Garner v. Mayle

Filing 116

ORDER Denying Petition for Writ of Habeas CorpusSigned by Judge Claudia Wilken on September 30, 2009. (cwlc1, COURT STAFF) (Filed on 9/30/2009)

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In a footnote, Respondent requests that the Court reconsider its denial of his second motion to dismiss on the ground that, in Fail v. Hubbard, 315 F.3d 1059 (2001), the Ninth Circuit held that delays in federal courts do not constitute extraordinary circumstances such that equitable tolling would apply. Absent a properly filed motion for reconsideration, the Court declines to revisit its decision.
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No. C 99-02863 CW ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

ARTHUR GRADY GARNER, Petitioner, v. B.A. MAYLE, Respondent. /

On June 15, 1999, Petitioner Arthur Grady Garner, a state prisoner incarcerated at Pleasant Valley State Prison, filed a petition for a writ of habeas corpus alleging seventeen claims for relief including, inter alia, claims for ineffective assistance of counsel and prosecutorial misconduct. On September 7, 2000, the

Court denied Respondent B. A. Mayle's motion to dismiss for failure to exhaust state court remedies. Respondent filed a second motion On

to dismiss on the ground that the petition was untimely filed.

September 28, 2001, the Court denied Respondent's second motion to dismiss.1 On December 28, 2001, Respondent filed his answer. On

September 30, 2002, the Court granted, in part, Petitioner's motion

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for appointment of counsel, appointing counsel for the limited purpose of reviewing Petitioner's claims and briefing those claims counsel considered to be potentially meritorious. The Federal The Court

Public Defender was appointed to represent Petitioner.

granted three requests filed by counsel to extend time to file Petitioner's traverse. On August 22, 2003, the Federal Public On August 25,

Defender moved to withdraw as Petitioner's counsel. 2003, the motion was granted.

On October 17, 2003, attorney Eric On June 14,

G. Babcock was appointed to represent Petitioner.

2004, Petitioner, through counsel, filed an abbreviated traverse and requested that the Court grant additional time for him to develop the facts. On February 28, 2005, the Court issued an order

noting that the traverse filed by counsel did not follow the instructions set forth in the Court's September 30, 2002 Order and set a briefing schedule for Petitioner to file a traverse in accordance with those instructions. Thereafter, Petitioner,

through counsel, filed many motions for extensions of time to file a traverse, all of which were granted. On March 9, 2009,

Petitioner, through counsel, filed a supplemental traverse, entitled "supplemental brief in support of petition for writ of habeas corpus," arguing that two of Petitioner's claims were potentially meritorious based on new evidence counsel had discovered. He also requested an evidentiary hearing based on the On April 8, 2009, Respondent filed a supplemental

new evidence.

brief in support of his answer to the petition. Having considered all the papers filed by the parties, the Court denies the motion for an evidentiary hearing and the petition

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for a writ of habeas corpus.2 PROCEDURAL BACKGROUND In 1990, Petitioner was charged in San Mateo County with (1) attempted first degree murder of George Boitano, with special allegations of using a gun and causing infliction of great bodily injury; (2) assault with a deadly weapon with the same allegations; and (3) being a felon in possession of a firearm. Petitioner on all counts. life plus eleven years. A jury convicted

Petitioner was sentenced to a term of

On June 18, 1992, the court of appeal

found that, after the verdict, Petitioner had been insufficiently advised of the dangers of representing himself and remanded for the trial court to advise Petitioner properly, to allow Petitioner to choose if he wished to represent himself after such advisement, to rule on Petitioner's motions for a new trial and, if the motions were denied, to re-sentence Petitioner and reinstate the judgment. On remand, Petitioner again chose to represent himself. The

trial court considered Petitioner's motions for a new trial, denied them and again sentenced Petitioner to life plus eleven years. October 28, 1993, the conviction was affirmed by the court of appeal and, on January 19, 1994, the California Supreme Court denied review. Petitioner filed a petition for a writ of habeas corpus in the state superior court, in which he raised the claims of On

Respondent argues that several of Petitioner's claims are procedurally defaulted or are unexhausted. Because all of the claims are denied on the merits, the Court does not address the issues of procedural default or exhaustion. See Cassett v. Stewart, 406 F.3d 614, 623-25 (9th Cir. 2005) (where the petition fails to raise even a colorable federal claim, it may be denied without reaching the exhaustion issue). 3

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insufficiency of the evidence and ineffectiveness of counsel based on (1) failure to present the defense of insufficiency of evidence, (2) failure to move to suppress the evidence discovered in the search of Petitioner's brother-in-law's house, and (3) failure to object to the introduction of the shotgun used in the attack on the victim. On December 10, 1993, in a reasoned decision, the court In 1993, Petitioner filed two state habeas

denied the petition.

petitions in the California Supreme Court, case numbers S034361 and S035851, and in 1994, Petitioner filed another petition in the California Supreme Court, case number S038008. The California On March 23,

Supreme Court summarily denied all three petitions.

1994, Petitioner filed a petition for a writ of habeas corpus in this Court, Garner v. Marshall, C 94-0983 CW. In 1995, the Court

granted Petitioner's motion to dismiss without prejudice on the ground that the petition contained unexhausted claims. On August

21, 1995, Petitioner filed another petition in the California Supreme Court, case number S048357, which, on January 30, 1996, the Court summarily denied with a citation to In re Swain, 34 Cal. 2d 300, 304 (1949).3 In 1996, Petitioner filed another habeas

petition in this Court, Garner v. White, C 96-0499 CW, which, on October 9, 1998, was dismissed without prejudice on Petitioner's motion so that he could further exhaust state court remedies. 1998, Petitioner filed three more petitions in the California Supreme Court, case numbers S074652, S074818, and S075635. On In

December 22, 1998, the Supreme Court summarily denied the petition In re Swain, 34 Cal. 2d at 304, held that vague, conclusory allegations in a habeas petition are insufficient to warrant issuance of the writ and that any substantial delay in presenting a claim must be justified. 4
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in case number S074818.

On April 28, 1999, the Court summarily

denied the two other petitions, citing In re Robbins, 18 Cal. 4th 770, 780 (1998) and In re Clark, 5 Cal. 4th 750 (1993).4 15, 1999, Petitioner filed the present petition. FACTUAL BACKGROUND I. Facts of the Offense The following facts are from the 1992 court of appeal decision, People v. Garner, A052814 (June 18, 1992), Resp.'s Ex. A, and the trial transcript. In January, 1990, George Boitano lived alone at 380 Talbot, apartment 310, in Pacifica, California. In April, 1989, Boitano On June

had separated from his wife Cindy and the court had awarded him $500 per month as spousal support. having to pay this. At about 7:30 p.m. on Saturday, January 27, 1990, Boitano heard a knock on his front door. When Boitano opened the door, a Cindy Boitano was upset about

man wearing a raincoat and fisherman's cap told Boitano that his truck was being towed from an underground garage. Boitano

recognized the man as a friend of his brother-in-law, Ron Mattson, but did not remember the man's name. When Boitano saw the man pull out a shotgun, he immediately

In re Robbins, 18 Cal. 4th at 780, addressed timeliness and the fact that, if the petition is filed late, the petitioner has the burden of establishing the absence of substantial delay, good cause for such delay, or that an exception to the bar of untimeliness applies. In re Clark, 5 Cal 4th at 797, held that, absent justification for the failure to present all known claims in a single, timely petition for writ of habeas corpus, petitions that are successive or untimely or both will be summarily denied unless they allege facts which, if proved, would establish that a fundamental miscarriage of justice occurred in the proceedings leading to conviction or to sentence. 5

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slammed the door.

The man shot through the door, hitting Boitano Boitano called 911 and gave a Boitano told the police he

in the hand and the side.

description of the man who shot him.

had met the man who shot him at the house he had shared with his wife and knew the man had been in prison with his brother-in-law. Officer Anders Noyes of the Pacifica Police Department responded to the report of a shooting at Boitano's apartment. he arrived, he noticed an expended shotgun shell casing on the floor to the right side of the door to Boitano's apartment and two holes through the door. Boitano told Officer Noyes that he He When

recognized the shooter, but could not recall his name.

described the suspect as thirty-three to thirty-five years old, brown hair, untrimmed mustache, about five feet ten inches tall, 170 pounds, wearing a green overcoat and green fisherman's hat, and carrying a shotgun. At the hospital, Boitano told Officer Noyes

that one and one-half years prior to that night, his brother-in-law brought to Boitano's house a friend who had just been paroled from Folsom prison and Boitano recognized the shooter as his brother-inlaw's friend. On February 8, 1990, with permission from Mattson's parole officer, the police searched Mattson's house and seized seven photographs of Mattson with other people. photographs to Boitano. The police showed these

He identified Petitioner, who was in one On February 27, 1990,

of the photographs, as the man who shot him.

Boitano identified Petitioner from a photo lineup. Arthur Ray, a professional police informant for the past seventeen years who was paid fifty dollars for each court appearance, testified that he met Petitioner in the San Mateo 6

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County jail in April, 1990.

Ray testified that he was housed in E-

1, the protective custody cell block, for security reasons because it was generally known that he was an informant. The cell block

had one small common area where inmates were generally allowed out one at a time for security reasons. However, Ray believed, at that

time, that no one in E-1 knew about him, so he felt comfortable asking the guard to leave him in the common room with Petitioner. Ray testified that he did not know anything about Petitioner or his case and that, when he and Petitioner were in the common room together, Petitioner told him he was charged with murder for hire and proceeded to describe how he had committed the offense. testified that Petitioner told him that Petitioner went to Boitano's door, knocked and, when the door was opened with a chain across the entrance, fired through the door, hitting Boitano's hand and side. Petitioner told Ray that he had received $200,000 for Petitioner did not tell Ray

this, which Ray thought was exaggerated. Ray who had hired him.

Petitioner testified on his own behalf.

He stated that he had

met Mattson in prison and they had remained good friends. Petitioner, who lived in southern California, occasionally did electrical work for Lloyd Steale. On January 26, 1990, Petitioner

decided to drive to the San Francisco Bay Area to spend Super Bowl weekend with Mattson. He arrived in Pacifica at five or six a.m.

and checked into the Pacifica Motor Inn under the name of Rick Red. Petitioner testified that he did not go to Mattson's house because he wanted to surprise him. Petitioner testified that, shortly after 6 p.m. on January 27, he went across the street to the Moonraker restaurant, drank at the 7

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bar for approximately one and one-half hours, then went into the restaurant, ordered dinner, and, after dinner, returned to the bar. He testified that he stayed at the bar until 11 p.m. and left the bar only to make several phone calls from the pay phone at the Moonraker. Petitioner stated that he abandoned his plan to

surprise Mattson because the "weekend was over" and Lloyd Steale was concerned that if Petitioner partied all day on Sunday and then drove back to southern California, he would be unfit to work on Monday. Petitioner testified that he did not speak with Arthur Ray. He stated that, while he was incarcerated in the San Mateo County jail, he was isolated from the other prisoners, and that he knew that Ray was an informant. The defense presented two witnesses to corroborate Petitioner's testimony. Donald Piosalan, the bartender at the

Moonraker restaurant, testified that Petitioner arrived at the bar between 6 and 7 p.m. and remained at the bar continuously for an hour and a half to two hours before having dinner in the dining room. He testified that, after Petitioner finished his dinner, he

returned to the bar, left for only five or ten minutes, then returned and stayed until 11 p.m. Alejandro Jaurequi, the piano

player, testified that Petitioner was at the bar when he arrived at 6:30 p.m and he did not notice that Petitioner left the area for a long period of time. James Whitehead, the defense investigator, testified that the round trip between the Moonraker and Boitano's apartment is five and one-half miles. He testified that he drove from the Moonraker

to Boitano's apartment, went up to Boitano's apartment and stood 8

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outside the door for a few seconds, and then returned to the restaurant and that the round-trip took twenty and one-half minutes. In rebuttal, the prosecutor called Tara Furnari, the hostess at the Moonraker restaurant. She testified that a person leaving

the restaurant would have to pass the hostess podium where she was located. She testified that around 7:30 p.m., Petitioner left the

restaurant for about fifteen or twenty minutes. Detective Berwyn Ray Manley, a police officer in Pacifica, made a study similar to that performed by Mr. Whitehead. Detective

Manley testified that it took him slightly more than twelve minutes to make the round trip between the Moonraker and Boitano's apartment. Detective Manley made the round trip drive five times, The videotape was admitted into

the last of which was videotaped.

evidence, with no objection from defense counsel. II. Facts Regarding Remand Petitioner was represented by appointed counsel, Douglas Gray of the private defender program, throughout the trial. Following

the verdict, Petitioner filed a number of post-trial motions in pro per, including a Faretta motion5 and a Marsden motion.6 Some of the

motions were based on the allegation that defense counsel was

A Faretta motion is brought under Faretta v. California, 422 U.S. 806, 835 (1975), in which the Supreme Court held that a defendant has a right under the Sixth and Fourteenth Amendments to waive counsel and represent him or herself. In People v. Marsden, 2 Cal. 3d 118, 124 (1970), the California Supreme Court held that the trial court deprived the defendant of his constitutional right to effective assistance of counsel when it denied his motion to substitute new counsel without giving him an opportunity to state specific examples of inadequate representation. 9
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inadequate.

On the date set for sentencing, Petitioner asked that The court

his counsel be relieved and requested a continuance.

indicated it was prepared to relieve defense counsel, but would not grant a continuance. The court relieved defense counsel and The court denied Petitioner's

Petitioner represented himself.

remaining motions and sentenced him to life plus eleven years. On appeal, the court rejected Petitioner's argument that the trial court should have appointed counsel to represent him on the post-trial motions. It explained that a request for self

representation under Faretta does not trigger a duty to conduct a hearing regarding incompetence of counsel under People v Marsden. However, the court held that the trial court's failure to give any Faretta advisement regarding the dangers and disadvantages of selfrepresentation required reversal of the denial of the post-trial motions and sentence. The court remanded for the trial court to

give appropriate Faretta warnings and to determine if Petitioner could give a knowing and intelligent waiver of the right to counsel. On September 10, 1992, the matter came before the trial court on remand. Petitioner expressed a desire for counsel, and the Petitioner

court appointed Mr. Gray, Petitioner's former attorney. expressed dissatisfaction with Mr. Gray. Petitioner asked to represent himself.

After a recess,

The court explained the

dangers of self-representation to Petitioner and denied the motion for self-representation. On September 23, 1992, Mr. Gray filed a

memorandum of points and authorities in which he argued that Petitioner had the right to represent himself. On September 25,

1992, Petitioner filed a document titled "Faretta Motion/Waiver" in 10

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which he stated that he knowingly and intelligently waived his right to counsel and wished to represent himself. On September 25, 1992, the court again warned Petitioner of the dangers of representing himself, but granted the motion for self-representation. The court then considered Petitioner's

motions, denied them and re-sentenced him to life plus eleven years. III. Facts Presented In Supplemental Brief The supplemental brief Petitioner filed, through counsel in this case, identified two claims as potentially meritorious: (1) ineffective assistance of trial counsel for failing to investigate the jail housing records of Petitioner and Ray, and (2) prosecutorial misconduct for failing to disclose the jail housing records to defense counsel. Petitioner, through counsel,

submits the following exhibits in support of the supplemental brief: (1) a December 14, 2007 letter from Sergeant Dave Titus of

the San Mateo County Sheriff's office indicating that, according to computer records, Petitioner and Ray were housed together in the same jail facility for three and one-half hours on May 22, 1990; (2) a March 26, 1992 affidavit from Michael Anthony, who was an inmate at the San Mateo County jail in 1990 at the same time Petitioner was housed there, indicating that he had notified Petitioner that Ray was a well-known jail house informant and he knows "as a fact that Art Garner did not confess to Art Jess Ray;" (3) a March 31, 1992 affidavit from James Nyhan who declares that he has personal knowledge that, from 1985 to 1989, Ray purchased narcotics and used them and testified for state and federal agencies to satisfy his drug addiction; (4) an unsigned declaration 11

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from Renee Malloy, dated June, 2008, in which she states that, in 2004 at church, she met a man named George Boitano, who told her that he wasn't sure of the identity of the man who shot him in the hand and side, but that he had been pressured by the law to identify him. On the basis of this new evidence, Petitioner, through counsel, requests an evidentiary hearing to present further testimony from Malloy, Nyhan, Anthony, Sergeant Titus, and possibly other jail personnel and inmates housed at San Mateo County jail at the same time as Petitioner and Ray. LEGAL STANDARD A federal court may entertain a habeas petition from a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." U.S.C. § 2254(a). 28

Under the Antiterrorism and Effective Death

Penalty Act (AEDPA), a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." § 2254(d).7 28 U.S.C.

A decision is contrary to clearly established federal

AEDPA applies to this petition because it was filed after April 24, 1996, the day AEDPA was enacted. See e.g. Duhaime v. (continued...) 12

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law if it fails to apply the correct controlling authority, or if it applies the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result. 1062, 1067 (9th Cir. 2003). Even if the state court's ruling is contrary to or an unreasonable application of Supreme Court precedent, that error justifies habeas relief only if the error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Clark v. Murphy, 331 F.3d

The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is the holdings of the Supreme Court as of the time of the relevant state court decision. Taylor, 529 U.S. 362, 412 (2000). To determine whether the state court's decision is contrary to, or involved an unreasonable application of, clearly established law, a federal court looks to the decision of the highest state court that addressed the merits of a petitioner's claim in a reasoned decision. Cir. 2000). LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Williams v.

If the state court only considered state law, the

federal court must ask whether state law, as explained by the state court, is "contrary to" clearly established governing federal law. Lockhart v. Terhune, 250 F.3d 1223, 1230 (9th Cir. 2001). The standard of review under AEDPA is somewhat different where the state court gives no reasoned explanation of its decision on a petitioner's federal claim and there is no reasoned lower court

(...continued) Ducharme, 200 F.3d 597, 600 n.3 (9th Cir. 2000) (petitioner convicted in 1979; AEDPA applied to petition filed in 1997). 13

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decision on the claim.

In such a case, a review of the record is

the only means of deciding whether the state court's decision was objectively reasonable. Plascencia v. Alameda, 467 F.3d 1190,

1197-98 (9th Cir. 2006); Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). When confronted with such a decision, a federal court

should conduct "an independent review of the record" to determine whether the state court's decision was an objectively unreasonable application of clearly established federal law. F.3d at 1198; Himes, 336 F.3d at 853. In this case, the state courts provided a reasoned decision for only a few of Petitioner's claims. The Court will conduct an Plascencia, 467

independent review of the record of those claims that were not addressed in a reasoned state court decision. DISCUSSION I. Ineffective Assistance of Trial Counsel A. Legal Standard A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The

benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Id.

To prevail under Strickland, a petitioner must pass a twoprong test. First, the petitioner must show that counsel's

performance was deficient in a way that falls below an objectively reasonable standard. Id. at 687-88. 14 Second, the petitioner must

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show that the deficiency prejudiced him.

Id. at 687.

The first

prong of Strickland requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id. Judicial scrutiny of

counsel's performance must be highly deferential, and a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Wildman v. Johnson, 261 F.3d 832, 838 (9th Cir. 2001). Id. at 689; A

difference of opinion as to trial tactics does not constitute denial of effective assistance, United States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981), and tactical decisions are not ineffective assistance simply because in retrospect better tactics are known to have been available. 1241 (9th Cir. 1984). Bashor v. Risley, 730 F.2d 1228,

Tactical decisions of trial counsel deserve

deference when: (1) counsel in fact bases trial conduct on strategic considerations; (2) counsel makes an informed decision based upon investigation; and (3) the decision appears reasonable under the circumstances. (9th Cir. 1994). Under Strickland's second prong, the petitioner must show that counsel's errors were so serious as to deprive him or her of a fair trial, a trial whose result is reliable. 688. Strickland, 466 U.S. at Sanders v. Ratelle, 21 F.3d 1446, 1456

The test for prejudice is not outcome-determinative, i.e.,

the petitioner need not show that the deficient conduct more likely than not altered the outcome of the case; however, a simple showing that the defense was impaired is also not sufficient. Id. at 693.

The petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the 15

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proceeding would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome. at 694. It is unnecessary for a federal court considering an Id.

ineffective assistance of counsel claim to address the prejudice prong of the Strickland test if the petitioner cannot even establish incompetence under the first prong. Siripongs v.

Calderon, 133 F.3d 732, 737 (9th Cir.), cert. denied, 525 U.S. 839 (1998). B. Counsel's Performance at Preliminary Hearing (Claim 1) Petitioner claims that Linda Bramy, who represented him at his preliminary hearing, was ineffective because she presented no defense to the charges made against Petitioner and said nothing on his behalf. Although a preliminary hearing is a critical stage of a criminal prosecution at which a defendant has a Sixth Amendment right to counsel, the role of counsel at a preliminary hearing is different from counsel's role at trial. Foster v. Garcia, 2006 WL

3392750 *12 (E.D. Cal.) (citing Adams v. Illinois, 405 U.S. 278, 281-83 (1972)). In California, the purpose of a preliminary

hearing is to establish whether there exists probable cause to believe that the defendant committed a felony. Penal Code § 866(b)). Id. (citing Cal.

Furthermore, the defendant's right to Id. (citing Cal. Penal Code

present witnesses is circumscribed. § 866(a)).

The transcript of the preliminary hearing reveals no incompetence of defense counsel. See Resp's Ex. E, Preliminary The state

Hearing Reporter's Transcript (Preliminary RT) at 5-39.

presented one witness, Mr. Boitano, who testified that when he 16

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opened the door to his apartment in response to a knock, he recognized Petitioner as a friend of his brother-in-law and immediately slammed the door when he saw Petitioner raise a shotgun from beneath his coat. Defense counsel cross-examined Mr. Boitano.

Given the limited purpose of the preliminary hearing, defense counsel provided effective assistance. She objected where Furthermore,

necessary and cross-examined the witness effectively.

given the low standard of proof necessary to establish probable cause, Plaintiff cannot show prejudice. fails. C. Counsel's Failure to Challenge Unreliable Identification (Claim 2) Petitioner claims that his trial counsel was ineffective for failing to challenge the procedure used to identify him because it was unduly suggestive and unreliable. Boitano told the police that The police Therefore, this claim

the shooter was a prison friend of his brother-in-law.

searched Mattson's home and found seven photographs, several of which were taken at a prison. The police showed this group of

photos to Boitano, who picked out the photo of Mattson and Petitioner. About two weeks later, the police showed Boitano a

photo line-up which included a more recent photograph of Petitioner provided by his parole officer. Boitano pointed to the photo of

Petitioner and wrote, "no. 2 looks like the guy." Procedures by which a defendant is identified as the perpetrator must be examined to assess whether they are unduly suggestive. "It is the likelihood of misidentification which Neil v. Biggers, 409

violates a defendant's right to due process." U.S. 188, 198 (1972).

Unnecessarily suggestive pretrial 17

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identification procedures alone do not require exclusion of incourt identification testimony; reliability is the linchpin in determining the admissibility of identification testimony. v. Brathwaite, 432 U.S. 98, 100-14 (1977). Identification Manson

testimony is inadmissible as a violation of due process only if (1) a pretrial encounter is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification, and (2) the identification is not sufficiently reliable to outweigh the corrupting effects of the suggestive procedure. Van Pilon v. Reed, 799 F.2d 1332, 1338 (9th Cir. 1986).

An identification procedure is impermissibly suggestive when it emphasizes a single individual, thereby increasing the likelihood of misidentification. Foster v. California, 394 U.S. 440, 443

(1969); United States v. Bagley, 772 F.2d 482, 493 (9th Cir. 1985). Any motion to challenge Boitano's identification of Petitioner would have failed. Petitioner claims the identification was

suggestive because (1) Boitano only saw the shooter for a short time at his front door, (2) although Boitano said he recognized Petitioner, he could not remember his name, and (3) the police showed Boitano Petitioner's photograph multiple times. Boitano had

met Petitioner socially on two prior occasions and had ample opportunity to observe him at the time of the crime. The fact that

Boitano could not remember Petitioner's name is not relevant to his physical identification of Petitioner; Boitano was sure the shooter was the man Mattson had brought to his house two times in the past. Furthermore, the fact that the police showed Boitano several photographs of Petitioner does not make the identification suggestive -- the police first showed Boitano several photographs 18

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they found in Mattson's apartment and Boitano identified Petitioner, who was in one of the photographs, as his assailant. To corroborate Boitano's first identification, two weeks later, police showed Boitano a photo line-up which included one photograph of Petitioner, and Boitano again identified Petitioner as the assailant. Counsel's failure to challenge the identification The

procedures was not deficient nor did it prejudice Petitioner. state court's denial of this claim was not contrary to or an unreasonable application of Supreme Court law.

D. Counsel's Failure to Move to Suppress Evidence (Claim 2) Petitioner claims counsel was ineffective for failing to move to suppress the photographs the police seized at Mattson's house. Petitioner claims that he had an agreement with Mattson to store property at his house and that this agreement provided Petitioner with standing to challenge the search of the house. The state superior court on habeas review denied this claim on the grounds that none of the evidence seized in the search of Mattson's residence belonged to Petitioner, nor was it alleged to have been found in an area where Petitioner was storing his property pursuant to some arrangement with Mattson, and both Petitioner and Mattson were on parole and subject to warrantless searches of their persons and residences. In order to establish ineffective assistance of counsel based on counsel's failure to bring a suppression motion, a petitioner must show that: (1) the overlooked motion to suppress would have been meritorious, and (2) there is a reasonable probability that the jury would have reached a different verdict absent the introduction of the unlawful evidence. 19 Ortiz-Sandoval v. Clarke,

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323 F.3d 1165, 1170 (9th Cir. 2003) (citing Kimmelman, 477 U.S. at 375). In order to prevail on a motion to suppress based on a

violation of the Fourth Amendment, the claimant must prove that the search or seizure was illegal and that it violated his or her reasonable expectation of privacy in the item or place at issue. Kimmelman, 477 U.S. at 374. Trial counsel is not ineffective for Juan H. v. Allen, 408 F.3d

failing to raise a meritless motion.

1262, 1273 (9th Cir. 2005); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996). The Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee under the authority of a California statute requiring that every prisoner eligible for release on state parole "shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause." Samson v. California, 547 U.S. 843, 850 (2006).

Both Petitioner and Mattson were parolees at the time of the search. Because the search was precipitated by the attempted

murder of Boitano, who knew his assailant as a friend of Mattson, the search of Mattson's home was supported by reasonable suspicion. Furthermore, because the police searched Mattson's effects, Petitioner did not have a reasonable expectation of privacy such that he had standing to object to the search. Counsel was not ineffective for failing to submit a motion that would have been denied. Therefore, the state court's denial

of this claim was not contrary to or an unreasonable application of federal law. // 20

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E. Counsel Failed to Investigate and Prepare For Trial (Claim 3) Petitioner claims that counsel was ineffective because he failed to consult ballistics or other forensic experts who could have established facts to challenge Boitano's statements about the shooting. Petitioner also asserts that counsel should have called

an expert to testify about the uncertainties of eyewitness identifications. A defense attorney has a general duty to undertake a reasonable investigation or to make a reasonable decision that a particular investigation is unnecessary. Strickland, 466 U.S. at

691; Turner v. Duncan, 158 F.3d 449, 456 (9th Cir. 1998). Strickland directs that "`a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.'" Silva v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002) Where the decision not to

(quoting Strickland, 466 U.S. at 491).

investigate further is taken because of reasonable tactical considerations, the attorney's performance is not constitutionally deficient. Siripongs, 133 F.3d at 734. The petitioner bears the

burden of overcoming the presumption that "under the circumstances, the challenged action `might be considered sound trial strategy.'" United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995) (quoting Strickland, 466 U.S. at 689). In considering claims

of ineffective assistance of counsel, the court is not concerned with what is prudent or appropriate, but only what is constitutionally compelled. (1987). 21 Burger v. Kemp, 483 U.S. 776, 794

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If the claim is that counsel failed to investigate witnesses, the defendant must show what the witnesses would have testified to and how the testimony would have changed the outcome of the trial. United States v. Berry, 814 F.2d 1406, 1409 (9th Cir. 1987). The

duty to investigate and prepare a defense does not require that every conceivable witness be interviewed. 70 F.3d 1032, 1040 (9th Cir. 1995). Hendricks v. Calderon,

Further, a claim of failure to

interview a witness cannot establish ineffective assistance when the witness's account is otherwise fairly known to defense counsel. Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986). Petitioner fails to submit any declarations from experts to show what they would have testified to and how the testimony would have changed the outcome of the trial. Petitioner speculates that

forensic evidence might have shown that the shotgun was fired from inside the apartment instead of from the outside. However,

Petitioner fails to provide any evidence to support this speculation or to explain how examination of the scene would have overcome the photographic evidence showing the damage to the door and shotgun shells outside the door. Likewise, an identification

expert would not have been helpful to Petitioner's defense because Boitano knew Petitioner from previous encounters. Therefore, the

state court's denial of this claim was not contrary to or an unreasonable application of federal law. In his supplemental brief, based upon the declaration of Sergeant Titus, Petitioner argues that San Mateo County jail records show that Petitioner was not housed in the same unit with Ray on April 17, 1990, as Ray had testified at trial, and that the circumstances under which Ray said he met Petitioner and heard his 22

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jailhouse confession were unlikely to have occurred.

Petitioner

argues that this shows that counsel was ineffective for failing to investigate Ray's jail records. In his letter, Sergeant Titus indicates that the facility in which Petitioner and Ray were housed in 1990 was torn down in 1994 and that, due to the length of time that has passed and the fact that the facility was torn down, there are no paper records or recreation logs in existence. Sergeant Titus checked the computer

records, which showed that Petitioner and Ray were in nearby cells on May 22, 1990 for three and one half hours. Sergeant Titus

indicates that the only way Petitioner and Ray could have had personal contact with each other was if they were both out for recreation at the same time on that day. He states that, because

Ray arrived during feeding time and shift change, it is unlikely they were at recreation time together. However, he acknowledges

that there is no way for him to be positive about this. However, the testimony and documentary evidence submitted at trial established that Petitioner and Ray were housed together in the San Mateo County jail in April, 1990. On direct examination,

Petitioner testified that, after his arrest, he was housed in the San Mateo County jail and he saw Ray who was also in custody there. RT at 535, 537. He testified that, two hours later, he found out RT at 538. On cross-examination,

that Ray was an informant.

Petitioner admitted that Ray was housed near him in the protective custody area of the jail. RT at 539, 541. During Ray's testimony,

the prosecutor introduced into evidence People's Exhibit 34, a certified copy of the booking sheet from the San Mateo County jail indicating that Ray was in that facility from April 14, 1990 to 23

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April 18, 1990.

RT at 306.

Ray testified that he talked to RT at 309.

Petitioner on April 17, 1990.

Deputy Robert Tullos, who worked in the San Mateo County jail when Petitioner and Ray were there, testified that Petitioner was out in the day room area using the telephone when Ray came back from court. RT at 637-38. Deputy Tullos stated that Ray wanted to

stay out in the day room to eat his chow instead of going into his "tank." RT at 638. Deputy Tullos testified that he told Ray that

Petitioner would have to go back into his cell because Ray was in protective custody. Deputy Tullos stated that, because Ray did not

have a problem being in the day room with Petitioner and Petitioner did not have a problem being there with Ray, he left them out in the day room together. RT at 638.

Petitioner has not submitted evidence that his attorney failed to investigate Ray's jail records. Petitioner's assumption that he

did not is based on the fact that he did not introduce at trial evidence such as that newly produced from Sergeant Titus that it was unlikely that Petitioner and Ray would have been allowed in the common room together. However, even if such evidence had been

available and had been produced, it would not have undermined the direct testimony of Deputy Tullos that, although it may have been unusual, Petitioner and Ray did spend time in the common room together. Thus, any failure to investigate was not prejudicial.

Although habeas counsel submits the affidavits of Nyhan and Anthony, inmates at the San Mateo County jail at the same time as Petitioner and Ray, he does not discuss them in relation to this claim. Nyhan states that Ray was a drug addict and a known Anthony states that he told Petitioner that Ray was an 24

informant.

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informant, that he did not believe Petitioner confessed to Ray and that he did not believe Petitioner and Ray were alone in the common area together. This testimony is either speculative or cumulative

to the impeachment evidence regarding Ray that was already before the jury. Therefore, counsel's performance was not deficient for For

failing to investigate or to call these witnesses to testify. all of these reasons, the state court's rejection of this ineffectiveness claim was not contrary to or an unreasonable application of Supreme Court authority.

F. Counsel's Failure to Object to Videotaped Re-Enactment of Crime (Claim 5) Petitioner claims that trial counsel was ineffective for failing to object to the admission into evidence of the prosecution video of its investigator's round trip from the Moonraker restaurant to Boitano's apartment. Petitioner argues that the

video should not have been admitted because there was no independent evidence that he left the restaurant and went to Boitano's apartment, the video was highly prejudicial and it was made during the day instead of at night when the offense occurred. Petitioner also claims the court had a sua sponte duty to exclude this evidence or that a limiting instruction should have been given. The failure to object to the admission of highly prejudicial evidence against the defendant may constitute ineffective assistance of counsel, see, e.g., Boyde v. Brown, 404 F.3d 1159, 1179-80 (9th Cir.), amended 421 F.3d 1154 (9th Cir. 2005). However, counsel's failure to make a meritless objection is neither unreasonable nor prejudicial. Jones v. Smith, 231 F.3d 1227, 1239 25

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n.8 (9th Cir. 2001); Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985). In California, demonstrative evidence, such as a re-enactment of a crime, even if it may have some prejudicial effect, is admissible, so long as it tends to prove a material issue or clarify the circumstances of the crime. People v. Robillard, 55

Cal. 2d 88, 99 (1960), overruled on other grounds in People v. Satchell, 6 Cal. 3d 28 (1971); People v. O'Brien, 61 Cal. App. 3d 766, 780-81 (1976) (demonstrative evidence is admissible if relevant and where a proper foundation has been laid by testimony showing the reconstruction or re-enactment is accurate). The videotape, which showed the prosecutor's investigator making the round trip from the Moonraker to Boitano's apartment in fifteen minutes, was relevant to dispute Petitioner's alibi defense that he was at the Moonraker restaurant during the time the crime took place and was introduced to rebut the testimony of defense investigator Whitehead, who stated that it took him twenty and onehalf minutes to make the round trip from the Moonraker to Boitano's apartment. Because an objection to the videotape would likely have

been overruled, defense counsel's performance was not ineffective for failing to make such an objection. Furthermore, O'Brien, 61 Cal. App. 3d at 779-80, held that the trial court did not abuse its discretion in allowing the jury to view surveillance positions of officers during daylight hours when the crime had taken place at night. The court stated, "The fact

that physical conditions upon or about the premises may have been to any degree altered is a fact to be considered by the trial court in exercising its discretion to permit or refuse to permit such 26

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view, and its conclusions in that regard will not be disturbed on appeal, in the absence of a clear showing of an abuse of discretion." Id. at 780. In light of O'Brien, any failure to

object to the video because it was made during the day instead of at night does not constitute deficient performance. Furthermore, the trial court had no duty sua sponte to exclude the evidence or to give a limiting instruction. The admission of

contested evidence, even if erroneous, does not justify habeas relief unless its admission results in the denial of due process. Therefore, the state court's denial of these claims was not contrary to or an unreasonable application of Supreme Court authority. G. Counsel's Errors Regarding Jury Instructions (Claim 7)8 Petitioner claims that counsel was ineffective for not objecting to the judge's references to a shotgun in the jury instructions and in reading the charges in the information to the jury. This argument fails because there was sufficient evidence --

Boitano's testimony, the damage to the door to Boitano's apartment and Boitano's hand, and the shotgun shells at the scene of the crime -- to support the conclusion that a shotgun was used in the crime. Therefore, counsel was not ineffective for failing to make

such an objection. Petitioner, citing RT at 704, also claims that counsel was ineffective for not objecting to the court allowing, toward the end of the trial, the amendment of Count III in the information. In

Claim 6, which includes claims of prosecutorial misconduct and ineffective assistance of counsel for not objecting to prosecutorial misconduct, will be discussed below, together with the claim of prosecutorial misconduct. 27

8

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his discussion of the amendment of Count III with the court, defense counsel noted that it was "dismally late in the proceedings to be correcting charging pleadings" and that such an amendment was not in the furtherance of justice, but acknowledged that allowing the amendment was within the discretion of the trial court. at 704-05. Thus, counsel did object to the amendment. His See RT

representation was not deficient or prejudicial in this regard. Petitioner, citing RT at 740, also claims that counsel was ineffective for withdrawing his request for CALJIC jury instruction 17.03.9 choice. Respondent argues that counsel's decision was a tactical At page 740 of the Reporter's Transcript, the omission of

eight jury instructions was discussed with the court and agreed to by both parties. Although the Court finds no reference to CALJIC

17.03 on that page, other documents in the record show that defense counsel requested that CALJIC 17.03 be given and that the request was withdrawn. Defense counsel submitted a list of requested jury CT at 222-23. The list

instructions which included CALJIC 17.03.

of jury instructions withdrawn or refused, indicates that CALJIC 17.03 was withdrawn. CT at 145.

A challenge to a jury instruction solely as an error under state law does not state a claim cognizable in federal habeas corpus proceedings. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991).

To obtain federal collateral relief for errors in the jury charge, a petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.
9

Id. at 72; Cupp v. Naughten, 414 U.S. 141, 147

CALJIC 17.03 provides that, when criminal charges are made in the alternative, the jury can find the defendant guilty of only one of the crimes charged. 28

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(1973).

The instruction may not be judged in artificial isolation,

but must be considered in the context of the instructions as a whole and the trial record. Estelle, 502 U.S. at 72. In other

words, the court must evaluate jury instructions in the context of the overall charge to the jury as a component of the entire trial process. United States v. Frady, 456 U.S. 152, 169 (1982) (citing

Henderson v. Kibbe, 431 U.S. 145, 154 (1977)). Counsel's considered decision to withdraw his request for CALJIC 17.03 does not constitute ineffective assistance. Therefore, the state court's denial of Claim 7 was not contrary to or an unreasonable application of Supreme Court authority. H. Failure to Object to Prosecutor's Vouching for Testimony (Claim 8) Petitioner claims counsel was ineffective for failing to object to the prosecutor's vouching, in his closing argument, for informant Ray. Petitioner brings a separate claim for improper Petitioner characterizes as vouching

vouching by the prosecutor.

the following statement in the prosecutor's closing argument in rebuttal to the defense closing: "And as Art Ray told you, he's just not some jail house snitch. He has been used for some 17

years by police departments throughout the state of California. You heard what would happen to him if he told a lie on one of these cases, and that would be he wouldn't have another job. circumstantial evidence either." RT at 743-44.10 That isn't

A prosecutor may not vouch for the credibility of a witness. Petitioner alleges that, in his closing argument, the prosecutor made other statements about Ray. The Court has reviewed the prosecutor's closing argument and can find no other statements about Ray. 29
10

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United States v. Sanchez, 176 F.3d 1214, 1224 (9th Cir. 1999). Improper vouching occurs when the prosecutor places the prestige of the government behind the witness or suggests that information not presented to the jury supports the witness's testimony. United

States v. Young, 470 U.S. 1, 7 n.3, 11-12 (1985); United States v. Parker, 241 F.3d 1114, 1119-20 (9th Cir. 2001). The prosecutor

must have reasonable latitude in his closing argument and may argue reasonable inferences based on the evidence. Jackson, 84 F.3d 1154, 1158 (9th Cir. 1996). To warrant habeas relief, prosecutorial vouching must so infect the trial with unfairness as to make the resulting conviction a denial of due process. 628, 644 (9th Cir. 2004). Davis v. Woodford, 384 F.3d United States v.

Factors for determining when reversal is

required include: "the form of vouching; how much the vouching implies that the prosecutor has extra-record knowledge of or the capacity to monitor the witness's truthfulness; any inference that the court is monitoring the witness's veracity; the degree of personal opinion asserted; the timing of the vouching; the extent to which the witness's credibility was attacked; the specificity and timing of a curative instruction; the importance of the witness's testimony and the vouching to the case overall." 241 F.3d at 1120. The prosecutor did not vouch for Ray. inference from the evidence. He argued a reasonable Parker,

The prosecutor gave no personal

assurance that Ray was telling the truth and did not imply that he possessed any extra-record knowledge. Therefore, Petitioner's It follows

claim of improper vouching by the prosecutor fails.

that, because the prosecutor did not improperly vouch for Ray, 30

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defense counsel's performance was not deficient for failing to make an objection based on improper vouching. Therefore, the state

court's denial of this claim was not contrary to or an unreasonable application of Supreme Court authority. I. Insufficiency of Evidence and Counsel's Failure to Challenge the Insufficiency (Claim 17) Petitioner claims that the evidence against him was insufficient and counsel was ineffective for failing to challenge the insufficiency. Petitioner argues that, if counsel had raised

every claim Petitioner has brought in this petition, the result of the trial would have been different. The state superior court on habeas review, citing California case law, denied the claim of insufficiency of the evidence because it was not cognizable on habeas review. Resp's. Ex. C at 2. The

court denied the claim of ineffective assistance of counsel based on counsel's failure to present the "meritorious" defense of insufficiency of the evidence as follows: A review of the record demonstrates that the defense presented at trial was that petitioner was not the person involved in the shooting, and that he was in fact drinking in a bar at the time of the attack on the victim. Petitioner's counsel presented witnesses which supported petitioner's version of the events, and petitioner in fact testified in his own behalf. By their verdict, the jury impliedly rejected the defense version of events. Petitioner has failed to demonstrate that counsel's performance was deficient, simply because the jury did not embrace the proffered defense. Resp's. Ex. C at 2-3. A state prisoner who alleges that the evidence in support of his state conviction is not sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt states a constitutional claim, which, if proven, entitles him to federal habeas relief. Jackson v. Virginia, 443 U.S. 307, 321, 324 (1979). 31

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The federal court "determines only whether, 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Payne v. Borg, 982 F.2d If

335, 338 (9th Cir. 1992) (quoting Jackson, 443 U.S. at 319). confronted by a record that supports conflicting inferences, a federal habeas court "must presume ­- even if it does not affirmatively appear on the record ­- that the trier of fact

resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326. A jury's

credibility determinations are therefore entitled to near-total deference. Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004).

Boitano had ample time to observe the person who shot him and immediately told the police that he recognized the man as a friend of his brother-in-law. Later, when the police showed Boitano

several photographs of Mattson with different people, Boitano picked out a photograph of Mattson and Petitioner and positively identified Petitioner as his assailant. Moreover, the fact that

Petitioner, who lives in Southern California, was at a hotel just minutes away from Boitano's house in Northern California at the time of the shooting, was a coincidence that could not be ignored. Furthermore, Petitioner used an alias when he checked into the motel and paid in cash. And, although Petitioner claimed he drove

up to Northern California to go to Mattson's Super Bowl party, he never contacted Mattson after he arrived in Northern California. In comparison, Petitioner's alibi defense was weak. He

claimed he was at the motel restaurant the entire evening of the attack on Boitano. Although the bartender and piano player 32

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testified on Petitioner's behalf that they saw Petitioner in the restaurant the entire evening, the restaurant hostess testified that she saw Petitioner leave for about twenty minutes. Time

experiments conducted by the defense and prosecution indicated that it was possible to make the round-trip drive from the restaurant to Boitano's house within approximately fifteen to twenty minutes. When viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crimes charged beyond a reasonable doubt. See Jackson, 443 U.S. at 321. Counsel was not ineffective for By

failing to raise sufficiency of the evidence as a defense. presenting an affirmative alibi defense that Petitioner was

innocent, defense counsel necessarily presented a theory that the evidence of his guilt was insufficient. Therefore, the state

court's denial of these claims was not contrary or an unreasonable application of Supreme Court authority. II. Right to Private Counsel of His Choice (Claim 12) Petitioner claims that he had a conflict of interest with the public defender's office because of his trial attorney's ineffectiveness and he had "a right to counsel I can trust, counsel that I can rely upon . . . and counsel that is adequate and also effective." Petitioner argues that he had a right to

representation on appeal by Quin Denvir because Petitioner had disclosed all the facts of his case to Mr. Denvir and Mr. Denvir had stated that he would be glad to be Petitioner's appointed counsel. A criminal defendant who cannot afford to retain counsel has no right to counsel of his own choosing. 33 Wheat v. United States,

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486 U.S. 153, 159 (1988).

Nor is he entitled to an attorney who United States v. Schaff, 948

likes and feels comfortable with him. F.2d 501, 505 (9th Cir. 1991).

The Sixth Amendment guarantees

effective assistance of counsel, not a "meaningful relationship" between an accused and his counsel. 14 (1983). Morris v. Slappy, 461 U.S. 1,

The Due Process Clause of the Fourteenth Amendment

guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right. 391-405 (1985). Evitts v. Lucey, 469 U.S. 387,

If a state court denies a motion for a different

appointed attorney, the ultimate inquiry in a federal habeas proceeding is whether the petitioner's Sixth Amendment right to counsel was violated. Cir. 2000) (en banc). Because Petitioner does not have the right to be represented by the attorney of his choice, his claim fails. The state court's Schell v. Witek, 218 F.3d 1017, 1024-25 (9th

denial of this claim was not contrary to or an unreasonable application of federal law. III. Ineffective Assistance of Appellate Counsel for Failure to Raise Certain Claims on Appeal (Claim 16) Petitioner claims that the attorneys who represented him on his two appeals were ineffective for failing to raise the claims of ineffective assistance of trial counsel on the grounds discussed above, unconstitutional search and seizure, and the government's manufacture and presentation of "self-serving" evidence, and for failing to investigate facts supporting the claim that Ray committed perjury. Claims of ineffective assistance of appellate counsel are reviewed according to the standard set out in Strickland. v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). 34 Miller

A defendant

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therefore must show that counsel's advice fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, he would have prevailed on appeal. 466 U.S. at 688, 694). Id. at 1434 & n.9 (citing Strickland,

Appellate counsel does not have a

constitutional duty to raise every non-frivolous issue requested by the defendant. Jones v. Barnes, 463 U.S. 745, 751-54 (1983); The

Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997).

weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy. 1434. As discussed elsewhere in this order, the claims Petitioner argues should have been appealed lacked merit; thus, appellate counsel was not ineffective for failing to raise them on appeal. Furthermore, counsel who represented Plaintiff on his first appeal obtained a reversal for new post trial proceedings. The state Miller, 882 F.2d at

court's denial of this claim was not contrary to or an unreasonable application of Supreme Court authority. IV. Denial of Equal Protection and Due Process Rights to Participate in His Defense and to Conduct Investigation While Acting Pro Se (Claim 4) Petitioner claims that he was denied his right to participate in his defense while being represented by counsel and to represent himself meaningfully when he was pro se because he did not have access to the defense investigator's billing and activity sheets. Petitioner claims that access to these records was important so that he would not repeat any investigative efforts and could investigate any vital evidence that had been overlooked. Petitioner states that he submitted a motion for the production of 35

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these records, but the trial court denied it. Citing Teague v. Lane, 489 U.S. 288, 315 (1989), Respondent argues that habeas corpus relief is not available for a novel claim such as this. In Teague, th