Samayoa v. Ayers

ORDER DENYING PETITIONER’S MOTION FOR EVIDENTIARY HEARING [Doc. No. 77]; DENYING PETITIONER’S MOTION FOR SUMMARY JUDGMENT [Doc. No. 78]; DENYING THE PETITION

THOMAS J. WHELAN, District Judge.

Petitioner Richard Gonzalez Samayoa has moved for an evidentiary hearing and/or summary judgment on several of the claims in his Amended Consolidated Petition for Writ of Habeas Corpus; Respondent Robert L. Ayers, Jr. opposes both motions.

Oral arguments were held before U.S. District Judge Thomas J. Whelan on December 11, 2008. Appointed counsel Glen Niemy appeared on behalf of Petitioner, and Deputy Attorney General Marilyn L. George of the California Attorney General’s Office appeared on behalf of Respondent. Upon consideration, the Court DENIES Petitioner’s motion for evidentiary hearing on Claims 1 and 4-10, DENIES Petitioner’s motion for summary judgment on Claims 1 and 6 and DENIES habeas relief as to all claims.

I. PROCEDURAL HISTORY

By an amended complaint filed February 21, 1986, Petitioner Richard Gonzales Samayoa was charged with the special circumstance murders of Nelia and Katherine Silva on December 18, 1985. He was also charged with the crime of burglary with a dangerous weapon. An Information alleging these same offenses was filed on January 7, 1987, and an identical Amended Information was filed on April 18, 1988.

Petitioner was convicted on April 21, 1988, of two counts of first-degree murder in violation of California Penal Code § 187 and one count of burglary in violation of CaLPenal Code § 459-each count with findings that Petitioner used a deadly weapon in the commission of the crimes in violation of Cal Penal Code § 12022(b). Petitioner was also found guilty of the two special circumstance allegations; multiple murder under CaLPenal Code § 190.2(a)(3), and murder in the attempted commission of a burglary under CaLPenal Code § 190.2(a)(17)(vii). The jury returned a verdict of death for the murders on May 4, 1988, and the court entered judgment in accordance with the verdict on June 28, 1988, issuing a stay of the sentence on the non-capital count and the enhancements pending appeal.

Petitioner filed his opening brief on automatic appeal to the California Supreme Court on July 19, 1995, raising twenty (20) separate issues including, but not limited to, claims of an insufficient appellate record, errors in jury selection, denial of access to personnel files of prosecution witnesses, jury instruction errors, violations of the Confrontation Clause, prosecutorial misconduct, and constitutional challenges

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to the death penalty statute. The California Supreme Court denied the appeal on June 19, 1997.

People v. Samayoa,

15 Cal.4th 795 , 64 Cal.Rptr.2d 400 , 938 P.2d 2 (1997). On August 13, 1997, the state court denied the petition for rehearing. Petitioner filed a Writ of Certiorari with the United States Supreme Court, which was denied on February 23,1998.

On February 3, 1997, Petitioner filed a habeas petition with the California Supreme Court, raising thirteen (13) grounds for relief including, but not limited to, claims of Petitioner’s incompetency, police coercion in obtaining the confession, trial court errors, ineffective assistance of counsel during both the guilt and penalty phases,

Brady

error, denial of psychiatric assistance, prosecutorial misconduct, and constitutional challenges to the death penalty statute. Petitioner was not granted an evidentiary hearing on these claims and his petition was summarily denied on the merits on September 27, 2000.

On October 16, 2000, Petitioner filed a request for appointment of counsel to handle his federal habeas petition. Counsel was appointed on March 5, 2001, and Petitioner filed an initial Petition in this court on January 28, 2002. After several claims were found to be unexhausted, Petitioner filed a second state habeas petition in the California Supreme Court on November 4, 2003. The state court denied the petition on March 16, 2005. On September 14, 2005, the court granted Petitioner leave to amend the current petition by adding two claims. Petitioner filed an Amended Consolidated Petition in this court on October 13, 2005. Respondent filed an Answer on June 12, 2006. Petitioner filed a Traverse on November 22, 2006.

On January 9, 2007, the Court ordered additional briefing on the potential need for an evidentiary hearing, and whether Petitioner requested summary judgment on any claims. On April 6, 2007, Petitioner filed a Motion for Evidentiary Hearing, and on April 9, 2007, Petitioner filed a Motion for Partial Summary Adjudication. On August 7, 2007, Respondent filed an Opposition to Petitioner’s Motions, and on October 17, 2007, Petitioner filed Reply briefs.

II. TRIAL PROCEEDINGS

1.

The Guilt Phase

A.

Prosecution Case In Chief

The prosecution established that Nelia Silva picked up her daughter Katherine from the babysitter’s home across the street from her home at approximately 6 p.m. on December 18,1985. (RT 3058-63.) Victoria Cruz, who was visiting a friend in the neighborhood that night, testified that she heard an “awful yell” and screaming that was like an “animal sound” without any words, and then saw smoke coming from the Silva home. (RT 3066-73.) Ms. Cruz and another person went into the home to investigate, where they saw a child with blood near her head and a half dressed lady down the hall and they ran out of the home to call police. (RT 3073-76.)

Rolando Silva, the husband and father of the victims, found them when he arrived home from work and went to get help. (RT 3322-34.) Mr. Silva testified that multiple pieces of jewelry were missing from the house and identified the pieces found in his yard by the police, as well as the jewelry turned over to police by members of the Samayoa family, as belonging to him or his wife. (RT 3334-45.)

Howard Lahore of the San Diego Police Department was the first officer on the scene, and testified there was smoke coming from the home, which he entered. (RT 3076-81.) Lahore found both victims, and stated they were both obviously dead, with the woman’s head “caved in.” (RT 3081-

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84.) San Diego firefighter Joseph Taormina was called to describe the condition of Nelia Silva’s body, and firefighter Lorraine Harris described the condition of Katherine Silva’s body. (RT 3092-3106.)

Several of Petitioner’s family members were called to testify about jewelry Petitioner gave them shortly after the murders. Mercedes Samayoa, Petitioner’s mother, identified the jewelry which Petitioner had in his possession after Christmas time. (RT 3108-3112.) Mrs. Samayoa stated she heard the police ask about jewelry, so the family turned the items over to police, in addition to turning over a jewelry box. (RT 3112-17.) Deana Samayoa, Petitioner’s sister, testified about jewelry her brother gave her after the murders, which Petitioner told her he had made. (RT 3122-28.) Inez Sykes, another sister of Petitioner, found jewelry in her bathroom just before Christmas, which Petitioner said belonged to him, and which she also turned over to the police. (RT 3128-37.)

Raul Samayoa, Petitioner’s brother, testified that he was working with Petitioner in the garage the day of the murders, and identified a wrench which looked like one belonging to him which had been found in the victim’s yard. (RT 3139-46.) He also testified that he found a jewelry box in the family yard after police told them about it, which was turned over. (RT 4142-46.) Oscar Samayoa, one of Petitioner’s brothers, testified that after the murders Petitioner gave him a ring to give to a girl, and he found a necklace in Petitioner’s room. (RT 3156-64.) Samayoa also testified that he once helped the victim, Nelia Silva, install a stereo in her home, but that was the only time he was ever inside her house.

(Id.)

San Diego Police Department evidence technician Larry Fregia testified that he took photos of the scene and collected evidence the evening of the murder, including the wrench, earring back, earrings, military service ribbon, and other items that were seized and processed. (RT 3166-3214.) Fregia testified that these items were tested for fingerprints, but none were recovered. (RT 3214-19.) Fregia found some latent prints on the walls of the home, which he sent for processing, and also got fingernail scrapings from Nelia Silva. (RT 3219-3224.) He collected the fingerprints and fingernail scrapings of Nelia Silva and her husband, but did not fingerprint Katherine Silva. (RT 3224-27.)

A forensic pathologist, Dr. Robert Bucklin, performed the autopsies on both victims. (RT 3227-34.) He testified that Nelia had suffered crushing blows to her head and jaw, suffered 15 lacerations to her face alone and 24 total to her head, including skull fractures, and opined that death would not have been immediate, but would have occurred within a few minutes of the injuries to the skull. (RT 3234-54.) He testified that Katherine Silva suffered three blows, with one blow being severe enough to have fractured her skull base, opining that she would have been unconscious and also would have die d within a few minutes of sustaining the injuries. (RT 3254-61.) Dr. Bueklin stated it was hard to separate the wounds of each victim as there was overlap; he also found several wounds to the victim’s hands, but could not conclusively determine if the wounds were defensive, and stated that no sperm was found in Nelia Silva. (RT 3261-70.)

Criminalist Larry Dale performed the blood spatter work by examining the scene after the bodies were removed and taking samples. (RT 3275-91.) He testified that the concentration of blood was more low than high on the walls, and opined there could be two sources of blood, one from the victim and one from the weapon swinging. (RT 3291-3314.)

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Detective Richard Allen Carey assisted in the gathering of evidence at the scene, and helped recover the wrench and jewelry in the corner of the yard. (RT 3346-56.) Carey testified there were fresh pry marks On the metal door, blood in the hallway, the office, the child’s bedroom, and on the walls of the home. (RT 3356-72.) Carey added there was blood in the bedrooms, on the ceiling above both victims, and he also assisted in the collection of blood samples from both victims, and a hair sample from Nelia Silva. (RT 3373-87.) Officer Art Beaudry collected property from the Samayoa residence weeks after the murders, which included the jewelry the family turned over and a jewelry box. (RT 3423-27.)

Edward Lee Danner, an investigator for the District Attorney’s office, testified that he gave Petitioner a

Miranda

warning before the police psychiatrists spoke to him. (RT 3431-37.) Dr. Walt Griswold, a police psychiatrist, testified that he conducted an interview of Petitioner at the jail and tape recorded the interview. (RT 3437-44.) Dr. Griswold recalled Petitioner saying he felt “panicky” but Dr. Griswold did not remember Petitioner ever saying that once he became angry, it was hard for him to calm down. (RT 3444-45.)

Latent print examiner Ralph Bukowski testified there were two usable prints from the scene, one fingerprint, which did not match either victim or Petitioner, and one palm print, which did not match either victim. (RT3447-57.) Petitioner’s palm print was not collected, and his fingerprints were not matched to any latent prints recovered from the scene. (RT 3457-59.)

Serologist Walter Fung testified that both victims and Petitioner had type A blood, which he unsuccessfully tried to distinguish using protein tests. Fung testified that Type A blood was found all over the scene and there was no reason to believe it was Petitioner’s; it was most likely all from the two victims. (RT 3459-80.) Fung added that he was also unable to distinguish the blood of the two victims from one another, and ultimately did not find any blood evidence linking Petitioner to the scene. (RT 3480-81.)

Officer Patrick Padillo, a homicide detective assigned to the case, conducted an interview of Petitioner in jail on January 31,1986. He stated that Detective Jordan, who conducted the interview while Padillo took notes, advised Petitioner of his

Miranda

rights, after which Petitioner said he was willing to talk. (RT 3483-89.) Padillo described Detective Jordan’s bluff in telling Petitioner that they possessed hair evidence that linked him to the scene, and showing him photos of the wrench and jewelry. (RT 3489-92.) Padillo testified that after Detective Jordan said “She was a fighter, wasn’t she?” that Petitioner put his head down, nodded, and told them he went there to steal money and jewelry and only hit her and the baby to get away. (RT 3492-95.) Petitioner went on to claim that he pulled Nelia Silva’s pants down to make it look like a rape and robbery, but it was not, that he did not drink or do drugs that day, and that he later hid the jewelry he stole. (RT 3495-3500.) Petitioner maintained that he gave some of the jewelry to family members, and told the officers he did not mean to hit the baby. (RT 3500-06.) A few days later, the detectives returned for another interview, and hid a recorder in a coat; this tape was played for the jury. (RT 3506-16.) Padillo stated the second interview was more like a conversation, which was in contrast to the first interview, and during this interview Petitioner said he felt bad about the crimes. (RT 3516-28.)

Wayne Burgess, the Chief of Investigations for the District Attorney’s office, concluded the state’s case by testifying on

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crime scene analysis. (RT 3535 — 42.) Burgess testified that the blows to both victims were consistent with a wrench used as a weapon, and opined the blood on Nelia Silva’s body indicated her pan ties were off before blood was on the body. (RT 3544-46.) Burgess added that many of the blows to Mrs. Silva came when she was lying on the ground, and concluded that she was moved to the position in which she was discovered. (RT 3546-49.)

B.

Defense Case

Defense conceded Petitioner’s guilt on two counts of first degree murder and one count of burglary, contending that they would present evidence of Petitioner’s brain damage that would negate an intent to kill, and thereby prove his innocence of the special circumstance allegation of murder in the course of a burglary. (RT 3046-49.)

Dr. Meredith Friedman, a psychologist, gave a battery of tests to Petitioner in order to determine if he suffered from brain damage. (RT 3639^7.) Dr. Friedman also took a patient history in order to attempt to determine the potential cause of any brain damage found by the tests; the patient history detailed numerous head injury incidents in Petitioner’s youth. (RT 3647 — 48.) Dr. Friedman testified that Petitioner’s results showed Petitioner had difficulties in the testing that were associated with problems in left parietal-occipital areas of the brain, which to her indicated temporal lobe and frontal lobe damage. (RT 3648-52.) Dr. Friedman explained the temporal lobe coordinated emotion, aggression, rage reactions, and that people who suffered damage to those areas of the brain have emotionally reactive personalities and a tendency to panic and overreact. (RT 3652-58.) Dr. Friedman opined that Petitioner suffered from schizo-type underlying personality disorder, and also suspected antisocial personality disorder, that Petitioner is a sociopath. (RT 3669-82.) Dr. Friedman conceded that the results of several facets of the test administered to Petitioner fell within the normal range of results. (RT 3693-3726.) Dr. Friedman admitted that she made some errors in calculating the test results but asserted that they did not change her final opinion. (RT 3735-41.) Dr. Friedman also acknowledged she is not a neuropsychologist, and did not conduct a test to make a final determination on the existence of brain damage, maintaining that the tests she performed only point to the possibility of brain damage. (RT 3816-26.)

Both parties then stipulated to the testimony of John Durina, a hair examiner for the police department, who did not recover any hairs from the scene or the victims’ bodies belonging to Petitioner. (RT 3841-45.)

Dr. Saul Saddick, a neuropsychologist, then took the stand to testify that a head injury does not automatically mean there is brain damage, as it depends on the severity and type of injury. (RT 3845-95.) However, Dr. Saddick found in this case mild to moderate cerebral damage in Petitioner’s left frontal lobe, parietal and temporal, which was significant and without such damage, Petitioner would be less likely to have a short fuse, and would have a lessened tendency for aggression. (RT 3895-3908.) Dr. Saddick went on to describe Petitioner’s results, including the existence of lesions on the parietal lobe, contributing to a viscosity or stickiness to his behavior, as well as his rage reaction, which consisted of a response out of proportion to a triggering action, and including a hard time stopping once he starts an action. (RT 3908-44.) Dr. Saddick’s diagnosis was that Petitioner suffers from organic personality syndrome, explosive type, as well as antisocial personality disorder, and mild to moderate left hemisphere cerebral corti

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cal damage/dysfunction with primary left frontal parietal involvement. (RT 3944-45.) The prosecutor cross-examined Dr. Saddick with the results of other testing which did not support a finding of brain damage. (RT 4039-56.) Dr. Saddick acknowledged that he found Petitioner to be a sociopath, which is one of the worst personality disorders to have and one of the least amenable to treatment. (RT 4056-4064.) Dr. Saddick conceded that Petitioner reported laughing when people get killed on television. (RT 4118.)

The parties also entered into a stipulation regarding Dr. Dixon, stating she would have testified that Petitioner often perseverates, which points to organicity, and the origin of this behavior could be due to alcohol or drugs. (RT 4175-76.)

C.

Prosecution Rebuttal

Dr. Nelson Butters, a psychologist with a specialty in neuropsychology, critiqued Dr. Saddick’s testimony by stating that his diagram of Petitioner’s brain was mislabeled and upside down, opined that an expert cannot base a diagnosis of brain damage on only one test, and stated that Dr. Saddick’s conclusions regarding Petitioner were incorrect. (RT 4176-96.) Dr. Butters further stated that Dr. Saddick’s methodology and test choices were flawed, and he saw no evidence of organic rage disorder, and did not see how any neuropsychologist could come to such a conclusion. (RT 4196-4228.) Dr. Butters also stated that if there had been a rage reaction, Petitioner would have memory problems regarding the crime in question, and the taped statements in this case belied that conclusion. (RT 4290-92.)

Dr. Jeste, a professor of psychiatry and neurosciences, testified that “organic rage reaction” is not recognized by the American Psychiatric Association, but stated that other similar disorders were possible. (RT 4299-4304.) Dr. Jeste ruled out organic personality syndrome, intermittent explosive disorder, and found no evidence of a seizure disorder. (RT 4299-4306.) Dr. Jeste concluded that he was unable to determine if Petitioner suffered from a rage reaction, as there was no measure of his brain performance at the time of the homicides. (RT 4307-16.)

D.

Defense Surrebuttal

Dr. Melvin Schwartz, a clinical psychologist, neuropsychologist and forensic pathologist, examined all the materials considered by the other experts. (RT 4330-34.) Dr. Schwartz opined that he agreed with Dr. Saddick’s conclusion that Petitioner suffers from brain damage to the left hemisphere, and explained that brain damage does not always result in memory problems, adding that any impairment in the brain could result in uncontrollable rage. (RT 4337-45.) Dr. Schwartz added that brain damage may not show up on tests such as a CAT scan or EEG. (RT 4345-50.) Dr. Schwartz stated that he could not make any precise localization of the damage, or estimate of the amount of damage suffered using these test results as he had not examined Petitioner and his conclusions came solely from looking at test results. (RT 4358-63.) Dr. Schwartz conceded he previously found Dr. Saddick overdiagnosed brain disease in one or two past cases, but did not think that was true in Petitioner’s case. (RT 4369-74.) He also admitted that he had previously found scoring errors in tests performed by Dr. Saddick, but not in the tests administered in this case. (RT 5385-92.)

2.

Penalty Phase

A.

Prosecution Case

The prosecution’s case centered on evidence of Petitioner’s prior convictions, starting with his prosecution for the burglary and rape of Berta Lou Raymond in

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1976. Robert Williams first testified that he examined Mrs. Raymond in 1975 as a victim of sexual assault, and no semen was found. (RT 4709-15.) Annegret McLaughlin, a neighbor of Mrs. Raymond, heard a call for help and responded, whereupon Raymond told her, “he had a knife and he raped me.” (RT 4715-23.)

The 1976 preliminary hearing testimony of Berta Lou Raymond was read into the record, as Raymond was deceased at the time of the instant trial. Mrs. Raymond stated that she suffered from multiple sclerosis, and that night she was asleep in bed at 2:15 a.m. (RT 4725-28.) She stated that three men broke into her home, and one of the men raped her anally and vaginally even after she told the man she was an invalid. (RT 4730-35.) She testified that the men also stole items from her home. (RT 4735-37.) She also admitted that she was unable to identify her assailant, but was able to provide a general description of her assailant. (RT 4737-40.) Petitioner was convicted of burglary and rape.

David Anderson testified that he accompanied Petitioner in robbing Mrs. Raymond in 1975 with a third man. (RT 4743-47.) Anderson admitted he took the stereo, and upon entering the bedroom, he was shocked Petitioner was raping the victim. (RT 4747-51.) He stated that earlier that evening, Petitioner had commented that if the victim was home, he planned to rape her, and stated “he was going to knock off a piece.” (RT 4751-54.) Anderson then admitted, for the first time, that both he and Petitioner had sex with Mrs. Raymond. (RT 4754-56.) Anderson acknowledged that he had previously blamed everything on Petitioner in his interviews with Detective Jordan. (RT 4757-62.)

The prosecution then presented evidence of Petitioner’s 1981 conviction for assault with a deadly weapon. Rosendo Ramirez testified that he knew and was friends with Petitioner in 1981, with Petitioner staying over in his room one evening. (RT 4774-80.) Later that evening, Ramirez’s sister woke him, she was bleeding and shaking and said Petitioner had hit her. (RT 4780-84.) Ramirez later confronted Petitioner and threatened him as a result of this incident. (RT 4784-86.) Elvira Ramirez Zavala testified that she awoke one evening to glass breaking, someone said her name and threatened her, stating that he wanted sex. (RT 4790-97.) The man punched her, and Zavala saw it was Petitioner; when he asked for sex she refused. (RT 4797-98.). Zavala said Petitioner threatened her, but she was able to leave the room and wake her brother to call the police. (RT 4798-4805.) Zavala conceded that Petitioner did not stop her from going to her brother, but asserted that Petitioner said if she told anyone what had occurred, he would kill her. (RT 4805-14.) Officer David Russell was called to the scene, stating the victim had sustained injuries and there was a broken pot by her bed. (RT 4816-20.) Officer Gonzales went to the Petitioner’s home in response to the assault call, and stated that Petitioner waived his

Miranda

rights. (RT 4821-24.) Gonzales testified that Petitioner claimed he walked home when Ramirez became ill, before the alleged assault, and denied there was blood on his shirt, but blood was later recovered from Petitioner’s shirt. (RT 4824-26.)

The prosecution also introduced evidence of Petitioner’s 1974 burglary conviction. (RT 4826.)

B.

Defense Case

Department of Corrections counselor Paul Dillard testified that he supervised Petitioner in the kitchen in 1981 and found him to be a reliable and dependable worker. (RT 4836-46.) Counselor Ronald Baldwin testified that he supervised Peti

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tioner on a inmate landscaping crew in 1983 and found him to be a good worker. (RT 4857-60.) Soledad correctional officer Robert Smith testified that Petitioner was on his work crew and was a good worker. (RT 4867-71.)

Petitioner’s mother Mercedes Samayoa then testified that she loved her son and did not want him to get the death penalty, and identified cards and pictures she had received from him over the years. (RT 4889-94.) Petitioner’s sister Inez Sykes testified that she loved Petitioner and wanted him to receive a sentence of life in prison. (RT 4909-16.) Petitioner’s sister Deana Samayoa stated that, in testifying for the prosecution, she did not want to help send her brother to death row, and noted Petitioner had a daughter that he loved. (RT 4918-24.)

III. LIST OF FEDERAL HABEAS CLAIMS

1. Ineffective Assistance of Trial Counsel at the Guilt and Penalty Phases

2. Trial Court’s Improper Dismissal of Jurors Who Did Not Favor Capital Punishment

3. Introduction of Raymond Testimony During Penalty Phase

4. Exculpatory Evidence on Credibility of Government Witness

5. Trial Court’s Refusal to Permit Cross-Examination and Denial of

Pitchess

Motion

6. Illegal Seizure Resulting in Petitioner’s Confession

7. Violation of Petitioner’s Right to Testify at Trial

8. Ineffective Assistance of Counsel for Failure to Investigate Forensic Evidence

9. Coercion in Obtaining Petitioner’s Confession to Dr. Griswold

10.Petitioner’s Incompetence to Stand Trial

IV. PROCEDURAL DEFAULT

Respondent first asserts that claims 2, 6, 7, 9, and 10 are procedurally defaulted. When a state court rejects a federal claim due to a violation of a state procedural rule that is adequate to support the judgment and independent of federal law, a habeas petitioner has procedurally defaulted his claim.

Coleman v. Thompson.

501 U.S. 722, 729-30 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991). A state procedural rule is adequate if it has been “firmly established and regularly followed” by the state court.

Ford v. Georgia,

498 U.S. 411, 424 , 111 S.Ct. 850 , 112 L.Ed.2d 935 (1991). The procedural rule is independent if it is not “interwoven with the federal law.”

Michigan v. Long,

463 U.S. 1032, 1040-41 , 103 S.Ct. 3469 , 77 L.Ed.2d 1201 (1983). If a state procedural ground is an adequate and independent ground for dismissal, habeas corpus relief is unavailable in federal court unless a petitioner can show cause for the default and resulting prejudice, or show that a failure to consider the claims would result in a fundamental miscarriage of justice.

See Coleman,

501 U.S. at 750 , 111 S.Ct. 2546 .

In the instant case, Petitioner filed his automatic appeal on July 19, 1995, and his first state habeas petition on February 3, 1997. In a September 2000 order denying that petition, the California Supreme Court denied claim 2 on the merits and “under

Waltreus, supra,

62 Cal.2d 218, 225 , 42 Cal.Rptr. 9 , 397 P.2d 1001 .” (Doc. No. 69; Lodgment 4.) In the same order, the state supreme court denied claim 9 of the instant petition on the merits and under procedural grounds, citing to

In re Waltreus,

62 Cal.2d 218, 225 , 42 Cal.Rptr. 9 , 397 P.2d 1001 (1965) and

In re Dixon,

41 Cal.2d 756, 759 , 264 P.2d 513 (1953).

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Petitioner raised additional claims and re-raised prior claims in a second state petition filed on November 4, 2003. In a March 2005 order denying the petition, the California Supreme Court denied claim 6 with citations to

In re Seaton,

34 Cal.4th 193, 200 , 17 Cal.Rptr.3d 633 , 95 P.3d 896 (2004).

In re Harris,

5 Cal.4th 813, 830 , 21 Cal.Rptr.2d 373 , 855 P.2d 391 (1993),

In re Robbins,

18 Cal.4th 770, 780-81 , 77 Cal.Rptr.2d 153 , 959 P.2d 311 (1998) and

In re Clark,

5 Cal.4th 750, 767-68 , 21 Cal.Rptr.2d 509 , 855 P.2d 729 (1993). The state court denied claims 7 and 9 on the merits and barred them under both

Clark

and

Robbins ,

further denying claim 9 with citations to

Waltreus, In re Miller,

17 Cal.2d 734, 735 , 112 P.2d 10 (1941) and

Dixon .

The state court also denied claim 10 of the instant petition on the merits and with citations to both

Robbins

and

Clark .

1.

Waltreus

The California Supreme Court denied several of Petitioner’s claims with citation to

In re Waltreus,

62 Cal.2d 218, 225 , 42 Cal.Rptr. 9 , 397 P.2d 1001 (1965). The Ninth Circuit has repeatedly held the

Waltreus

rule “is not sufficient to bar federal relief.”

Calderon v. United States District Court (Bean),

96 F.3d 1126, 1131 (9th Cir.1996);

Maxwell v. Sumner,

673 F.2d 1031, 1034-35 (9th Cir.1982);

LaCrosse v. Keman,

244 F.3d, 702 , 705 n. 11 (9th Cir.2001). In

Forrest,

the Ninth Circuit again stated “a

Waltreus

denial on state habeas has no bearing on [a habeas petitioner’s] ability to raise a claim in federal court.”

Forrest v. Vasquez,

75 F.3d 562, 564 (9th Cir.1996). In a more recent ease, the Ninth Circuit reinforced this finding, stating “[t]he California Supreme Court’s reliance on

In re Waltreus

does not bar federal review.”

Hill v. Roe,

321 F.3d 787, 788 (9th Cir.2003).

The

Waltreus

rule is not sufficient to bar federal review of claims 2 or 9.

2.

Dixon, Seaton, Robbins, Clark, Harris

and

Miller

The California Supreme Court also denied several of Petitioner’s claims raised in both state habeas petitions with citation to a myriad of other state procedural bars. The Ninth Circuit has held that the Respondent bears the burden of pleading and ultimately proving the existence of an adequate and independent procedural bar, with Petitioner bearing an interim burden of placing the adequacy of the defense at issue.

See Bennett v. Mueller,

322 F.3d 573, 585 (9th Cir.2003). Once the initial burden is met, the burden of placing the adequacy of the procedural bar in issue shifts to the Petitioner and “[t]his must be done, at a minimum, by specific allegations by the petitioner as to the adequacy of the state procedure. The scope of the state’s burden of proof thereafter will be measured by the specific claims of inadequacy put forth by the petitioner.”

Bennett,

322 F.3d at 584-85 . If Petitioner fails to meet this interim burden “federal habeas review is barred unless the prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice.”

Noltie v. Peterson,

9 F.3d 802, 804-805 (9th Cir.1993);

Coleman,

501 U.S. at 750 , 111 S.Ct. 2546 ;

Park v. California,

202 F.3d 1146, 1150 (9th Cir.2000).

However, established precedent in this Circuit dictates that a court’s decision on the issue of procedural default is to be informed by furthering “the interests of comity, federalism, and judicial efficiency.”

Boyd v. Thompson,

147 F.3d 1124, 1127 (9th Cir.1998). Thus where, as here, deciding the merits of a claim proves to be less complicated and less time-consuming than adjudicating the issue of procedural default, a court may exercise discretion in its management of the case to reject the

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claims on their merits and forgo an analysis of cause and prejudice.

Batchelor v. Cupp,

693 F.2d 859, 864 (9th Cir.1982).

Accordingly, the Court declines to render an opinion on whether either party has carried its burden under

Bennett ,

or if Petitioner has established cause and prejudice sufficient to excuse any procedural defaults, and will instead deny claims 6, 7, 9, and 10 on the merits. While acknowledging that it could not

grant

relief on a claim found to be procedurally defaulted absent a showing of cause and prejudice or a fundamental miscarriage of justice, the Court is not prevented from addressing the merits of these claims, and denying them based on a merits review.

V. STANDARD OF REVIEW

Title 28, United States Code, § 2254 (a), sets forth the following scope of review for federal habeas corpus claims:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in

violation of the Constitution or laws or treaties of the United States.

28 U.S.C.A. § 2254 (a) (West 2006) (emphasis added).

In

Lindh v. Murphy,

521 U.S. 320, 336 , 117 S.Ct. 2059 , 138 L.Ed.2d 481 (1997), the United States Supreme Court held that the new provisions of the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “generally apply only to cases filed after the Act (AEDPA) became effecfive.” In capital habeas actions, cases are typically commenced by the filing of requests for appointment of counsel and stays of execution of the petitioners’ death sentences. Petitioner filed his request for appointment of counsel and stay of execution on April 27, 2001, and filed his petition with the Court on May 6, 2002. The AED-PA became effective on April 24, 1996, when the President signed it into law.

See id.

Accordingly, the AEDPA applies to this case.

Relevant to this case are the changes AEDPA rendered to 28 U.S.C. § 2254 (d), which now reads:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.

28 U.S.C.A. § 2254 (d)(l)-(2) (West 2006).

1

A decision is “contrary to” clearly established law if it fails to apply the correct controlling authority, or if it applied the controlling authority to a case involving

*1117

facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result.

See Williams v.

Taylor, 529 U.S. 362, 413 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000). A decision involves an “unreasonable application” of federal law if “the state court identifies the correct governing legal principle ... but unreasonably applies that principle to the facts of the prisoner’s case.”

Id.; Bruce v. Terhune,

376 F.3d 950, 953 (9th Cir.2004).

Even when the federal court undertakes an independent review of the record in the absence of a reasoned state court decision, the federal court must “still defer to the state court’s ultimate decision.”

Pirtle v. Morgan,

313 F.3d 1160, 1167 (9th Cir.2002). If the state court decision does not furnish any analytical foundation, the review must focus on Supreme Court cases to determine “whether the state court’s resolution of the case constituted an unreasonable application of clearly established federal law.”

Greene v. Lambert,

288 F.3d 1081, 1089 (9th Cir.2002). Federal courts also look to Ninth Circuit law for persuasive authority in applying Supreme Court law and to determine whether a particular state court decision is an “unreasonable application” of Supreme Court precedent.

Davis v. Woodford,

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

The AEDPA further limits the circumstances under which district courts may grant an evidentiary hearing. Section 2254(e) provides as follows:

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 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 establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C.A. § 2254 (e)(2) (West 2006).

Under AEDPA, when determining whether to grant an evidentiary hearing, the district court must first ascertain whether the petitioner has failed to develop the factual basis of the claim in state court.

Insyxiengmay v. Morgan,

403 F.3d 657, 670 (9th Cir.2005). As explained by the Supreme Court:

For state courts to have their rightful opportunity to adjudicate federal rights, the prisoner must be diligent in developing the record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do so, himself or herself contributing to the absence of a full and fair adjudication in state court, 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court, unless the statute’s other stringent requirements are met.

Williams v. Taylor,

529 U.S. 420, 437 , 120 S.Ct. 1479 , 146 L.Ed.2d 435 (2000).

If the petitioner has not failed to develop the facts in state court, an evidentiary hearing is required if (1) the petitioner establishes a colorable claim for relief— i.e., the petitioner alleges specific facts that, if proven, would entitle him to habeas relief, and (2) the petitioner did not receive a full and fair opportunity to develop those facts in state court.

Earp v. Ornoski,

431 F.3d 1158, 1167 (9th Cir.2005). The second requirement is met by a showing that:

(1) the merits of the factual dispute were not resolved in the state hearing;

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(2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair hearing.

Townsend v. Sain,

372 U.S. 293, 312 , 83 S.Ct. 745 , 9 L.Ed.2d 770 (1963),

overruled on other grounds by Keeney v. Tamayo-Reyes,

504 U.S. 1 , 112 S.Ct. 1715 , 118 L.Ed.2d 318 (1992).

VI. DISCUSSION OF MERITS OF PETITIONER’S CLAIMS

Petitioner moves for summary judgment on claims 1 and 6 and moves for an evidentiary hearing on claims 1 and 4-10. Respondent opposes Petitioner’s motion for summary judgment and/or evidentiary hearing as to all claims.

1.

Claim 1

— Ineffective

Assistance of Counsel

Petitioner alleges his right to a fair and reliable judgment of death was violated due to the prejudicially deficient performance of counsel during both the guilt and penalty phases of his trial. (Amended Consolidated Petition for Writ of Habeas Corpus [“Pet.”] at 9.) Specifically, Petitioner contends that in the guilt phase, counsel unreasonably abandoned any defense strategy that involved Petitioner’s innocence or lack of intent for the murders, instead concentrating their efforts on demonstrating Petitioner’s innocence regarding the special circumstance allegations.

(Id.

at 33.) Petitioner contends that counsel also unreasonably offered the testimony of two experts who labeled Petitioner as “evil” and a “sociopath” based upon flawed reasoning and inaccurate tests.

(Id.

at 35.)

Petitioner alleges that, regarding the penalty phase, counsel failed to gather and present available information on Petitioner’s family history and upbringing, which would have allowed properly qualified expert witnesses to offer the jury a more accurate picture of Petitioner and would have, through direct testimony from those family members, given the jury a stronger case for mercy and sympathy.

(Id.

at 43-51.) Petitioner maintains counsel’s deficient performance in failing to investigate and present this mitigation evidence to the jury resulted in prejudice to Petitioner.

(Id.

at 50-51.)

A.

The California Supreme Court’s Ruling

The following statement of the issues presented by Petitioner on direct appeal, and the California Supreme Court’s resolution of those issues, is taken verbatim from that court’s opinion. The state court rejected Petitioner’s claims of ineffective assistance of counsel during the guilt phase in relevant part as follows:

Defendant maintains he was deprived of effective assistance of counsel during the guilt phase of the trial. To establish constitutionally inadequate representation, a defendant must demonstrate that (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant.

(People v. Mitcham

(1992) 1 Cal.4th 1027, 1058 [ 5 Cal.Rptr.2d 230 , 824 P.2d 1277 ]; see

Strickland v. Washington

(1984) 466 U.S. 668, 687-696 [ 104 S.Ct. 2052 , 2064-

*1119

2069, 80 L.Ed.2d 674 ].) “When a defendant on appeal makes a claim that his counsel was ineffective, the appellate court must consider whether the record contains any explanation for the challenged aspects of representation provided by counsel. ‘If the record sheds no light on why counsel acted or failed to act in the manner challenged, “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” [citation], the contention must be rejected.’ ”

(People v. Mitcham, supra,

1 Cal.4th at p. 1058 , 5 Cal.Rptr.2d 230 , 824 P.2d 1277 ;

People v. Pope

(1979) 23 Cal.3d 412, 425 [ 152 Cal.Rptr. 732 , 590 P.2d 859 , 2 A.L.R.4th 1 ].) Defendant has failed to meet his burden of establishing, on the record before us, that his trial counsel was ineffective.

Defendant first complains of his counsel’s explicit concession (in his opening statement) of defendant’s guilt of the charges of first degree murder and burglary, and his additional concession (during closing argument) that if one special circumstance allegation were found true, all the special circumstance allegations necessarily were true. The record reflects that defense counsel conceded that defendant was guilty of first degree murder because of the felony-murder, rule, but argued that defendant had no intent to kill. In light of the overwhelming evidence of defendant’s guilt of the first degree murders of Nelia and Katherine Silva on a felony-murder theory, defense counsel reasonably may have determined that the only viable theory of defense was that defendant had lacked the intent to kill, an element that, at the time of the crimes (see

People v. Anderson, supra,

43 Cal.3d 1104 , 240 Cal.Rptr. 585 , 742 P.2d 1306 ), was required as to each of the three alleged special circumstances. In that event, counsel’s concession as to guilt was based upon a considered tactical determination. (See

People v. Wade

(1988) 44 Cal.3d 975, 988 [ 244 Cal.Rptr. 905 , 750 P.2d 794 ];

People v. Jackson

(1980) 28 Cal.3d 264, 292-293 [ 168 Cal.Rptr. 603 , 618 P.2d 149 ].) We repeatedly have rejected claims that counsel was ineffective in conceding various degrees of guilt under similar circumstances. (See

People v. Freeman, supra,

8 Cal.4th [450] at p. 498, 34 Cal.Rptr.2d 558 , 882 P.2d 249 ;

People v. Mitcham, supra,

1 Cal.4th at pp. 1060-1061, 5 Cal.Rptr.2d 230 , 824 P.2d 1277 .)

The record also fails to establish affirmatively that defense counsel’s all-or-nothing approach with regard to the special circumstance allegations was not based upon a reasonable tactical decision. Counsel stated, “So if he’s guilty of one special circumstance, he’s obviously guilty of them all. And if he’s not guilty of one, he’s not guilty of them all, because they all happened basically at the same time.” Counsel apparently determined that if the jury harbored a doubt as to whether defendant had intended to kill one of the two victims, it was reasonably possible the jury would conclude that defendant had lacked the intent to kill with respect to both of the victims, and thus return a finding of not guilty as to all three special circumstances. Defendant therefore has failed to demonstrate that counsel’s position was not based upon a rational tactical decision under the circumstances.

Defendant next complains of counsel’s asserted incompetence during argument in describing defendant as a “bizarre, violent attacker, preyer of women.” These remarks, however, considered in the context of counsel’s entire argument, indicate quite clearly that counsel was seeking to present a forceful argument of explanation that defendant’s conduct was the result of an uncontrol

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lable rage reaction-a reasonable strategic argument in light of the overwhelming evidence that defendant brutally and repeatedly had bludgeoned his two vulnerable victims on the face and other parts of the head.

In a related argument, defendant asserts that an attorney may not concede to a jury the guilt of his client without the consent of the client. He cites

People v. Diggs

(1986) 177 Cal.App.3d 958, 970 [ 223 Cal.Rptr. 361 ], in support of this proposition, maintaining that counsel’s concessions as to defendant’s guilt violated this rule. We observe that the record fails to disclose the nature or extent of defendant’s involvement in, or explicit approval of, his counsel’s trial strategy with regard to concessions of defendant’s guilt, and therefore fails to support defendant’s claim that he did not consent to those concessions or any other aspect of his defense. Moreover, the record reflects that defense counsel conceded only those charges for which there was no viable defense, and therefore did not deprive defendant of any meritorious defense without his client’s consent. (Cf.

People v. Diggs, supra,

177 Cal.App.3d 958, 970 , 223 Cal.Rptr. 361 [where counsel incompetently deprived his client of a potentially meritorious defense, he improperly conceded his client’s guilt].) We find no error. (See

People v. Griffin

(1988) 46 Cal.3d 1011, 1029 [ 251 Cal.Rptr. 643 , 761 P.2d 103 ) ] [no waiver required even though defense counsel expressly “conceded defendant’s responsibility for the killing”]. Defendant next complains that counsel was deficient in preparing and presenting the testimony of the defense mental health expert witnesses. Defendant criticizes both the choice or psychologists Friedman and Saddick as the defense mental health experts as well as various aspects of their testimony which, according to defendant, demonstrate that these witnesses were unqualified in their fields to performs the tasks assigned, relied upon incomplete background data and testing, and lacked adequate preparation to present their testimony effectively.

Regardless whether there were any negligent omissions by counsel in the preparation and presentation of mental health evidence, however, defendant has failed to demonstrate that but for counsel’s alleged incompetence a reasonable probability exists that the result of the guilt phase (or penalty phase) would have been more favorable to defendant. In light of defense counsel’s concession of defendant’s guilt of two counts of first degree murder, the testimony of the defense experts relating to defendant’s mental condition was admissible solely to the extent relevant to the specific issue whether defendant intended to kill his victims. Both of the witnesses in question (who were licensed psychologists) testified that defendant suffered from brain damage that would cause unmodulated, explosive, and “rage” reactions in novel and stressful situations, as well as “viscosity,” signifying that once engaged in aggressive behavior, defendant was unable to discontinue his actions. This testimony was relevant to the issue of intent to kill, and defendant has failed to establish on this record the likelihood that, but for counsel’s alleged failings in selecting and preparing the experts, mental condition testimony would have been presented that would have resulted in a finding more favorable to defendant on this issue. Defendant therefore has failed to establish the second prong required for a successful claim of ineffectiveness of counsel-prejudice-and his claim must fail. (See

Strickland v. Washington, supra,

466 U.S. at p. 696 [104 S.Ct. at p.2069];

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People v. Price

(1991) 1 Cal.4th 324, 440 [ 3 Cal.Rptr.2d 106 , 821 P.2d 610 ].)

Samayoa,

15 Cal.4th at 845-48 , 64 Cal.Rptr.2d 400 , 938 P.2d 2 .

The California Supreme Court also concluded that Petitioner did not receive ineffective assistance of counsel during the penalty phase, as follows:

Defendant further contends he received ineffective assistance of counsel at the penalty phase. We apply the same standard in reviewing this claim as we do in our evaluation of defendant’s claim of ineffective assistance of counsel at the guilt phase. (See

People v. Mitcham, supra,

1 Cal.4th at p. 1058, 5 Cal.Rptr.2d 230 , 824 P.2d 1277 .)

Defendant argues that he was deprived of the effective assistance of counsel because of his attorney’s failure to object and to request an admonition as to each challenged aspect of the prosecution’s argument. The mere failure to object to prosecutorial argument, however, rarely establishes incompetence on the part of defense counsel in the absence of some explanation on the record for counsel’s action or inaction.

(People v. Wharton, supra,

53 Cal.3d at p. 567, 280 Cal.Rptr. 631 , 809 P.2d 290 ;

People v. Ghent

(1987) 43 Cal.3d 739, 772 [ 239 Cal.Rptr. 82 , 739 P.2d 1250 ].) Defendant has failed to demonstrate that any exception to this rule applies in the present case. Moreover, with respect to all of the challenged comments

FN12

(considered in context, individually or together), we conclude no reasonable likelihood exists that the jury construed or applied any of the argument in an improper fashion.

(People v. Berryman, supra,

6 Cal.4th [1048] at p. 1072, 25 Cal.Rptr.2d 867 , 864 P.2d 40 .)

Defendant also complains of numerous aspects of the prosecution’s argument, as follows: (1) the comment that during the jury selection process, at the moment the jurors first saw the crime scene photographs, they must have known they would be involved in the penalty determination process; (2) the comments that defendant had been released from prison shortly before his commission of the crimes, had lied to the police, and had watched Mr. Silva being taken away from the crime scene as a suspect; (3) the comment that at the conclusion of defendant’s interviews with the police, defendant had inquired whether he would obtain anything in exchange for his confession, thus demonstrating a lack of remorse; (4) the comment that the jury could not consider in mitigation any sympathy for defendant’s family; (5) the comment that “we are certain who did it. We are certain who killed those two people”; (6) the prosecution’s delineation of defendant’s prior convictions as both prior violent activity and as prior felony convictions; (7) the criticism of defendant’s mental defect evidence as “bogus”; (8) the request that the jury view the case through the victims’ eyes; and (9) the remark the victims no longer would be able to have photographs taken of them.

Defendant next contends he was denied effective assistance because of remarks made by his attorney during the defense’s penalty phase opening statement and argument that (according to defendant) amounted to a plea for sympathy for defense counsel personally rather than for defendant.

“The decision of how to argue to the jury after the presentation of evidence is

*1122

inherently tactical”

(People v. Freeman, supra,

8 Cal.4th at p. 498 , 34 Cal.Rptr.2d 558 , 882 P.2d 249 ), and there is a “strong presumption” that counsel’s actions were sound trial strategy under the circumstances prevailing at trial.

{Ibid.)

Defendant first complains of counsel’s remarks during opening statement that counsel had been devastated by the jury’s verdict as to guilt and the special circumstances, and that defendant’s life, “as we know life to be, effectively ended when you came back with that last verdict.” The trial court admonished counsel to forgo comments on his personal reactions during opening statement. Shortly thereafter, counsel told the jury one of his fears in the case was that he might have said or done something during the guilt phase that offended the jury. The court again reprimanded counsel for the injection of his personal thoughts into the statement. Regardless whether the foregoing remarks constituted proper argument, they did not constitute deficient representation. The remark regarding the devastation experienced by defense counsel in light of the verdicts indicated that counsel continued to identify with defendant and his case, and could not reasonably have been construed by the jury in a manner prejudicial to defendant. By remarking that counsel feared he might have offended the jury, he indicated that perhaps he was to blame for the jury’s verdicts against defendant, again demonstrating a belief in defendant’s case that could not reasonably have been prejudicial to the defense. Defendant also criticizes several of the remarks made by defense counsel during closing argument. He cites counsel’s statement that he felt honored to be arguing in favor of someone’s life, but “[o]n the other hand, I just can’t help but feel somewhat inadequate to do such an enormous task.” Defense counsel apparently sought to convey to the jury that if by his argument he was unable to persuade it that the appropriate punishment was life imprisonment, the jury should not automatically assume the appropriate punishment was death, but only that counsel was inadequate for the task. There is no reasonable likelihood that the jury construed these remarks in a manner prejudicial to defendant. Defendant further complains of counsel’s comment concerning “impossible cases” and observation that in such cases he had learned never to give up, because “[w]hen you feel every ounce of strength in your heart has been given on the case, you reach down and you try to get a little more.” Defense counsel then quoted Clarence Darrow regarding the death penalty, to the effect that the jury was faced with the task of balancing “humane feeling against brutal feelings,” and that a person who liked to see suffering out of righteous indignation would “hold fast to capital punishment.”

Contrary to defendant’s assertion, these remarks do not suggest that counsel was seeking to elicit sympathy for himself because counsel felt he had had an impossible case. Counsel simply was being candid with the jury by acknowledging that the case was difficult, that he had given it everything he had, and that he would seek to give more. This line of argument implied there was more to give, i.e., there was additional matter favorable to the defense that would be presented to the jury, and did not imply merely that the jury should feel sorry for defense counsel. The argument did not demonstrate deficient performance. Defendant next complains counsel was ineffective in failing to present penalty phase expert testimony regarding mental disorders suffered by defendant at the time of the commission of the crimes. He claims that, although the

*1123

trial court barred such evidence at the guilt phase, there was no impediment to presenting-or tactical purpose in declining to present-such evidence at the penalty phase. Defendant additionally complains that defense counsel acknowledged that the jury must have disbelieved the defense mental disorder evidence presented at the guilt phase. Finally, defendant’s [sic] complains of defense counsel’s failure to explain to the jury that, in the event it was not persuaded by the evidence of defendant’s mental disorders that defendant had been “under the influence of extreme mental or emotional disturbance” within the meaning of factor (d) of section 190.3, such evidence nevertheless remained available for consideration in mitigation under factor (k) of section 190.3.

With respect to each of the foregoing objections to defense counsel’s performance, however, the record fails to demonstrate affirmatively that there was no rational tactical purpose for counsel’s actions or omissions. With regard to counsel’s failure to present additional evidence of defendant’s mental condition at the time of the commission of the crimes, defendant has failed to establish on this record what additional evidence would have been presented. Moreover, defense counsel may well have determined that doing so would lead to reexamination of the details of the brutal murders of a mother and her two-year-old daughter, and thus may have decided as a reasonable tactical matter to avoid exposing the jury once again to this evidence.

Additionally, contrary to defendant’s assertion, his counsel did not state that the jury must have disbelieved the defense expert testimony presented at the guilt phase. Rather, counsel simply acknowledged candidly that the thrust of his guilt phase argument had related to defendant’s lack of intent to kill because of brain damage, and that the jury had “rejected the brain damage totally, or felt that even if he had the brain damage, he still had the intent to kill.” Counsel did not argue or concede that the jury had disbelieved testimony upon which he was asking it to rely at the penalty phase. The record establishes that defense counsel argued that a life sentence was appropriate because of defendant’s extreme mental disorders, and in light of the trial court’s instruction on section 190.3, factor (k) counsel reasonably may have determined that the jury adequately was informed that it could consider the mental health evidence in mitigation under factor (k).

Samayoa,

15 Cal.4th at 855-58 , 64 Cal.Rptr.2d 400 , 938 P.2d 2 .

In his first state habeas petition, Petitioner presented a claim of ineffective assistance of counsel alleging trial counsel failed to investigate and present mitigation evidence regarding his upbringing at the penalty phase, which included physical, emotional and sexual abuse, substance abuse, poverty and a family history of criminal activity. Petitioner attached numerous exhibits and declarations to the state petition. This claim, raised as claim VI of the state habeas petition, was denied on the merits by the California Supreme Court without a reasoned opinion. (Doc. No. 69; Lodgment No. 4.)

B.

Respondent’s Procedural Argument

Respondent contends that only one declaration (that of trial counsel Michael Marrinan) of the 22 declarations attached to the instant Petition was presented to the California Supreme Court. Respondent argues that Petitioner has therefore failed to properly develop the claim in state court, precluding an evidentiary hearing or expansion of the record under § 2254(e)(2),

*1124

and the Court’s decision must therefore be based solely on those materials that were presented to the state supreme court. (Respondent’s Opposition to Motion for Summary Judgment [“Opp. to MSJ”] at 6.)

2

However, an examination of the record on appeal reveals that numerous exhibits were attached to the first state habeas petition, including declarations by Mercedes Samayoa (Petitioner’s mother), Bernadene Severns (Petitioner’s cousin) and Marie Alarcon (Petitioner’s cousin) in addition to numerous birth records, family history records and court documents and police reports. The declarations offer details on Petitioner’s family history of molestation, violence, substance abuse, as well as the physical and emotional child abuse prevalent in the Samayoa family during Petitioner’s childhood and adolescence. (Doc. No. 69; Lodgment No. 9, Exs. 3, 5, 6.) Petitioner also supplemented his state habeas petition with copies of police reports and court documents detailing criminal activity and violence in the family, including documents on one instance of child sexual abuse committed by a male relative. (I'd, Exs. 12, 29, 30, 31, 32, 34.) The Court also notes that the California Supreme Court initially granted $3,000 to state habeas counsel for investigation, and state counsel filed several additional requests between 1995 and 1997 for $32,000 in funds for retaining a neuropsychologist and to investigate Petitioner’s history of abuse, which were all denied by the court. In 2003, current habeas counsel requested $15,000 in funds from the state court to retain experts and conduct investigation in this case, which was also denied. Petitioner also requested an evidentiary hearing on this claim in state court. (Doc. No. 69; Lodgment No. 8 at 53.)

Respondent takes particular issue with the inclusion of the declaration of Alice Girdley, signed in 2002, which was not presented to the state court. In the declaration, Ms. Girdley states that she spoke to one of Petitioner’s trial attorneys in 1986, who advised her that he “did not want to hear the negative things” about Petitioner and their family. Respondent contends that the state court was never presented with this information, and this Court may not consider it in evaluating Petitioner’s ineffective assistance of counsel claim. The Girdley declaration was attached as an exhibit to the federal petition first filed in the Court in January 2002, and while Respondent did assert that this claim was partially unexhausted, the allegation was premised on Petitioner’s alleged addition of a new legal theory; Respondent did not complain that new factual allegations had been appended to Petitioner’s claim for relief. Further, on April 9, 2002, the Court ruled that “exhaustion is in fact complete on claim 1,” and declined to return the claim to state court for any additional proceedings.

(See

Doc. No. 29.) The Court will not revisit that ruling, nor entertain Respondent’s new and belated challenge to the Girdley declaration that

*1125

should have been raised when the federal petition was initially filed.

Diligence requires that a petitioner “seek an evidentiary hearing in state court in the manner prescribed by state law.”

Williams,

529 U.S. at 437, 120 S.Ct. 1479 . To satisfy this standard, a petitioner is required to make a “reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court.”

Id.

at 435 , 120 S.Ct. 1479 . Under California state law standards, a state habeas petition is required to: “(1) state fully and with particularity the facts on which relief is sought, as well as (2) include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations.”

People v. Duvall,

9 Cal.4th 464, 474 , 37 Cal.Rptr.2d 259 , 886 P.2d 1252 (1995).

The Court finds this case shares much in common with

Landrigan v. Schriro,

441 F.3d 638 (9th Cir.2006), in which the Ninth Circuit held a petitioner did not fail to develop his claim when he made specific factual allegations in his state petition, requested an evidentiary hearing, and supported his state petition with declarations and documentary evidence. The circuit court found petitioner’s efforts sufficient to demonstrate that he, through no fault of his own, tried and failed to develop his habeas claim in state court, and that section 2254(e)(2) did not apply in that case.

See Landrigan,

441 F.3d at 648 (9th Cir.),

reversed on other grounds, Schriro v. Landrigan,

550 U.S. 465 , 127 S.Ct. 1933 , 167 L.Ed.2d 836 (2007).

In finding a federal habeas petitioner diligent in presenting his claim to the state court, where the petitioner submitted one letter and three declarations in support of his state petition, another California district court reasoned as follows:

Specifically, the court does not read California law to require that every document that a petitioner intends to introduce at an evidentiary hearing be submitted along with the state habeas petition ... As long as sufficient evidence, though perhaps not every bit of evidence, is attached to the state habeas petition to support the facts alleged by petitioner, then the petitioner’s burden to show that the claims are not conclusory has been met.

Osband v. Ornoski,

No. S-97-0152, slip op. at 6 (E.D.Cal. Dec. 1, 2005).

In the instant case, Petitioner supported his state court claim of ineffective assistance of counsel with three declarations and numerous other documents, which the Court finds sufficient to show his diligence in pursuing this claim in state court, and the Court rejects Respondent’s contention that an evidentiary hearing or expansion of the record to include the declarations submitted by Petitioner is precluded under § 2254(e)(2).

See Holland v. Jackson,

542 U.S. 649, 652-53 , 124 S.Ct. 2736 , 159 L.Ed.2d 683 (2004);

Cooper-Smith v. Palmateer,

397 F.3d 1236, 1241 (9th Cir.2005). Thus, the Court will consider all of Petitioner’s proffered exhibits in evaluating his federal claim.

C.

Merits

Generally, to prevail on a claim alleging ineffective assistance of counsel, a petitioner must demonstrate (1) that counsel “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) that “the deficient performance prejudiced the defense.”

Campbell v. Wood,

18 F.3d 662, 673 (9th Cir.1994) (quoting

Strickland v. Washington,

466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984)).

*1126

To establish deficient performance, the petitioner must demonstrate that the representation he received “fell below an objective standard of reasonableness.”

Strickland,

466 U.S. at 688 , 104 S.Ct. 2052 . Due to the difficulties inherent in evaluating the contested behavior from counsel’s perspective at the time, there exists a strong presumption that counsel’s conduct “falls within the wide range of reasonable professional assistance.”

Id.

at 689 , 104 S.Ct. 2052 . Thus, a petitioner must overcome the presumption that the challenged action might be considered sound trial strategy.

Id.

at 689 , 104 S.Ct. 2052 .

To establish prejudice, the petitioner must demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Id.

at 694 , 104 S.Ct. 2052 . “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Id.

In addition, individual deficiencies that may not by themselves meet the

Strickland

prejudice standard may, when considered cumulatively, constitute sufficient prejudice to justify granting the writ.

Harris v. Wood,

64 F.3d 1432 , 1438 (9th Cir.1995).

1.

Guilt Phase

Petitioner asserts that the mental health experts retained by defense counsel were improperly selected and not qualified for the tasks they were selected to accomplish. (Pet. at 9.) Petitioner contends that, as a result of counsel’s ineffective performance in retaining these witnesses, Petitioner was subjected to the wrong tests, the experts were not qualified to render the evaluations and opinions they gave on the stand at trial, and were therefore dismantled during the cross-examination by the prosecutor.

(Id.

at 38.) Petitioner further asserts that defense counsel should have concentrated on negating the intent element of special circumstances murder, but instead focused their guilt phase efforts on a theory of brain injuries and “rage” reaction.

(Id.

at 34.)

At trial, Dr. Meredith Friedman, a clinical psychologist, testified that the tests she performed suggested Petitioner suffered from temporal lobe damage, which contributed to his emotionally reactive personality and could cause overreaction to stressful events or a heightened rage reaction. (RT 3652-58.) Dr. Saul Saddick, a neuropsychologist, examined those test results and agreed with a finding of moderate damage to the left lobe, adding that this damage would cause a “viscosity” or stickiness to Petitioner’s behavior and could contribute to a rage reaction, which Dr. Saddick explained as a combination that could result in a response out of proportion to a triggering action, accompanied by difficulty stopping the behavior once it had begun. (RT 3908-44.) On surrebuttal, Dr. Melvin Schwartz, a neuropsychologist and clinical pathologist, testified that he agreed with the findings of the two defense experts regarding frontal lobe damage, and added that any impairment in the brain could result in uncontrollable rage. (RT 4337-45.)

Trial counsel Michael Marrinan, in a declaration submitted to the Court, notes that part of his responsibilities at trial were to “work with the mental health experts we hired to testify at guilt phase,” and admits that the experts were not informed about Petitioner’s physical, emotional, and sexual abuse, or the drug and alcohol abuse in Petitioner’s family, nor the extreme poverty or cultural values that affected his upbringing. (Ex. 4 to Motion for Summary Judgment [“Mot. SJ”].) Marrinan concedes that the defense “had no tactical reason for not discovering the facts listed above and in not presenting this information to the mental health experts.”

(Id.)

However, even if the Court found Marrinan’s statement sufficient to meet

*1127

the

Strickland

deficient performance prong for the guilt phase of trial, Petitioner must also establish prejudice to succeed on this claim.

See Strickland,

466 U.S. at 688-94 , 104 S.Ct. 2052 .

In support of the prejudice prong, Petitioner presents the Court with the declaration of Dr. Mark Bondi, a clinical neuropsychologist who was not involved at the trial stage, but who reviewed Petitioner’s past educational, medical and mental health reports, evaluations, psychological testing data, medical test results, and conducted interviews with Petitioner’s family members. In a declaration made fourteen year’s after the verdict, Dr. Bondi criticizes the expert trial testimony of Dr. Saddick and Dr. Friedman, and the tests that formed the basis of their testimony. Ultimately, Dr. Bondi states that he concurs with the assessment of prosecution expert Dr. Butters, and opines that Petitioner’s test results and IQ levels “do not support ... a claim that the defendant’s mental state precluded a formation of intent to kill.” (Ex. C-3 to Pet. at 20.) Dr. Bondi further opines that Dr. Saddick’s conclusion of “left hemisphere brain damage is not well-supported and can be ascribed to a whole host of possible other influences (e.g., bilingualism, ethnicity, learning disabilities, dyslexia, delinquency, and psychopathy.)”

(Id.

at 15.) While Dr. Bondi notes some errors in scoring the test findings, and that some of the tests performed were not the newest versions available, his declaration does not suggest an alternative guilt phase strategy that demonstrates any reasonable possibility of a changed verdict. Based on Dr. Bondi’s belated analysis of Petitioner’s mental state, trial counsel cannot be censured for relying upon the sworn testimony of two licensed psychologists.

Petitioner also proffered a declaration by Dr. Bruce Hubbard, who opines that the “defense effort took far too narrow an approach in attempting to define mere brain damage as correlative to his [Petitioner’s] aggressive behavior” but who ultimately stated that Petitioner’s “reaction in situations of stress [was] very unpredictable,” and people such as Petitioner “often times have a ‘hair trigger’ for their anger, which can be precipitated to proportions of a rage by stimuli that would not so affect normal individuals.” (Ex. 17 to Mot. SJ.) Dr. Hubbard also criticized the data which the defense experts relied upon in reaching their conclusions, but nevertheless reached a similar opinion as Drs. Friedman, Saddick and Schwartz, and offers no viable alternative to the defense theory at trial. The Ninth Circuit has plainly held that the pursuit of one defense strategy at the expense of another is a tactical decision “for which there is no correct answer, only second guesses.”

Hendricks v. Calderon,

70 F.3d 1032, 1041 (9th Cir.1995).

3

The state court held that Petitioner failed to demonstrate that, but for counsel’s alleged failings, a reasonable probability exists that if effective mental health evidence was presented in the guilt phase of trial, it would have resulted in a move favorable outcome for Petitioner. The state court’s conclusion was correct. Even if counsels’ performance was deficient, Petitioner has not established prejudice.

Further, trial counsel’s guilt phase strategy itself was reasonable, especially in light of Petitioner’s multiple confessions to law enforcement authorities and the other evidence against him at trial, which included testimony by his own family members regarding the murder weapon and Peti

*1128

tioner possessing items stolen from the victims’ home during the murder. That trial counsel’s strategy was ultimately unavailing does not lead the Court to conclude that it was not a reasonable and tactical decision.

See Strickland,

466 U.S. at 689 , 104 S.Ct. 2052 (Judicial scrutiny of trial counsel’s decisions is “highly deferential” as “it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.”)

The California Supreme Court’s adjudication of the guilt phase aspect of Petitioner’s ineffective assistance of counsel claim did not involve an unreasonable application of federal law, nor was it based on an unreasonable determination of the facts.

Williams,

529 U.S. at 412-13, 120 S.Ct. 1495 . Petitioner is not entitled to habeas relief on this portion of claim 1.

2.

Penalty Phase

Petitioner contends that trial counsel failed to ascertain the existence of mitigation evidence and failed to present the available mitigation evidence to the jury at the penalty phase of trial, by not interviewing and calling Petitioner’s family members to testify at the penalty phase, and failing to offer expert psychological testimony at the penalty phase. (Mot. SJ at 13-14.) Petitioner specifically asserts that trial counsel failed to investigate and gather readily available evidence on his family background, which included a childhood of physical, emotional and sexual abuse, an atmosphere of violence and criminality, and drug and alcohol abuse, and present this evidence in mitigation at the penalty phase.

(Id.)

Petitioner contends that he was prejudiced by counsel’s deficient performance, as “[t]he jury had nothing upon which to base any sympathy for Petitioner. All that they would hear on penalty phase was that Petitioner was a fairly decent worker in prison and that his mother and sisters would feel bad if he was executed because they were the ones who turned him into the police. This pathetic presentation stood in brutal contrast to petitioner’s record of criminal violence, crimes against women and this unspeakable crime itself.” (Pet. at 11.)

In his penalty phase opening argument, trial counsel noted that the jury “rejected the brain damage totally, or felt that even if he had the brain damage, he still had the intent to kill,” but informed jurors that they could still “consider the evidence you heard in the guilty phase, particularly Dr. Butters’ testimony, the prosecution expert who didn’t rule it out. He still said there was a possibility of brain damage.” (RT 4706.) Counsel also cautioned the jury to keep their minds open to mitigation evidence.

The defense offered testimony from a few correctional officers who had worked with Petitioner and a few immediate family members. The officers generally testified that Petitioner was a good, reliable, above-average worker in prison. Petitioner’s mother testified that she loved her son, and showed the jury cards he had sent her while incarcerated. Two of Petitioner’s sisters also testified, stating that they did not want them brother to receive the death penalty, and felt guilty because they had turned in evidence on the case and had testified against him at the guilt phase of trial.

In closing, trial counsel admitted that “the facts of the crime are aggravating, there is no question about that,” but asserted that in mitigation, the crime “certainly may have been committed as either the result of a direct or perhaps even indirect result of some type of mental defect or brain damage” and could be attributable to “something that makes him go from a Jekyl [sic] to a Hyde.” (RT 5023-26.) Counsel then implored the jury to consider as mitigating the fact that Peti

*1129

tioner “did confess to Detective Jordan” and told the truth about the crime, and argued that “there seems something brutally unfair about killing someone who helped the police convict him.” (RT 5026-28.) Counsel also argued the murders “were not the result of a premeditated, planned killing” and Petitioner’s job performance in prison showed he could be reliable and productive, and he committed no violent acts in prison, which should be both considered in mitigation. (RT 5029-30.) Counsel added that Petitioner’s “artistic ability” gave his family “small joys” that would end if he were executed, and stated that Petitioner’s family suffered great guilt for testifying against him, which would only increase if Petitioner were sent to death row and later executed. (RT 5022-23; 5033-34.)

a.

Performance

In support of this claim, Petitioner presents thirteen declarations from friends and family members, accompanying his own declaration, detailing the abusive and dysfunctional environment in which he was raised. (Exs. 3, 5-15, 18-19 to Mot. SJ.) Petitioner also offers a social history prepared by psychologist Gretchen White, Ph.D and M.F.C., who interviewed Petitioner, members of his immediate and extended family, and a family friend, and reviewed numerous documents. Ms. White states that Petitioner was born and raised in a corrosive and corruptive environment of epidemic violence, alcohol and drug abuse, physical, emotional, and child sexual abuse, with no feeling of safety or stability and in which little behavior was reserved for adults. Moreover, Ms. White observes that the nuclear family was inseparable from his extended family on his mothers’s side, Petitioner and others were discouraged from socializing outside this dysfunctional extended family system, leaving Petitioner unfit to function outside the family. Ms. White states that Petitioner was beaten by his father and neglected by his mother, and his uncles, the male role models in his life, were violent alcoholics and child molesters. Ms. White concludes that Petitioner is the product of this extremely dysfunctional and incapacitating closed family system, which engendered feelings of helplessness and rage and contributed significantly to his conduct as an adult. (Ex. 16 to Mot. SJ.)

Respondent argues that “breaking his [Petitioner’s] claim of ineffective assistance of counsel down into several sub-claims does not make the alleged failure of trial counsel to obtain and present this evidence to the experts or the jury more egregious. Unless trial counsel knew or should have known about this evidence in 1988, Petitioner is unable to demonstrate any ineffectiveness. Not a single declarant represents that they ever told any of this information to either of Petitioner’s trial attorneys or investigator.” (Ans. at 31.)

It is well established that trial counsel has a duty to investigate a client’s background in preparation for the penalty phase of a capital case.

See Karis v. Calderon,

283 F.3d 1117, 1135 (9th Cir.2002). The Supreme Court has held that an attorney’s strategic decisions made after careful and extensive investigation “are virtually unchallengable,” but “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.”

Wiggins v. Smith,

539 U.S. 510, 521 , 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003) (quoting

Strickland,

466 U.S. at 690-91 , 104 S.Ct. 2052 ). The Court’s analysis of this claim turns on whether the information trial counsel did obtain on Petitioner’s background “revealed the need to dig deeper.”

Douglas v. Woodford,

316 F.3d 1079, 1089 (9th Cir.2003):

see also Wig

*1130

gins,

539 U.S. at 523 , 123 S.Ct. 2527 . If such facts were discovered, the Court must evaluate whether counsel failed to pursue valid avenues of investigation that could have affected the jury’s assessment of Petitioner.

Investigator Marion Pasas, who worked on Petitioner’s defense team, states that Petitioner’s trial attorneys “did not understand or seem interested in the penalty phase. There was no strategizing about the penalty phase and the penalty phase investigation was not up to par,” and adds that “[co-counsel Michael] Popkins felt the jury would save Richard for Mike’s sake, and because they liked him, and would feel sorry for the sister, and the mom.” (Ex. 1 to Mot. SJ at 1.) Ms. Pasas also states that “Popkins did not spend time with Richard’s family,” that she “had to force him to go see Richard’s grandma Inez,” and admits she has “always felt that there were many things about Richard’s life that were never uncovered.”

(Id.

at 2.)

In a letter Ms. Pasas sent to counsel Popkins in March 1987, a year before the trial, Pasas stated that she began interviews with Petitioner’s family “but these interviews are far from complete” because his family is “very quiet and do not give up information easily.” (Ex. 2 to Mot. SJ.) Ms. Pasas noted that she had located two good penalty phase witnesses in Petitioner’s “grandmother and aunt” and stated that the picture seems to be of a “marginally functioning family.”

(Id.)

Moreover, the Court notes that ten members of Petitioner’s extended family, including several aunts, uncles, cousins and family friends declare that they were living in the San Diego area at the time of Petitioner’s trial, were available and willing to testify on his behalf, but none of these individuals were ever contacted by the defense.

(See

Exs. 5, 6, 8-11, 13-15, 19 to Mot. SJ.) Petitioner’s cousin Benny Girdley and ex-wife Sophia Samayoa Lopez state they were interviewed by the defense investigator, but neither were asked about areas such as abuse, drugs, alcohol, or violence.

(See

Ex. 7, 18 to Mot. SJ.) Further, neither of these individuals were called to testify despite their willingness to be witnesses on Petitioner’s behalf.

Petitioner’s aunt, Alice Girdley, was also interviewed by Ms. Pasas in 1987. Further, Ms. Girdley was later interviewed by one of Petitioner’s defense counsel who she states “did not want to hear what I had to say.” (Ex. 3 to Mot. SJ at 1.) Ms. Girdley adds “[t]he Attorney told me that he did not want to hear the negative things about Richard or the family, and if she had been asked about it or permitted to do so, she would have told him all about “the molests, abuse, violence, alcohol and drug use that existed in my extended family.”

(Id.

at 2.) If called during the penalty phase, these witnesses would have testified that Petitioner was raised by an emotionally absent mother and a physically abusive father, that Petitioner started using and later abusing alcohol and drugs at an early age, and that Petitioner and other children in the family were subjected to sexual abuse and molestation by members of their extended family.

(See

Exs. 3, 5, 6, 7, 8, 9,10, 13, 14, 18, 19 to Mot. SJ.) These witnesses also would have informed the jury of the impoverished, violent, and criminally active extended family environment in which Petitioner was reared.

(See id.)

Edward Rucker, a former capital case trial attorney and current criminal defense attorney, states that based upon his experience and knowledge of the prevailing standards of capital trial counsel during 1985-1988, when Petitioner’s case was investigated and tried, defense counsel’s penalty phase performance “fell below the level of professional competence” and counsel presented a “factually flawed defense lacking in viability.” (Ex. 20 to Mot.

*1131

SJ at 3.) Rucker adds that no competent attorney would have “been ignorant of the widely understood fact that a history of child abuse, learning disability, limited intelligence, closed head injuries, and drug and alcohol abuse had potential legal significance for adult behavior.”

(Id.

at 4.) Rucker concludes that “[biased upon my experience, I can think of no tactical reason for the failure to develop and present such evidence in mitigation. Given the evidence in aggravation presented by the prosecution, such a failure seems inexcusable. The adverse consequences to petitioner of this failure were compounded when petitioner’s counsel presented Richard Samayoa’s mother and sister to testify about the close nurturing nature of the family” and this failure prejudiced Petitioner.

(Id.

at 9-10.)

Trial counsel was appointed to Petitioner’s case in April 1986, and it was at the conclusion of the guilt phase proceedings on April 21, 1988 when counsel Michael Popkins wrote an entry in his attorney log that stated, “Verdicts guilty.

Started working

on the penalty phase.” (Ex. D-l to Pet. at 31-32) (emphasis added). In the excerpts from Mr. Popkins’ log provided by Petitioner, the Court also notes an entry indicating trial counsel meeting with Marion Pasas in April 1986 to discuss the “nature and extent of guilt and penalty phase investigations.” (Ex. D-l to Pet. at 1.) The Court notes a few entries in Mr. Marrinan’s activity log regarding penalty phase research in November and December 1987, but located no other discernible references to penalty phase work until after the guilt phase had concluded.

(See

Ex. D-2 to Pet. at 12, 22, 23.) It appears counsel worked full time on preparing for the penalty phase between the conclusion of the guilt phase on April 21, 1988 and the start of the penalty phase proceedings on May 2, 1988, but invested little attorney time in preparing for this prospect between his appointment to the case and the commencement of trial. This apparent lack of timely preparation for the possibility of a penalty phase is all the more troubling knowing counsel was faced with constructing a guilt phase defense in a capital trial representing a criminal defendant who had confessed to law enforcement authorities on three separate occasions and whose immediate family members had provided circumstantial physical evidence to the police and were set to be called as witnesses for the prosecution during the guilt phase.

Michael Marrinan, co-counsel at trial, states that the defense team would have presented evidence, had they known of it, regarding the poverty, child sexual abuse widespread in Petitioner’s family, the physical and emotional abuse he suffered at the hands of his mother and father, Petitioner’s learning disabilities, and evidence that he was raised among a family whose members were “convicted of crimes involving alcoholism, drug abuse, spousal abuse and weapon possession.” (Ex. 4 to Mot. SJ.) Mr. Marrinan concedes “[t]he defense team had no tactical reason for not discovering the facts listed above and in not presenting this information to the mental health experts and to the jury as mitigation for the crimes.”

(Id.)

To prove deficiency of performance, the Supreme Court has held that a petitioner must demonstrate that trial counsel made errors so serious that their performance fell below an objective standard of reasonableness under prevailing professional norms.

Strickland,

466 U.S. at 687-88 , 104 S.Ct. 2052 . Additionally, “the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ”

Id.

at 689 , 104 S.Ct. 2052 (quoting

Michel v. Louisiana,

350 U.S. 91, 101 , 76 S.Ct. 158 , 100 L.Ed. 83 (1955)). The Ninth Circuit has held that a failure

*1132

to sufficiently investigate a defendant’s background and provide background information to mental health experts may constitute deficient performance.

See Ainsworth v. Woodford,

268 F.3d 868 (9th Cir.2001) (trial counsel found deficient for failing to obtain evidence of troubled childhood, past drug and alcohol abuse, failing to interview a witness until just before their testimony, and obtaining records but failing to examine them);

see also Bean v. Calderon,

163 F.3d 1073 (9th Cir.1998) (trial counsel rendered deficient penalty phase performance in retaining mental health experts but failing to provide them with the essential background information to render a diagnosis of defendant).

Taking into consideration the available mitigation evidence set forth in the numerous declarations, the Court’s review of counsel’s activity log, and trial counsel’s concession that there was no tactical reason for failing to pursue this evidence, the Court finds counsel performance was likely deficient in preparing for and conducting the penalty phase of Petitioner’s trial. Counsel failed to interview numerous readily available witnesses, and counsel was aware that Petitioner had childhood injuries and abused alcohol and drugs, and yet failed to questions his friends and relatives about these areas to ascertain the existence of potential mitigating evidence.

b.

Prejudice

To succeed on a claim of ineffective assistance of counsel, Petitioner must not only prove counsel’s performance was deficient, but must also demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland,

466 U.S. at 694 , 104 S.Ct. 2052 . In evaluating the claim, the Court “must consider the totality of the evidence before the judge or jury.”

Id.

at 695 , 104 S.Ct. 2052 . Moreover, the Ninth Circuit has held that “[i]n establishing prejudice under

Strickland ,

it is not necessary for the habeas petitioner to demonstrate that the newly presented mitigation evidence would necessarily overcome the aggravating circumstances.”

Correll v. Ryan,

465 F.3d 1006, 1018 (9th Cir.2006). A petitioner can establish prejudice by showing that, had all the available mitigation been offered at the trial, “there is a reasonable probability that at least one juror would have struck a different balance” between life and death.

Wiggins,

539 U.S. at 537 , 123 S.Ct. 2527 ;

see also Rompilla v. Beard,

545 U.S. 374, 393 , 125 S.Ct. 2456 , 162 L.Ed.2d 360 (2005) (“although we suppose it is possible that [the sentencer] could have heard it all and still have decided on the death penalty, that is not the test.”)

The process of determining penalty phase prejudice requires courts to “evaluate the totality of the available mitigation evidence — both that adduced at trial, and the evidence adduced in the habeas proceeding — in reweighing it against the evidence in aggravation.”

Williams,

529 U.S. at 397-98, 120 S.Ct. 1495 ;

see also Bonin v. Calderon,

59 F.3d 815, 834 (9th Cir.1995) (assessing prejudice requires a court to compare the prosecution evidence against the totality of available mitigation evidence). The Ninth Circuit has noted that a defendant’s culpability may be minimized, and a jury could reasonably be persuaded by mitigation evidence showing “a person whose moral sense was warped by abuse, drugs, mental incapacity, or disease or who acted out of passion, anger or other motive unlikely to reoccur.”

Allen v. Woodford,

395 F.3d 979, 1007 (9th Cir.2005);

see also Boyde v. California,

494 U.S. 370, 382 , 110 S.Ct. 1190 , 108 L.Ed.2d 316 (1990) (a defendant whose crime is attributable to a disadvantaged background or mental or emotional problems may be less culpable than a defendant with no excuse).

*1133

Petitioner asserts that the potentially mitigating evidence trial counsel failed to offer included evidence of childhood physical abuse by his father, emotional abuse by his mother, sexual abuse by an uncle which Petitioner admitted to a female cousin, and pervasive sexual abuse in his extended family including several uncles or cousins who are currently registered sex offenders. Petitioner also began to abuse alcohol and drugs — including marijuana, PCP, and methamphetamine— at an early age, suffered several head injuries as a child, and was raised in an extremely impoverished and violent family environment in which family parties often started with drinking and ended with fist fights, bloodletting, and a visit from the police department, including his own wedding. During the guilt phase, the jury heard multiple experts testify about Petitioner’s head injuries, brain damage, and that Petitioner may have suffered a “rage reaction” on the night of the murders. Trial counsel did not offer further psychiatric or other expert testimony at the penalty phase, but in his penalty phase closing argument to the jury counsel did refer to the possibility of brain damage as a cause for Petitioner’s behavior. Petitioner’s mother and two sisters testified on his behalf, speaking of cards and letters he had sent them over the years and talking of Petitioner’s love for his daughter.

4

The defense also introduced evidence that Petitioner was a productive and hard worker in prison, and had artistic abilities. Trial counsel also pointed to Petitioner’s confessions to the police and argued that the killings were not premeditated, asserting that both were mitigating factors.

In aggravation, Petitioner’s crime was extremely brutal; the double murder of his neighbors, a mother and her two year old daughter, who he bludgeoned to death with a wrench in the course of burglarizing their home, distributing the jewelry he obtained from the crime to his sisters and other family members. Moreover, despite Petitioner’s contention in his statements to police that the victims confronted him in their home when they arrived home early, and that he only hit the victims in an attempt to get away, the prosecutor alleged that the attack was intentional as both victims were half-dressed when found, and there was evidence that both had been stuck while lying on the floor. Additionally, Petitioner is a previously convicted felon whose past crimes included two burglary convictions, a conviction for sexual assault, and a conviction for assault with a deadly weapon. The sexual assault victim was a physically handicapped woman who was raped and sodomized at knife-point after informing Petitioner about her disability. The victim in the assault with a deadly weapon was the sister of Petitioner’s friend, who he hit over the head with a vase and followed up by making unwanted and forceful sexual advances.

The Court is not persuaded that the additional mitigation evidence could have either encouraged sympathy for Petitioner sufficient to sway the jury, nor could it have diminished the aggravating evidence presented by the prosecution. In

Wig

*1134

gins,

the Supreme Court agreed that trial counsel’s performance was prejudicially deficient, noting that not only did counsel fail to present mitigating evidence during the penalty phase, but emphasized that the petitioner in that case did not “have a record of violent conduct that could have been introduced by the state to offset this powerful mitigating narrative.”

Id.,

539 U.S. at 537 , 123 S.Ct. 2527 . In contrast, Petitioner had a substantial record of criminal conduct, including multiple instances of violent conduct against women occurring years before the two brutal murders for which he stood trial, as Petitioner had been previously convicted of multiple felonies, including several burglaries, a sexual assault, and another assault with a sexual component.

Additionally, unlike in

Wiggins ,

Petitioner’s attorneys did present some social history during the penalty phase, through the testimony of his mother and sisters, including Petitioner’s artistic abilities, and testimony of correctional officers on his productive and dependable work habits in prison jobs.

Wiggins,

539 U.S. at 515 , 123 S.Ct. 2527 (counsel introduced evidence that someone other than the defendant committed the murder and talked of introducing information on the petitioner’s background during opening statements to the jury, but provided “no evidence of Wiggins’ life history” at the penalty phase).

Finally, the jury deliberations in Petitioner’s case stand in stark contrast to numerous other capital cases reviewed by the Ninth Circuit, where that Court used lengthy deliberations as a factor in determining whether the introduction of mitigating evidence could have swayed the jury’s verdict. In remanding another capital case for an evidentiary hearing, the Ninth Circuit held that not only did trial counsel fail to investigate and present the petitioner’s social and mental health history to the jury, but specifically noted as evidence of prejudice that “several jurors had voted for life on the first vote” and the jury sent a question to the trial court on the meaning of life without parole prior.

Stankemtz v. Woodford,

365 F.3d 706, 724-25 (9th Cir.2004). In

Silva v. Wood-ford,

the Court noted the jury sent multiple notes to the trial court during their deliberations and one juror later recalled that some jurors had initially leaned towards a sentence of life without the possibility of parole, which the Ninth Circuit used as evidence that the case was close and petitioner was prejudiced by trial counsel’s failure to investigate and present mitigating evidence.

Silva,

279 F.3d 825, 849-50 (9th Cir.2002).

In

Karis v. Calderon,

the Ninth Circuit found that counsel rendered deficient performance that warranted habeas relief where the defendant’s trial attorney failed to present mitigating evidence of substantial childhood abuse, instead basing his penalty phase presentation almost solely on the defendant’s artistic ability and academic potential when faced with evidence in aggravation that included multiple past rapes and the double murder for which he was sentenced to death.

Karis,

283 F.3d at 1139-40 . The Ninth Circuit emphasized as “noteworthy that even with the weak mitigation evidence that was presented, the jury was out for three days before rendering its verdict” in finding a reasonable probability that the introduction of the evidence of child abuse would have produced a different result, and granted that petition.

Id.

at 1140-41 .

Conversely, in Petitioner’s case, after the conclusion of the guilt phase, the jury reached a guilty verdict after less than forty-five minutes of deliberations. Moreover, the jury determined that Petitioner’s case warranted a verdict of death after less than an hour and a half of penalty

*1135

phase deliberations. Thus, the jury’s sum total of deliberations at guilt and penalty phase was approximately two hours. Petitioner’s jury did not engage in any extensive deliberations prior to the penalty phase verdict, which leads the Court to surmise that, unlike in

Silva ,

Petitioner’s jury considered the death penalty “a foregone conclusion.”

Silva ,

279 F.Bd at 849-50. Even if the jury been presented with the mitigation evidence regarding Petitioner’s background and upbringing, the Court is not convinced there is a reasonable probability that one of the jurors would have struck a different balance between life and death.

See Wiggins,

539 U.S. at 535 , 123 S.Ct. 2527 . The state supreme court’s similar conclusion was not objectively unreasonable.

In sum, the Court holds that the California Supreme Court’s adjudication of the penalty phase aspect of Petitioner’s ineffective assistance of counsel claim did not involve an unreasonable application of federal law, nor was it based on an unreasonable determination of the facts.

Williams,

529 U.S. at 412-13, 120 S.Ct. 1495 . In sum, the Court finds Petitioner is not entitled to habeas relief on the entirety of claim 1.

D.

Evidentiary Hearing

The Ninth Circuit has held that when presented with a motion for an evidentiary hearing, a district court “must determine whether a factual basis exists in the record to support the petitioner’s claim.”

Baja v. Ducharme,

187 F.3d 1075, 1078 (9th Cir.1999). Generally, a petitioner is entitled to an evidentiary hearing if he or she is able to establish a colorable claim for relief, did not fail to develop the facts surrounding his or her claim, and was never given a state hearing on the claim.

Insyxiengmay,

403 F.3d at 670 (quoting

Baja,

187 F.3d at 1078 ). To establish a colorable claim, Petitioner is “required to allege specific facts which, if true, would entitle him to relief.”

Ortiz v. Stewart,

149 F.3d 923, 934 (9th Cir.1998).

As Mr. Marrinan concedes that counsel did not have a tactical reason for failing to investigate and present the mitigation evidence, Petitioner does not warrant an evidentiary hearing on the performance prong.

See Hendricks v. Vasquez,

974 F.2d 1099, 1109 (9th Cir.1992) (an evidentiary hearing is appropriate where it is not possible to determine whether trial counsel’s failure to investigate was a strategic decision). The Court must therefore determine whether an evidentiary hearing is warranted on the prejudice prong of claim 1. As the Court held there was no failure to develop the claim in state court, and Petitioner was never afforded an evidentiary hearing in state court, the Court “must consider whether such a hearing could enable an applicant to prove the petition’s factual allegations, which, if true, would entitle the applicant to federal habeas relief.”

Landrigan,

550 U.S. 465 , 127 S.Ct. at 1940 , 167 L.Ed.2d 836 .

In a case where a petitioner had not received an evidentiary hearing in state court, and the federal court affirmed the denial of relief on procedural grounds, the Ninth Circuit stated because the claim had not been fully litigated on the merits, that:

[w]ithout the benefit of an evidentiary hearing, it is impossible to evaluate the strength of Hoffman’s defense at trial and sentencing. Therefore, we cannot conclude as a matter of law that there is no reasonable possibility that offering expert testimony and a thorough history of Hoffman’s educational, medical, and psychological problems at the time of the murder might have reduced the likelihood that the death penalty would have been imposed. We therefore remand for an evidentiary hearing to develop a factual record regarding Hoffman’s inef

*1136

fective assistance of counsel claims, (citations omitted)

Hoffman v. Arave,

236 F.3d 523, 536 (9th Cir.2001).

Here, the Court has engaged in an extensive review of the merits of Petitioner’s claim based on the briefs and exhibits, heard from both parties at oral arguments and concludes that there is no reasonable probability that, provided with the mitigation evidence now presented to the Court, the jury could have arrived at a different result.

See Wiggins,

539 U.S. at 535 , 123 S.Ct. 2527 . As Petitioner has not demonstrated that these allegations, if true, would entitle him to habeas relief, an evidentiary hearing on this claim is not warranted.

See United States v. Birtle,

792 F.2d 846, 849 (9th Cir.1986) (an evidentiary hearing is not required if the “motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”)

2.

Claim 2

— Excusal

of Jurors Who Did Not Favor Capital Punishment

Claim 2 alleges that the trial court’s improper dismissal for cause of five prospective jurors (Francis Pilkington, Vincent Guerrero, Zina Hines, John Speights, and Larry Logan) who had reservations about the death penalty violated his right to a fair and impartial jury under the Sixth and Fourteenth Amendments. (Pet. at 78-84.)

A.

State Supreme Court Ruling

The California Supreme Court considered and rejected this claim on direct appeal, ruling as follows:

With regard to defendant’s claim that the trial court erred in excusing for cause prospective jurors who exhibited anti-death-penalty views, the standard governing our review of such a claim is whether exclusion was necessary because the juror’s views concerning capital punishment would “ ‘prevent or substantially impair the performance of his [or her] duties as a juror ....’”

(Wainwright v. Witt

(1985) 469 U.S. 412, 424 [ 105 S.Ct. 844, 852 , 83 L.Ed.2d 841 ];

People v. Wash

(1993) 6 Cal.4th 215, 254 [ 24 Cal.Rptr.2d 421 , 861 P.2d 1107 ].) When a juror’s views are conflicting or ambiguous, the trial court’s determination as to his or her state of mind generally is binding on a reviewing court. When there is no inconsistency, but simply a question whether the juror’s responses demonstrated a bias for or against the death penalty, the trial court’s judgment will not be set aside if supported by substantial evidence.

(People v. Wash, supra,

6 Cal.4th at p. 254, 24 Cal.Rptr.2d 421 , 861 P.2d 1107 ;

People v. Cooper

(1991) 53 Cal.3d 771, 809 [ 281 Cal.Rptr. 90 , 809 P.2d 865 ].) We conclude the record supports the trial court’s determination that each of the prospective jurors in question (Francis Pilkington, Vincent Guerrero, Zina Hines, John Speights, and Larry Logan) harbored views unfavorable toward the death penalty that substantially impaired their ability to sit as jurors. Although Pilkington stated he did not believe he would vote automatically against the death penalty, upon further questioning he stated variously that he would be “unwilling to send anyone to death,” and “would be very reluctant to vote for the death penalty in certain terms.” Vincent Guerrero indicated that he “generally” did not believe in the death penalty, although it probably was necessary and appropriate for certain crimes. He volunteered that he had refused to undergo a physical examination required for military service during the Korean War, in part because he did not want to kill anyone, and that he did not “really believe someone should be killed or executed,” although there might be appro

*1137

priate circumstances. Guerrero also disclosed that his son had die d of kidney failure one year earlier, a circumstance that might make it difficult for him to render a verdict of death, and confirmed that the prosecution might not have a “fair shot” with him.

Zina Hines stated she did not believe she should be required to choose between life imprisonment and death because “I don’t ... have that right.” Although when asked by defense counsel whether she would vote automatically for a life sentence she responded “No,” that she would “go by the law,” and that she would keep an open mind, she reiterated upon questioning by the prosecution that she was against the death penalty because she felt no one had the right to take another person’s life, and admitted she did not want to be in that position. Excusing the juror, the trial court observed, “She was almost categorically disqualified from her initial answers, but there was a little glimmer of light, so that I let defense counsel rehabilitate her to some extent. [11] But the net picture from her demeanor, as well as her words, is that she would find it nearly impossible to conceive of imposing the death penalty on someone.”

When questioned during the death qualification portion of the voir dire, John Speights stated his personal belief that the death penalty was “inherently wrong,” and that although he felt he could follow the law in determining the penalty, he was not certain he could do so. He also stated if he were on the jury and a verdict of death were returned, he did not know whether he could face defendant when the jury was polled to confirm that he had voted for death. The trial court denied the prosecution’s challenge for cause at this point, stating that the juror had exhibited a reluctance to make difficult decisions rather than an opposition to the death penalty.

When examined again during general voir dire, however, Speights indicated that upon further reflection since his earlier questioning, he had become “really nervous about the death penalty issue” and did not believe he could set aside his personal views on the death penalty. In excusing Speights for cause, the court noted its view that the basis for doing so was “compelling now that there is substantial impairment, in view of his agonizing over it.”

Larry Logan stated that “in most places I think I would not vote [for the] death penalty,” and when asked whether there could be a case that was so overwhelming against a defendant that he would be able to vote for death, he stated that it was possible, but that “I don’t think that I-I would say no.”

For the foregoing reasons, there is no merit in defendant’s claim that he was denied a fair and impartial jury as a result of the jury-selection process.

Samayoa,

15 Cal.4th at 821-824 , 64 Cal.Rptr.2d 400 , 938 P.2d 2 .

Petitioner also raised allegations of trial court error in granting challenges for cause against these five prospective jurors as part of a broad trial court error claim, numbered as claim X, in the first state habeas petition. The California Supreme Court denied this claim, stating in full:

Claim X is denied on the merits, and except to the extent it asserts ineffective assistance of trial counsel, and except to the extent it asserts that the trial court erred in failing to grant a continuance, it is also denied under

Waltreus, supra,

62

*1138

Cal.2d 218, 225, 42 Cal.Rptr. 9 , 397 P.2d 1001 .

(Doc. No. 69; Lodgment No. 4.)

B.

Procedural Bar

As discussed above in Section III, supra,

Waltreus

does not bar federal review of this claim.

C.

Discussion

The United States Supreme Court has held that a sentence of death cannot be upheld if the jury that imposed or recommended it excluded prospective venirepersons who expressed opinions against the death penalty, but remain willing to follow the law as instructed by the trial court.

Witherspoon v. Illinois,

391 U.S. 510, 522-23 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968). In 1980, the Supreme Court additionally held that “a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.”

Adams v. Texas,

448 U.S. 38, 45 , 100 S.Ct. 2521 , 65 L.Ed.2d 581 (1980). The Court later affirmed that the

Adams

standard was the proper standard by which to evaluate allegations of improper exclusion of prospective jurors.

Wainwright v. Witt,

469 U.S. 412, 423 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985).

Appellate review of a trial court’s decision regarding issues arising from juror voir dire is obligatorily deferential, as a “reviewing court, which analyzes only the transcripts from voir dire, is not as well-positioned as the trial court to make credibility determinations.”

Miller-El v. Cockrell,

537 U.S. 322, 339 , 123 S.Ct. 1029 , 154 L.Ed.2d 931 (2003). In the instant claim, Petitioner contends that the trial court improperly dismissed five prospective jurors for cause due to their views on capital punishment, alleging that although these individuals disfavored the death penalty, none held views that would have substantially impaired their ability to serve as jurors in Petitioner’s case. (Pet. at 78.) To succeed on the merits, Petitioner must demonstrate that the state supreme court made an unreasonable determination of facts or applied the law in an unreasonable manner in rejecting this claim on appeal.

Williams,

529 U.S. at 412-13, 120 S.Ct. 1495 .

Throughout his juror interview, Francis Pilkington repeatedly stated that it “would be very difficult” and that he “would be very reluctant” to vote for the death penalty. (RT 1974-77.) Mr. Pilkington expressed serious concerns that a death penalty judgment was “so final and so ultimate,” and repeatedly expressed a concern that mistakes could occur. (RT 1978.) When the prosecutor asked Mr. Pilkington if the government had a fair shot in the juror’s mind to convince him that the offense deserved the death penalty, Mr. Pilkington replied, “Probably no. I don’t know.” (RT 1982.) Upon further questioning, Mr. Pilkington repeated again how reluctant he was to consider voting for a potential death sentence, and averred that he would “99.9 percent rather not” impose it.

(Id.)

Mr. Pilkington then twice stated

“I

would be unwilling to send anyone to death.” (RT 1982-83.) After argument by both counsel, the trial court found him substantially impaired, and allowed the challenge for cause. (RT 1984-85.)

Prospective juror Vincent Guerrero told the court and counsel that his vote would be determined by “the circumstances” of the case. (RT 2318.) Mr. Guerrero was asked if he would have the death penalty if he was in charge of his own state, to which he replied, “I would assume yes, I probably would ... because sometimes it is necessary to have the death penalty.” (RT 2320.) However, in his jury questionnaire,

*1139

counsel noted that Mr. Guerrero wrote he generally did not believe in the death penalty. (RT 2320-21.)

Mr. Guerrero stated that he had refused to take a physical during the Korean War because “I did not want to go and kill anyone,” and added that “I do not really believe someone should be killed or executed or whatever.” (RT 2322.) Mr. Guerrero then stated that he “did not want to be sitting on it [Petitioner’s trial]” and “I just don’t want to be responsible for whatever may happen.” (RT 2323.) When the prosecutor asked if he had a fair shot in convincing him to vote for the death penalty if it came to such a choice, Mr. Guerrero answered “No, you do not.” (RT 2324.) The prosecutor then asked if it would be “darn near impossible” to convince him that the crime deserved a vote for the death penalty, to which Mr. Guerrero responded, “I would assume so.”

(Id.)

After argument, the court dismissed Mr. Guerrero for cause “on the grounds of the juror’s written response to question no. 103, and also his overall pattern of answers and his demeanor and response to questions here in court.” (RT 2325-26.)

When the court asked prospective juror Zina Hines if she would refuse to consider life in prison as a potential punishment if defendant were found guilty, she replied, “No, I think I would take the option of life imprisonment. I don’t really believe in the death penalty.” (RT 2486.) Ms. Hines added, “I don’t feel I have the right to, you know, I don’t feel I have the right to take someone’s life or judge someone to take their life.”

(Id.)

When Ms. Hines was pressed on whether she would be able to vote for the death penalty, she repeated “I don’t think I would do it. I don’t — don’t have that right.” (RT 2487.)

However, Ms. Hines said she was willing to follow the law as instructed and was open to the possibility of considering imposing the death penalty. (RT 2490-91.) When the prosecutor asked additional questions, Ms. Hines admitted that although her personal feelings were against the death penalty, she would follow the law. (RT 2492.) The prosecutor then noted that in her questionnaire, she wrote, “I don’t feel they [the death penalty] should be used at all.” (RT 2493.) The court granted the prosecutor’s challenge for cause, concluding that “I believe that this is a case of substantial impairment in her ability to follow the law. She was almost categorically disqualified from her initial answers, but there was a little glimmer of light, so that I let defense counsel rehabilitate her to some extent... .But the net picture from her demeanor, as well as her words, is that she would find it nearly impossible to conceive of imposing the death penalty on someone.” (RT 2495.)

Prospective juror John Speights initially stated that “as far as the death penalty issue, I don’t know that I could stand in judgment of someone else in that case,” adding “[fit’s just I don’t feel that any human has the right to judge that someone else should be killed.” (RT 1412.) However, Mr. Speights then claimed he could do his duty as a juror and follow the law. (RT 1415.) Mr. Speights later assured the prosecutor that the government had a fair chance with him as a juror. (RT 1421.) The court denied the prosecution’s challenge for cause, stating “This is a man — I think his answers are explainable by his apparent reluctance to make hard decisions, but I don’t think that reluctance is tied to his opposition to the death penalty so much as it is a trait of character, and it is sort of a mirror image of one or two of the pro-death penalty people that we have left on earlier ...” (RT 1425.)

A few weeks later, Mr. Speights returned to state that “I am really nervous about this death penalty issue, and I am not so sure I can vote for it.” (RT 2790.)

*1140

Mr. Speights added that “before I was unsure, thinking that I probably could go ahead and vote that way, and just over the last two weeks I guess I’ve thought about it a lot. It’s bothering me a lot, and-I just think now I am leaning more towards the other way; that I just — you know, I don’t think I could do it.” (RT 2801.) Mr. Speights also said his earlier opinion had not changed, “just my feelings about whether or not I could vote that way.” (RT 2802.) When asked if he would refuse to follow the law regarding the imposition of the death penalty, Mr. Speights replied, “I don’t think I can answer that for sure one way or the other.” (RT 2803.) Defense counsel then inquired whether he could leave his mind open to the possibility of the death penalty, Mr. Speights initially wavered, but then answered, “I don’t think so.” (RT 2804.) After this inquiry, the court granted a challenge for cause, stating, “He was a marginal — a challenge was made and denied on the 15th, but I think the case is compelling now that there is substantial impairment, in view of his agonizing over it.” (RT 2805.)

Larry Logan informed the court, “[w]ell, that I have a little problem with, myself voting for death penalty. There may be some circumstances that I might vote for the death penalty, but I in most places I think I would not vote death penalty. Now, that’s the way I feel now.” (RT 2146.) Mr. Logan elaborated, stating, “[w]ell, I have problems with it. Well, personally I don’t think that life for life. I just don’t — I never have been able to be convinced that life for life is justifiable.”

(Id.)

Mr. Logan did concede that “[i]t might be some case that I might change that would — I would vote for death penalty. But now without hearing, though, I don’t think that I — I would say no.” (RT 2147.)

When asked if he could stay open to considering the death penalty as a potential punishment, Mr. Logan replied “Well, I think I’d leave my mind open but I — I’m still having reservations about the death penalty.” (RT 2148.) Mr. Logan then stated, “Yeah, I could deal with an open mind, but sitting here now, I’m just feeling that my mind would be practically made up without hearing the evidence,” and concluded that “I think I would vote to probably life without parole.” (RT 2152.) The trial court allowed the challenge for cause, and concluded that “[i]t was apparent from his demeanor that the very thought of imposing the death penalty was painful to him and I think his words confirmed that state of mind that he could not really visualize any state of facts that would warrant a penalty of anything other than life in prison without parole.” (RT 2155.)

The Supreme Court has stated that in conducting juror interviews,

[M]any veniremen simply cannot be asked enough questions to reach the point where their bias has been made “unmistakably clear”; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law. For reasons that will be developed more fully

infra,

this is why deference must be paid to the trial judge who sees and hears the juror.

Witt,

469 U.S. at 425-26 , 105 S.Ct. 844 (footnote omitted).

The Supreme Court has opined that a trial judge’s “power of observation often proves the most accurate means of ascertaining the truth.”

Id.

at 434, 105 S.Ct. 844 . Contrary to Petitioner’s assertions, the foregoing examination of the record

*1141

provides substantial support for the conclusions reached by both the trial court and the state supreme court in determining that these prospective jurors were “substantially impaired” in their ability to perform as jurors due to their views on the death penalty.

Id.

at 433, 105 S.Ct. 844 .

The California Supreme Court’s determination that the trial judge did not commit error in excusing the five prospective jurors was not contrary to or an unreasonable application of federal law, nor was it based on an unreasonable determination of the facts.

Williams,

529 U.S. at 412-13, 120 S.Ct. 1495 . Petitioner is not entitled to habeas relief on this claim.

3.

Claim 3

— Introduction

of Raymond Testimony During Penalty Phase

Claim 3 alleges that the admission of the preliminary hearing testimony of witness Berta Lou Raymond at the penalty phase violated Petitioner’s Sixth Amendment right to confront witnesses against him and Eighth Amendment right against cruel and unusual punishment. (Pet. at 94-101.)

A.

State Court Decision

The California Supreme Court considered and rejected this claim on direct appeal, reasoning as follows:

At the commencement of the penalty phase, the prosecution moved for admission of the 1976 preliminary hearing testimony or Berta Lou Raymond to prove the circumstances surrounding defendant’s 1976 conviction for rape and burglary, including the unadjudicated crime of sodomy.

FN10

At the time of the present trial, Raymond was deceased, and the prosecution sought to admit her preliminary hearing testimony on the ground she was unavailable as a witness under Evidence Code section 1291.

Defense counsel objected to the admission of Raymond’s prior testimony on the ground that such evidence was the equivalent of “conditional testimony” under Penal Code section 1335, and therefore was inadmissible in a capital case. He also argued that defendant’s objective in cross-examining Raymond at the preliminary hearing was dissimilar from his objective at the penalty phase of the trial in the present case, and therefore the preliminary hearing testimony was inadmissible under Evidence Code section 1291. The trial court overruled these defense objections, indicating the requisite reliability for the admission of hearsay evidence was present, and noting that at the preliminary hearing the victim had testified in open court under oath with knowledge that she was subject to prosecution for perjury and “subject to cross-examination by counsel who had every motive and inducement to break down her testimony or break her credibility.”

Defendant now contends the admission of Raymond’s preliminary hearing testimony violated Evidence Code section 1291, as well as his right of confrontation under the state and federal Constitutions.

Evidence Code section 1291, subdivision (a), provides: “Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶] ... [¶] (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.”

*1142

In

People v. Zapien,

supra, 4 Cal.4th 929, 975 , 17 Cal.Rptr.2d 122 , 846 P.2d 704 , this court recognized that the “[a]d-mission of the former testimony of an unavailable witness is permitted under Evidence Code section 1291 and does not offend the confrontation clauses of the federal or state Constitutions-not because the opportunity to cross-examine the witness at the preliminary hearing is considered an exact substitute for the right of confrontation at trial [citation], but because the interests of justice are deemed served by a balancing of the defendant’s right to effective cross-examination against the public’s interest in effective prosecution.” The court further determined that a defendant’s motive in cross-examining a witness at a preliminary hearing may differ somewhat from the motive at trial, but nevertheless the earlier testimony may be admissible at the trial under section 1291 because the “motives need not be identical, only ‘similar.’ ”

(People v. Zapien, supra, 4

Cal.4th at p. 975, 17 Cal.Rptr.2d 122 , 846 P.2d 704 , citing

People v. Alcala

(1992) 4 Cal.4th 742, 784 [ 15 Cal.Rptr.2d 432 , 842 P.2d 1192 ].) Following similar reasoning and principles, in

People v. Wharton

(1991) 53 Cal.3d 522 [ 280 Cal.Rptr. 631 , 809 P.2d 290 ] the court held the defendant’s interest and motive in cross-examining the alleged rape victim at the preliminary hearing in a prior unrelated criminal prosecution was sufficiently similar to the defendant’s interest and motive at the penalty phase of a subsequent capital trial to warrant the admission of the preliminary hearing testimony under Evidence Code section 1291. (53 Cal.3d at p. 589, 280 Cal.Rptr. 631 , 809 P.2d 290 .)

Defendant’s motive and interest in cross-examining Raymond at the 1976 preliminary hearing were closely similar to defendant’s objectives at the penalty phase of the trial in the present capital case-namely, to attempt to discredit the witness’s account of the crime and establish that the witness could not identify the person or persons who committed the rape and burglary, while at the same time, in light of the witness’s sympathetic circumstances, not offending or alienating the trier of fact by treating the witness harshly. The record indicates defense counsel at the preliminary hearing acted reasonably in light of these objectives, establishing that the witness was unable to see the face of the rapist and had only a general idea as to the rapist’s height and build.

Defendant argues that his motive and interest in cross-examining Raymond at the penalty phase of the present capital trial-namely, to elicit evidence of mitigating circumstances that would tend to diminish the aggravating nature of the crimes-was dissimilar from his motive and interest at the preliminary hearing in the rape and burglary prosecution. Defendant fails to suggest, however, the evidence that might have been elicited from Raymond (had she testified at the penalty phase of the present capital case) but was not elicited at the preliminary hearing, and that would have placed defendant’s conduct (raping and sodomizing a known multiple sclerosis victim) in a less aggravating light.

For all of these reasons, we conclude the trial court properly concluded that defendant’s “motive and interest” in cross-examining Raymond at the preliminary hearing and at the capital trial were sufficiently similar to satisfy the requirements of Evidence Code section 1291. Defendant additionally claims the admission of Raymond’s preliminary hearing testimony violated his federal constitutional right of confrontation because defense counsel rendered incompetent representation at the preliminary hearing by eliciting from the witness damaging

*1143

information instead of contesting the reliability of the witness’s perceptions (including the number of men who raped her). Defendant failed to raise this claim below, however, and accordingly has waived the claim on appeal. Moreover, as the court explained in

People v. Zapien, supra,

4 Cal.4th 929 , 17 Cal.Rptr.2d 122 , 846 P.2d 704 , as long as a defendant was provided the

opportunity

for cross-examination, the admission of preliminary hearing testimony under Evidence Code section 1291 does not offend the confrontation clause of the federal Constitution simply because the defendant did not conduct a particular form of cross-examination that in hindsight might have been more effective. (See

People v. Zapien, supra,

4 Cal.4th at p. 975, 17 Cal.Rptr.2d 122 , 846 P.2d 704 .)

Defendant further contends the presumption of reliability that normally is accorded preliminary hearing testimony

(California v. Green

(1970) 399 U.S. 149, 161-162 [ 90 S.Ct. 1930, 1936-1937 , 26 L.Ed.2d 489 ]) should not apply in the present case, because Raymond’s testimony was demonstrated to be in fact unreliable in light of the penalty phase testimony of David Anderson relating that he and the third burglar also had raped the victim.

In

California v. Green, supra,

399 U.S. 149 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 , however, the United States Supreme Court made clear that when a defendant has had an opportunity to cross-examine a witness at the time of his or her prior testimony, that testimony is deemed sufficiently reliable to satisfy the confrontation requirement

(id.

at pp. 166-167 [90 S.Ct. at pp.1939-1940]), regardless whether subsequent circumstances bring into question the accuracy or the completeness of the earlier testimony.

(Id.

at p. 167, fn. 16 [ 90 S.Ct. at p. 1940 ].) “[T]he ‘reliability’ of the statement is based on the circumstances under which it was given ....”

(Ibid.)

Finally, we reject defendant’s contention that the admission of the preliminary hearing testimony was the equivalent of the admission of deposition testimony given at a “conditional examination” in violation of section 1335, which authorizes the People in noncapital cases to have witnesses conditionally examined.

FN11

The preliminary hearing at which Raymond testified was not a conditional examination within the meaning of section 1335, and that statute therefore has no application to the present case.

Samayoa,

15 Cal.4th at 849-852 , 64 Cal.Rptr.2d 400 , 938 P.2d 2 .

B.

Exhaustion

Petitioner argues the preliminary hearing testimony should not have been read to the jury because “capital sentencing procedures require a far greater degree of reliability and scrutiny than non-capital cases” and Petitioner’s conviction and sentence are therefore in violation of the Eighth Amendment. (Pet. at 101.) Respondent contends the Eighth Amendment aspect of the claim is unexhausted but the claim should nonetheless be denied on the merits. (Ans. at 42.) Petitioner maintains “[t]here is but one issue; whether the intent and motivation for cross-examination at a preliminary hearing that had absolutely nothing to do with penalty, let alone the imposition of the death penalty under the specific statutory formula of

*1144

California, was the same as petitioner’s motive and intent at the penalty phase of his death penalty trial that took place 12 years later.” (Traverse at 34.)

In order to satisfy the exhaustion requirement, a petitioner must first provide the state courts with a “ ‘fair opportunity’ to apply controlling legal principles to the facts bearing upon his [or her] constitutional claim.”

Anderson v. Harless,

459 U.S. 4, 6 , 103 S.Ct. 276 , 74 L.Ed.2d 3 (1982) (quoting

Picard v. Connor,

404 U.S. 270, 276-77 , 92 S.Ct. 509 , 30 L.Ed.2d 438 (1971)). Upon review, the Court finds that Petitioner did raise the Eighth Amendment aspect of the claim in the California Supreme Court. On direct appeal to the California Supreme Court, Petitioner’s claim included the assertion that “[t]he trial court’s refusal to exclude the Raymond transcript eviscerated appellant’s rights to confrontation, due process, and to a reliable sentencing determination.” (Appellant’s Opening Brief on Direct Appeal [“AOB”] at 137.) Earlier in the direct appeal, Petitioner specifically asserted that the “[a]dmission of the prior testimony violated the Eighth Amendment mandate of heightened reliability in capital judgments.”

(Id.

at 126.) In the heading to that same claim, Petitioner asserted “The Use Of The Preliminary Hearing Testimony To Prove The Prior Charged Crimes And The Uncharged Sodomy Denied Appellant His Federal Due Process, Confrontation, And Eighth Amendment Rights Because The Evidence Was Shown To Be Actually Unreliable.”

(Id.)

The exhaustion requirement is satisfied once the “substance of the claim has been fairly presented” to the state’s highest court.

Duncan v. Henry,

513 U.S. 364, 367 , 115 S.Ct. 887 , 130 L.Ed.2d 865 (1995);

Vasquez v. Hillery,

474 U.S. 254, 257 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986). A petitioner can develop additional facts supporting a particular claim on federal habeas as long as the factual and legal basis of that claim was previously presented to the state court.

Moormann v. Schriro,

426 F.3d 1044, 1056 (9th Cir.2005). Although the Confrontation Clause was undoubtedly the centerpiece of Petitioner’s argument to the state court, the Eighth Amendment aspect was fairly presented to the California Supreme Court. Thus, the Court rejects Respondent’s exhaustion argument.

C.

Merits

The Confrontation Clause of the Sixth Amendment provides that in criminal cases the accused has the right to “be confronted with witnesses against him.” U.S. Const, amend. VI. The right to confrontation applies to the states through the Fourteenth Amendment.

See Pointer v. Texas,

380 U.S. 400, 403 , 85 S.Ct. 1065 , 13 L.Ed.2d 923 (1965). The ultimate aim of the Confrontation Clause is to ensure the reliability of evidence, but the guarantee is procedural rather than substantive and therefore dictates not that evidence be reliable, but that reliability is assessed by the mechanism of cross-examination.

See Crawford v. Washington,

541 U.S. 36, 61 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004);

see also Davis v. Alaska,

415 U.S. 308, 315 , 94 S.Ct. 1105 , 39 L.Ed.2d 347 (1974).

Pursuant to

Crawford ,

“[tjestimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.”

Id.,

541 U.S. at 59 , 124 S.Ct. 1354 . A defendant’s opportunity to cross-examine a witness is satisfied when the cross-examination occurs under circumstances “closely approximating those that surround a typical trial.”

California v. Green,

399 U.S. 149, 165 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 (1970).

*1145

In the instant claim, Petitioner concedes that Raymond was unavailable to testify during the penalty phase of his trial (she was deceased) and acknowledges that defense counsel did have a prior opportunity to cross-examine the witness at the preliminary hearing. Petitioner’s only assertion is that the prior opportunity was insufficient because defense counsel did not have a similar motive to cross-examine witness Raymond at the preliminary hearing on the rape charge in 1976 as he did during the penalty phase of a capital murder trial in 1988, and the trial court’s admission of the preliminary hearing testimony violated Petitioner’s constitutional rights. (Pet. at 97.)

The California Evidence Code, section 1291, provides “(a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and ... (2)[t]he party against whom the testimony is offered ... had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.”

However, “similar motive” is a state evidentiary requirement, and not a requirement under the Confrontation Clause. The Supreme Court has refrained from conducting any similar motive inquiry in their Sixth Amendment cases, and Petitioner has not directed the Court’s attention to any clearly established federal law that supports his position.

See Green,

399 U.S. 149 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 :

see also Barber v. Page,

390 U.S. 719, 725-26 , 88 S.Ct. 1318 , 20 L.Ed.2d 255 (1968). The Supreme Court has held that a witness’ prior testimony is properly admitted at a criminal trial when the prosecutor is not at fault for the witness’ unavailability and the prior proceedings are not “significantly different from an actual trial to warrant distinguishing the two cases for purposes of the Confrontation Clause.”

Green,

399 U.S. at 165 , 90 S.Ct. 1930 .

As cited approvingly in

Green ,

Raymond’s statement at the preliminary hearing had already been given under circumstances closely approximating those that surround the typical trial. For instance, Raymond was under oath during the proceedings, Petitioner was represented by counsel and had every opportunity to cross-examine Raymond as to her statement. Moreover, the preliminary hearing was conducted before a judge, and in surroundings that were equipped to provide a judicial record of the proceedings.

See id.

at 165 , 90 S.Ct. 1930 .

In support of the Eighth Amendment argument, Petitioner cites to

Gilmore v. Taylor,

508 U.S. 333 , 113 S.Ct. 2112 , 124 L.Ed.2d 306 (1993) and

Herrera v. Collins,

506 U.S. 390 , 113 S.Ct. 853 , 122 L.Ed.2d 203 (1993). However, neither case supports Petitioner’s assertion that the trial court’s admission of the Raymond preliminary hearing violated his constitutional rights because capital cases require a higher degree of reliability. In

Gilmore ,

the Supreme Court did generally note that “the Eighth Amendment requires a greater degree of accuracy and factfinding than would be true in a non-capital case,” but the Court never ruled the admission of preliminary hearing testimony in a capital penalty phase, such is at issue here, amounted to a constitutional violation.

See id.,

508 U.S. at 342 , 113 S.Ct. 2112 ;

see also Herrera,

506 U.S. at 399 , 113 S.Ct. 853 . Petitioner has failed to cite any clearly established Supreme Court precedent that supports the claim he advances here, and the claim fails on the merits.

Federal district court review of Petitioner’s claim is limited to an examination of whether the state court’s adjudication of the claim was contrary to, or an unreasonable application of, clearly established federal law.

Williams,

529 U.S. at 412-13, 120 S.Ct. 1495 . Petitioner has failed to

*1146

demonstrate the state supreme court was objectively unreasonable in rejecting this claim on appeal. Petitioner does not warrant habeas relief on claim 3.

4.

Claim 4

— Exculpatory

Evidence on Credibility of Government Witness

Petitioner alleges that the government violated his rights to a fair trial and protection from cruel and unusual punishment by failing to disclose material exculpatory evidence concerning the credibility of a penalty phase prosecution witness. (Pet. at 102-04.)

A.

California Supreme Court Decision

Petitioner presented this claim to the state court as Claim I of his Second Petition for Writ of Habeas Corpus. The California Supreme Court considered and rejected this claim, stating in full:

Claim I is denied on the merits.

(Doc. No 69; Lodgment 1.)

B.

Merits

In

Brady v. Maryland,

373 U.S. 83 , 83 5.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that the government must disclose all material evidence that is favorable to the defendant. A successful

Brady

claim requires three findings: (1) the prosecution suppressed evidence, (2) the evidence was favorable to the accused; and (3) the evidence was material to the issue of guilt or punishment.

Id.,

373 U.S. at 87 , 83 S.Ct. 1194 . Full compliance with

Brady

includes the disclosure of “evidence that the defense might have used to impeach the Government’s witnesses by showing bias or interest.”

United States v. Bagley,

473 U.S. 667, 676 , 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985). Evidence is material if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”

Kyles v. Whitley,

514 U.S. 419, 434 , 115 S.Ct. 1555 , 131 L.Ed.2d 490 (1995). A “reasonable probability” is demonstrated when the failure to disclose evidence “undermines confidence in the outcome of the trial.”

Id.

(quoting

Bagley,

473 U.S. at 678 , 105 S.Ct. 3375 ).

Petitioner alleges his rights were violated by the prosecution’s failure to disclose the fact that penalty phase witness James “Cowboy” Anderson had once been an informant for Detective Jordan. (Pet. at 102.) Mr. Anderson was a co-defendant in the Berta Lou Raymond rape and burglary case, which was used as an aggravating factor in the penalty phase of Petitioner’s trial. Anderson testified at the penalty phase of Petitioner’s trial, stating that he pled guilty to the burglary of the home of Berta Lou Raymond. (RT 4745.) Anderson also testified as to the details of Petitioner’s rape of Mrs. Raymond. (RT 4737.) During his penalty phase testimony, Anderson admitted, for the first time, that he had also raped Mrs. Raymond during the burglary but had previously blamed everything on Petitioner to avoid prosecution for rape. (RT 4754-55, 4758.)

A letter from trial prosecutor Jeff Dusek to current counsel Glen Niemy, dated October 15, 2003, states that Dusek “was unable to locate any information that James ‘Cowboy’ Anderson was an informant.” (Ex. B-l to Pet.) Detective Ronald Jordan, one of the lead investigators on Petitioner’s case, signed a declaration dated January 27, 2002, stating, “Richard always left clues or a trademark that would connect him to a crime. He was arrested for the rape of a woman in a wheelchair. One of the other defendants on the case was an informant of mine. His nickname was ‘Cowboy.’ When Cowboy got on the witness stand at trial, we discovered that he had been involved in the rape with Richard. We did not know this until Cowboy testified.” (Ex. B-2 to Pet.) Hand

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written onto the Jordan declaration were several additional phrases, stating, “Told me he was involved in the break in. Did not admit to also raping the victim until he testified at trial.”

(Id.)

Federal habeas counsel Glen Niemy’s declaration stated that it was through his investigator’s interview of Detective Jordan that Anderson’s status as an informant was revealed; Niemy also asserted there were no indications that defense counsel at trial knew the information. (Ex. EM to Pet.) Both of Petitioner’s defense counsel at trial, Michael Marrinan and Michael Popkins, signed declarations in which each attorney avers that “[a]t no time was I informed by any representative of the government (prosecution, police or otherwise) that Mr. Anderson had served as an informant for Detective Jordan.” (Exs. B-5, B-6 to Pet.)

The Supreme Court and Ninth Circuits have long held the informant status of a government witness falls within the scope of

Brady. See Banks v. Dretke,

540 U.S. 668 , 124 S.Ct. 1256 , 157 L.Ed.2d 1166 (2004);

Bagley v. Lumpkin,

798 F.2d 1297 (9th Cir.1986);

Singh v. Prunty,

142 F.3d 1157, 1164 (9th Cir.1998). The Supreme Court explained that when a witness’ testimony is central to the government’s case, their credibility is an “important issue in the case.”

Giglio v. United States,

405 U.S. 150, 155 , 92 S.Ct. 763 , 31 L.Ed.2d 104 (1972). Respondent argues that Anderson appears to have been an informant in 1975, at the time of the rape case against Petitioner, and Anderson’s testimony at Petitioner’s penalty phase was in 1988. (Ans. at 52.) Although Respondent evidently concedes Anderson’s status as an informant was suppressed from trial counsel, he asserts “[t]he fact that Anderson had been a police informant was not favorable or material because it has been so long ago that it was meaningless.”

(Id.)

Respondent also maintains that Anderson’s testimony was unnecessary to convince the jury that Petitioner raped Mrs. Raymond, further negating the materiality of his informant status.

(Id.)

The materiality of Anderson’s testimony runs in contrast to a situation in which the “government’s case rested solely on the credibility” of the two witnesses at issue in the

Brady

claim.

Bagley,

798 F.2d at 1301 . Anderson’s testimony was merely cumulative to proving the prior felony conviction. The Raymond preliminary hearing testimony on the rape and burglary, coupled with the defendant’s plea of guilt to the crimes, were certainly sufficient evidence to establish the truth of that prior conviction as an aggravating factor.

Furthermore, in a penalty phase closing argument that spanned twenty-five transcript pages, the prosecutor made only a few brief mentions of Anderson. After reciting a list of prior crimes committed by Petitioner, the prosecutor stated that Anderson “says that Mr. Samayoa needed some money to pay a fine from one of his earlier convictions,” which was the motivation behind the burglary of Mrs. Raymond’s home. (RT 5002.) The prosecutor additionally stated that Anderson testified “he [Petitioner] was going in there to rape somebody.” (RT 5003.)

The prosecution’s penalty phase presentation focused largely on the circumstances of the crimes, Petitioner’s prior felony convictions, and other criminal activity. The rape and burglary convictions were part of the case, but Anderson cannot be considered a crucial penalty phase witness. The prosecutor’s arguments centered on the multiple murder circumstances of the crime as well as the death of a young child. (RT 4993-94.) The prosecution also asserted that “we are certain who killed these two people,” and “we know we have the right person, because he [Petitioner] told us.” (RT 4996-97.) The 1976 burgla

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ry and rape convictions were only one of three prior crimes resulting in convictions that the prosecution introduced during the penalty phase, in addition to the introduction of other evidence of criminal activity involving the use of force or violence.

The evidence that Anderson was a prior informant for Detective Jordan was not material, as his testimony was in no way “crucial to the prosecution.”

Banks,

540 U.S. at 700 , 124 S.Ct. 1256 . Even without the evidence of Anderson’s informant status, there was ample impeachment evidence against Anderson presented at trial. Moreover, the aggravating evidence against Petitioner at the penalty phase was overwhelming. Even without Anderson’s testimony there does not exist a reasonable probability of a more favorable outcome. The Supreme Court has explained “[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.”

Kyles,

514 U.S. at 434 , 115 S.Ct. 1555 . Ultimately, Petitioner presents the Court with no evidence that he was deprived of a fair trial. Moreover, Petitioner has failed to present any argument or citation to authority that supports his allegation of an Eighth Amendment violation due to the suppression of Anderson’s status as an informant, and the Court also rejects this aspect of his claim. Petitioner is not entitled to habeas relief on claim 4.

C.

Evidentiary Hearing

In the instant case, Petitioner has not provided the Court with sufficient factual support for his conclusion that the evidence suppressed was material to the penalty phase determination in his case. The Ninth Circuit has previously noted that a habeas petitioner “is expected to state facts that point to a real possibility of constitutional error.”

Wacht v. Cardwell,

604 F.2d 1245, 1247 (9th Cir.1979) (quoting

Blackledge v. Allison,

431 U.S. 63 , 75 n. 7, 97 S.Ct. 1621 , 52 L.Ed.2d 136 (1977)).

Petitioner has failed to establish that Anderson’s prior status as a police informant was material to the outcome of his penalty phase proceeding. Anderson was merely a cumulative witness to the rape conviction aggravating factor. In addition, the aggravating factors presented in the penalty phase significantly outweighed the mitigation offered, and potential impeachment of Anderson on his informant status could not “reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”

Kyles,

514 U.S. at 435 , 115 S.Ct. 1555 .

A petitioner is entitled to an evidentiary hearing if he is able to establish a color-able claim for relief, did not fail to develop the facts surrounding his claim, and was never given a state hearing on the claim.

Insyxiengmay,

403 F.3d at 670 (quoting

Baja,

187 F.3d at 1078 ). To establish a colorable claim, Petitioner is “required to allege specific facts which, if true, would entitle him to relief.”

Ortiz,

149 F.3d at 934 . As to the instant claim, Petitioner is unable to establish a colorable claim for relief. Accordingly, Petitioner is not entitled to an evidentiary hearing on this claim.

5.

Claim 5

— Refusal

to Permit Cross-Examination and Denial of Pitchess Motion

Petitioner claims the trial court’s refusal to allow him to cross-examine the interrogating detectives with past instances of dishonest or unprofessional behavior violated the confrontation clause of the Sixth Amendment as well as his rights under the Eighth Amendment. (Pet. at 105-110.) Petitioner also claims the trial court’s denial of his

Pitchess

motion violated his federal constitutional rights, including those

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guaranteed by the Confrontation Clause. (Pet. at 110.)

A.

State Court Decision

This claim was raised and rejected on direct appeal, with the California Supreme Court opining as follows:

Defendant challenges as error the trial court’s refusal to disclose the personnel files of Officers Jordan and Padillo and the restriction of counsel’s cross-examination of these officers regarding complaints and disciplinary actions taken against them, asserting a violation of his right of confrontation, among other rights guaranteed by the federal Constitution. As we shall explain, following our independent examination of the personnel files in question, we conclude defendant’s claims have no merit.

On November 7,1986, in municipal court proceedings in the present case, the defense filed a motion for the discovery of the personnel files of Officers Jordan and Padillo pursuant to

Pitchess v. Superior Court

(1974) 11 Cal.3d 531 [ 113 Cal.Rptr. 897 , 522 P.2d 305 ] (see Evid. Code, § 1043),

FN5

based upon a newspaper article reporting incidents of misconduct involving these officers. According to the article, the asserted misconduct resulted in the officers’ transfer out of the homicide unit of their department. Allegedly, the officers were reprimanded after they voluntarily gave up their seats on an overbooked airline flight in exchange for air travel coupons. The article also indicated that Officer Jordan previously had been found to have coerced the confession of a juvenile, James M., in an unrelated homicide investigation. The defense sought access to the officers’ personnel files containing information pertaining to the officers’ history on the ground these records were relevant to the officers’ credibility and the determination as to whether defendant’s initial confession had been coerced.

Following an in camera review of the personnel files (Evid.Code, § 1045),

FN6

the magistrate ordered the release of a redacted copy of a complaint against Officer Jordan filed by a witness (a Mr. Legg) in another, unrelated homicide investigation. The magistrate ordered that all remaining materials be copied and sealed.

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In the superior court, before the case was assigned to the trial judge, defendant sought review of the magistrate’s ruling on the

Pitchess

motion by way of a motion to set aside the information pursuant to section 995. At the hearing on the motion, Officers Jordan and Padillo testified that they had been transferred out of the homicide unit following an incident involving their relinquishment of seats on an overbooked airline flight, acceptance of air travel coupons in exchange, and application for overtime pay for the additional time they were required to spend in the airport waiting for a later flight. Following the hearing, the assigned judge (the Honorable Raul Rosado) reviewed in camera the personnel files of each officer and determined that the files contained nothing relevant to the case, with the exception of the previously disclosed complaint of Mr. Legg. The court accordingly upheld the magistrate’s ruling on the

Pitchess

motion. The Court of Appeal subsequently denied defendant’s petition for writ of mandate, concluding there was no showing of an abuse of discretion with respect to the ruling on the

Pitchess

motion.

On January 28, 1988, defendant renewed his motion in the superior court, seeking the production of any documents contained in the San Die go Police Department personnel files of Officers Jordan and Padillo that pertained to instances of improper conduct involving these officers, including false arrest, illegal search and seizure, fabrication of charges or evidence, improper techniques employed in obtaining admissions and confessions, failure to give

Miranda

advisements, inadequate or improper Miranda advisements, the use of physical force or psychological coercion in obtaining statements or confessions, or improper tactics in making arrests or obtaining confessions.

FN7

In support of the motion, defense counsel submitted a declaration stating “upon information and belief’ that during their initial interrogation of defendant, Officers Jordan and Padillo lied to defendant, ignored his request for an attorney, and induced him to confess by telling him “that things would look better or go easier if he answered questions or admitted crimes.” Counsel also stated that defendant did not knowingly or intelligently waive his

Miranda

rights, and claimed that the files might contain information relevant to whether defendant had been coerced physically or psychologically to waive his rights and confess.

The trial judge (the Honorable Douglas R. Woodworth) conducted an in camera review of the officers’ complete personnel files. In the course of its review (attended by a deputy city attorney), the court noted on the record the previous disclosure of the airline coupon incident. The deputy city attorney disclosed that one of the officers had been accused of the theft of a “scanner” from a suspect during an arrest. The court ultimately concluded that nothing in the personnel files was relevant to the case, stating: “If something were remotely relevant, it is certainly of such trivial significance as to be outweighed by the privilege, the

*1151

confidentiality attaching to those personnel records.”

Trial courts are granted wide discretion when ruling on motions to discover police officer personnel records.

(People v. Memro

(1995) 11 Cal.4th 786, 832 [ 47 Cal.Rptr.2d 219 , 905 P.2d 1305 ].) Here, defense counsel did not allege that Officers Jordan or Padillo fabricated charges against defendant, committed violence against him, or obtained evidence against him by false arrest or by illegal search and seizure. Our independent in camera review of the sealed personnel files-including the “James M. incident,” referred to ante, page 825, 47 Cal.Rptr.2d 219 , 905 P.2d 1305reveals no materials so clearly pertinent to the issues raised by the

Pitchess

discovery motion that failure to disclose them was an abuse of

Pitchess

discretion. Accordingly, we conclude the trial court properly exercised its discretion in excluding from disclosure the personnel files of Officers Jordan and Padillo.

Defendant additionally complains the trial court improperly restricted his cross-examination of Officers Jordan and Padillo at trial regarding past incidents of misconduct.

On February 23, 1988, in the course of hearings on pretrial motions, the prosecution filed a motion

in limine

seeking to limit cross-examination (for impeachment purposes) of the police officers concerning past incidents of misconduct in unrelated cases. Defense counsel indicated his intention to file a written response to the motion. On March 7, 1988, the trial court made a

“provisional

ruling” for the guidance of counsel during jury voir dire, directing counsel not to mention “the prior unrelated disciplinary proceedings affecting the two officers,” remarking that the evidence “may very well not be allowable.” Because no ruling was actually made below, “no review can be conducted here.”

(People v. Rowland

(1992) 4 Cal.4th 238, 259 [ 14 Cal.Rptr.2d 377 , 841 P.2d 897 ];

People v. McPeters

(1992) 2 Cal.4th 1148, 1179 [ 9 Cal.Rptr.2d 834 , 832 P.2d 146 ] [“the absence of an adverse ruling precludes any appellate challenge”].)

Samayoa,

15 Cal.4th at 824-27 , 64 Cal.Rptr.2d 400 , 938 P.2d 2 .

B.

Merits

1.

Pitchess claim

Under California’s

Pitchess

procedure, a defendant has a right to discovery of police officer personnel records, specifically of complaints made against the officer.

See Pitchess v. Superior Court,

11 Cal.3d 531 , 113 Cal.Rptr. 897 , 522 P.2d 305 (1974). The

Pitchess

procedure has been codified.

See

CaLPenal Code § 832.7, 832.8; Cal. Evid.Code §§ 1043-1045. To avail himself of these records, a defendant must first make a request, including a description of the records sought and supported by affidavits showing good cause for the request.

See

Cal. Evid.Code § 1043. If such a showing is made, the trial court will conduct an in camera review of the records to determine their relevance to the current proceedings.

See

Cal. Evid.Code § 1045.

In the instant case, after detailing the numerous motions filed and hearings held at the trial court level regarding Petitioner’s attempts to gain access to the personnel files, the California Supreme Court held the trial court did not abuse its discretion in denying the

Pitchess

motion because their own review of the sealed documents “reveals no materials so clearly pertinent to the issues raised by the

Pitchess

discovery motion that failure to disclose them was an abuse of

Pitchess

discretion.”

Samayoa,

15 Cal.4th at 827 , 64 Cal.Rptr.2d 400 , 938 P.2d 2 .

Petitioner presently claims that the trial court and state supreme court erred in

*1152

refusing to allow defense counsel access to these files, contending that “the faulty investigative ‘techniques’ referred to at the hearing in trial court could well have entailed the illegal extracting of statements from defendants, the planting of evidence, the coercion of witnesses, or any other act or combination of acts that had the tendency to discredit their credibility before this jury. The problem with Jordan’s ‘attitude’ could have ranged from having unshined shoes to a gross disregard for due process of law.” (Traverse at 53.) Petitioner further avers that “this request [to review the personnel files] was not a wild goose chase. It was made in response to facts conceded by the state. Unless this Court orders that these personnel files be made available to petitioner, no one will ever know if there was additional evidence that could have been employed to reveal to the jury that these key witnesses were unreliable and not worthy of belief.”

(Id.

at 53-54.)

Petitioner has made no showing, and the Court finds no ground upon which to conclude that the state court fact-finding process was in any way defective.

See

28 U.S.C. 2254(d)(2);

see also Lockyer v. Andrade,

538 U.S. 63, 75 , 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003). Therefore, absent clear and convincing evidence to the contrary, the California Supreme Court’s determination of the facts is presumed correct.

See

28 U.S.C. § 2254 (e)(1) (“[A] determination of a factual issue made by a State court shall be presumed to be correct.”);

see also Parke v. Raley,

506 U.S. 20, 35-36 , 113 S.Ct. 517 , 121 L.Ed.2d 391 (1992);

Williams v. Rhoades,

354 F.3d 1101, 1106 (9th Cir.2004). In the instant claim, Petitioner offers mere speculation as to the content of the personnel files and conclusory allegations that the denial of counsel’s

Pitchess

motion amounts to a deprivation of his constitutional rights.

Taylor v. Maddox,

366 F.3d 992, 1010 (9th Cir.2004). Petitioner’s allegations, without concrete support, are insufficient to rebut the determinations made by the state court.

Both the trial court and the state supreme court examined the files in question, and found nothing of relevance aside from one citizen complaint (that of Mr. Legg), which was pro

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