Morgande v. Tilton et al

Filing 29

ORDER signed by Circuit Judge Mary M. Schroeder on 8/13/09 ORDERING that petitioner's petition for writ of hc is DENIED. This case is dismissed and closed.(Kastilahn, A)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B e g o ia Morgande, a California state prisoner, petitions for a writ of habeas co rp u s filed pursuant to 28 U.S.C. § 2254. A jury convicted Morgande of first d eg ree murder, for which he received a sentence of 50 years to life in state prison. His habeas petition challenges his state conviction on six grounds: (1) the trial c o u r t's denial of his motion to dismiss filed pursuant to California Penal Code § 1 3 8 7 .1 ; (2) admission at trial of statements that were made after Morgande req u ested an attorney during his interrogation; (3) admission of his wife Shelisa N ic h o ls 's statements; (4) prosecutorial misconduct; (5) admission of evidence of a s im ila r offense without a limiting instruction; and (6) ineffective assistance of trial co u n sel. For the reasons discussed below, the petition is DENIED. BEGOIA MORGANDE, ) ) Petitioner, ) v. ) ) JAMES E. TILTON, Secretary of California ) Department of Corrections and Rehabilitation, ) et al., ) ) Respondents. ) _____________________________________ ) Case No. 2:07-CV-1824-MMS ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F A C T U A L BACKGROUND T h e facts are taken substantially from the unpublished opinion of the C a lif o r n ia Court of Appeal, First Appellate District. See People v. Morgande, 2 0 0 6 WL 1454792 (Cal. Ct. App. May 26, 2006). This court presumes state court fin d in g s of fact to be correct unless rebutted by clear and convincing evidence. 28 U .S .C . § 2254(e)(1). Marvin Sims lived in Vacaville, California with several people, including M o rg an d e, Morgande's future wife Shelisa Nichols (referred to as Nichols for c la rity because during the relevant time period her last name was the same as p etitio n er's), and Diona Woods. At the time, Sims was a drug dealer, Morgande w as a pimp, and Nichols and Woods were Morgande's prostitutes and lovers. Sims was last seen alive on January 20, 1998. On March 23, 1998, a male b o d y was found floating near a pier along Highway 37 in Solano County, C alifo rn ia. The man had been choked to death, and his body was wrapped with a m etal chain and weighted down with a 50-pound barbell plate. A large wad of p ap er was stuffed in the back of the man's throat. According to a pathologist, the m an died by asphyxiation, probably from choking on the wadded paper, but the p o ssib ility of manual strangulation could not be ruled out. There were no signs of in to x ic atio n , and no signs of a beating, aside from one laceration on the forehead th a t could have occurred after death. The body was not identifiable because it had b e e n in the water for several weeks to several months. DNA from the body was retain ed for future identification. S o m etim e in 2000 or 2001, Woods confided in a friend, Felicia Gill. At the tim e , the murder was still unsolved. Gill testified that Woods told her that M o r g a n d e killed Sims. Woods said the murder occurred in a vehicle, that her d au g h ter was in the backseat when Sims was killed, and that Sims's body "was in 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 s o m e water somewhere." In April 2002, Gill relayed Woods's story to the police. The police collected D N A samples from Sims's mother and son and compared them to the DNA retain ed from the body recovered from the water in 1998. In October 2002, the p o lice identified the body as Marvin Sims. O n November 12, 2002, the police interviewed Woods. She implicated h erself, Morgande, and Nichols in the murder of Sims. Woods's police statement a n d trial testimony were consistent in their essential elements. Woods testified that sh e, Morgande, and Sims knew each other from San Diego, California and that the m o tiv a tio n for Sims's murder arose there. In San Diego, Morgande had struck D o ro th y Whitney with a gun when she refused to prostitute for him in August 1 9 9 7 . As a result, the police arrested Morgande. While a prosecution for the o f f en s e was pending, Morgande, Woods, and Sims moved to Vacaville, California, w h e r e they lived together in early 1998. According to Woods, Morgande wanted S im s "to persuade" Whitney not to testify against Morgande in the San Diego p r o s e c u tio n . Other witnesses corroborated Woods's story. Whitney testified that Sims ap p ro ach ed her in January 1998, pulled out a gun, grabbed her arm, told her to c o m e with him, and pulled her down the driveway of her house. Whitney escaped w h e n her father lunged at Sims. Woods testified that Morgande was very angry w ith Sims for his failure to stop Whitney from testifying. Morgande told Woods that he was going to kill Sims. In late January or early February 1998, Morgande, Woods, and Sims went to a motel in Oakland, C alifo rn ia. The three would often go to motels together, where Sims would sell d ru g s, and Woods would engage in prostitution. Sims "assumed it was just the sam e thing as usual," and did not know that Morgande was planning to kill him. 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 W h ile at the motel, Morgande or Woods telephoned Nichols and asked her to bring w eig h ts. Apparently, Morgande owned weights for weightlifting, and to chain on to his pit bulls to build the dogs' muscles. When Nichols arrived, a chain and weights were put into Woods's car, and e v e ry o n e went for a drive. Woods drove, and Nichols was in the passenger seat h o ld in g Woods's baby daughter in a car seat. Morgande and Sims were in the b ack seat. Morgande instructed Woods where to drive. Woods' testimony went on to describe the killing. It was dark and late, and Morgande and Sims had both been drinking heavily. Woods looked in her rearv iew mirror as she drove and could "somewhat" see what was happening in the b ack seat. There was "a lot of struggling and arguing" in the backseat. Morgande p u n ch ed Sims. Woods saw Morgande put Sims in a headlock and choke him, and s h e heard him say, "This nigger won't die." Woods soon knew Sims was dead w h en she smelled excrement. W o o d s kept driving. She stopped along Highway 37 at a fishing spot with a p ier. Woods had been to the fishing spot before, while she lived with Morgande an d Nichols. Morgande removed Sims's body from the car, chained the body with a dog chain, and attached a round, 50-pound barbell weight plate to the chain. Morgande told Woods and Nichols to help him lift Sims's body because the body w as too heavy to lift by himself. The women helped Morgande lift the body and d u m p it over the railing into the water. O n November 14, 2002, Morgande and Nichols, now Morgande's wife, w e re brought into the police station for questioning. Morgande's interview was v id eo tap ed and transcribed, but his statements were relayed to the jury through the testim o n y of police officers. At the start of the interview, Detective Joseph M cE llig o tt informed Morgande that he was under arrest for the murder of Marvin 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S im s, and read him his Miranda rights. Morgande said that he understood his r ig h ts , and asked about the evidence against him. Morgande admitted that he lived w ith Sims, Woods, and Nichols in 1997, and said that Sims went missing after stealin g jewelry from Nichols. The police told Morgande that Sims was dead, and th a t they had evidence linking Morgande to Sims's death. Morgande was skeptical an d asked for proof. Detective McElligott said they had DNA evidence, and proof th at Morgande had an altercation with Sims. M o r g a n d e denied any wrongdoing. As to the officer's insistence that they h ad evidence implicating Morgande, Morgande said, "You got a bunch of h e a rs ay ." Detective McElligott said they had more than that, and Morgande asked fo r details. The back-and-forth between the police and Morgande continued. Morgande, 33 years old at the time, remarked that he had "been through the court s ys te m since I was 13" and "been around the best of the best in prison" and knew th a t he would not have been released from prison on his last sentence if there was e v id e n c e linking him with Sims's body. The police urged Morgande to tell them w h at happened. Morgande asked if his wife, Nichols, could pick up his keys and wallet from th e police station. The police told Morgande that Nichols was also being q u estio n ed at the station. When Morgande asked why Nichols was arrested, S e rg e a n t Weaver said that Nichols was involved in Sims's murder, and that there m a y be some liability for her but that she was cooperating with the police. Then M o rg an d e, for the first time, asked to speak with his wife. Morgande asked if it w as possible to tell Nichols that he loved her. Sergeant Weaver assured Morgande h e would "try to make that happen." Sergeant Weaver then left the room. At this juncture, after speaking with the police for about two hours, M o r g a n d e asked for a lawyer. Morgande said that there was no reason to speak 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 w ith the police if they had the evidence they said they had against him. Detective M cE llig o tt asked if Morgande wanted a lawyer. Morgande said, "Hell, yeah, I w a n t a lawyer," and then spoke on extensively, summarizing the evidence that p o lice claimed they had against him and denying that the police possessed any ev id en ce. Morgande said that the police only had "some-hearsay-assed-shit," and d em an d ed to see evidence that his fingerprints were at the crime scene. Detective Lydon entered the room at this time. He told Morgande that the p o lice could not speak with him or present him with anything that would elicit a r es p o n s e from Morgande because of his request for an attorney. He also said that M o rg an d e, on his own accord, could re-initiate conversation with the police and w aiv e his right to an attorney. Morgande replied, "Man, if you let me ­ if you let me ­ if you let me tell my w ife, Man that I love her Man, and she gonna be all right and this and that Man, I'll waive what I just said, Man." Morgande told Detective Lydon that Sergeant "W e av e r already said it could happen." Detective Lydon said, "We can make that h a p p e n . We can make that, I'm pretty confident, but the thing about it is, another in v estig ato r's talking to her right now and I don't want to interrupt that right this m in u te. But we'll make that happen for you, Ray." The police told Morgande to "co llect" his thoughts and decide if he wanted to reinitiate contact with the police. Detective Lydon said he would try to arrange a visit between Morgande and his w ife, but it was "not a `deal'" for Morgande's waiver of counsel. As to the visit, D etectiv e Lydon said, "I'll make it happen, but it's not a `deal' for ­ you have to m ak e your decision." Morgande replied: "No, it ain't a deal. It ain't a deal. I'm n o t gonna go tell my lawyer, `Yeah, I had to waive you because they let me see my w if e .'" According to officers, Morgande then waited alone in the interview room for 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a p p r o x im a te ly 20 minutes, and then in a holding cell for approximately 45 minutes in order to see his wife. Morgande grew impatient. He accused the police of p layin g games and threatened to stop speaking with the police. The police told M o r g a n d e that he would soon be able to speak with his wife. D etectiv e Lydon went to check on Morgande. Morgande requested a sw eatsh irt, coffee, and a cigarette. Detective Lydon brought the items for him. Detective Lydon then took Morgande outside to smoke. This encounter was not v id eo tap ed or transcribed, but was testified to by Detective Lydon at the hearing on th e motion to suppress Morgande's police statement. According to Detective L yd o n , Morgande said he was not against talking to the police, but he wanted to talk to his wife first. Detective Lydon testified: "I again reiterated that it was not a d eal. We could possibly have him talk to his wife. And he said, `Hey, I am not o p p o sed to talking to you guys.'" The record thus does not reflect that any in te rr o g a tio n occurred after Morgande requested an attorney and before he met w ith his wife. M o rg an d e met with his wife after the cigarette break, and then returned to th e interview room, where his conversation was taped. Detective Lydon confirmed th at before the taping began, Morgande had said during the cigarette break he w o u ld speak with police. Morgande said he understood his rights. The in terro g atio n continued. Detective Lydon told Morgande that Woods and Nichols b o th said Morgande killed Sims. Morgande said that he did not believe that his w ife "would make up a story like that." The detective asked if Morgande would tell the truth if the detective could prove what Nichols told the police. Morgande sa id he would. The police then allowed Morgande to watch a portion of Nichols's in te rv ie w in which Nichols said that Morgande killed Sims and revealed in fo rm atio n about the crime. Morgande concurred in certain statements made by 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 N ic h o ls . He later asked to be jointly interviewed with Nichols, but the police re fu se d . Detective Lydon reminded Morgande that he made a promise, and said, "I w an t you to tell me the truth." S h o r tly thereafter, Morgande gave a confession. He told police that he had b een on drugs and alcohol at the time and so could not recall the details of the e v e n t. Morgande said he did not know if he killed Sims, and said that he was "facin g a death sentence" because he would never get out of prison. A detective r em a rk e d that Sims got a death sentence and asked Morgande what should happen to the person who killed Sims. Morgande replied, "[J]ustice should be done." When asked what justice was due to him, Morgande said that he "deserved a death sen ten ce" if "it went down the way you guys are saying my wife said it went d o w n ." When asked what he remembered, Morgande said that he remembered b ein g "in the Bay Area" in a motel room with Sims, Woods, and Nichols, being in W o o d s's car, and driving around. The interrogation ended. On November 15, 2002, Woods was arrested and charged with murder. Woods's car was searched, but nothing of evidentiary value was recovered. The p o lice also searched Morgande's home and storage unit. They found barbell p lates, photographs of "pit-bull-type dogs," and fishing equipment. The p r o s e cu tio n agreed to reduce Woods's charge to manslaughter if she testified a g a in s t Morgande. W o o d s first testified at a preliminary hearing in June 2003, but recanted her p o lice statement, and denied that Morgande killed Sims. The prosecution rescin d ed the plea agreement and charged Woods with murder and perjury. Woods a d m itte d that she lied at the preliminary hearing because Morgande urged her, th ro u g h jailhouse communications, to come up with a different story. The p r o s e cu tio n entered into a new plea bargain with Woods in which she pleaded 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 g u ilty to manslaughter and perjury in exchange for her truthful testimony at M o rg an d e's trial. Woods's subsequent trial testimony implicated Morgande in S im s's murder, consistent with her original police statement. P R O C E D U R A L BACKGROUND O n November 18, 2002, Morgande and Nichols were first charged by co m p lain t with Sims's murder. After the preliminary hearing, when Woods recan ted her original police statements, and after several unsuccessful attempts to lo c a te Gill, a key prosecution witness who could corroborate Woods's trial testim o n y with evidence of Woods's prior consistent statements, the prosecutor d ism issed the case on November 7, 2003, and announced that he would refile. On November 10, 2003, the prosecution filed a new complaint against M o r g a n d e and Nichols. The defense moved to compel discovery and complained th at the prosecution had not produced DNA testing documents relating to the id e n tif ic atio n of the victim and analysis of physical evidence. The court san ctio n ed the prosecution by excluding DNA evidence at trial. The prosecution d ism issed the case on January 30, 2004 for refiling because they were unable to lo cate two significant witnesses. The prosecution filed its final complaint against Morgande on February 2, 2 0 0 4 , again charging him with murder. The jury trial was conducted shortly th ereafter, from July 8 to July 22, 2004. On July 22, 2004, the jury found M o rg an d e guilty of first degree murder. Because Morgande had a prior strike u n d er California's Three Strikes Law, he received a sentence of 50 years to life in state prison. M o rg an d e appealed his conviction to the California Court of Appeal, and, w h ile the appeal was still pending, filed a state habeas petition. On May 26, 2006, th e California Court of Appeal, First Appellate District, affirmed the judgment in 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 an unpublished opinion, and denied Morgande's state habeas petition. Morgande p etitio n ed for review of both his direct appeal and his state habeas petition in the C alifo rn ia Supreme Court. The California Supreme Court denied both petitions on S ep tem b er 13, 2006. O n September 5, 2007, Morgande filed the pro se petition for habeas corpus th at is now before this court. STANDARD OF REVIEW T h e writ of habeas corpus is available to "a person in custody pursuant to a ju d g m en t of a State court only on the ground that he is in custody in violation of th e Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). As d ictated by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a d istrict court's standard of review is described as follows: A n application for a writ of habeas corpus on behalf of a person in c u s to d y pursuant to the judgment of a State court shall not be granted w ith respect to any claim that was adjudicated on the merits in State co u rt proceedings unless the adjudication of the claim­ ( 1 ) resulted in a decision that was contrary to, or involved an u n r ea so n a b le application of, clearly established Federal law, as d eterm in ed by the Supreme Court of the United States; or (2 ) resulted in a decision that was based on an unreasonable d eterm in atio n of the facts in light of the evidence presented in th e State court proceeding. 2 8 U.S.C. § 2254(d). Pursuant to 28 U.S.C. § 2254(b)(1), however, before a federal court may c o n s id e r a state prisoner's application for a writ of habeas corpus, the prisoner m u st have exhausted available state-court remedies. Coleman v. Thompson, 501 U .S . 722, 731 (1991). To properly exhaust state remedies, the prisoner must have affo rd ed the state courts an opportunity to rule upon and correct the merits of his fed eral constitutional claims by fairly presenting the claims in each appropriate 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 state court in a procedurally appropriate manner. Baldwin v. Reese, 541 U.S. 27, 2 9 (2004). "[W]here the [federal] claim has been presented for the first and only tim e in a procedural context in which its merits will not be considered unless there are special and important reasons . . . [r]aising the claim in such a fashion does not . . . constitute fair presentation." Castille v. Peoples, 489 U.S. 346, 351 (1989). DISCUSSION I. T ria l court's denial of Morgande's motion to dismiss. C alifo rn ia Penal Code § 1387.1 bars the successive filing of charges if the p ro secu to r's conduct has been in bad faith. Morgande alleges that his federal due p ro cess rights were violated when the trial court denied his third motion to dismiss. In relevant part, section 1387.1 provides, Where an offense is a violent felony, . . . and the prosecution has had two p r io r dismissals . . . the people shall be permitted one additional o p p o r tu n ity to refile charges where either of the prior dismissals under S ectio n 1387 were due solely to excusable neglect. In no case shall the a d d i t io n a l refiling of charges provided under this section be permitted w h ere the conduct of the prosecution amounted to bad faith. M o rg an d e argues that the denial of his third motion to dismiss violated his fed eral due process rights because the deprivation was an arbitrary denial of a state law benefit, and that the trial court's refusal to permit him to call witnesses during the h e a rin g on the motion to dismiss violated his federal rights. Morgande's claim does n o t entitle him to federal habeas relief. In the first place, Morgande failed to exhaust this claim before the state co u rt. Morgande did not present this claim before the trial court or in the C alifo rn ia Court of Appeal. The sole reference to the federal claim Morgande cu rren tly raises was first presented in a footnote in his petition to the California S u p rem e Court, and provided that "the lower court's denial of appellant's motion to dismiss under Penal Code section 1387.1 as described in appellant's first seven a rg u m e n ts herein was the arbitrary denial of a state law benefit which violates 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 fed eral due process." This generic and buried assertion of a due process violation d o es not constitute a fair presentation of the substance of the claim to the state co u rt for purposes of exhaustion. Gray v. Netherland, 518 U.S. 152, 163 (1996) ( "[ I]t is not enough to make a general appeal to a constitutional guarantee as broad as due process to present the `substance' of such a claim to a state court."). Moreover, Morgande's federal due process argument was not raised at all to the C alifo rn ia Court of Appeal, and therefore, not appropriately raised before the C alifo rn ia Supreme Court, because that court "normally will not consider an issue th at the petitioner failed to timely raise in the Court of Appeal." Cal. Rules of C o u rt, rule 8.500(c)(1). Accordingly, the fleeting reference in the California S u p r em e Court petition was insufficient to exhaust state court remedies. See G atlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) ("[P]resentation of an issue in a petition to the Oregon Supreme Court was inadequate because the court's p o licies militated against reviewing the issue.") (citing Kellotat v. Cupp, 719 F.2d 1 0 2 7 , 1031 (9th Cir. 1983)). Morgande's claim must be rejected for his failure to ex h au st the claim. E v en if Morgande had exhausted the claim in state court, however, his ch allen g e would fail on the merits. Morgande's challenge is based exclusively on a n alleged violation of state statutory rights, specifically, rights and procedures a ff o r d e d pursuant to California Penal Code § 1387.1. A writ of habeas corpus may b e granted under § 2254 "only on the basis of some transgression of federal law b in d in g on the state courts." Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1 9 8 5 ) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). It is not available as a rem ed y for violations of state law or for alleged errors in the interpretation or ap p licatio n of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). The C alifo rn ia Court of Appeal considered the prosecutor's motive for the dismissals in 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 M o r g a n d e 's case. After examining the record, the California Court of Appeal co n clu d ed that the prosecutor's inability to proceed to trial was due to "excusable n eg lect" and not done in "bad faith," within the meaning of section 1387.1. The co u rt further found that it was uncertain whether section 1387.1 affords a d efen d an t a right to confront and cross-examine witnesses, but that Morgande failed clearly to invoke any such claimed right. A federal habeas court does not r ee x a m in e state-court determinations on state-law questions. Estelle, 502 U.S. at 6 7 -6 8 . The state court's determination was thus not contrary to or an unreasonable a p p lic atio n of clearly established Federal law, and did not result from an u n reaso n ab le determination of the facts. Accordingly, this claim is denied. I I. A d m is sio n of Morgande's statements made during police in terv iew after request for an attorney. M o rg an d e alleges that the trial court's admission of the statements he made a fte r his request for an attorney during his interrogation violated his constitutional rig h ts. The state trial court denied his motion to suppress, finding that although th ere was an invocation of the right to an attorney during the interview, no p ro m ises were made to Morgande, and that he later made a knowing and intelligent w aiv er of his right to counsel. The California Court of Appeal also rejected his claim of a constitutional violation. It found that although Morgande properly in v o k e d his right to counsel, he subsequently initiated conversation with the police an d voluntarily and knowingly waived that right. The record reflects that no in terro g atio n occurred after the request for counsel and before the waiver, so the co u rt's reading of the record was not unreasonable. A suspect's unequivocal invocation of a request for counsel requires police o fficers to cease all questioning and permit the suspect to consult with an attorney. Davis v. United States, 512 U.S. 452, 458 (1994). This rule does not apply, h o w ev er, where a suspect "initiates further communication, exchanges, or 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 co n v ersatio n s with the police." Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). A suspect initiates further communication only where he "evince[s] a willingness an d a desire for a generalized discussion about the investigation." Oregon v. B rad sh aw , 462 U.S. 1039, 1045-46 (1983). If the police reinitiate interrogation of th e suspect, the prosecution must demonstrate under the totality of the circu m stan ces that the suspect knowingly and intelligently waived his previously in v o k ed rights. See Edwards, 451 U.S. at 486 n.9. The California Court of Appeal determined that Morgande reinitiated c o m m u n ic atio n with the police. This determination was not contrary to or an u n reaso n ab le application of Supreme Court precedent, nor was it an unreasonable d e te rm in a tio n of the facts. An interrogation or its functional equivalent occurs w h ere the officer's conduct is "reasonably likely to elicit [an inculpatory or ex cu lp ato ry] response." Rhode Island v. Innis, 446 U.S. 291, 301 & n.5 (1980). The California Court of Appeal observed that Morgande did not simply invoke his r ig h t to counsel and remain silent. Rather, Morgande continued to ask the police o f f ic er s to present the evidence that they had against him. In response, the officers e x p la in e d to Morgande that his invocation of the right to counsel precluded them fro m showing him evidence that might evoke a response, and that only if M o rg an d e reinitiated the conversation could they meet his demand for proof. As th e California Court of Appeal put it, "the police acted reasonably in replying to th a t demand by explaining to [Morgande] that his invocation of the right to counsel p reclu d ed them from showing him evidence that might provoke a response from h im ." The officer's conduct in explaining Morgande his rights, prompted by his o w n monologue, did not constitute an interrogation that was "reasonably likely to elicit [an inculpatory or exculpatory] response." Innis, 446 U.S. at 301. Morgande then reinitiated the communication with officers. He said that he 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 w o u ld waive his right to counsel if the officers let him speak to his wife. The p o lice had told him, however, that they were working on Morgande's request to see his wife even before he invoked his right to counsel. The police left Morgande fo r approximately one hour so that he could "collect" his thoughts and decide if he w an ted to reinitiate contact. Detective Lydon testified that when he took M o rg an d e outside for a cigarette break, Morgande initiated a conversation about th e investigation. There is no evidence to the contrary. The transcript of the in terv iew with Morgande contains Morgande's confirmation that he wanted to co n tin u e his conversation with the police, and that he waived his right to counsel. The state court did not unreasonably find that Morgande reinitiated communication w ith the officers. T h e record also supports the state court's finding that Morgande's decision to renew his conversation with the police was knowing and intelligent. Looking to th e totality of the circumstances, the state court found that Morgande, who was 33 years old at the time, had extensive experience with the criminal justice system and w as familiar with the concepts of hearsay, constitutional rights, court procedures, an d investigative techniques. The court even pointed out Morgande's successful attem p ts to extract information from the police and to evade their efforts to pin him d o w n . Moreover, the state court appropriately rejected Morgande's claim that the p o lic e conditioned a spousal visit on Morgande's waiver of counsel. The police h a d said they would try to grant Morgande's request for a spousal visit even before M o r g a n d e invoked his right to counsel. The state court's determination that, under th e totality of the circumstances, Morgande's waiver was knowing and intelligent w a s not an unreasonable application of clearly established Supreme Court p reced en t, nor an unreasonable determination of the facts in light of the record. Accordingly, Morgande's claim is rejected. 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. Admission of Nichols's statements during trial. T h e defense called Detective Lydon as a witness in an apparent effort to s h o w that Morgande's admissions of guilt were made out of spousal loyalty. There w ere two instances during the detective's testimony in which he described telling M o rg an d e what his wife, Nichols, had said while she was being interrogated and th e n indicated that Morgande had agreed or acknowledged the truth of what N ich o ls had said. Morgande now claims, as he did in his direct appeal, that his C o n fro n tatio n Clause rights were violated by this evidence because he could not cro ss-ex am in e Nichols. I n the first instance, Detective Lydon testified that he told Morgande that N ic h o ls had said Morgande beat Sims, and that Morgande, upon being told that N ic h o ls said this, responded that he did not remember the incident because he was u n d er the influence of drugs and alcohol, but that he would have to "ride with my w if e ." In the second instance, Detective Lydon testified, this time on crossex am in atio n by the prosecutor, that he told Morgande that Nichols had told the p o lice that Morgande had been in a fight with Sims, and that Nichols came down to p ick up Morgande, Sims and Woods in a Camaro. In response, according to L yd o n , Morgande had asked, "The­my white one?" T h e state Court of Appeal found that these two instances constituted ad o p tiv e admissions by Morgande that did not violate Morgande's right to confront w itn esses. The state court's determination was not contrary to or an unreasonable ap p licatio n of Supreme Court precedent, nor an unreasonable determination of the f a c ts . The Sixth Amendment provides that "[i]n all criminal prosecutions, the a cc u s ed shall enjoy the right . . . to be confronted with the witnesses against him." 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U .S . Const. amend. VI. Only "testimonial statements" cause a declarant to be a "w itn ess against" an accused, thus triggering the protections of the Confrontation C lau se. Davis v. Washington, 547 U.S. 813, 821 (2006) (citing Crawford v. W ash in g to n , 541 U.S. 36, 51 (2004)). The Confrontation Clause "does not bar the u se of testimonial statements for purposes other than establishing the truth of the m atter asserted." Crawford, 541 U.S. at 59 n.9. The state court's determination that the statements were adoptive admissions b y Morgande and therefore did not violate his Confrontation Clause rights was not c o n tr ar y to or an unreasonable application of Supreme Court precedent, nor an u n r ea so n a b le determination of the facts. The content of Nichols's statements was n o t conveyed to the jury except in the two above-cited instances. In both instances, th e statements conveyed by the witness-detective about what Nichols said were a d m itte d for the jury's consideration of Morgande's response to the statement as an ad o p tiv e admission. Because Morgande "adopted" Nichols's statements, the statem en ts, in effect, became his own admissions. Therefore, Morgande had no co n stitu tio n al right to confront Nichols because an accused only has a right to c ro s s -e x a m in e "witnesses against him." U.S. Const. amend. VI; accord United S tates v. Allen, 10 F.3d 405, 413 (7th Cir. 1993) ("The `witness' against the d efen d an t is the defendant himself, not the actual declarant; there is no violation of th e defendant's right to confront the declarant because the defendant only has the rig h t to confront `the witnesses against him.'"). Accordingly, this claim is denied. IV. P r o s ec u t o r ia l misconduct. M o rg an d e claims that he is entitled to federal habeas relief on the basis of a lle g e d prosecutorial misconduct because the prosecutor (1) made improper co m m en ts to the jury; (2) vouched for a witness; (3) coerced testimony from W o o d s; and (4) did not properly disclose Woods's plea agreement to the jury. 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 M o rg an d e's claims do not warrant habeas relief. 1. A lleg ed ly improper comments to the jury. M o rg an d e alleges that the prosecutor engaged in improper argument n u m e ro u s times throughout Morgande's case. No objection was made in the trial co u rt to several of the allegedly improper arguments. To the extent that no o b je ctio n was registered before the trial court, and the California Court of Appeal f o u n d that the claim was forfeited on this basis, Morgande's claims are p ro ced u rally barred. Nonetheless, even considering the merits of the claims, they do not provide a b asis for habeas relief. Of the instances of misconduct cited by Morgande, the C alifo rn ia Court of Appeal found that the prosecutor engaged in misconduct in o n ly two instances. In the first instance, the prosecutor improperly commented on N ic h o ls 's failure to testify. During closing argument, the prosecutor noted that W o o d s said Nichols was equally involved in the murder. The prosecutor co n tin u ed , "Where is Nichols? If [Morgande] wants a witness to help if she could h e lp him, why not bring her in here?" Defense counsel objected, and the court a d m o n is h e d the jury to "disregard the last argument about Shelisa's [Nichols] lack o f testifying." The second instance occurred immediately after this admonition. The p ro secu to r said, "You know, there are other players in this case, one of who[m] is S h e lis a Morgande [Nichols]. We can't speculate on why she's not in a joint trial h ere. That's inappropriate. The Judge gave you an instruction, you are not to w o r r y about what, if anything, is going to happen to her. You just have to deal w ith the defendant's case. And in this defendant's case, it's very, very clear, very clear that she would be of no help." While this arguably relied on facts outside the reco rd , defense counsel made no objection, so the Court of Appeal ruled that the 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 claim was waived. A prosecutor's misleading and inflammatory arguments may violate a d efen d an t's due process right to a fair trial. Darden v. Wainwright, 477 U.S. 168, 1 8 1 -8 2 (1986). For purposes of due process, however, the touchstone "is the fairn ess of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U .S . 209, 219 (1982). The entire proceedings must be examined to determine w h eth er the prosecutor's remarks "so infected the trial with unfairness as to make th e resulting conviction a denial of due process." Hall v. Whitley, 935 F.2d 164, 1 6 5 (9th Cir. 1991) (quoting Donnelley v. DeChristoforo, 416 U.S. 637, 643 (1 9 7 4 )). Before granting relief, a federal court must also determine that any co n stitu tio n al error was not harmless. Specifically, the court must find that any er ro r "had substantial and injurious effect or influence in determining the jury's v erd ict." Brecht v. Abrahamson, 507 U.S. 619, 622 (1993) (quotation marks o m itte d ) . T h e first instance of prosecutorial misconduct did not infect Morgande's tr ia l in a manner that denied him due process. "Improper argument does not, per se, violate a defendant's constitutional rights." Jeffries v. Blodgett, 5 F.3d 1180, 1 1 9 1 (9th Cir. 1993). A trial court may neutralize the prejudice from the p r o s e cu to r 's error by admonishing the jury or giving a curative instruction. Here, th e jury was instructed to disregard the statement. See e.g., United States v. L o p e z- A lv a r ez , 970 F.2d 583 (9th Cir. 1992) (finding that any prejudice which m a y have resulted from a prosecutor's statements was neutralized by the trial ju d g e's instruction that lawyers' statements are not evidence). Accordingly, the first instance of misconduct did not affect Morgande's constitutional rights. T h e second claimed instance of prosecutorial misconduct is not even r ev ie w a b le by this court because Morgande failed to make an objection in the trial 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 c o u r t to the prosecutor's statement, and the California appellate court found that th is failure caused Morgande to forfeit the claim. Accordingly, any claim reg ard in g the second instance of misconduct is procedurally defaulted. Cf. Rich v. C ald ero n , 187 F.3d 1064, 1070 (9th Cir. 1999) (recognizing procedural default of p ro secu to rial misconduct claims where petitioner failed to make contemporaneous o b jectio n s, and the state court invoked a procedural bar to the consideration of the c la im s ) . N o n e of Morgande's remaining allegations of prosecutorial misconduct p ro v id e any basis for habeas relief. Much of the alleged misconduct was not im p ro p er, and the California Court of Appeal's decision to that effect was not u n r ea so n a b le or contrary to any federal law. For example, Morgande argues that th e prosecutor improperly "urged punishment in closing argument" by making the fo llo w in g statement: "This case was proved virtually beyond all doubt this d efen d an t committed the crime. And now it's time to pay." But, as the California C o u rt of Appeal found, in the context of the closing argument it is clear that the p ro secu to r meant that the jury should find Morgande guilty because of the proof of g u ilt, and not that the prosecutor was urging punishment. The prosecutor's c o n d u c t was not improper. The remaining allegations of misconduct are no more m e r ito r io u s . Even assuming that there was some isolated arguable misconduct, none was p reju d icial. The evidence of Morgande's guilt was very strong. As the California C o u rt of Appeal explained, with respect to the comment concerning Nichols, "it w as not the prosecutor's comment that Shelisa [Nichols] would be of no help to d e f en d a n t that convicted him but physical evidence, corroborated by accomplice testim o n y, and his own admissions." Woods testified that Morgande decided to k ill Sims, and provided an explanation of Morgande's motive, namely, Sims's 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 failu re to prevent Whitney from testifying against Morgande. Woods's testimony w a s corroborated by Whitney, and by Morgande's own admissions. Physical ev id en ce corroborated Woods's description of the manner in which Morgande c o m m itte d the murder. The physical evidence, showing that Sims was asp h yx iated , was also consistent with Woods's testimony that there was "a lot of stru g g lin g and arguing in the backseat" and that Woods saw Morgande choke S im s . The discovery of Sims's body, from the water along Highway 37 and near a p ier, was consistent with Woods's testimony. Morgande's link to the manner of th e disposal of Sims's body was also corroborated. A police search of Morgande's p ro p erty revealed weight lifting equipment, including barbell plates, and fishing g ear. The search also revealed pictures of Morgande posing with his pit bulls, co n sisten t with Wood's testimony that Morgande wrapped a dog chain around S im s body before attaching a 50-pound barbell weight plate. Furthermore, M o rg an d e's own admissions provided further corroboration. The record in this case does not demonstrate that the jury's decision was substantially influenced by an y prosecutorial errors, nor is there any "grave doubt" that any errors did not affect the jury's verdict. Hegler v. Borg, 50 F.3d 1472, 1478 (9th Cir. 1995) (q u o tin g O'Neal v. McAninch, 513 U.S. 432, 438 (1995)). 2. A lleg ed vouching. M o rg an d e claims that the prosecutor improperly vouched for Woods's cred ib ility, first during voir dire, then during her direct examination, and finally d u r in g the testimony of Detective McElligott. The California Court of Appeal d eterm in ed not only that there was no contemporaneous objection made to p reserv e the claim, but also that the claim had no merit. Even if Morgande's claim w as not procedurally defaulted for his failure to make a contemporaneous o b jectio n in the trial court, his claim does not entitle him to habeas relief. The 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C a lif o r n ia Court of Appeal's decision was not contrary to any federal law, and was n o t an unreasonable determination of the facts. D u rin g voir dire, the prosecutor referred to Woods as an accomplice, and r ev e a le d that Woods was permitted to take a plea bargain. The prosecutor asked th e prospective jurors if they would accept the testimony of someone who had tak en a plea agreement in exchange for testifying in another case. As the C alifo rn ia Court of Appeal noted, it was neither misconduct nor vouching to ask p ro sp ectiv e jurors during voir dire whether they "would automatically reject the testim o n y of someone who was guilty of murder but cut a deal for manslaughter." N o r was it vouching to mistakenly refer to Woods as an accomplice during voir d ire. Such references stopped after Morgande objected. In addition, during Woods's direct examination, the prosecutor brought out th e existence of her plea bargain. He also questioned Woods about her inconsistent p r e lim in a r y hearing testimony, and established that Woods lied under oath at that tim e. The questioning revealed why the witness was testifying at Morgande's trial. This did not constitute vouching. The California Court of Appeal correctly noted, "th e course of the examination concerning the plea bargain shows no more than a fu lfillm en t of the prosecutor's obligation to disclose to the jury any inducement m a d e to a prosecution witness to testify." Detective McElligott testified that Woods's trial testimony was, for the most p art, consistent with her earlier police statements. Morgande claims that this c o n s titu te d vouching for Woods's testimony. As the California Court of Appeal co rrectly found, "the questioning was not improper vouching but rehabilitation of W o o d s with evidence of a prior consistent statement." 3. A lleg ed ly coerced testimony from Woods, and presentation o f the plea bargain to the jury. In November 2002, Woods was arrested and charged with Sims's murder. 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In February 2003, the prosecution agreed to reduce the charge to manslaughter if W o o d s agreed to provide "full and truthful" testimony in the case against M o rg an d e. According to the terms of the agreement, Woods's "failure to provide tru th fu l testimony" would void the agreement and subject her to perjury charges. W o o d s first testified at Morgande's preliminary hearing in June 2003. She recan ted her police statement and denied that Morgande murdered Sims. The p ro secu to r rescinded the plea agreement and charged Woods with murder and p e r ju r y . In October 2003, after Woods admitted that she lied at the preliminary h e a rin g at the urging of Morgande, the prosecution entered into a new plea ag reem en t with Woods whereby Woods would plead guilty to manslaughter and p erju ry in exchange for her "truthful testimony" in Morgande's case. At M o rg an d e's trial, Woods testified against Morgande, in conformity with the s ta te m e n ts she made to the police. M o r g a n d e argues that Woods's testimony was coerced, and the trial court v io lated his due process rights by permitting the testimony. Although Morgande lack s standing to complain about infringements of Woods's constitutional rights, h e may be entitled to habeas relief if the trial court's admission of Morgande's testim o n y rendered his trial so fundamentally unfair as to violate due process. Williams v. Woodford, 384 F.3d 567, 593 (9th Cir. 2004) (citations omitted). The C alifo rn ia Court of Appeal determined that Woods was not compelled to testify in c o n f o r m a n c e with her police statement, and that the plea bargain only required W o o d s to testify fully and truthfully. Accordingly, the state court found, M o rg an d e was not denied a fair trial. The state court's determination was not contrary to or an unreasonable ap p licatio n of clearly established federal law, and not an unreasonable d eterm in atio n of the facts. The California Court of Appeal did not unreasonably 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 fin d that Woods's plea bargain was not coerced. The terms of the plea agreement o n ly required that Woods testify truthfully. Woods was represented by an attorney th r o u g h o u t the proceedings in her case. At trial, Woods testified about her statem en ts to the police and her recantation during the preliminary hearing, and ack n o w led g ed that the plea bargain merely required her to testify truthfully. Woods revealed the prosecutor's decision to rescind the original plea bargain, and rev ealed that the prosecution charged her with murder and added a perjury count after Woods's inconsistent testimony during the preliminary hearing. The details o f Woods's plea bargain, and any potential coercion, were also subject to crosse x a m in a tio n . During cross-examination, Woods stated that she accepted the plea o ffer because she "didn't have a choice," meaning that she had to take the deal to testify truthfully against Morgande or she would be subject to prosecution for m u rd er. There is no basis on which to find that the state court erred in determining th at Morgande's trial was not fundamentally unfair due to the admission of W o o d s's testimony. There is also no basis on which to find that the prosecutor misled the jury re g ar d in g the terms of Woods's plea bargain. As discussed above, Woods's testim o n y was not coerced; she agreed to testify truthfully. As the California C o u rt of Appeal correctly found, "If the police statement was the truth, then by a g r ee in g to testify truthfully she effectively agreed to testify in accord with that s ta te m e n t." The fact that she agreed to testify in conformity with her police statem en t, does not mean, as Morgande argues, that she was coerced into providing th e testimony that she did. The prosecutor engaged in no misconduct by arguing th at Woods's testimony was not coerced. In light of the testimony and disclosure of the terms and circumstances of the p le a bargain, admission of Woods's statements did not render Morgande's trial 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 f u n d a m e n ta lly unfair. See Williams, 384 F.3d at 596 (finding no evidence that p etitio n er's right to a fair trial was violated where witness who was beaten at the city jail was subject to cross-examination about the coercion, therefore allowing p e titio n e r "to test the voluntariness and veracity" of the witness's testimony at trial); United States v. Mattison, 437 F.2d 84, 85 (9th Cir. 1970) (finding no due p r o c e ss violation where witness was previously interrogated illegally but was su b ject to cross-examination at trial through which the jury could assess the w itn e s s's credibility). A cco rd in g ly, this claim is denied. V. A d m is sio n of a similar offense. T h e prosecution argued that Morgande killed Sims because of Sims's failure to dissuade Whitney from testifying against him. To support this claim, the p r o s e cu tio n presented the testimony of Woods, a police officer, and Whitney reg ard in g Morgande's San Diego assault on Whitney and Sims's threatening c o n ta cts with Whitney. Morgande alleges that his due process rights were violated w h e n the trial court admitted evidence of the prior assault to prove motive. Morgande's claim fails because no federal right was violated. State court ev id en tiary rulings are not subject to federal habeas review unless there is a v io latio n of federal law, either by infringing on a specific federal constitutional or s ta tu to r y provision or by depriving the defendant of the fundamentally fair trial g u aran teed by due process. Walters v. Maas, 45 F.3d 1355, 1357 (9th Cir. 1995) (citin g Pulley v. Harris, 465 U.S. 37, 41 (1984)). "Thus, a federal court cannot d istu rb on due process grounds a state court's decision to admit prior bad acts ev id en ce unless the admission of the evidence was arbitrary or so prejudicial that it ren d ered the trial fundamentally unfair." Id. (citation omitted). The admission of the prior assault in this case was not arbitrary or so 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 p r e ju d ic ia l that it rendered Morgande's trial fundamentally unfair. The evidence w as relevant to prove motive and intent. As the California Court of Appeal noted, ev id en ce of Morgande's assault on Whiteney was relevant to show Morgande's m o tiv e for Sims's murder. Evidence of Morgande's assault on Whitney, admitted p u r su a n t to the provision of the California Evidence Code permitting such ev id en ce, see Cal. Evid. Code § 1101(b), did not violate Morgande's federal rights. VI. In effectiv e assistance of counsel. Morgande's final claim is that his trial counsel rendered ineffective assistan ce by (1) failing to introduce certain evidence at the Miranda hearing; (2) failin g to object to the prosecutor's alleged vouching; (3) failing to object to the p resen tatio n of Nichols's statements; and (4) failing to object to the admission of M o rg an d e's prior assault on Whitney. A claim of ineffective assistance of counsel is cognizable as a claim of d en ial of the Sixth Amendment right to counsel, which guarantees not only assistan ce, but effective assistance of counsel. Strickland v. Washington, 466 U.S. 6 6 8 , 686 (1984). To prevail on such a claim, a petitioner must establish (1) that co u n sel's performance was so deficient that it fell below an "objective standard of r ea so n a b le n e ss " under prevailing professional norms, id. at 687-88, and (2) that p r e ju d ic e occurred as a result of counsel's deficient performance, meaning that "th ere is a reasonable probability that, but for counsel's unprofessional errors, the resu lt of the proceeding would have been different," id. at 694. Morgande's allegations of ineffective assistance do not warrant habeas relief b ecau se he can show neither deficient performance nor prejudice. Three of the f o u r alleged deficiencies relate to counsel's failure to object during trial. However, n o n e of the instances cited by Morgande as requiring an objection warranted an o b jectio n . As discussed earlier, the prosecutor's examination of Woods did not 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 co n stitu te vouching; Nichols's statements were properly admitted as adoptive ad m issio n s of Morgande; and evidence of the assault on Whitney was relevant and n o t unfairly prejudicial. Counsel's failure to raise a meritless argument or to take a fu tile action does not constitute ineffective assistance of counsel. Rupe v. Wood, 9 3 F.3d 1434, 1444-45 (9th Cir. 1996). Accordingly, counsel was not deficient in f ailin g to object. Moreover, Morgande can show no prejudice because the trial co u rt would likely have overruled any objection that would have been made on th ese points. Morgande's fourth and final assignment of error to his trial counsel is sim ilarly unavailing. Morgande claims that his trial counsel rendered ineffective assistan ce by failing to more effectively present evidence, during the Miranda h earin g , that the police permitted him to speak with Nichols during his in te rr o g a tio n . Morgande apparently wishes to pursue the theory that he waived c o u n s el as part of a "deal" to see his wife. There is no basis on which to find that c o u n s el ineffectively presented the evidence. Morgande's trial counsel submitted an affidavit stating that he presented this evidence at the Miranda hearing by sh o w in g the videotape of the interrogation, which clearly showed that Morgande w as permitted to speak with Nichols during the interrogation. Morgande cannot o v erco m e the "strong presumption that counsel's conduct [fell] within the wide ran g e of professionally competent assistance." Strickland, 466 U.S. at 689. Presentation of the videotape evidence in this case was within the range of co m p eten t representation. There is no suggestion of how counsel should or could h av e presented it more effectively. Furthermore, Morgande can show no prejudice. As the California Court of A p p eal observed, the sequence of events during Morgande's interrogation in d icated there was no "deal" for Morgande to waive his right to counsel. There is 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 n o basis on which to find that the result of the trial court's ruling would have been d if fe re n t if trial counsel had further highlighted the fact that police allowed M o rg an d e to speak with Nichols. Accordingly, Morgande's ineffective assistance claims must be denied. CONCLUSION F o r the foregoing reasons, the petition is DENIED. DATED: A u g u st 13, 2009 /s/ Mary M. Schroeder M A R Y M. SCHROEDER, U n ited States Circuit Judge S ittin g by designation 28

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