Woods v. Sinclair

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DWAYNE ANTHONY WOODS,  No. 09-99003

Petitioner-Appellant,

v.  D.C. No.

2:05-CV-00319-LRS

STEPHEN SINCLAIR,

OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the Eastern District of Washington

Lonny R. Suko, Chief District Judge, Presiding

Argued and Submitted

March 4, 2010—Portland, Oregon

Filed August 10, 2011

Before: Richard A. Paez, Richard C. Tallman and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Paez

10469

WOODS v. SINCLAIR 10473

COUNSEL

Suzanne Lee Elliott, Law Offices of Suzanne Lee Elliott,

Seattle, Washington, and David B. Zuckerman, Law Offices

of David B. Zuckerman, Seattle, Washington, for petitioner-

appellant Dwayne Anthony Woods.

John Joseph Samson, Assistant Attorney General, Olympia,

Washington, for respondent-appellee Stephen Sinclair.

OPINION

PAEZ, Circuit Judge:

In 1997, a Washington jury found Dwayne A. Woods

guilty of two counts of aggravated murder in the first degree,

one count of attempted murder in the first degree, and one

count of attempting to elude a police vehicle. After two days

of deliberation, the jury sentenced Woods to death. The

Washington State Supreme Court upheld his conviction and

sentence, State v. Woods, 23 P.3d 1046 (Wash. 2001), and

denied his petition for post-conviction relief, In re Woods,

10474 WOODS v. SINCLAIR

114 P.3d 607 (Wash. 2005). Woods then filed a petition for

a writ of habeas corpus in federal district court, which was

denied. Woods appeals the denial of habeas relief, contending

that (1) he was denied his Sixth Amendment right to represent

himself, (2) the state court’s admission of certain evidence

violated the Confrontation Clause, (3) the State withheld

material, exculpatory evidence in violation of Brady v. Mary-

land, 373 U.S. 83 (1963), and (4) his trial counsel’s represen-

tation was ineffective.1 We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

I. THE CRIME2

On Friday, April 26, 1996, Telisha Shaver was house-

sitting at her aunt’s trailer home in Spokane Valley, Washing-

ton. Telisha3 planned to spend the night at her boyfriend’s

home, but had agreed to let her sister, Venus, and Venus’s

friend, Jade Moore, spend the night at the trailer. Venus and

Jade arrived at the trailer at approximately 1:45 a.m. on Satur-

day morning. The women drank alcohol and socialized. At

some point, Venus and Jade decided to contact Dwayne

Woods, whom Venus had previously dated. After the women

paged Woods, he eventually joined them at the trailer. By that

time, approximately 4:20 a.m., Jade was asleep.

1

Woods also alleges that the State violated his due process rights when

it misled the court and defense as to the progress of a DNA test during

several hearings. This claim, claim 6.1 in Woods’s federal habeas petition,

was not included in the Certificate of Appealability (“COA”). Although

the prosecution failed to act with proper diligence in the completion of the

DNA testing, we agree with the State that there was no prejudice from any

failure timely to notify Woods of the reasons for the delay. Because we

conclude that the claim lacks merit, we decline to grant a COA.

2

This factual background is taken largely from the Washington State

Supreme Court’s opinion affirming Woods’s conviction and sentence. See

Woods, 23 P.3d at 1053-59.

3

In this opinion we frequently refer to Telisha and Venus Shaver by

their first names for the sake of clarity. We also refer to Jade Moore by

her first name to avoid confusion with her father, Barry Moore.

WOODS v. SINCLAIR 10475

While at the trailer, Woods served himself alcohol and

talked with Venus. According to Venus’s testimony, Woods

was upset that Jade was asleep and urged Venus to wake her

up. Venus tried to wake Jade up, but Jade did not respond. At

this, Woods became irate and, according to Venus, shoved her

onto the couch and attempted to unbutton her pants. Venus

said that she initially escaped Woods’s grasp, but that he man-

aged to grab her again and then slammed her head and neck

against a door. Venus testified that she has no memory of

what transpired from that point forward except for intermit-

tent flashes of memory in which she recalls struggling with

Woods.

At approximately 7:30 a.m., Woods forced Jade to wake up

at knife point. He took her to another one of the bedrooms,

where Venus lay unconscious and severely beaten. Woods

forced Jade to help him loot the trailer and to give him her

ATM card and personal identification number. He then raped

Jade orally and vaginally.

During the attack on Jade, Telisha returned to the trailer to

retrieve some personal effects. Woods seized and bound her.

Jade, who was laying on the floor and feigning unconscious-

ness, later stated that she heard a baseball bat hit Telisha’s

head. Jade said that she was then hit in the head with the bat,

knocked unconscious, and had no memory of what happened

after that point.

When Telisha failed to return home that morning, her

mother, Sherry Shaver, decided to go to the trailer to check

on her. She arrived at approximately 10:25 a.m. and found the

door locked. Peering through a window in the trailer, she saw

a man—whom she later identified as Woods—exiting from

the other side of the trailer. She pounded on the locked trailer

door, and Jade, naked and beaten, eventually opened the door.

Sherry Shaver called 911.

Emergency personnel arrived at the trailer and took the vic-

tims to the hospital. While en route to the hospital, Jade told

10476 WOODS v. SINCLAIR

a paramedic about the events of the prior evening. At the hos-

pital, she also told her father, the emergency room physician,

and a nurse about what had transpired. Of the three victims,

only Venus survived. Telisha died without ever regaining

consciousness. Despite initially responding to medical treat-

ment, Jade died the following day.

Shortly after Sherry Shaver reported seeing Woods leave

the trailer, he was seen at two local businesses close to the

crime scene. At one of those businesses, Woods convinced

another patron to drive him to downtown Spokane. Within

close proximity to where Woods was dropped off, a series of

cash machine withdrawals occurred with the use of Jade’s

ATM card.

At approximately 12:30 p.m. that same day, Woods ran into

his brother-in-law, Louis Thompson, at a grocery store in the

downtown area. Thompson gave Woods a ride to the home of

Johnny Knight, a friend of Woods’s. Knight and his friend

Mary Knapp testified that when Woods came to their home,

he offered to sell them some jewelry and to buy one of

Knight’s automobiles.

Woods spent the night at Elizabeth Gerber’s apartment.

The following morning, Gerber asked Woods to leave the

apartment. At trial, she testified that Woods became agitated

and said he was “a wanted man” and she was “putting him on

the streets.”

Later that day, Knight heard a television broadcast that

authorities were searching for Woods. In response, Knight

called the police and agreed to lead them to Woods. With

Knight’s cooperation, sheriff’s deputies followed Knight as he

went to pick up Woods. After Knight picked Woods up, the

deputies pulled the car over. Knight got out, but Woods

jumped into the driver’s seat and sped away. The deputies

eventually caught, arrested, and interrogated him.

WOODS v. SINCLAIR 10477

Woods told the interviewing detectives that he fled because

he had a number of “outstanding traffic violations” and some

“traffic warrants.” At the time of his arrest, Woods had no

outstanding traffic violations. Woods denied any responsibil-

ity for the crimes and claimed he had not been in contact with

Venus for about a week. He further denied knowing a woman

named Jade. He also told detectives that he had not been in

Spokane Valley for about a month, that he had never visited

a trailer home, and that there was no logical explanation of

why his fingerprints would have been found in the trailer.

II. PRE-TRIAL PROCEEDINGS

Woods was charged with two counts of aggravated first

degree murder, one count of attempted first degree murder,

and in the alternative, one count of first degree assault.4 At his

arraignment on May 30, 1996, Woods pleaded not guilty to

the charges and waived his right to be tried within sixty days

of his arraignment, but not later than November 12, 1996. The

trial was set for October 21, 1996.

In the meantime, the prosecution processed the physical

evidence in the case. Doctors had completed “rape kits” for

all three victims, including taking a swab from the vagina of

each victim. The rape kits were sent to the Washington State

Police Crime Laboratory (or “WSPCL”) in Spokane. At the

Spokane lab, William Morig examined the swabs in search of

sperm cells that might contain the DNA of the murder sus-

pect. Morig found no sperm on the swab taken from Venus

Shaver, but found usable samples from the swabs taken from

Telisha Shaver and Jade Moore. The prosecution also

obtained a vial of Woods’s blood to use in DNA tests. That

sample was sent to the Spokane lab as well. The WSPCL lab

in Spokane did not have the required DNA testing equipment,

so Morig’s responsibilities were limited to preparing DNA

4

The State later amended the information to include a charge of eluding

police.

10478 WOODS v. SINCLAIR

samples from the rape kits and Woods’s blood that could be

submitted to other labs for DNA testing and analysis.

On August 23, 1996, Woods’s defense counsel moved for

a continuance of the trial date based on the fact that they had

not received the DNA test results and that they needed addi-

tional time to produce mitigation evidence. Although Woods

objected to this motion, defense counsel argued that unless a

continuance was granted, Woods would be unable to receive

a fair trial. The trial court ultimately granted the motion and

reset the trial date for March 17, 1997.

On October 16, 1996, the prosecutor informed the court

that the DNA evidence had not yet been sent for testing. The

prosecutor represented that the results from the testing would

be received by January 1, 1997. Consequently, the court

ordered that the DNA test results be disclosed to the defense

by January 1, 1997. The prosecutor also informed the court

that the vial of Woods’s blood had been mistakenly frozen

and had cracked. The prosecution therefore needed a new

blood sample for testing purposes. Woods objected to provid-

ing a new sample and renewed his objection to having the

trial commence after the original date of October 21, 1996.

The court overruled both objections.

By January 2, 1997, the WSPCL had returned only one of

two DNA test results. That test, performed by a private com-

pany, showed that Woods was not the source of semen found

in Telisha’s body. At a hearing on January 13, 1997, the pros-

ecutor informed the trial court that the testing of the sperm

sample taken from Jade Moore was not complete. WSPCL

performed that testing at its more advanced Seattle laboratory

because it required a complex testing procedure. The prosecu-

tor informed the court that the test would not be complete

until the middle of February 1997. Defense counsel moved to

exclude admission of the DNA evidence as a result of the

delay, to dismiss the case because of prosecutorial misman-

agement, and to continue the case in order to have time to

WOODS v. SINCLAIR 10479

adequately prepare for trial in light of the delay in DNA test-

ing. The trial court denied the first two motions but granted

the last and continued the trial to May 19, 1997. Before trial,

WSPCL returned the results of the DNA testing performed in

Seattle, which showed that the DNA taken from Woods’s sec-

ond blood sample matched the DNA taken from the sperm

recovered from Jade Moore.

III. GUILT PHASE PROCEEDINGS

At trial, Venus and Sherry Shaver identified Woods as the

assailant. The jury also heard Jade’s statements, including her

identification of Woods, via the testimony of a paramedic,

nurse, and doctor who treated Jade and the testimony of her

father, Barry Moore, who spoke to Jade after the attack. Dr.

John Brown, a forensic scientist at WSPCL’s Seattle labora-

tory, testified that the sperm recovered from Jade contained

Woods’s DNA. A fingerprint expert testified that Woods’s

fingerprints were on a bottle and a telephone found in the

trailer. The jury also learned that Woods’s coat and shirt were

found at the trailer and saw paging and telephone records

demonstrating that Woods’s pager had been called from the

trailer several times during the early hours of April 27, 1996.

The defense theory was that Woods could not have mur-

dered Telisha and Jade or assaulted Venus because he was

dining at a bar in downtown Spokane at the time the crimes

occurred. To support this alibi defense, the defense presented

testimony from an expert on eyewitness misidentification and

from a bartender who testified that he saw Woods at a down-

town bar on the evening in question.

The jury found Woods guilty of two counts of aggravated

murder, one count of attempted murder, and one count of

attempting to elude police officers.

IV. PENALTY PHASE PROCEEDINGS

Woods instructed his attorneys not to present any mitigat-

ing evidence at the penalty phase of the trial. Concerned about

10480 WOODS v. SINCLAIR

Woods’s mental state, defense counsel requested a continu-

ance of the penalty phase of the trial in order to have Woods’s

mental capacity assessed. The trial court denied the motion

and ordered the sentencing phase of the trial to commence

that afternoon. At sentencing, the prosecution offered the tes-

timony of Sherry Shaver and Barry Moore, presented photo-

graphs of Telisha and Jade, and entered into evidence certified

judgments of Woods’s prior convictions.

Pursuant to Woods’s instructions, defense counsel did not

present any mitigating evidence. Woods did, however, invoke

his right to allocution and made the following statement to the

jury:

Well, ladies and gentlemen, you heard from [the

prosecutor] and so you know that he’s asking that

you impose the death penalty. I just want to say that

I have no objection. Also, I just want to remind you

that a few weeks back during individual voir dire

each of you was asked if you could, in fact, impose

the death penalty. I believe at that time each of you

said you could impose the death penalty providing

there’s not sufficient mitigating circumstances.

So I am here to tell you there’s absolutely none, not

one. So I ask that each of you go back and return a

vote to impose the death penalty. Thank you.

After deliberating for two days, the jury found that there were

insufficient mitigating circumstances to merit leniency.

Woods was sentenced to death.

V. STATE AND FEDERAL POST-CONVICTION

PROCEEDINGS

The Washington Supreme Court affirmed the convictions

and sentence on direct appeal. See Woods, 23 P.3d at 1079.

The Supreme Court denied certiorari. See Woods v. Washing-

WOODS v. SINCLAIR 10481

ton, 534 U.S. 964 (2001). Woods then filed a personal

restraint petition (“PRP”) in the Washington Supreme Court.

Woods raised eighteen claims for relief, including an ineffec-

tive assistance of counsel (IAC) claim, a Brady claim, a claim

that the jury had been improperly prohibited from viewing

certain evidence, and a claim that newly discovered evidence

required a new trial. The Washington Supreme Court denied

Woods’s petition. See In re Woods, 114 P.3d at 611.

Woods next filed a federal habeas petition. The State’s

answer raised a number of procedural-bar defenses, including

a claim that Woods had not properly exhausted his claims.

The district court bifurcated the briefing to first determine

whether any of Woods’s claims were procedurally barred. On

the basis of this first round of briefing, the district court con-

cluded that some portions of Woods’s IAC claims and Brady

claims were procedurally barred. The court then considered

Woods’s remaining claims on the merits, and ultimately dis-

missed the petition in its entirety.

Woods filed a timely notice of appeal and moved for a

COA on all of his claims. The district court granted a limited

COA, the scope of which we address below.

VI. STANDARD OF REVIEW

We review de novo a district court’s denial of a prisoner’s

petition for habeas corpus. Brown v. Ornoski, 503 F.3d 1006,

1010 (9th Cir. 2007). The district court’s findings of fact are

reviewed for clear error. Id.

Because Woods filed his federal habeas petition after 1996,

the Anti-Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”) governs this action. See id. AEDPA requires fed-

eral courts to defer to the last reasoned state court decision.

Id. A federal court may grant a state prisoner’s habeas petition

with respect to a claim that was “adjudicated on the merits in

State court proceedings” only if the adjudication “(1) resulted

10482 WOODS v. SINCLAIR

in a decision that was contrary to, or involved an unreason-

able application of, clearly established Federal law, as deter-

mined by the Supreme Court of the United States; or (2)

resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d).

A state court decision is “contrary to” federal law if it

applies a rule that contradicts the governing law set forth in

Supreme Court cases or if it “confronts a set of facts that are

materially indistinguishable from a decision of [the Supreme]

Court and nevertheless arrives at a result different from

[Supreme Court] precedent.” Williams v. Taylor, 529 U.S.

362, 405-06 (2000). A state court decision involves an “un-

reasonable application” of federal law if “the state court iden-

tifies the correct governing legal rule from [the Supreme]

Court’s cases but unreasonably applies it to the facts of the

particular state prisoner’s case” or if it “either unreasonably

extends a legal principle from [the Supreme Court’s] prece-

dent to a new context where it should not apply or unreason-

ably refuses to extend that principle to a new context where

it should apply.” Id. at 407.

In assessing under section 2254(d)(1) whether the state

court’s legal conclusion was contrary to or an unreasonable

application of federal law, our “review . . . is limited to the

record that was before the state court that adjudicated the

claim on the merits.” Cullen v. Pinholster, 131 S. Ct. 1388,

1398 (2011). We consider circuit precedent for the limited

purpose of assessing what constitutes “clearly established”

Supreme Court law and whether the state court applied that

law unreasonably. Clark v. Murphy, 331 F.3d 1062, 1069 (9th

Cir. 2003), overruled on other grounds by Lockyer v.

Andrade, 538 U.S. 63 (2003).

VII. SELF-REPRESENTATION

Woods contends that he made an unequivocal request to

represent himself and that the trial court was thus obliged

WOODS v. SINCLAIR 10483

under Faretta v. California, 422 U.S. 806 (1975), to conduct

a colloquy to determine whether his request was voluntary,

knowing and intelligent. The court’s failure to do so, Woods

argues, violated his Sixth Amendment right to self-

representation. On direct appeal, the Washington State

Supreme Court concluded that Woods had failed to make an

unequivocal request. See Woods, 23 P.3d at 1061-62. The dis-

trict court agreed, and we affirm.

[1] Under Faretta, a criminal defendant may invoke the

right of self-representation by making an unequivocal request

and knowingly and intelligently waiving the right to counsel.

Faretta, 422 U.S. at 835. Here, during pre-trial proceedings,

Woods twice informed the court that he opposed any continu-

ance of the trial date. First, on August 16, 1996, Woods

informed the court that he opposed any extension of time for

the prosecution to file its notice of special sentencing proceed-

ing5 or any further continuance of his trial date. On August

23, 1996, Woods again expressed his opposition to any fur-

ther continuance when his defense counsel requested that the

trial date be pushed back to May 5, 1997, as a result of the

delay in processing of the DNA evidence. The following col-

loquy then took place:

[DEFENSE COUNSEL]: I think the only effective

date we can ask for right now is the 5th of May of

‘97.

5

Under Washington law, when a criminal defendant is eligible for the

death penalty, the State is required to file a notice of special sentencing

proceeding within thirty days after the defendant’s arraignment. Wash.

Rev. Code § 10.95.040(2). If that notice is not timely filed, the State may

not seek the death penalty. Id. § 10.95.040(3). On direct appeal, Woods

argued that the State had failed to comply with this requirement, and that

he was therefore entitled to a new trial. See Woods, 23 P.3d at 1062-63.

The Washington Supreme Court rejected that argument, among others, in

a 5-1 opinion. Id. at 590. Justice Sanders’s dissent, however, concluded

that the State had indeed erred and that such error required the court to

vacate Woods’s death sentence. Id. at 622-26 (Sanders, J., dissenting).

Woods did not raise this state law issue in his federal habeas petition.

10484 WOODS v. SINCLAIR

WOODS: Your Honor, you know, I will be—I will

be prepared to proceed with—with this matter here

without counsel come October 21st.

THE COURT: All right. You understand you have

the right to do that.

WOODS: Yes.

THE COURT: Counsel, have you discussed this with

your client?

[DEFENSE COUNSEL]: No. We have not discussed

that point at all. It’s a surprise to me.

WOODS: I’ve—I’ve already consented to one con-

tinuance, Your Honor. And they—they have done

nothing but grossly misuse that time there. And I feel

if—if they was granted a second continuance, it—it

would be treated in the same manner, Your Honor.

THE COURT: All right. Thank you.

Shortly afterward, the prosecutor stated that “the defendant is

indicating he wants to proceed pro se.” The trial judge

replied: “He didn’t indicate that. He indicated he was able to

do that.” Nobody made any further references to Woods’s

request to proceed pro se throughout the remainder of the

hearing.

On August 29, 1996, one of Woods’s attorneys acknowl-

edged in a written submission to the court that he was aware

of Woods’s desire for a “prompt resolution” of the case. On

August 30, 1996, Woods’s defense team renewed their

request for a continuance. At a hearing on the motion, the

judge stated: “I’ve heard Mr. Woods’s point of view and I

take it, it is unchanged. Is that correct?” Woods responded,

WOODS v. SINCLAIR 10485

“Yeah.” The trial judge nonetheless granted the motion to

continue the trial to March 17, 1997.

In concluding that Woods’s request was equivocal, the

Washington State Supreme Court analogized his request to

that made by the defendant in State v. Luvene, 903 P.2d 960

(Wash. 1995). There, frustrated by his attorney’s request for

a continuance, the defendant addressed the court directly and

stated:

I’ve been here since July . . . . You know, I don’t

wanna sit here any longer. It’s me that has to deal

with this. If I’m prepared to go for myself, then

that’s me. You know, can’t nobody tell me what I

wanna do. They say I did this, so why not—if I

wanna go to trial, why can’t I go to trial on the date

they have set for my life? I’m prepared. I’m not even

prepared about that. I wanna go to trial, sir . . . .

I don’t wanna extend my time. This is out of my

league for doing that. I do not want to go. If he’s not

ready to represent me, then forget that. But I want to

go to trial on this date.

Id. at 960. In Luvene, the Washington Supreme Court con-

cluded that these statements, taken in the context of the record

as a whole, could be seen only as an “expression of frustration

by [the defendant] with the delay in going to trial and not as

an unequivocal assertion of his right to self-representation.”

Id.

Noting the similarities between the statement in Luvene and

Woods’s statement, the Washington State Supreme Court

held:

Woods’s statement cannot be viewed as an unequiv-

ocal statement of his desire to proceed to trial pro se.

His statement, like that which we examined in

10486 WOODS v. SINCLAIR

Luvene, merely revealed the defendant’s displeasure

with his counsels’ request to continue the trial for a

lengthy period of time. Woods, like the defendant in

Luvene, was undoubtedly frustrated by the delay,

and his statement to the trial court appears to have

been an expression of those feelings.

...

We are satisfied that telling a trial judge he “will be

prepared to proceed without counsel” is qualitatively

different than telling a judge that one wishes to pro-

ceed pro se. Woods’s comment was in the former

category and was not an expression of an unequivo-

cal desire to represent himself. We conclude, there-

fore, that he was not denied his constitutional right

to proceed pro se and is not entitled to a new trial on

that basis.

Woods, 23 P.3d at 1062.

[2] We conclude that the Washington Supreme Court’s

determination that Woods’s pre-trial statement, as quoted

above, was “not an expression of an unequivocal desire to

represent himself,” id., was not “an unreasonable determina-

tion of the facts,” 28 U.S.C. § 2254(d)(2). Cf. United States

v. Kienenberger, 13 F.3d 1354, 1356 (9th Cir. 1994)

(expressly considering as a question of fact whether a defen-

dant made an unequivocal Faretta request). Although it is not

apparent what factual basis the Washington Supreme Court

relied on to conclude that Woods was merely expressing

“frustration,” we cannot say, in light of the state trial court

record, that the court’s holding was unreasonable. Shortly

after Woods stated that he was prepared to proceed without

counsel, the trial court expressly disagreed with the prosecu-

tor’s statement that Woods was asking to proceed pro se, stat-

ing that “[Woods] didn’t indicate that [he wanted to proceed

pro se]. He indicated he was able to do that.” Woods had the

WOODS v. SINCLAIR 10487

opportunity to correct or clarify the court’s understanding if

it was incorrect. Yet neither Woods nor his counsel reasserted

the request to proceed pro se again during the hearing or any

future hearings.6 In light of this exchange, we cannot conclude

that the state court’s factual determination was unreasonable.

Woods is therefore not entitled to relief under this claim.

VIII. CONFRONTATION CLAUSE

[3] Woods next argues that admission of Jade Moore’s out-

of-court statements at trial violated his rights under the Con-

frontation Clause. The Sixth Amendment provides that, “[i]n

all criminal prosecutions, the accused shall enjoy the right . . .

to be confronted with the witnesses against him.” U.S. Const.

amend. VI. Under Ohio v. Roberts, controlling law at the time

of Woods’s conviction, admission of an out-of-court state-

ment at trial did not violate the Confrontation Clause if the

statement possessed “adequate indicia of reliability.” 448 U.S.

56, 65-66 (1980), abrogated by Crawford v. Washington, 541

U.S. 36 (2004).7 A statement is sufficiently reliable if it falls

“within a firmly rooted hearsay exception” or bears “particu-

larized guarantees of trustworthiness.” Id. at 66. The Supreme

Court subsequently recognized that “spontaneous

declarations”—the same types of statements referred to as

“excited utterances” under Washington’s hearsay laws—

constitute a “firmly rooted” hearsay exception. White v. Illi-

nois, 502 U.S. 346, 355 n.8 (1992). Likewise, the Court rec-

6

Woods claims that at the next hearing he reasserted his right to proceed

pro se. At that hearing, in discussing whether or not to grant a continu-

ance, the trial court stated, “I’ve heard Mr. Woods’ point of view and I

take it, it is unchanged. Is that correct?” Woods replied, “Yeah.” We can-

not reasonably discern from Woods’s reply a request to proceed pro se.

7

Woods’s conviction became final before the Supreme Court issued its

opinion in Crawford, so we apply the clearly established pre-Crawford

Supreme Court law. See Whorton v. Bockting, 549 U.S. 406, 421 (2007)

(holding that the new Crawford rule is applicable only to cases that are

still on direct review and does not apply retroactively to cases on collateral

review).

10488 WOODS v. SINCLAIR

ognized that statements made to physicians in the course of

diagnosis also fall within a “firmly rooted” exception. Id.

Here, over Woods’s objection, the trial court allowed five

witnesses to testify about statements that Jade made after the

attack and before her death. Deputy Douglas Lawson of the

Spokane County Sheriff’s Department, who responded to the

scene of the crime, testified at trial that he asked Jade whether

she knew who attacked her and that she responded it was “a

guy named Dwayne.” Carol Ragland-Stone, a paramedic who

accompanied Jade to the hospital, testified at trial that: (1)

when she asked Jade what had happened to her, Jade told her

that she had been hit with a baseball bat; (2) when she asked

Jade who hit her, Jade responded that it was a man named

Dwayne; and (3) when asked whether she was sexually

assaulted, Jade said yes. Jade’s father, Barry Moore, testified

that when he went to visit Jade in the emergency room, she

gave him a detailed account of the incident. Barry Moore

repeated this account to the jury. Dr. Edminster, who was

working at the hospital where Jade was admitted, testified that

he asked Jade a number of questions as part of a routine rape

examination procedure. Dr. Edminster gave detailed testi-

mony about Jade’s answers to these questions. Finally,

Dianne Bethel, a registered nurse who assisted Dr. Edminster

in the administration of the rape examination, also testified as

to Jade’s answers to the rape examination questions.

To determine whether Woods’s Confrontation Clause rights

were violated, we must resolve whether Jade’s statements to

these witnesses fell within either the “firmly rooted” excited

utterance or medical diagnosis exceptions to the hearsay rule.

We address the five witnesses’s statements in turn.

First, Woods argues that some of Jade’s statements to Dr.

Edminster and nurse Bethel were not elicited for purposes of

diagnosis and treatment and therefore do not fall within the

medical diagnosis exception to the hearsay rule. Under White,

in order for a statement to fall within the medical diagnosis

WOODS v. SINCLAIR 10489

exception, it must have been “made in the course of procuring

medical services, where the declarant knows that a false state-

ment may cause misdiagnosis or mistreatment.” White, 502

U.S. at 356.

[4] The Washington Supreme Court held that Jade

Moore’s statements to Dr. Edminster and Bethel were admis-

sible under this exception because they were pertinent to later

treatment for post traumatic stress disorder. Because this con-

clusion is at least plausible and because the Supreme Court

has yet to address whether such statements relevant only to

later psychological treatment fall within the medical diagnosis

exception to the hearsay rule, we cannot conclude that the

Washington Supreme Court’s determination was clearly

unreasonable.

Woods next argues that Jade’s statements to Barry Moore

and to paramedic Ragland-Stone should not have been admit-

ted into evidence under the excited utterance exception. In

White, the Court explained that statements that have “been

offered in a moment of excitement—without the opportunity

to reflect on the consequences of one’s exclamation” fall

within the excited utterance exception. 502 U.S. at 356. If, on

the other hand, a statement is made after the declarant has had

an opportunity to reflect or discuss the matter with others, it

no longer qualifies for the excited utterance exception. Winzer

v. Hall, 494 F.3d 1192, 1198 (9th Cir. 2007) (interpreting

White).

[5] According to the Washington Supreme Court, “it was

not manifestly unreasonable for the trial court to admit Jade’s

statements to Ragland-Stone and her father as excited utter-

ances.” Woods, 23 P.3d at 1069. As to Jade’s statements to

Ragland-Stone, the court noted:

[T]he record reflects that the statements to Ragland-

Stone were made, in a spontaneous manner, on the

heels of a clearly startling event. . . . Also, it is clear

10490 WOODS v. SINCLAIR

that when Jade was making the statements to

Ragland-Stone, Jade was under the stress caused by

the underlying assault. According to Ragland-Stone,

when Jade was first moved into the ambulance,

Ragland-Stone said she was “whimpering, like cry-

ing almost” and was “very emotional, very dis-

traught, clearly upset and in a lot of pain.”

Id. at 1068. We must accept the state court’s factual findings

unless objectively unreasonable. 28 U.S.C. § 2254(d)(2);

Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004).

Because there was no evidence to the contrary, the state

court’s conclusion that the statements were made “in a spon-

taneous manner, on the heels of a clearly startling event,” was

not objectively unreasonable. Woods, 23 P.3d at 1068. Given

those circumstances, Jade’s statements to Ragland-Stone met

the White requirement for an excited utterance: they were

offered “in a moment of excitement—without the opportunity

to reflect on the consequences of [her] exclamation.” White,

502 U.S. at 356. The state court’s conclusion was therefore

not objectively unreasonable. For the same reasons, we con-

clude that the state court was not objectively unreasonable in

holding that Jade’s statements to Deputy Lawson fell within

White’s requirements.

[6] Jade’s statements to Barry Moore, however, do not fall

within the excited utterance exception as formulated by White

because they were not made before Jade had an opportunity

to reflect. Rather, these statements were made after Jade had

already been transported to the hospital and after she had

already recounted the events to Ragland-Stone, Edminster and

Bethel. Furthermore, in recounting the events to her father,

Jade said that she had gone to bed early despite the fact that

she had been up until past 3 a.m., and she also failed to

recount that she had been drinking prior to the attack or that

she had sought to buy drugs from Woods. Woods, 23 P.3d at

1068. Those misrepresentations suggest that Jade had the

opportunity to reflect on the consequences of her statements.

WOODS v. SINCLAIR 10491

Furthermore, unlike its findings about Jade’s statements to

Ragland-Moore, the Washington Supreme Court’s opinion

contains no similar findings as to the spontaneity of Jade’s

statements to Barry Moore. We therefore conclude that the

state court’s determination that Jade’s statements to her father

were “excited utterances” was an unreasonable application of

White, clearly established federal law. Accordingly, admis-

sion of Jade’s statements to Barry Moore constituted a viola-

tion of Woods’s rights under the Confrontation Clause.

[7] Violation of the Confrontation Clause, however, is sub-

ject to harmless-error analysis. Delaware v. Van Arsdall, 475

U.S. 673, 684 (1986). If the error did not result in “actual

prejudice,” Woods is not entitled to habeas relief. Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993). Here, Jade’s state-

ments to her father were, for the most part, cumulative of the

statements she gave to Edminster, Bethel and Ragland-Stone.

Jade’s prior statements all included the details of the crime

and identification of Woods as the perpetrator. Furthermore,

Jade’s prior statements were cumulative of the testimony by

Venus, who also identified Woods as the attacker. Thus,

Woods cannot establish prejudice as a result of the Confronta-

tion Clause violation, and he is not entitled to habeas relief on

this issue.

IX. DUE PROCESS CLAIM — WITHHOLDING

MATERIAL EVIDENCE

Woods argues that the prosecution withheld material,

exculpatory evidence in violation of Brady v. Maryland. Spe-

cifically, Woods argues in two Brady sub-claims8 that the

prosecution withheld evidence concerning: (1) WSPCL’s gen-

eral policy of destroying “draft” reports, as evidenced by Dr.

Brown’s conduct in State v. Barfield, No. 48147-9-I, 2003

8

The first sub-claim is set out in claim 5.1 in Woods’s federal habeas

petition. The second sub-claim is set out in claim 5.2 in Woods’s federal

habeas petition.

10492 WOODS v. SINCLAIR

WL 22121058 (Wash. Ct. App. Sept. 15, 2003), and (2) the

full details of how the WSPCL crime lab mishandled the

physical evidence in his case, including spillage of Woods’s

first blood sample. On the first Brady sub-claim, the district

court denied Woods’s request for an evidentiary hearing and

denied habeas relief. The district court ruled that the second

sub-claim was procedurally defaulted. We address each sub-

claim in turn.

A. The State’s failure to disclose WSPCL’s general

practices

Woods argues that the prosecution had knowledge of

WSPCL’s DNA testing and review protocol, which included

discarding “draft” reports, and was therefore required under

Brady to disclose the lab’s review process. Woods bases this

contention on Dr. John Brown’s conduct detailed in State v.

Barfield, 2003 WL 22121058.9 In Barfield, Dr. Brown tested

the DNA from a semen sample retrieved from a rape victim

and compared the results to a WSPCL database that included

defendant Barfield’s DNA. Id. at *1. He did not identify a

match, and created a draft report reflecting that result. Id.

Brown’s supervisor, Donald MacLaren, independently ana-

lyzed the test results and, after reviewing Brown’s draft

report, noticed that Brown had made an error. Id. After Mac-

Laren brought the error to his attention, Brown discarded the

erroneous draft report and prepared a new report reflecting the

correct analysis, which indicated the DNA from the semen

sample matched Barfield’s DNA profile in the WSPCL data-

base. Id. In a pretrial interview with defense counsel, Brown

initially denied excluding Barfield in an earlier report, but

later admitted that he had performed the first round of analy-

sis incorrectly and had discarded the initial erroneous draft

report. Id. Dr. Brown testified at Barfield’s rape trial that he

9

Dr. Brown analyzed DNA in the Barfield case in 1997, but after he

analyzed the DNA evidence and testified in Woods’s case.

WOODS v. SINCLAIR 10493

had lied to defense counsel because he was embarrassed about

making an obvious error. Id. at *2.

In a declaration submitted to the Washington Supreme

Court in Woods’s PRP proceeding, MacLaren, who also

reviewed Dr. Brown’s analysis in Woods’s case, stated that

the review process followed in Barfield—including peer

review and discarding erroneous draft reports—was standard

procedure at WSPCL. MacLaren declared, however, that “out

of the thousands of autorads this lab has developed there have

been less than ten instances where a resizing was necessitated

by the review process.”

Woods argues that had he known about WSPCL’s practices

at the time of trial, he would have used the information to

impeach Dr. Brown and to challenge the prosecution’s DNA

evidence by questioning the quality of WSPCL’s internal

review process. Woods contends that Dr. Brown’s misconduct

in the Barfield case revealed a longstanding practice of hiding

the results of exculpatory tests and that there were indicia in

this case that draft reports may have been destroyed. Specifi-

cally, Woods points out that WSPCL assured the prosecution

that testing would be completed by January 1, 1997, but it

was not completed until February 20, 1997. Woods argues

that it is reasonable to infer that the delay was due to one or

more tests that were never reported to the defense.

To prevail on a Brady claim, a defendant must prove that

“[1] The evidence at issue [is] favorable to the accused, either

because it is exculpatory, or because it is impeaching; [2] that

evidence [was] suppressed by the State, either willfully or

inadvertently; and [3] prejudice . . . ensued.” Strickler v.

Greene, 527 U.S. 263, 281-82 (1999); see Brady, 373 U.S. at

87. To establish prejudice, a defendant must demonstrate that

“there is a reasonable probability that the result of the trial

would have been different if the suppressed [evidence] had

been disclosed to the defense.” Strickler, 527 U.S. at 289

(internal quotation marks omitted). “A ‘reasonable probabil-

10494 WOODS v. SINCLAIR

ity’ is a probability sufficient to undermine confidence in the

outcome.” United States v. Bagley, 473 U.S. 667, 682 (1985).

The duty imposed by Brady extends to evidence in the gov-

ernment’s possession not known to the prosecutor, but applies

only to “favorable evidence rising to a material level of

importance.” Kyles, 514 U.S. at 438. Moreover, the prosecu-

tor’s duty to disclose under Brady is limited to evidence a rea-

sonable prosecutor would perceive at the time as being

material and favorable to the defense. Id. at 436-37.

[8] The state supreme court concluded that WSPCL’s gen-

eral practice of peer review and destruction of erroneous draft

reports was not exculpatory material in Woods’s case, and

that the prosecution did not have a duty to disclose the lab’s

general practices and procedures. This conclusion was not

contrary to nor an unreasonable application of Brady under 28

U.S.C. § 2254(d)(1). The bare fact that the lab subjected DNA

test results to peer review and discarded draft reports when

peer review turned up an error does not tend to show that an

error occurred in Woods’s case. We recognize that destruction

of a draft report that excluded a defendant as a match with a

suspect’s DNA would likely violate Brady in light of the

report’s impeachment value. Although WSPCL may have fol-

lowed such a practice in those rare instances when its peer

review process revealed an erroneous analysis, there is noth-

ing to suggest that the state suppressed an erroneous draft

report in Woods’s case. Moreover, Dr. Brown’s misconduct

in Barfield occurred months after Woods’s trial concluded, so

the prosecution did not possess any information about

Brown’s actions in Barfield that could have impeached him at

Woods’s trial.

Even if evidence of WSPCL’s general practices were not

exculpatory, Woods argues that it would be reasonable to

infer from Dr. Brown’s conduct in Barfield and the delay in

obtaining DNA test results in his case that WSPCL conducted

tests in his case that were never reported to the defense.

WOODS v. SINCLAIR 10495

Woods contends the state supreme court wrongfully denied

him an evidentiary hearing to develop this claim. We construe

his argument as a claim that the state court’s factfinding pro-

cess was flawed and was therefore an unreasonable determi-

nation of the facts under 28 U.S.C. § 2254(d)(2). See Taylor

v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004) (explaining that

§ 2254(d)(2) applies to challenges “that the process employed

by the state court is defective”). A state court’s factfinding

process is unreasonable under § 2254(d)(2) only when we are

“satisfied that any appellate court to whom the defect is

pointed out would be unreasonable in holding that the state

court’s factfinding process was adequate.” Taylor, 366 F.3d at

1000.

Here, there was no defect in the state supreme court’s fact-

finding process. Although it might have been prudent to pro-

vide Woods with the opportunity to develop the facts

underlying this aspect of his Brady claim, the state court’s

decision to deny him a hearing was based on its consideration

of the declarations of Dr. Brown and MacClaren that were

filed with the Washington Supreme Court. Although neither

declaration expressly denied the existence of an erroneous

draft report in Woods’s case, there is nothing in those declara-

tions or anywhere else in the record to suggest that such a

report existed. It was not unreasonable for the Washington

Supreme Court to deny Woods’s request for a hearing when

all he could offer was speculation that an evidentiary hearing

might produce testimony or other evidence inconsistent with

Dr. Brown and MacClaren’s declarations.

We further conclude that the Washington Supreme Court

did not make an unreasonable determination of the facts under

28 U.S.C. § 2254(d)(2) when it found that there was no show-

ing Dr. Brown destroyed evidence in this case. The only evi-

dence before the state court was that MacClaren reviewed Dr.

Brown’s test results and agreed with them. We agree with the

Washington Supreme Court that “the record does not show

10496 WOODS v. SINCLAIR

that Dr. Brown intentionally destroyed exculpatory evidence

and then lied about it.” In re Woods, 114 P.3d at 622.

Because the state supreme court’s ruling was neither an

unreasonable application of federal law nor an unreasonable

determination of the facts, 28 U.S.C. § 2254(d)(1)-(2), we

affirm the district court’s denial of relief on this sub-claim.10

B. Failure to disclose details of the spillage of Woods’s

first blood sample

Woods alleges that the State failed to disclose the full

details of the spillage of his first blood sample at WSPCL’s

laboratory in Spokane. Woods claims that this evidence

would have shown that there was a significant risk that the

rape kit swab taken from Jade Moore was contaminated when

Woods’s blood sample leaked, thus leading to a false positive

DNA match. The district court found that Woods did not

fairly present this sub-claim to the Washington Supreme

10

Woods also requested an evidentiary hearing in the district court to

develop his claim. Because our review of a claim adjudicated on the mer-

its by the state court under 28 U.S.C. § 2254(d)(1) is limited to the record

before the state court under Pinholster, 131 S. Ct. at 1398, we see no need

to afford Woods an opportunity to develop evidence in support of his

argument that the state supreme court unreasonably applied Brady. To the

extent that Woods attacks the state court’s factfinding, we have held that

where there is no defect in the state court’s factfinding process, as here,

“the state court’s findings are dressed in a presumption of correctness,

which then helps steel them against any challenge based on . . . evidence

presented for the first time in federal court.” See Taylor, 366 F.3d at 1000.

Woods alleges no facts to support his claim beyond the suspicion that the

prosecution’s delay in obtaining and reporting DNA test results indicates

the destruction and non-disclosure of exculpatory evidence. “Bare allega-

tion[s],” “speculation,” and “wishful suggestions” do not entitle a peti-

tioner to an evidentiary hearing. Morris v. California, 966 F.2d 448, 456

(9th Cir. 1991). We therefore affirm the district court’s denial of an evi-

dentiary hearing.

WOODS v. SINCLAIR 10497

Court and ruled that the sub-claim was procedurally barred.

We agree.11

State prisoners seeking a writ of habeas corpus from a fed-

eral court must first exhaust their remedies in state court. 28

U.S.C. § 2254(b)(1)(A). A petitioner has exhausted his federal

claims when he has fully and fairly presented them to the state

courts. O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)

(“Section 2254(c) requires only that state prisoners give state

courts a fair opportunity to act on their claims.”). “[F]or pur-

poses of exhausting state remedies, a claim for relief in

habeas corpus must include reference to a specific federal

constitutional guarantee, as well as a statement of the facts

that entitle the petitioner to relief.” Gray v. Netherland, 518

U.S. 152, 162-63 (1996); see also Davis v. Silva, 511 F.3d

1005, 1009 (9th Cir. 2008).

Here, Woods presented the state supreme court with both

the operative facts and legal theory of his sub-claim that the

State withheld evidence of WSPCL’s general testing and

11

Woods and the State disagree as to whether the COA includes the ear-

lier procedural rulings related to each claim or, rather, is limited only to

the claims as considered by the court in its final order. Woods argues that

the district court’s grant of a COA relates not only to the merits of the

claims but also to the procedural rulings associated with each claim. The

State, on the other hand, argues that the COA does not cover the proce-

dural rulings and therefore does not allow us to review whether Woods’s

second Brady sub-claim was properly exhausted. In his Memorandum in

Support of Motion for Certificate of Appealability filed with the district

court, Woods expressly requested that the COA include the district court’s

procedural rulings. See Woods v. Sinclair, No. CV-05-0319-LRS (E.D.

Wash. Dec. 29, 2008). In light of these circumstances and the minimal

showing that is required for a COA to issue, see Lopez v. Schriro, 491

F.3d 1029, 1039 (9th Cir. 2007) (stating that appellant need only show that

reasonable jurists would find the district court’s assessment of the consti-

tutional claims debatable or wrong), we agree with Woods that the COA

should be construed to encompass related procedural rulings. Therefore,

we conclude that the COA includes the question of whether Woods

exhausted his second Brady sub-claim, and we proceed to consider it.

10498 WOODS v. SINCLAIR

review protocols, but he did not present facts relating to the

breakage of the vial containing his first blood sample at the

Spokane lab. Woods argues that, although his PRP never

expressly raised a claim about the spillage of his blood sample

and the potential for contamination of other evidence, his state

court Brady claim alleging the non-disclosure of WSPCL’s

practice of discarding erroneous draft reports was sufficient to

raise the issue of the prosecution’s failure to disclose the mis-

handling of all the evidence related to DNA testing. In his

amended PRP, Woods unequivocally stated that his Brady

claim related to how WSPCL’s general practices related to his

case. Woods noted in his PRP that “counsel moved to take

depositions of Dr. Brown, William Morig, and Donald Mac-

Laren, all of the Washington State Patrol Crime Lab, to deter-

mine the specific practices in this case.” (emphasis added).

Woods suggests this language was sufficient to put the state

supreme court on notice of the second Brady sub-claim he

raised in his federal habeas petition.

[9] Nowhere in the PRP’s Brady section, however, does

Woods mention the spillage of the first blood sample. Aside

from his request to depose Morig, Woods’s only reference in

the PRP to the forensic work at WSPCL’s Spokane facility

stated that Morig received the rape kit swabs, prepared sam-

ples from the swabs, and sent the samples to other laborato-

ries to be tested. The Brady claim presented in the PRP

focuses entirely on the actions of Dr. Brown, both in the Bar-

field case and in Woods’s case. Yet Dr. Brown had nothing

to do with the storage, spillage, and breakage of the vial con-

taining Woods’s first blood sample. In fact, Woods does not

allege that Dr. Brown even knew that a spillage occurred. As

discussed above, Dr. Brown’s conduct in the Barfield case

does not create a presumption that WSPCL, as an organiza-

tion, systematically suppressed exculpatory material. We thus

fail to see how the Brady claim in Woods’s PRP, which spoke

only to Dr. Brown’s procedures for testing and analysis in the

Seattle lab, gave the state supreme court a full and fair oppor-

tunity to act on an allegation that the prosecution withheld

WOODS v. SINCLAIR 10499

evidence related to the spillage of a blood sample at

WSPCL’s Spokane laboratory. Accordingly, we conclude that

Woods failed to present the facts underlying his second Brady

sub-claim to the Washington Supreme Court, and we affirm

the district court’s ruling that the sub-claim regarding the

spillage of Woods’s blood sample is technically exhausted but

procedurally barred.

[10] Woods contends that the district court nonetheless

should have entertained his sub-claim because he established

cause for the procedural default and prejudice resulting from

his failure to exhaust state remedies. See Banks v. Dretke, 540

U.S. 668, 690-91 (2004) (holding that petitioner would be

entitled to an evidentiary hearing in federal court if he could

show cause for his failure to develop the facts in state-court

proceedings and actual prejudice resulting from that failure).

For a Brady claim, cause and prejudice “ ‘parallel two of the

three components of the alleged Brady violation itself.’ ” Id.

at 691 (quoting Strickler, 527 U.S. at 282). A petitioner may

establish cause by showing that the prosecution’s suppression

of evidence was the reason for the petitioner’s failure to

develop the factual basis of the claim in state court. Id. Preju-

dice is established by showing that the suppressed evidence is

material for Brady purposes. Id. Here, Woods argues that he

failed to develop the facts of this sub-claim because the State

never disclosed the full details of the spillage of his first blood

sample. We agree with the district court that this is insuffi-

cient to show that the prosecution’s alleged suppression of

evidence caused Woods’s failure to develop his sub-claim in

state court.

Notably, the prosecution disclosed before trial that the vial

containing Woods’s first blood sample had cracked and

leaked at the Spokane lab. That disclosure put Woods on

notice that other evidence may have been contaminated.

Woods does not allege what further exculpatory facts the

prosecution possessed but failed to disclose. Moreover,

although Woods sought authorization from the Washington

10500 WOODS v. SINCLAIR

Supreme Court to conduct certain discovery, neither his dis-

covery requests nor his request for an evidentiary hearing spe-

cifically related to the spillage of the blood sample or the

possible contamination of other evidence. His failure to

develop the factual basis of his claim, therefore, cannot prop-

erly be attributable to the prosecution’s failure to disclose rel-

evant evidence. We thus affirm the district court’s dismissal

of this sub-claim as procedurally defaulted.12

X. INEFFECTIVE ASSISTANCE OF COUNSEL

Woods argues that he was denied his Sixth Amendment

right to effective assistance of counsel on the basis of a num-

ber of deficiencies in his defense team’s performance. The

district court concluded that seven of these IAC sub-claims

12

Woods also seeks an evidentiary hearing on the merits of this sub-

claim and on the issue of cause and prejudice as an excuse for his proce-

dural default. Under AEDPA, 28 U.S.C. § 2254(e)(2), “If the applicant has

failed to develop the factual basis of a claim in State court proceedings,

the court shall not hold an evidentiary hearing on the claim unless the

applicant shows that-

“(A) the claim relies on-

“(i) a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that was

previously unavailable; or

“(ii) a factual predicate that could not have been previously

discovered through the exercise of due diligence; and

“(B) the facts underlying the claim would be sufficient to estab-

lish by clear and convincing evidence that but for constitutional

error, no reasonable factfinder would have found the applicant

guilty of the underlying offense.”

Woods cannot meet this high standard. Woods fails to allege what facts

relevant to his Brady claim or to the issue of cause and prejudice will be

uncovered by an evidentiary hearing aside from the suspicion that the

prosecution might have been hiding information relating to DNA contami-

nation. We agree with the district court that these speculative allegations

do not meet the required showing under section 2254(e)(2), and we affirm

the district court’s denial of an evidentiary hearing.

WOODS v. SINCLAIR 10501

had been properly exhausted before the state courts and there-

fore considered them on the merits: (1) counsel’s heavy work-

load; (2) counsel’s lack of experience and training; (3)

counsel’s failure to properly impeach witness Johnny Knight;

(4) counsel’s failure to investigate and present Woods’s

diminished capacity defense; (5) counsel’s failure to investi-

gate and present Woods’s voluntary intoxication defense; (6)

counsel’s failure to ensure that the DNA autoradiograms went

into the jury deliberation room; and (7) counsel’s failure to

object to the use of Woods’s alias, “Michael A. Smith,” dur-

ing the trial.

The district court also concluded that a number of the IAC

sub-claims were procedurally barred, including: (1) counsel’s

failure to address Venus’s recovered memories; (2) counsel’s

failure to adequately cross-examine Venus on her prior false

allegation that Woods had raped her; (3) counsel’s failure to

call a DNA expert to contest the DNA evidence; and (4)

counsel’s failure to investigate adequately the potential DNA

contamination caused by the broken vial of Woods’s blood.

Both parties agree that the Supreme Court’s decision in Str-

ickland v. Washington, 466 U.S. 668 (1984), constitutes

“clearly established federal law” providing the proper frame-

work for assessing Woods’s IAC claims. Under AEDPA, the

primary issue is whether the state court adjudication of the

Strickland claims was objectively reasonable. Schriro v. Lan-

drigan, 550 U.S. 465, 473 (2007). To prevail on an IAC claim

under Strickland, a petitioner must show (1) “that counsel’s

performance was deficient,” and (2) “that the deficient perfor-

mance prejudiced the defense.” Strickland, 466 U.S. at 687.

As to the first prong, a petitioner must prove that counsel’s

performance was so deficient that it “fell below an objective

standard of reasonableness.” Id. at 688. The Supreme Court

has instructed lower courts to “indulge a strong presumption

that counsel’s conduct falls within the wide range of reason-

able professional assistance . . . .” Id. at 689. As to the second

10502 WOODS v. SINCLAIR

prong, petitioner “must show that there is a reasonable proba-

bility that, but for counsel’s unprofessional errors, the result

of the proceedings would have been different.” Id. at 694.

Finally, even if Woods can satisfy both of those prongs,

AEDPA requires that a federal court find the state court’s

contrary conclusions are objectively unreasonable before

granting habeas relief. See Landrigan, 550 U.S. at 473.

We first review those claims that the district court

addressed on the merits, and then consider those the district

court concluded were technically exhausted but procedurally

barred.

A. Counsel’s inexperience and caseload

Woods argues that, because his two primary defense attor-

neys faced unmanageable caseloads and were inexperienced

in capital litigation, their performance was deficient. The dis-

trict court rejected that argument, and so do we.

[11] Woods points out several troubling aspects of his

counsel’s experience and caseload. For example, neither of

Woods’s attorneys had ever tried a capital case before. One

of Woods’s attorneys was the lead attorney on four other mur-

der cases during the time he was representing Woods, while

the other was responsible for three other aggravated murder

cases. In fact, just weeks before trial, Woods’s defense attor-

ney requested an extended continuance, explaining that he

had never prepared for a case of this magnitude before and

that he did not feel comfortable beginning the trial. The court

denied this request. Despite these alleged deficiencies, these

circumstances do not, in and of themselves, amount to a Str-

ickland violation. Rather, Woods must point to specific acts

or omissions that may have resulted from counsel’s inexperi-

ence and other professional obligations. See Strickland, 466

U.S. at 690. Thus, Woods is not entitled to relief on this sub-

claim alone.

WOODS v. SINCLAIR 10503

B. Diminished capacity defense

Woods claims that his attorneys should have investigated

and pursued a diminished capacity defense. The state supreme

court concluded:

[I]t was reasonable for [Woods’s] counsel to pursue

the alibi defense rather than diminished capacity

because Woods continuously denied his involvement

in the crimes. To pursue the diminished capacity

defense would have required Woods to essentially

admit that he committed the murders, a position

entirely inconsistent with his contention that he did

not commit the murders.

In re Woods, 114 P.3d at 618.

The district court agreed, adding that Woods’s staunch

insistence on his innocence made it reasonable for counsel to

“cho[o]se to pursue a defense of alibi and mistaken identifica-

tion rather than a defense of diminished capacity, the latter of

which had a high probability of failure.” The Washington

Supreme Court and the district court also agreed that, even if

counsel’s performance had been deficient, the failure to pre-

sent a diminished capacity defense was harmless in light of

the strong evidence of Woods’s premeditation. See In re

Woods, 114 P.3d at 618-19. Woods argues that the state

court’s determination on this issue was objectively unreason-

able and that he is entitled to an expansion of the record and

an evidentiary hearing. We need not address whether

Woods’s counsel’s performance was deficient because we

conclude he cannot demonstrate prejudice and is therefore not

entitled to habeas relief on this sub-claim.

To be entitled to habeas relief, Woods must demonstrate

that the Washington Supreme Court unreasonably concluded

that counsel’s performance did not prejudice him. The Wash-

ington Supreme Court held that, “[e]ven if Woods’ attorneys

10504 WOODS v. SINCLAIR

failed to investigate the diminished capacity defense, it is

harmless error because there is strong evidence of premedita-

tion by Woods.” 114 P.3d at 618-19. Under the second prong

of Strickland, to demonstrate prejudice, Woods must show

that it is reasonably probable that the outcome of his trial

would have been different had counsel conducted a reason-

able investigation into his diminished capacity defense. 466

U.S. at 694. “A reasonable probability does not mean that we

must determine that the jury more likely than not would have

returned a verdict for something beside [sic] first degree mur-

der, but only that [defendant] has shown ‘a probability suffi-

cient to undermine confidence in the outcome.’ ” Jennings v.

Woodford, 290 F.3d 1006, 1016 (9th Cir. 2002) (quoting Str-

ickland, 466 U.S. at 694). Thus, Woods must demonstrate that

it was objectively unreasonable for the state court to conclude

that his counsel’s deficient performance did not affect, or oth-

erwise undermine confidence in, the outcome of his trial.

[12] Even assuming that Woods’s counsel were constitu-

tionally deficient in their performance, the state court’s deter-

mination that this deficiency was not prejudicial was

objectively reasonable. According to Woods, his counsel

should have conducted further investigation into a diminished

capacity defense. Yet, as the state supreme court noted, even

if counsel had unearthed significant evidence of Woods’s

diminished capacity, “[t]o pursue the diminished capacity

defense would have required Woods to essentially admit that

he committed the murders, a possibility entirely inconsistent

with his contention that he did not commit the murders.” In

re Woods, 114 P.3d at 618-19. Woods failed to present the

Washington Supreme Court with any evidence (or even a dec-

laration) that he would have been willing to abandon his alibi

defense if presented with an alternative diminished capacity

defense. We thus cannot say that the state court’s determina-

tion on this sub-claim was objectively unreasonable.

C. Voluntary intoxication defense

Woods faults counsel for not adequately investigating and

presenting a voluntary intoxication defense. Although related

WOODS v. SINCLAIR 10505

to a diminished capacity defense, voluntary intoxication con-

stitutes a separate cognizable defense under Washington law.

See State v. Hackett, 827 P.2d 1013, 1015 n.2 (Wash. Ct.

App. 1992) (per curiam) (holding that the voluntary intoxica-

tion defense applies to intoxication by drugs as well as alco-

hol, and that a diminished capacity instruction was not broad

enough to cover voluntary intoxication falling short of mental

illness or disorder).

[13] Although this type of alleged deficiency may preju-

dice a defendant, see Seidel v. Merkle, 146 F.3d 750, 757 (9th

Cir. 1998) (finding prejudice where counsel completely failed

to investigate his client’s mental health despite abundant signs

in the record that his client suffered from mental illness); Jen-

nings, 290 F.3d at 1019 (finding prejudice where counsel

failed to investigate and present mental health defenses and

noting that the jury deliberated for two full days despite over-

whelming evidence against the defendant), here we are not

convinced that the state court’s determination to the contrary

was objectively unreasonable. Woods failed to submit any

evidence that, had his defense counsel presented him with the

option to pursue this defense, he would have agreed to it. In

fact, the evidence before the state trial court demonstrated that

Woods was insistent upon his innocence and that, in all prob-

ability, he would have rejected any defense requiring him to

admit guilt. In sum, whether or not Woods’s counsel’s perfor-

mance was constitutionally deficient, the Washington

Supreme Court’s determination that this failure did not preju-

dice Woods was not objectively unreasonable. Woods is

therefore not entitled to relief on this sub-claim.

D. Cross-examination of witness Johnny Knight

Woods alleges that counsel did not properly cross-examine

Johnny Knight about (1) his prior theft conviction and (2) his

statements to police that increasingly incriminated Woods

over time. We address those arguments in turn.

10506 WOODS v. SINCLAIR

Johnny Knight, one of the State’s key witnesses, falsely

denied any prior theft conviction during direct and cross-

examination. Woods argues that his counsel was constitution-

ally deficient in failing to impeach Knight’s testimony with a

copy of the theft conviction record. In rejecting this argument,

the Washington Supreme Court held:

[T]he failure to obtain the certified copy of judgment

and conviction does not establish deficiency. We say

that because questioning from the prosecution and

defense established that all parties were aware that

Knight had a theft conviction. In fact, during the

questioning, Knight volunteered information about

other convictions as well. Thus, it is clear that the

jury was aware they were listening to a witness with

multiple convictions. In effect, Knight impeached

himself.

In re Woods, 114 P.3d at 619 (internal footnote omitted). This

characterization of the record is not quite accurate. Rather,

Knight denied having a theft conviction and, after Woods’s

attorney objected, admitted that he had been convicted of a

“drug transaction.” After a brief colloquy with counsel, the

trial judge stated in open court: “[Knight is] subject to recall

or you can just put in the evidence about the conviction.”

Woods’s counsel then moved on to other lines of questioning

without asking any further questions about the theft convic-

tion or introducing any evidence pertaining to it.

[14] Whether or not the failure to introduce the certified

copy of Knight’s prior judgment and conviction was deficient,

we are convinced that the state supreme court’s determination

that Woods was not prejudiced by that failure was not objec-

tively unreasonable. The jury was indeed made aware that

Knight had been convicted of a crime. Woods argues that

Knight’s admission of his drug conviction is irrelevant

because a conviction for a “drug transaction” is not compara-

ble to a theft conviction because drug crimes are not crimes

WOODS v. SINCLAIR 10507

of dishonesty under Washington law. See State v. Hardy, 946

P.2d 1175, 1178 (Wash. 1997). While we agree that a drug

conviction may not be as valuable for impeachment purposes

as a theft conviction, we cannot say that the counsel’s failure

to elicit Knight’s admission to a theft conviction was suffi-

ciently prejudicial to render the state supreme court’s determi-

nation objectively unreasonable.

Nor is Woods entitled to relief on the basis of his counsel’s

failure to confront Knight with evidence that his statements to

police changed significantly after he was charged with three

felonies. On April 28, 1996, the police questioned Knight and

reported: “Johnny Knight denied having knowledge of the

assaults or intention of any assaults that [Woods] may have

been involved in.” On May 7, 1996, Knight was re-

interviewed by the police and again said nothing about Woods

confessing to the assaults.

On February 13, 1997, however, Knight was arrested for

drug and firearm crimes for which he could face significant

prison time. A week later, police interviewed Knight in jail,

and he alleged for the first time that on the day after the mur-

ders, Woods confessed that he had killed the women. During

this interview, Knight also told police that when he met up

with Woods after the murders, Woods had women’s jewelry,

cash, and some credit cards which had been taken from the

victims. Additionally, Knight claimed that Woods said he

needed “to get out of Spokane.”

By the time of Woods’s trial, Knight had been convicted of

several felonies stemming from his arrest and had been sen-

tenced to 10 years in prison. The jury at Woods’s trial did not

learn of Knight’s conviction and sentence. Woods argues that

counsel’s failure to make the jury aware of Knight’s arrest as

a possible reason for the change in Knight’s story constituted

a Strickland violation.

10508 WOODS v. SINCLAIR

The Washington Supreme Court never addressed this sub-

issue in its decision, nor did Woods’s personal restraint peti-

tion raise it. Nonetheless, the district court concluded that this

claim had been properly exhausted because the new factual

allegations did not fundamentally alter the legal claim already

considered by the state court.13 The district court thus consid-

ered this issue on the merits, as do we. Irrespective of whether

Woods’s counsel was deficient in failing to raise Knight’s

arrest at trial, that failure did not prejudice Woods. Ample

evidence was presented to the jury that Knight was an untrust-

worthy witness: he had admitted to a drug conviction and to

receiving a reward for information leading to Woods, and

defense counsel impeached Knight on the stand for having

misrepresented the amount he received as a reward. More-

over, as discussed above, the evidence against Woods from

other sources was overwhelming, including eyewitness testi-

mony from Venus and Sherry Shaver and a multitude of

forensic and circumstantial evidence. That being the case,

there is not a “reasonable probability that . . . the result of the

proceedings would have been different” had Knight been fur-

ther impeached with his February 1997 arrest and related con-

victions. Strickland, 466 U.S. at 694. Accordingly, Woods is

not entitled to habeas relief on this claim.

E. Woods’s alias

[15] Woods contends that his trial counsel’s failure to

object to the use of Woods’s alias, “Michael A. Smith,” was

constitutionally deficient and prejudicial. The Washington

Supreme Court, however, determined that the use of the alias

was proper under state law as “relevant and material to prove

or disprove any of the issues in the case.” 114 P.3d at 619

(citing State v. Elmore, 985 P.2d 289, 310 (Wash. 1999);

13

The district court denied Woods’s request to introduce new evidence

supporting this claim. In his supplemental brief, Woods concedes that this

ruling was correct in light of the Supreme Court’s decision in Pinholster.

131 S. Ct. at 1398.

WOODS v. SINCLAIR 10509

State v. Cartwright, 456 P.2d 340 (Wash. 1969)). Specifically,

the Washington Supreme Court determined that, because the

identity of the perpetrator was at issue, because Woods was

booked at the jail under the name “Michael A. Smith,” and

because two of the fingerprints that were found at the crime

scene were identified as belonging to “Michael Smith,” the

use of the alias was appropriate to identify Woods as the per-

petrator. Id. That determination of state law is binding on this

court. Bradshaw v. Richey, 546 U.S. 74, 76 (2005). Thus,

even assuming Woods’s attorney was deficient for not object-

ing to the use of his alias, we cannot conclude that it was prej-

udicial; even had defense counsel made the objection, it

would have been properly overruled. Woods is therefore not

entitled to habeas relief on this claim.

F. The State’s DNA evidence

Woods argues that his trial counsel failed to effectively

challenge the State’s DNA evidence. Specifically, Woods

alleges that his counsel were ineffective in the following three

ways: (1) they failed to present a defense expert to interpret

the results of the DNA tests; (2) they failed to explore the

issue of DNA contamination; and (3) they failed to ensure that

the jury could examine the autoradiograms (“autorads”).

The district court did not reach the merits of claims (1) and

(2) (collectively the “DNA-IAC” claims) because it con-

cluded that these claims had not been presented to the Wash-

ington Supreme Court and were therefore technically

exhausted, but procedurally defaulted. See Wash. Rev. Code

§ 10.73.090; see also Coleman, 501 U.S. at 735 n.1.14 With

14

As discussed above, the district court did not specify whether the

COA encompassed procedural issues related to Woods’s IAC claim or

only those parts of the claim that the district court determined were

exhausted and, therefore, considered on the merits in its final judgment.

As noted above in footnote 11, we construe the COA to encompass both

the specific enumerated claims and any related procedural issues. There-

fore, we consider whether the DNA-IAC claims were properly exhausted

in state court.

10510 WOODS v. SINCLAIR

respect to issue (3) above, the court held that because the trial

court correctly refused to send the autorads to the deliberation

room for consideration, Woods could not prevail on his IAC

claim related to the autorads. We consider first Woods’s

DNA-IAC claims and then address the merits of Woods’s

autorad claim.

1. DNA-IAC Claims

The State argues that the factual and legal allegations

underlying Woods’s DNA-IAC claims were never presented

to the state supreme court. Woods argues that he exhausted

the DNA-IAC claims in state court or, in the alternative, that

if his claims were not exhausted, that he established cause and

prejudice for the procedural default. It is undisputed that

Woods’s federal habeas petition makes specific reference for

the first time to defense counsel’s failure to explore the possi-

bility of DNA contamination or to present the testimony of a

defense DNA expert. On the other hand, Woods presented

several facts in his PRP that support these claims.

Ultimately, we need not decide the question of whether

Woods’s claims are exhausted. If Woods exhausted his claims

and the state supreme court adjudicated the claims on the mer-

its, we conclude that the state court’s decision was not unrea-

sonable. If Woods’s federal claims allege new facts and legal

theories such that the claims are unexhausted, we conclude

that Woods cannot show cause and prejudice for his failure to

raise these claims with the state supreme court, and that his

claims are therefore procedurally defaulted.

In his PRP, Woods alleged that his counsel provided inef-

fective assistance in challenging the DNA evidence at trial

and cited the Supreme Court’s decision in Strickland in sup-

port of that claim. Woods alleged that special counsel Fred

Leatherman, who was responsible for cross-examining the

State’s DNA expert, was unavailable and ineffective. Woods

further alleged that his defense counsel, public defenders from

WOODS v. SINCLAIR 10511

Spokane County, lacked training and experience and were

generally incapable of handling the DNA evidence in his case.

To establish that trial counsel were ineffective, Woods

alleged that “Leatherman [, special counsel brought in for pur-

poses of cross-examining the prosecution’s DNA witness,]

was based in Seattle . . . [,] was himself trying another case

in federal court in Seattle through the month of June,” and

“was available to conduct his portion of the case, i.e., cross

examining Dr. John Brown, the state’s [DNA] expert, only on

Mondays.” Woods also stated in his PRP that Leatherman

flew into town on the day of cross-examination and out the

same day. Leatherman’s only communication following

cross-examination of DNA expert Dr. Brown, Woods alleged,

was a fax to defense counsel with “some points” for closing

argument. Woods further noted that communication between

defense counsel and Leatherman was so poor that defense

counsel confessed during closing argument to finding the

DNA evidence confusing.

Woods also presented facts that could support his claim

that his trial counsel were incapable of interpreting the DNA

evidence without an expert. Specifically, Woods alleged that

he was denied his Sixth Amendment right to effective assis-

tance of counsel because “[t]he attorneys from Spokane

County Public Defender’s Office did not feel capable of han-

dling the DNA evidence in the case.” Woods explained that

in “critical areas of investigation counsel did nothing,” that

counsel lacked training and experience and were overworked,

and that counsel were unprepared and disorganized. Woods

offered as support for this argument his attorney’s statement

to the jury during closing arguments and directly after the

DNA cross-examination that “the DNA evidence ‘was con-

fusing to me.’ ”

[16] Assuming that the facts Woods presented to the state

court were specific enough to exhaust the DNA-IAC claims,

our review of the state court’s decision is limited to those

10512 WOODS v. SINCLAIR

facts. Pinholster, 131 S. Ct. at 1398. Based on this record, and

keeping in mind the double-deference due the state court’s

conclusion under section 2254(d)(1), see Harrington v. Rich-

ter, 131 S. Ct. 770, 788 (2011), we cannot say that the Wash-

ington Supreme Court unreasonably denied Woods’s claims

because Woods did not establish prejudice under Strickland.

Although Woods challenged the effectiveness of his trial

counsel’s treatment of the state’s DNA analysis, he presented

no facts to the state court that showed the analysis was or

could be incorrect.

Only in the course of federal habeas litigation did Woods

present affidavits by DNA experts—evidence that we are pre-

cluded from considering under section 2254(d)(1) by Pinhol-

ster15—that Dr. Brown’s testimony was misleading and

scientifically questionable. Without such factual allegations,

the state court could have reasonably concluded that even the

most rigorous cross-examination coupled with the assistance

and testimony of a qualified expert would not have allowed

Woods’s trial counsel to shed a different light on the DNA

evidence. The fact that Woods’s attorneys might have chal-

lenged the evidence more robustly does not create a “substan-

tial” likelihood that the result of his trial would have been

different but for their shortcomings. Harrington, 131 S. Ct. at

15

Woods reads Pinholster to allow courts to consider additional evi-

dence not presented to the state court “when a petitioner’s inability to

develop the facts supporting his claim was the fault of the state court

itself.” 131 S. Ct. at 1417 n.5 (Sotomayor, J., dissenting). Even if such an

exception to Pinholster exists, it would not apply to this case. Woods

argues that the Washington Supreme Court thwarted his ability to develop

the facts supporting his claims because it 1) denied his requests for funds

to hire a DNA expert; 2) failed to grant depositions of the State’s DNA

experts; and 3) denied his request to develop facts at an evidentiary hear-

ing. Yet none of Woods’s motions for funding, depositions, or an evidenti-

ary hearing mentioned the issues of DNA contamination or trial counsel’s

failure to hire a DNA expert. We thus cannot say that the state supreme

court’s denial of Woods’s requests, rather than post-conviction counsel’s

lack of diligence, prevented Woods from developing factual support for

these claims.

WOODS v. SINCLAIR 10513

792. We therefore conclude that, if Woods’s DNA-IAC

claims were exhausted, he is not entitled to habeas relief

because the Washington Supreme Court’s adjudication of his

claim was not contrary to nor an unreasonable application of

federal law.

We also conclude that if the claims were not exhausted,

there is no cause to excuse the procedural default. Woods

argues that any failure to present his claim to the Washington

Supreme Court was due to ineffective representation by his

state post-conviction counsel. The Supreme Court has unam-

biguously held, however, that ineffective representation is not

cause for procedural default. See Coleman v. Thompson, 501

U.S. 722, 752-54 (1991); see also Manning v. Foster, 224

F.3d 1129, 1133 (9th Cir. 2000).16 Thus, if Woods did not

fairly present his claims to the state court, they are procedur-

ally defaulted.

In sum, we need not reach the question of whether Woods

exhausted his state law remedies with regard to his DNA-IAC

claims or instead raises new unexhausted claims. In either

case, Woods is not entitled to habeas relief, and we affirm the

district court’s denial of these claims.

2. The autoradiograms

Woods argues that his counsel’s failure to ensure that the

DNA autorads17 went into the jury room amounted to a Strick-

16

Woods contends that Coleman does not apply here because Washing-

ton provides a right to effective post-conviction assistance in capital cases.

See Wash. R. App. P. 16.25. Rule 16.25 states that “[a]ppointed counsel

must have demonstrated the necessary proficiency and commitment which

exemplifies the quality of representation appropriate to capital cases.” The

rule further provides that “[a]t least one attorney so appointed must have

at least three years of experience in handling appeals or collateral reviews

on criminal convictions and must be learned in the law of capital punish-

ment by training or experience.” There is no evidence that Woods’s coun-

sel did not satisfy these requirements.

17

An autoradiogram is “a photographic recording of the positions on a

film where radioactive decay of isotopes has occurred.” Committee on

10514 WOODS v. SINCLAIR

land violation. At trial, the autorads were used to help illus-

trate Dr. Brown’s testimony regarding DNA. In re Woods,

114 P.3d at 621. The jurors were informed that the autorads

were for demonstrative purposes only. Id. During delibera-

tions, the jury asked to see the autorads, but the trial court

denied the request on the basis that they were only used for

illustrative purposes. Id. Neither the prosecution nor defense

counsel objected to this ruling. Id.

[17] The Washington Supreme Court held that, “when an

exhibit is used for illustrative purposes only and the jurors are

instructed that the exhibit is not evidence, than [sic] the

exhibit should not go to the jury room.” Id. at 621 (citing

State v. Lord, 822 P.2d 177, 194 (Wash. 1991)). Thus, the

court held that the trial court correctly refused to send the

autorads to the deliberation room for consideration. Id. at 428.

We are bound to defer to that interpretation of Washington

state law. See Bradshaw, 546 U.S. at 76. In light of that rul-

ing, Woods cannot show prejudice resulting from his coun-

sel’s failure to object to the trial court’s exclusion of the

autorads from the jury deliberation room. Even if defense

counsel had objected, the objection would have been properly

overruled under Washington law. Woods is therefore not enti-

tled to habeas relief on this claim.

G. Venus Shaver’s testimony

In his federal habeas petition, Woods asserted that he

received ineffective assistance of counsel when his trial coun-

sel failed to address Venus Shaver’s “recovery” of her mem-

ory of the attack and failed to cross-examine her adequately

on her prior false claim that Woods raped her. The district

court concluded that because Woods had failed to fairly pre-

sent these claims to the state court, they were procedurally

DNA Technology in Forensic Science et al., DNA Technology in Forensic

Science 167 (1992).

WOODS v. SINCLAIR 10515

barred. On appeal, Woods argues that the district court’s

determination was erroneous. We disagree.

In his opening brief, Woods admits that he did not specifi-

cally address in his PRP his counsel’s failure to impeach

Venus Shaver effectively. In fact, Woods’s Washington

Supreme Court PRP makes no mention of either Venus

Shaver or her “recovered” memories. He argues, however,

that because these new arguments do not fundamentally alter

his claim that trial counsel were ineffective and unprepared to

impeach witnesses, he fully and fairly presented it to the state

court.

[18] Although Woods alleged the specific Sixth Amend-

ment guarantee recognized by Strickland, his state court peti-

tion did not make any reference to his counsel’s failure to

impeach Venus Shaver. The most analogous claim is Woods’s

allegation that his counsel failed to impeach Johnny Knight

properly. That claim simply did not provide a sufficient fac-

tual basis for the state supreme court to have a fair opportu-

nity to apply controlling legal principles to the facts relating

to the claim. Thus, we agree with the district court’s judgment

that Woods failed to exhaust this claim and that it is procedur-

ally defaulted.18

H. Cumulative Deficiencies

[19] Woods argued in his PRP that the cumulative impact

of his counsel’s deficiencies prejudiced his defense and

requires reversal of his conviction. We have previously recog-

nized that “prejudice may result from the cumulative impact

18

Woods contends, however, that he has established cause and prejudice

excusing his procedural default on this issue. In particular, he contends

that his failure to raise this issue before the state supreme court was a

result of ineffective assistance of his post-conviction counsel. As we have

already noted, attorney ineffectiveness “in the post-conviction process is

not considered cause for the purposes of excusing the procedural default

at that stage,” Manning v. Foster, 224 F.3d at 1133.

10516 WOODS v. SINCLAIR

of multiple deficiencies.” Cooper, 586 F.2d at 1333.

“[A]lthough individual errors may not rise to the level of a

constitutional violation, a collection of errors might violate a

defendant’s constitutional rights.” Davis, 384 F.3d at 654 (cit-

ing Harris v. Wood, 64 F.3d 1432, 1438 (9th Cir. 1995)).

Although Woods’s trial counsel might not have provided a

model defense, counsel’s “missteps and misjudgments did not

render [Woods]’s trial fundamentally unfair.” Id. We there-

fore affirm the denial of relief on Woods’s claim of cumula-

tive deficiency.

XI. CONCLUSION

For the foregoing reasons, we affirm the district court’s

denial of Woods’s petition.

AFFIRMED.