stringent requirements of § 2254(e)(2).

18

CLAIM TWENTY-ONE: ERRONEOUS PENALTY PHASE INSTRUCTIONS

19

In Claim Twenty-One, Petitioner claims various federal constitutional

20

violations on the ground that the jury received confusing and incomplete

21

instructions during the penalty phase of the trial. (Pet. at 366-72.) Petitioner raised

22

this claim in his first habeas corpus petition in the California Supreme Court.

23

(NOL C1 at 326-32 (Claim “R”).) The California Supreme Court rejected the claim

24

on the merits in its unpublished order denying the petition. In that same order, the

25

California Supreme Court also rejected the claim on the ground that, to the extent it

26

was not raised on direct appeal, and except insofar as it alleged ineffective

27

assistance of counsel, it was barred by In re Harris, 5 Cal. 4th at 825 & n.3, 826-29

28

and In re Dixon, 41 Cal. 2d at 759. (NOL C7.) As a result, Claim Twenty-One is
55

1

procedurally barred from consideration on the merits herein because California’s

2

Harris bar and Dixon bar are independent and adequate, and Petitioner has not and

3

cannot demonstrate that a fundamental miscarriage of justice would occur if the

4

claim was not considered on the merits. Bennett v. Mueller, 322 F.3d at 583.

5

In addition, Petitioner is precluded from obtaining federal habeas relief

6

because the California Supreme Court’s denial of each claim and subclaim was not

7

contrary to any clearly established Supreme Court authority, did not involve an

8

unreasonable application of clearly established Supreme Court authority, and did

9

not involve an unreasonable determination of the facts based on the evidence

10

presented to it within the meaning of § 2254(d). To the extent that no governing

11

clearly established Supreme Court authority existed at the time of the California

12

Supreme Court’s denial of the claim, federal habeas relief is precluded by §

13

2254(d). To the extent that Petitioner overcomes the § 2254 bar, the claim fails

14

under a de novo standard of review. To the extent that the claim fails to allege a

15

cognizable claim in a federal habeas proceeding, or fails to allege a prima facie

16

federal constitutional claim for relief, it fails.

17

As to the factual allegations made in support of Claim Twenty-One,

18

Respondent denies, or lacks sufficient knowledge to admit or deny, every

19

allegation; alternatively, Respondent denies that the alleged facts, if true, entitle

20

Petitioner to federal habeas relief. Further, Petitioner is not entitled to an

21

evidentiary hearing on this claim, including all subclaims, because a proper

22

application of § 2254(d) requires that the claim be adjudicated on the basis of the

23

record before the California Supreme Court. Holland v. Jackson, 542 U.S. at 652

24

(“we have made clear that whether a state court’s decision is unreasonable must be

25

assessed in light of the record the court had before it”), citing Yarborough v.

26

Gentry, 540 U.S. 1, Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at

27

697 n.4 (declining to consider evidence not presented to state court in determining

28

whether its decision was contrary to federal law). Permitting an evidentiary hearing
56

1

to allow Petitioner to more fully develop the factual basis of the claim would render

2

his claim unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

3

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

4

2254(d) control whether to grant habeas relief, a federal court must take into

5

account those standards in deciding whether an evidentiary hearing is

6

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

7

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

8

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

9

stringent requirements of § 2254(e)(2).

10
11
12

CLAIM TWENTY-TWO: ERRONEOUS PENALTY PHASE INSTRUCTIONS
AND ARBITRARY DEATH PENALTY SCHEME
In Claim Twenty-Two, Petitioner claims various federal constitutional

13

violations on the following grounds: (1) the jurors were not instructed that they had

14

to unanimously agree on the circumstances in aggravation; (2) the jurors were not

15

instructed that the beyond a reasonable doubt burden of proof applied to

16

determining which factors were aggravating, whether the aggravating factors

17

outweighed the mitigating factors, and whether death was the appropriate penalty;

18

(3) the jurors were not instructed that a presumption of life applied at the penalty

19

phase; and (4) California’s statutory death penalty scheme fails to require written

20

findings from the jury, fails to designate the sentencing factors as either mitigating

21

or aggravating, and fails to require the reviewing court to engage in inter-case

22

proportionality review. (Pet. at 372-81.) Petitioner raised this claim in his opening

23

brief on appeal in the California Supreme Court. (NOL B1 at 217-28.) The

24

California Supreme Court rejected the claim on the merits in its reasoned published

25

opinion on appeal. (NOL B4; People v. Jones, 29 Cal. 4th at 1267.)

26

The non-retroactivity doctrine forecloses federal habeas corpus relief as to the

27

constitutional provisions alleged by Petitioner in support of this claim because, at

28

the time his conviction became final, existing precedent did not “compel” the result
57

1

he now seeks. See Teague v. Lane, 489 U.S. at 299-301. And, in any event, none

2

of the recognized exceptions to the non-retroactivity doctrine apply to this claim.

3

In addition, Petitioner is precluded from obtaining federal habeas relief

4

because the California Supreme Court’s denial of each claim and subclaim was not

5

contrary to any clearly established Supreme Court authority, did not involve an

6

unreasonable application of clearly established Supreme Court authority, and did

7

not involve an unreasonable determination of the facts based on the evidence

8

presented to it within the meaning of § 2254(d). To the extent that no governing

9

clearly established Supreme Court authority existed at the time of the California

10

Supreme Court’s denial of the claim, federal habeas relief is precluded by §

11

2254(d). To the extent that Petitioner overcomes the § 2254 bar, the claim fails

12

under a de novo standard of review. To the extent that the claim fails to allege a

13

cognizable claim in a federal habeas proceeding, or fails to allege a prima facie

14

federal constitutional claim for relief, it fails.

15

As to the factual allegations made in support of Claim Twenty-Two,

16

Respondent denies, or lacks sufficient knowledge to admit or deny, every

17

allegation; alternatively, Respondent denies that the alleged facts, if true, entitle

18

Petitioner to federal habeas relief. Further, Petitioner is not entitled to an

19

evidentiary hearing on this claim, including all subclaims, because a proper

20

application of § 2254(d) requires that the claim be adjudicated on the basis of the

21

record before the California Supreme Court. Holland v. Jackson, 542 U.S. at 652

22

(“we have made clear that whether a state court’s decision is unreasonable must be

23

assessed in light of the record the court had before it”), citing Yarborough v.

24

Gentry, 540 U.S. 1, Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at

25

697 n.4 (declining to consider evidence not presented to state court in determining

26

whether its decision was contrary to federal law). Permitting an evidentiary hearing

27

to allow Petitioner to more fully develop the factual basis of the claim would render

28

his claim unexhausted, and a sound application of § 2254(d) impossible. Schriro v.
58

1

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

2

2254(d) control whether to grant habeas relief, a federal court must take into

3

account those standards in deciding whether an evidentiary hearing is

4

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

5

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

6

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

7

stringent requirements of § 2254(e)(2).

8
9
10

CLAIM TWENTY-THREE: DEATH SENTENCE IS CRUEL AND UNUSUAL
GIVEN PETITIONER’S MENTAL RETARDATION AND MENTAL
IMPAIRMENTS
In Claim Twenty-Three, Petitioner, relying on Atkins v. Virginia, 536 U.S.

11

304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), claims that his death sentence

12

constitutes cruel and unusual punishment because of his mental retardation and

13

mental impairments. (Pet. at 382-93.) Petitioner raised this claim in his first

14

habeas corpus petition in the California Supreme Court. (NOL C1 at 347-70

15

(“Claim T”).) The California Supreme Court rejected the claim on the merits in its

16

unpublished order denying the first habeas corpus petition. (NOL C7.)

17

Petitioner is precluded from obtaining federal habeas relief because the

18

California Supreme Court’s denial of each claim and subclaim was not contrary to

19

any clearly established Supreme Court authority, did not involve an unreasonable

20

application of clearly established Supreme Court authority, and did not involve an

21

unreasonable determination of the facts based on the evidence presented to it within

22

the meaning of § 2254(d). To the extent that no governing clearly established

23

Supreme Court authority existed at the time of the California Supreme Court’s

24

denial of the claim, federal habeas relief is precluded by § 2254(d). To the extent

25

that Petitioner overcomes the § 2254 bar, the claim fails under a de novo standard

26

of review. To the extent that the claim fails to allege a cognizable claim in a federal

27

habeas proceeding, or fails to allege a prima facie federal constitutional claim for

28

relief, it fails.
59

1

As to the factual allegations made in support of Claim Twenty-Three,

2

Respondent denies, or lacks sufficient knowledge to admit or deny, every

3

allegation; alternatively, Respondent denies that the alleged facts, if true, entitle

4

Petitioner to federal habeas relief. Further, Petitioner is not entitled to an

5

evidentiary hearing on this claim, including all subclaims, because a proper

6

application of § 2254(d) requires that the claim be adjudicated on the basis of the

7

record before the California Supreme Court. Holland v. Jackson, 542 U.S. at 652

8

(“we have made clear that whether a state court’s decision is unreasonable must be

9

assessed in light of the record the court had before it”), citing Yarborough v.

10

Gentry, 540 U.S. 1, Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at

11

697 n.4 (declining to consider evidence not presented to state court in determining

12

whether its decision was contrary to federal law). Permitting an evidentiary hearing

13

to allow Petitioner to more fully develop the factual basis of the claim would render

14

his claim unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

15

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

16

2254(d) control whether to grant habeas relief, a federal court must take into

17

account those standards in deciding whether an evidentiary hearing is

18

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

19

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

20

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

21

stringent requirements of § 2254(e)(2).

22
23

CLAIM TWENTY-FOUR: CONSTITUTIONAL AND INTERNATIONAL LAW
VIOLATIONS BECAUSE OF THE FAILURE TO NARROW THE CLASS OF
OFFENDERS ELIGIBLE FOR THE DEATH PENALTY

24

In Claim Twenty-Four, Petitioner claims various federal constitutional

25

violations and a violation of international law on the ground that the California

26

death penalty statute fails to narrow the class of offenders eligible for the death

27

penalty. (Pet. at 394-401.) Petitioner raised this claim in his first habeas corpus

28

petition in the California Supreme Court. (NOL C1 at 383-408 (“Claim X”).) The
60

1

California Supreme Court rejected the claim on the merits in its unpublished order

2

denying the first habeas corpus petition. (NOL C7.)

3

The non-retroactivity doctrine forecloses federal habeas corpus relief as to the

4

constitutional provisions alleged by Petitioner in support of this claim because, at

5

the time his conviction became final, existing precedent did not “compel” the result

6

he now seeks. See Teague v. Lane, 489 U.S. at 299-301. And, in any event, none

7

of the recognized exceptions to the non-retroactivity doctrine apply to this claim.

8

In addition, Petitioner is precluded from obtaining federal habeas relief

9

because the California Supreme Court’s denial of each claim and subclaim was not

10

contrary to any clearly established Supreme Court authority, did not involve an

11

unreasonable application of clearly established Supreme Court authority, and did

12

not involve an unreasonable determination of the facts based on the evidence

13

presented to it within the meaning of § 2254(d). To the extent that no governing

14

clearly established Supreme Court authority existed at the time of the California

15

Supreme Court’s denial of the claim, federal habeas relief is precluded by §

16

2254(d). To the extent that Petitioner overcomes the § 2254 bar, the claim fails

17

under a de novo standard of review. To the extent that the claim fails to allege a

18

cognizable claim in a federal habeas proceeding, or fails to allege a prima facie

19

federal constitutional claim for relief, it fails.

20

As to the factual allegations made in support of Claim Twenty-Four,

21

Respondent denies, or lacks sufficient knowledge to admit or deny, every

22

allegation; alternatively, Respondent denies that the alleged facts, if true, entitle

23

Petitioner to federal habeas relief. Further, Petitioner is not entitled to an

24

evidentiary hearing on this claim, including all subclaims, because a proper

25

application of § 2254(d) requires that the claim be adjudicated on the basis of the

26

record before the California Supreme Court. Holland v. Jackson, 542 U.S. at 652

27

(“we have made clear that whether a state court’s decision is unreasonable must be

28

assessed in light of the record the court had before it”), citing Yarborough v.
61

1

Gentry, 540 U.S. 1, Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at

2

697 n.4 (declining to consider evidence not presented to state court in determining

3

whether its decision was contrary to federal law). Permitting an evidentiary hearing

4

to allow Petitioner to more fully develop the factual basis of the claim would render

5

his claim unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

6

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

7

2254(d) control whether to grant habeas relief, a federal court must take into

8

account those standards in deciding whether an evidentiary hearing is

9

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

10

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

11

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

12

stringent requirements of § 2254(e)(2).

13
14

CLAIM TWENTY-FIVE: USE OF RACE, GENDER, AND OTHER
UNCONSTITUTIONAL CONSIDERATIONS IN DECISION TO SEEK THE
DEATH PENALTY

15

In Claim Twenty-Five, Petitioner claims various federal constitutional

16

violations on the ground that the prosecution used race, gender, and other

17

unconstitutional considerations in its decision to seek the death penalty. (Pet. at

18

401-06.) Petitioner raised this claim in his first habeas corpus petition in the

19

California Supreme Court. (NOL C1 at 409-15 (Claim “Y”).) The California

20

Supreme Court rejected the claim on the merits in its unpublished order denying the

21

first habeas corpus petition. In that same order, the California Supreme Court also

22

rejected the claim on the ground that, with the exception that it alleged ineffective

23

assistance of trial counsel, Petitioner failed to raise it in the trial court, citing In re

24

Seaton, 34 Cal. 4th 193. (NOL C7.) As a result, Claim Twenty-Five is

25

procedurally barred from consideration on the merits herein because California’s

26

Seaton bar is independent and adequate, and Petitioner has not and cannot

27

demonstrate that a fundamental miscarriage of justice would occur if the claim was

28

not considered on the merits. Bennett v. Mueller, 322 F.3d at 583.
62

1

In addition, the non-retroactivity doctrine forecloses federal habeas corpus

2

relief as to the constitutional provisions alleged by Petitioner in support of this

3

claim because, at the time his conviction became final, existing precedent did not

4

“compel” the result he now seeks. See Teague v. Lane, 489 U.S. at 299-301. And,

5

in any event, none of the recognized exceptions to the non-retroactivity doctrine

6

apply to this claim.

7

Further, Petitioner is precluded from obtaining federal habeas relief because

8

the California Supreme Court’s denial of each claim and subclaim was not contrary

9

to any clearly established Supreme Court authority, did not involve an unreasonable

10

application of clearly established Supreme Court authority, and did not involve an

11

unreasonable determination of the facts based on the evidence presented to it within

12

the meaning of § 2254(d). To the extent that no governing clearly established

13

Supreme Court authority existed at the time of the California Supreme Court’s

14

denial of the claim, federal habeas relief is precluded by § 2254(d). To the extent

15

that Petitioner overcomes the § 2254 bar, the claim fails under a de novo standard

16

of review. To the extent that the claim fails to allege a cognizable claim in a federal

17

habeas proceeding, or fails to allege a prima facie federal constitutional claim for

18

relief, it fails.

19

As to the factual allegations made in support of Claim Twenty-Five,

20

Respondent denies, or lacks sufficient knowledge to admit or deny, every

21

allegation; alternatively, Respondent denies that the alleged facts, if true, entitle

22

Petitioner to federal habeas relief. Further, Petitioner is not entitled to an

23

evidentiary hearing on this claim, including all subclaims, because a proper

24

application of § 2254(d) requires that the claim be adjudicated on the basis of the

25

record before the California Supreme Court. Holland v. Jackson, 542 U.S. at 652

26

(“we have made clear that whether a state court’s decision is unreasonable must be

27

assessed in light of the record the court had before it”), citing Yarborough v.

28

Gentry, 540 U.S. 1, Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at
63

1

697 n.4 (declining to consider evidence not presented to state court in determining

2

whether its decision was contrary to federal law). Permitting an evidentiary hearing

3

to allow Petitioner to more fully develop the factual basis of the claim would render

4

his claim unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

5

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

6

2254(d) control whether to grant habeas relief, a federal court must take into

7

account those standards in deciding whether an evidentiary hearing is

8

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

9

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

10

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

11

stringent requirements of § 2254(e)(2).

12
13

CLAIM TWENTY-SIX: UNLAWFUL DEATH SENTENCE BECAUSE
INTERNATIONAL LAW BARS IMPOSITION OF THE DEATH PENALTY ON
MENTALLY DISORDERED INDIVIDUALS

14

In Claim Twenty-Six, Petitioner claims that his death sentence is unlawful

15

because customary international law binding on the United States bars imposition

16

of the death penalty on mentally disordered individuals. (Pet. at 406-14.)

17

Petitioner raised this claim in his first habeas corpus petition in the California

18

Supreme Court. (NOL C1 at 416-24 (Claim “Z”).) The California Supreme Court

19

rejected the claim on the merits in its unpublished order denying the first habeas

20

corpus petition. (NOL C7.)

21

The non-retroactivity doctrine forecloses federal habeas corpus relief as to the

22

constitutional provisions alleged by Petitioner in support of this claim because, at

23

the time his conviction became final, existing precedent did not “compel” the result

24

he now seeks. See Teague v. Lane, 489 U.S. at 299-301. And, in any event, none

25

of the recognized exceptions to the non-retroactivity doctrine apply to this claim.

26

In addition, Petitioner is precluded from obtaining federal habeas relief

27

because the California Supreme Court’s denial of each claim and subclaim was not

28

contrary to any clearly established Supreme Court authority, did not involve an
64

1

unreasonable application of clearly established Supreme Court authority, and did

2

not involve an unreasonable determination of the facts based on the evidence

3

presented to it within the meaning of § 2254(d). To the extent that no governing

4

clearly established Supreme Court authority existed at the time of the California

5

Supreme Court’s denial of the claim, federal habeas relief is precluded by §

6

2254(d). To the extent that Petitioner overcomes the § 2254 bar, the claim fails

7

under a de novo standard of review. To the extent that the claim fails to allege a

8

cognizable claim in a federal habeas proceeding, or fails to allege a prima facie

9

federal constitutional claim for relief, it fails.

10

As to the factual allegations made in support of Claim Twenty-Six,

11

Respondent denies, or lacks sufficient knowledge to admit or deny, every

12

allegation; alternatively, Respondent denies that the alleged facts, if true, entitle

13

Petitioner to federal habeas relief. Further, Petitioner is not entitled to an

14

evidentiary hearing on this claim, including all subclaims, because a proper

15

application of § 2254(d) requires that the claim be adjudicated on the basis of the

16

record before the California Supreme Court. Holland v. Jackson, 542 U.S. at 652

17

(“we have made clear that whether a state court’s decision is unreasonable must be

18

assessed in light of the record the court had before it”), citing Yarborough v.

19

Gentry, 540 U.S. 1, Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at

20

697 n.4 (declining to consider evidence not presented to state court in determining

21

whether its decision was contrary to federal law). Permitting an evidentiary hearing

22

to allow Petitioner to more fully develop the factual basis of the claim would render

23

his claim unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

24

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

25

2254(d) control whether to grant habeas relief, a federal court must take into

26

account those standards in deciding whether an evidentiary hearing is

27

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

28

extent that Petitioner’s claim is not fully factually developed, he failed to exercise
65

1

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

2

stringent requirements of § 2254(e)(2).

3
4

CLAIM TWENTY-SEVEN: CONSTITUTIONAL AND INTERNATIONAL LAW
VIOLATIONS BECAUSE OF LENGTHY PERIOD OF CONFINEMENT UNDER
SENTENCE OF DEATH

5

In Claim Twenty-Seven, Petitioner claims various federal constitutional

6

violations and a violation of international law on the ground that California’s death

7

penalty post-conviction procedures permit execution following a long period of

8

confinement under a sentence of death. (Pet. at 414-18.) Petitioner raised this

9

claim in his opening brief on appeal in the California Supreme Court. (NOL B1 at

10

229-43.) The California Supreme Court rejected the claim on the merits in its

11

reasoned published opinion on appeal. (NOL B4; People v. Jones, 29 Cal. 4th at

12

1267.)

13

The non-retroactivity doctrine forecloses federal habeas corpus relief as to the

14

constitutional provisions alleged by Petitioner in support of this claim because, at

15

the time his conviction became final, existing precedent did not “compel” the result

16

he now seeks. See Teague v. Lane, 489 U.S. at 299-301. And, in any event, none

17

of the recognized exceptions to the non-retroactivity doctrine apply to this claim.

18

In addition, Petitioner is precluded from obtaining federal habeas relief

19

because the California Supreme Court’s denial of each claim and subclaim was not

20

contrary to any clearly established Supreme Court authority, did not involve an

21

unreasonable application of clearly established Supreme Court authority, and did

22

not involve an unreasonable determination of the facts based on the evidence

23

presented to it within the meaning of § 2254(d). To the extent that no governing

24

clearly established Supreme Court authority existed at the time of the California

25

Supreme Court’s denial of the claim, federal habeas relief is precluded by §

26

2254(d). To the extent that Petitioner overcomes the § 2254 bar, the claim fails

27

under a de novo standard of review. To the extent that the claim fails to allege a

28
66

1

cognizable claim in a federal habeas proceeding, or fails to allege a prima facie

2

federal constitutional claim for relief, it fails.

3

As to the factual allegations made in support of Claim Twenty-Seven,

4

Respondent denies, or lacks sufficient knowledge to admit or deny, every

5

allegation; alternatively, Respondent denies that the alleged facts, if true, entitle

6

Petitioner to federal habeas relief. Further, Petitioner is not entitled to an

7

evidentiary hearing on this claim, including all subclaims, because a proper

8

application of § 2254(d) requires that the claim be adjudicated on the basis of the

9

record before the California Supreme Court. Holland v. Jackson, 542 U.S. at 652

10

(“we have made clear that whether a state court’s decision is unreasonable must be

11

assessed in light of the record the court had before it”), citing Yarborough v.

12

Gentry, 540 U.S. 1, Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at

13

697 n.4 (declining to consider evidence not presented to state court in determining

14

whether its decision was contrary to federal law). Permitting an evidentiary hearing

15

to allow Petitioner to more fully develop the factual basis of the claim would render

16

his claim unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

17

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

18

2254(d) control whether to grant habeas relief, a federal court must take into

19

account those standards in deciding whether an evidentiary hearing is

20

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

21

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

22

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

23

stringent requirements of § 2254(e)(2).

24
25

CLAIM TWENTY-EIGHT: INEFFECTIVE ASSISTANCE OF APPELLATE
COUNSEL

26

In Claim Twenty-Eight, Petitioner claims various federal constitutional

27

violations on the ground that appellate counsel rendered ineffective assistance by

28
67

1

failing to include meritorious issues on appeal.16 (Pet. at 418-21.) Petitioner raised

2

this claim in his first habeas corpus petition in the California Supreme Court.

3

(NOL C1 at 375-77 (Claim “V”).) The California Supreme Court rejected the

4

claim on the merits in its unpublished order denying the first habeas corpus petition.

5

(NOL C7.)

6

Petitioner is precluded from obtaining federal habeas relief because the

7

California Supreme Court’s denial of each claim and subclaim was not contrary to

8

any clearly established Supreme Court authority, did not involve an unreasonable

9

application of clearly established Supreme Court authority, and did not involve an

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

16

Petitioner claims that appellate counsel rendered ineffective assistance by
failing to include the following issues on appeal: (1) Petitioner’s federal
constitutional rights to a fair and reliable guilt and sentencing determination were
violated by the trial court’s erroneous ruling allowing the jury to draw
impermissible inferences from highly inflammatory propensity evidence during the
guilt phase; (2) the trial court unreasonably and prejudicially failed to protect
Petitioner’s federal constitutional rights by allowing the prosecution to engage in
numerous instances of deceptive and reprehensible prosecutorial misconduct in the
guilt and penalty phases; (3) the trial court violated Petitioner’s federal
constitutional rights when it abdicated its responsibility to ensure an effective
inquiry into prospective juror biases; (4) Petitioner was deprived of his federal
constitutional rights because the jury was given incomplete and confusing jury
instructions and verdict forms in the guilt and penalty phases of Petitioner’s trial;
(5) the erroneous admission of improper, prejudicial, and false victim impact
evidence violated Petitioner’s state and federal constitutional rights; (6) the
prosecution violated Petitioner’s federal constitutional rights by failing to disclose
material exculpatory evidence; (7) the prosecution knowingly presented false
evidence in violation of Petitioner’s federal constitutional rights; (8) no evidence
supported Petitioner’s convictions and true special circumstance finding in
violation of the federal constitution; (9) Petitioner’s federal constitutional rights
were violated when the prosecution failed to give trial counsel adequate notice of
aggravation evidence pursuant to California Penal Code section 190.3; (10) the trial
court failed to protect Petitioner’s federal constitutional rights by admitting
evidence of Petitioner’s minor, non-violent, prior prison infractions, and not
permitting Petitioner to mitigate the court’s error by permitting evidence of the
conditions of confinement for prisoners sentenced to life without the possibility of
parole; (11) Petitioner’s federal constitutional rights were violated by the admission
of numerous inflammatory and irrelevant photographs and also by trial counsel’s
failure to object to their introduction; (12) the failure of California’s death penalty
statute to narrow the class of death eligible offenders violated Petitioner’s federal
constitutional rights; (13) as a result of Petitioner’s profound mental illness and
severe cognitive defects, Petitioner’s death sentence violates the tenets of
international law; and (14) Petitioner’s federal constitutional rights were violated
because the direct appeal of his capital conviction and death sentence were based on
an incomplete and inaccurate appellate record. (Pet. at 419-21.)
68

1

unreasonable determination of the facts based on the evidence presented to it within

2

the meaning of § 2254(d). To the extent that no governing clearly established

3

Supreme Court authority existed at the time of the California Supreme Court’s

4

denial of the claim, federal habeas relief is precluded by § 2254(d). To the extent

5

that Petitioner overcomes the § 2254 bar, the claim fails under a de novo standard

6

of review. To the extent that the claim fails to allege a cognizable claim in a federal

7

habeas proceeding, or fails to allege a prima facie federal constitutional claim for

8

relief, it fails.

9

As to the factual allegations made in support of Claim Twenty-Eight,

10

Respondent denies, or lacks sufficient knowledge to admit or deny, every

11

allegation; alternatively, Respondent denies that the alleged facts, if true, entitle

12

Petitioner to federal habeas relief. Further, Petitioner is not entitled to an

13

evidentiary hearing on this claim, including all subclaims, because a proper

14

application of § 2254(d) requires that the claim be adjudicated on the basis of the

15

record before the California Supreme Court. Holland v. Jackson, 542 U.S. at 652

16

(“we have made clear that whether a state court’s decision is unreasonable must be

17

assessed in light of the record the court had before it”), citing Yarborough v.

18

Gentry, 540 U.S. 1, Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at

19

697 n.4 (declining to consider evidence not presented to state court in determining

20

whether its decision was contrary to federal law). Permitting an evidentiary hearing

21

to allow Petitioner to more fully develop the factual basis of the claim would render

22

his claim unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

23

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

24

2254(d) control whether to grant habeas relief, a federal court must take into

25

account those standards in deciding whether an evidentiary hearing is

26

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

27

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

28
69

1

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

2

stringent requirements of § 2254(e)(2).

3
4
5

CLAIM TWENTY-NINE: INACCURATE AND INCOMPLETE APPELLATE
RECORD
In Claim Twenty-Nine, Petitioner claims various federal constitutional

6

violations on the ground that the appellate record of his trial proceedings was

7

inaccurate and incomplete. (Pet at 421-28.) Petitioner raised this claim in his first

8

habeas corpus petition in the California Supreme Court. (NOL C1 at 11-19 (Claim

9

“A”).) The California Supreme Court rejected the claim on the merits in its

10

unpublished order denying the first habeas corpus petition. (NOL C7.)

11

To the extent Petitioner alleges error in post-conviction proceedings, his claim

12

is not cognizable in a federal habeas corpus petition. See Ortiz v. Stewart, 149 F.3d

13

923, 939 (9th Cir. 1998) (“federal habeas relief is unavailable to redress alleged

14

procedural error in state post-conviction proceedings”).

15

In addition, the non-retroactivity doctrine forecloses federal habeas corpus

16

relief as to the constitutional provisions alleged by Petitioner in support of this

17

claim because, at the time his conviction became final, existing precedent did not

18

“compel” the result he now seeks. See Teague v. Lane, 489 U.S. at 299-301. And,

19

in any event, none of the recognized exceptions to the non-retroactivity doctrine

20

apply to this claim.

21

Further, Petitioner is precluded from obtaining federal habeas relief because

22

the California Supreme Court’s denial of each claim and subclaim was not contrary

23

to any clearly established Supreme Court authority, did not involve an unreasonable

24

application of clearly established Supreme Court authority, and did not involve an

25

unreasonable determination of the facts based on the evidence presented to it within

26

the meaning of § 2254(d). To the extent that no governing clearly established

27

Supreme Court authority existed at the time of the California Supreme Court’s

28

denial of the claim, federal habeas relief is precluded by § 2254(d). To the extent
70

1

that Petitioner overcomes the § 2254 bar, the claim fails under a de novo standard

2

of review. To the extent that the claim fails to allege a cognizable claim in a federal

3

habeas proceeding, or fails to allege a prima facie federal constitutional claim for

4

relief, it fails.

5

As to the factual allegations made in support of Claim Twenty-Nine,

6

Respondent denies, or lacks sufficient knowledge to admit or deny, every

7

allegation; alternatively, Respondent denies that the alleged facts, if true, entitle

8

Petitioner to federal habeas relief. Further, Petitioner is not entitled to an

9

evidentiary hearing on this claim, including all subclaims, because a proper

10

application of § 2254(d) requires that the claim be adjudicated on the basis of the

11

record before the California Supreme Court. Holland v. Jackson, 542 U.S. at 652

12

(“we have made clear that whether a state court’s decision is unreasonable must be

13

assessed in light of the record the court had before it”), citing Yarborough v.

14

Gentry, 540 U.S. 1, Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at

15

697 n.4 (declining to consider evidence not presented to state court in determining

16

whether its decision was contrary to federal law). Permitting an evidentiary hearing

17

to allow Petitioner to more fully develop the factual basis of the claim would render

18

his claim unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

19

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

20

2254(d) control whether to grant habeas relief, a federal court must take into

21

account those standards in deciding whether an evidentiary hearing is

22

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

23

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

24

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

25

stringent requirements of § 2254(e)(2).

26

///

27

///

28

///
71

1
2
3

CLAIM THIRTY: MULTIPLE CONSTITUTIONAL ERRORS CUMULATIVELY
RENDERED PETITIONER’S TRIAL UNFAIR
In Claim Thirty, Petitioner claims various federal constitutional violations on

4

the ground that the multiple constitutional errors committed by the prosecutor,

5

Petitioner’s counsel, and the trial court as alleged in the Petition cumulatively

6

rendered his trial unfair. (Pet. at 428-29.) Petitioner raised this claim in his first

7

habeas corpus petition in the California Supreme Court. (NOL C1 at 425-26

8

(Claim “AA”).) The California Supreme Court rejected the claim on the merits in

9

its unpublished order denying the first habeas corpus petition. (NOL C7.)

10

The non-retroactivity doctrine forecloses federal habeas corpus relief as to the

11

constitutional provisions alleged by Petitioner in support of this claim because, at

12

the time his conviction became final, existing precedent did not “compel” the result

13

he now seeks. See Teague v. Lane, 489 U.S. at 299-301. And, in any event, none

14

of the recognized exceptions to the non-retroactivity doctrine apply to this claim.

15

In addition, Petitioner is precluded from obtaining federal habeas relief

16

because the California Supreme Court’s denial of each claim and subclaim was not

17

contrary to any clearly established Supreme Court authority, did not involve an

18

unreasonable application of clearly established Supreme Court authority, and did

19

not involve an unreasonable determination of the facts based on the evidence

20

presented to it within the meaning of § 2254(d). To the extent that no governing

21

clearly established Supreme Court authority existed at the time of the California

22

Supreme Court’s denial of the claim, federal habeas relief is precluded by §

23

2254(d). To the extent that Petitioner overcomes the § 2254 bar, the claim fails

24

under a de novo standard of review. To the extent that the claim fails to allege a

25

cognizable claim in a federal habeas proceeding, or fails to allege a prima facie

26

federal constitutional claim for relief, it fails.

27
28

As to the factual allegations made in support of Claim Thirty, Respondent
denies, or lacks sufficient knowledge to admit or deny, every allegation;
72

1

alternatively, Respondent denies that the alleged facts, if true, entitle Petitioner to

2

federal habeas relief. Further, Petitioner is not entitled to an evidentiary hearing on

3

this claim, including all subclaims, because a proper application of § 2254(d)

4

requires that the claim be adjudicated on the basis of the record before the

5

California Supreme Court. Holland v. Jackson, 542 U.S. at 652 (“we have made

6

clear that whether a state court’s decision is unreasonable must be assessed in light

7

of the record the court had before it”), citing Yarborough v. Gentry, 540 U.S. 1,

8

Miller-el v. Cockrell, 537 U.S. at 348, Bell v. Cone, 535 U.S. at 697 n.4 (declining

9

to consider evidence not presented to state court in determining whether its decision

10

was contrary to federal law). Permitting an evidentiary hearing to allow Petitioner

11

to more fully develop the factual basis of the claim would render his claim

12

unexhausted, and a sound application of § 2254(d) impossible. Schriro v.

13

Landrigan, 550 U.S. at 474 (“Because the deferential standards prescribed by §

14

2254(d) control whether to grant habeas relief, a federal court must take into

15

account those standards in deciding whether an evidentiary hearing is

16

appropriate.”). Moreover, no evidentiary hearing should be held because, to the

17

extent that Petitioner’s claim is not fully factually developed, he failed to exercise

18

“due diligence” within the meaning of § 2254(e), and cannot otherwise meet the

19

stringent requirements of § 2254(e)(2).

20

///

21

///

22

///

23

///

24

///

25

///

26

///

27

///

28

///
73

1
2

CONCLUSION
Except as expressly admitted, Respondent denies each and every allegation of

3

the Petition and specifically denies that the judgment and sentence pursuant to

4

which Petitioner is confined are in any way unconstitutional. Petitioner is entitled

5

to no relief, and Respondent respectfully requests that the Petition be denied with

6

prejudice without an evidentiary hearing.

7

Dated: April 6, 2010

Respectfully submitted,

8

EDMUND G. BROWN JR.
Attorney General of California
DANE R. GILLETTE
Chief Assistant Attorney General
PAMELA C. HAMANAKA
Senior Assistant Attorney General
A. SCOTT HAYWARD
Deputy Attorney General

9
10
11
12
13

/s/ Herbert S. Tetef
HERBERT S. TETEF
Deputy Attorney General
Attorneys for Respondent

14
15
16
17

LA2009505879
60529446.doc

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22
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