# Roybal v. Davis

> District Court, S.D. California · December 2, 2015 · 148 F. Supp. 3d 958

URL: https://www.frixlaw.com/law-library/cases/7235093

## Case

- **Full name:** Rudolph ROYBAL v. Ron DAVIS, Acting Warden of the California State Prison at San Quentin
- **Court:** District Court, S.D. California
- **Decided:** December 2, 2015
- **Citations:** 148 F. Supp. 3d 958; 2015 U.S. Dist. LEXIS 162480; 2015 WL 7779241
- **Precedential status:** Published
- **Opinion:** Opinion of the court
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7235093

## Opinion text

*977 DEATH PENALTY CASE ORDER:
(1) DENYING PETITIONER’S REQUEST FOR AN EVIDENTIARY HEARING AND/OR DISCOVERY ON CLAIMS 4-8, 10-11, 25-27, AND 29-31;
(2) DENYING RESPONDENT’S REQUEST TO DISMISS CERTAIN CLAIMS ON THE BASIS OF STATE PROCEDURAL BARS;
(3) DENYING HABEAS RELIEF ON CLAIMS 1-8, 10-11, AND 13-38 IN THE FIRST AMENDED PETITION; AND
(4) GRANTING HABEAS RELIEF ON CLAIMS 9, 12, AND 39 IN THE FIRST
AMENDED PETITION
Hon. Jeffrey T. Miller, United States District Judge
TABLE OF CONTENTS
I. PROCEDURAL HISTORY.. .978
II. TRIAL PROCEEDINGS.. .980
A. Guilt Phase.. .980
B. Penalty Phase... 983
III. PROCEDURAL MATTERS.. .986
A. Procedural Default.. .986
1. Dixon... 986
a. Independence... 986
b. Adequacy.. .987
2. Contemporaneous Objection.. .988
B. Teague v. Lane... 990
IV. STANDARDS OF REVIEW.. .990
A. Standard of Merits Review under AEDPA...990
B. Standard for Evidentiary Hearing...992
V. DISCUSSION.. .993
A. CLAIMS OF TRIAL COURT ERROR AND JUROR BIAS.. .993
1.Claim 1... 993
a. State Court Decision... 993
b. Standard of Review... 997
c. Discussion.. .999
2. Claim 2.. .1007
3. Claim 14.. .1011
4. Claim 15.. .1014
5. Claim 16.. .1016
6.'Claim 17.. .1019
7. Claim 18.. .1022
8. Claim 19.. .1024
9. Claim 20... 1027
10. Claim 21... 1029
11. Claim 22... 1031
12. Claim 23... 1033
13. Claim 24... 1034
14. Claim 25... 1036
B. PROSECUTORIAL MISCONDUCT CLAIMS... 1041
1. Claim 3... 1041
2. Claim 12.. .1043
3. Claim 13.. .1053
C. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS.. .1054
1. Claim 4 — Ineffective Assistance of Counsel — Failure to Investigate and Present Evidence to Rebut Flight and Consciousness of Guilt,.. 1058
2. Claims 5 and 6... 1060
A. Trial Counsels’ Investigation and Presentation of Organic Brain Damage ...1061
B. Information Submitted in Post-Conviction Proceedings... 1064
C. Claim 5- Guilt Phase... 1067
D. Claim 6... 1072
3. Claim 7... 1075
A. Petitioner’s Penalty Phase Presentation ...1076
B. Information Submitted in Post-Conviction Proceedings... 1078
C. Discussion... 1081
4. Claim 8... 1083
*978 5. Penalty Phase Prejudice,. .1088
6. Claim 9... 1093
7. Claim 10.. .1096
8. Claim 28... 1098
D. CLAIMS CONCERNING POST-CONVICTION PROCEEDINGS.,. .1099
1. Claims 26 and 27... 1099 .
2. Claim 29... 1103
E. STATUTORY CLAIMS... 1105
1. Claim30... 1105
2. Claim 31... 1106
3. Claim 32... 1107
4. Claim 33.. .1109
5. Claim 34.. .1109
6. Claim 35,.. 1111
7. Claim 36... 1112
8. Claim 37.. .1114
A. Statute Does Not Explain Which Factors are Mitigating and Which Are Aggravating... 1114
B. Vague and Standardless Factors ...1114
C. Statute Does Not Require Written Findings... 1115
D. Statute Does Not Require Unanimity Regarding Aggravating Factors ..,1115
E. Statute Does Not Require Unanimity Beyond a Reasonable Doubt As To the Penalty Decision.. .1115
F. Statute Does Not Require Comparative Appellate Review.-.'. 1116 ■
G. Statute Does Not Exclude- Inapplicable Factors in Aggravation,.. 1116
9. Claim38.. .1116
F. ATKINS CLAIM AND CUMULATIVE ERROR... 1117
1. Claim 11.. .1117
2. Claim 39... 1123
VI. CERTIFICATE OF APPEALABILITY. ..1125
VII. CONCLUSION... 1125
On June 17, 2013, Petitioner filed the First Amended Petition [“FAP”] and filed a motion for leave to file the FAP on August 1, 2013. (ECF Nos. 215, 220.) After briefing on issues discussed in more detail bélów, on December 16/2013, the Court granted Petitioner’s motion. (ECF. No. 240.) On February 14,, 2014, Respondent filed an Answer; [“Ans.”] to the FAP, and on April 15, 2014, Petitioner filed a Traverse. (ECF Nos. 241, 243.) On June 6, 2014, Petitioner filed a Request' for an Evidentiary Hearing and Discovery on Claims 4-8,10-11,25-27 and 29-30 1 in the FAP. (ECF No. 249.) On June 25, 2014, Respondent filed a Response. (ÉCF No. 250.) On September 4, 2Q14, Petitioner filed a Reply. (ECF No. 264.) The Court held oral arguments on April 22, 2015. The parties also submitted , supplemental briefing on the impact, if any, of Davis v. Ayala, 576 U.S. —, 135 S.Ct. 2187 , 192 L.Ed.2d 323 (2015), on the Court’s consideration of Petitioner’s claims. (See ECF Nos. 278-81.)
For the following reasons, and based on the arguments presented in the written pleadings and at oral argument, the Court DENIES Respond'ent’s request tó dismiss certain claims on the basis of procedural default, DENIES Petitioner’s request for an'evidentiary hearing and/or discovery on Claims 4-8, 10-11, 25-27, and 29-31, DENIES habeas relief as to Claims 1-8, 10-11, and 13-38 in the FAP, and GRANTS habeas relief as to Claims 9, 12, and 39 in the FAP.
I. PROCEDURAL HISTORY
On July 21, 1992, a San Diego County jury found Petitioner guilty of first-degree murder in violation of California Penal *979 Code section 187(a), first-degree robbery in violation of Cal. Penal Code section 211, and first-degree burglary in violation of Cal. Penal Code section 459, in the death of Yvonne Weden. (Clerk’s Transcript [“CT”] 2506-09.) As .to each offense, the jury found true that Petitioner personally used a knife, that he inflicted great bodily injury on the victim, and that the victim was a person 60 years of age or older. (Id.) The jury also found true two special circumstances, murder in the commission of a robbery and murder in the commission of a burglary. (Id.) On August 24, 1992, the jury sentenced Petitioner to death. (CT 2534-35.) The trial court denied Petitioner’s motion for a new trial and sentenced him to death on October 20, 1992. (CT 2536-37.)
On January 24, 1996, attorney Barry Morris was appointed by the California Supreme Court to represent Petitioner on direct appeal and on state habeas proceedings. 2 The California Supreme Court affirmed Petitioner’s conviction and sentence on November 12, 1998. See People v. Roybal, 19 Cal.4th 481 , 79 Cal.Rptr.2d 487 , 966 P.2d 521 (1998). On January 13, 1999, the California Supreme Court denied the petition for rehearing. After one extension of time, a petition for writ of certiorari was filed in the United States Supreme Court on May 13, 1999, which was denied on October 4, 1999.
On October 5, 1999, Petitioner filed a motion for appointment of counsel in this Court. On December 14, 1999, the Court appointed Elizabeth Barranco and Russell Babcock as federal habeas counsel. On September 29, 2000, federal counsel Bar-ranco and Babcock timely filed a federal habeas Petition. The federal Petition contained a footnote indicating in part that, “[p]ursuant to the ruling of this Court on June 30, 2000, petitioner alleges herein only those claims previously exhausted in the courts of the State of California. Petitioner intends to file a subsequent petition in this Court should claims which have not yet been adjudicated in the courts of the State of California be denied in that forum.” (ECF No. 25 at 1, fn.1.) Respondent filed an Answer to the federal Petition on October 27, 2000, and on May 2, 2001, Petitioner filed a Traverse. Further proceedings surrounding efforts to file a'state habeas petition, and events surrounding the destruction of records in Petitioner’s case,. are recounted in the Court’s prior Order granting Petitioner’s motion to file an amended petition (see ECF No. 240), and resulted in the removal of initial federal habeas counsel and the appointment of current counsel.
On March. 12, 2004, attorneys John La-nahan and Elizabeth Missakian were conditionally appointed as federal habeas counsel, subject to their concurrent appointment as state habeas counsel. On July 1, 2004, Babcock moved to withdraw as state habeas counsel and on'August 30, 2004, Lanahan and Missakian moved for appointment as state habeas counsel. On September 29, 2004, the California Supreme Court removed Barranco as state habeas counsel and noted that: “Barranco is hereby referred to the State Bar of California for appropriate disciplinary proceedings in light of her abandonment of her condemned client.” (Case No. S029453 at http://www.courtSiCa.gov/supremecourt. htm.) Also on September 29, 2004, the California Supreme Court granted Bab-cock permission to withdraw as counsel, and appointed Lanahan and Missakian as *980 state habeas counsel. On October 29, 2004, the Court converted the conditional appointment of Lanahan and Missakian to an unconditional appointment and relieved Babcock of further representation in Petitioner’s federal habeas case.
On October 1, 2007, Petitioner filed a state habeas petition in the California Supreme Court in Case No. S156846. On April 28, 2008, Respondent filed an Informal Response, and on December 23, 2008, Petitioner filed an Informal Reply. On January 3, 2013, the California Supreme Court denied the state habeas petition.
On January 17, 2013, this Court held a status hearing and later issued a briefing schedule, setting a deadline for filing the amended petition and a motion for leave to amend the petition, on or before June 17, 2013. On June 17, 2013, Petitioner filed the FAP, the operative pleading in this action. After a July 12, 2013 status hearing, the parties agreed upon, and the Court ordered, a revised briefing schedule. Petitioner filed a Motion for leave to amend the petition on August 1, 2013. Respondent filed an Opposition on September 16, 2013, and on November 1, 2013, Petitioner filed a Reply. On December 16, 2013, the Court granted Petitioner’s motion. On February 14, 2014, Respondent filed an Answer to the FAP, and on April 15, 2014, Petitioner filed a Traverse.
On June 6, 2014, Petitioner filed a Memorandum [“Pet. EH Mem.”] in Support of the Request for Evidentiary Hearing and Discovery, requesting an evidentiary hearing and/or discovery on Claims 4-8, 10-11, 25-27, and 29-30. On June 25, 2014, Respondent filed a Response [“Resp. to EH Mem.”] to Petitioner’s Statement Regarding Evidentiary Development. On September 4, 2014, Petitioner filed a Reply [“EH Reply.”].
II. TRIAL PROCEEDINGS
The Court refers the parties to the statement of evidence issued by the California Supreme Court in Roybal, 19 Cal.4th at 495-502 , 79 Cal.Rptr.2d 487 , 966 P.2d 521 . The California Supreme Court’s factual findings are presumptively correct and entitled to deference in these proceedings. See Sumner v. Mata, 449 U.S. 539, 545-47 , 101 S.Ct. 764 , 66 L.Ed.2d 722 (1981).
To provide context to the Court’s discussion of the claims in the FAP, particularly the claims asserting ineffective assistance of counsel, restated below is the California Supreme Court’s summary of evidence and testimony presented during the guilt and penalty phase proceedings.
A. Guilt Phase
The People introduced evidence to the following effect.
In 1989, Yvonne Weden lived with her husband, Paul, in Oceanside. She was 65 years old and suffered from arthritis and loss of hearing and was using crutches because of an injury to her ankle. Paul worked nights at a supermarket; Yvonne usually went to bed around 11:30 p.m. and awoke early. She did not smoke; Paul had quit smoking in January. Even when he smoked, he did not do so in the house; he usually smoked Marlboro brand cigarettes, never Camel brand.
Defendant had lived in Santa Fe, New Mexico, with his mother for most of his life. In April or early May 1989, he lived with his half brother, Frank Orozco, and the latter’s family in Oceanside, about a half-mile from the Weden home. He was not permitted to use the car, but he was able to use his brother’s bicycle. He smoked Camel brand cigarettes. He earned money doing yard work in Oceanside and helped in his brother’s business.
*981 . In May 1989, defendant came to- the Wedens’ home and offered to do yard work, leaving his name and telephone number on a slip of paper. He was hired to perform yard work, mostly pulling weeds, for four days in late May. He stopped working for the Wedens when Paul became dissatisfied with the slowness of the work. The slip of paper with his name and telephone number remained pinned to a bulletin board in the den.
On Thursday, June 8, defendant knocked on the door of the Wedens’ neighbor, asking for gardening work. The neighbor, who described him as. appearing aggressive and nervous, did not hire him. The following day, Friday, June 9, he sought work at the home of another Oceanside resident, leaving his name and telephone number.
On June 9, at 7:45 p.m., Paul left the house. He finished work at 7:30 a.m. on June 10, went out for a “couple of beers” with some coworkers, and then, at 8:00 a.m., drove to pick up a new gardener but was unable to locate him. When he returned home, he was unable to open the garage door, his usual entry into the house. When he entered the house, he found his wife lying on the floor of the bedroom in her pajamas; there was blood on the wall and her body was cold. He called 911 around 8:30 a.m.
The front door was unlocked and there was no sign of a forced entry. The slip of paper with defendant’s name and telephone number was missing. A Camel brand filter cigarette butt was on the floor of the guest bedroom.
A jewelry box containing Paul’s wedding ring, some Masonic rings, and other items, was missing from the master bedroom. The outer box in which it had been kept had a blood smear or stain on it. Some of Yvonne’s jewelry was missing, including gold chains and costume jewelry, as was some cash. A pistol and holster were missing from a dresser.
The police arrived. Yvonne was pronounced dead at the scene. There was a bloody laceration around her neck and blood on her pajamas, the walls, and the carpet. Her wédding ring was missing from her finger.
She died from multiple stab wounds. The coroner estimated the time of death as occurring between midnight and 2:00 a.m. An autopsy showed blunt force injuries to her head and multiple stab wounds to her chest, shoulder, hands, and neck. The stab wounds were deep; there was a jagged gaping wound to the neck, and multiple punctures of the lungs, and a rib was fractured by the force of the knife. There were wounds and blood on the palm of her left hand. It was difficult to obtain fingerprints from the hand, because the fingers were clenched.
. On the night of June 9, defendant telephoned his mother, Stella Orozco, in New Mexico. He left Oceanside for New Mexico -on June 10, around 10:00 p.m, arriving on June 11. When she asked about cuts on his face, he said he had been injured in a robbery earlier the same week or the week before.
Later, she saw him take a plastic produce bag from her kitchen, go into the backyard, and place it in one of the cinder blocks on top of the wall between her yard and that of neighbors. The day after he arrived, he offered to sell some jewelry to his half sister, Theresa Romero, who lived next door. Theresa called the probation department the next day and told a probation officer that defendant was staying at their mother’s house, and that he was selling jewelry.
On June 13, Theresa led police to the back room of Stella’s home, where defendant was watching television. In the *982 course of a patdown search, police discovered a small folding knife in his pocket. They also found hypodermic syringes in his sock and marijuana in his pocket. He had a packet of Camel brand filter cigarettes in his shirt pocket. Before he was. taken into custody, he left a gold rope chain in the room; as he was removing articles from his pocket to leave behind, a foil packet containing tar heroin fell to the ground. Defendant told police he had been in Seattle for months and had returned to New Mexico to visit his ailing mother; he did not mention that he had been living in Oceanside.
After the police left, Theresa’ learned from Stella that defendant had hidden something in the wall “right in between everyoné’s yard;” She telephoned the police to say that Stella wanted to turn over some items, and they returned that evening. Stella told them that she wanted them to remove things that were not hers; she gave them several articles, including a folding knife, and asked them to remove the plastic bag that defendant had .placed in her backyard walk The police saw a portion of a plastic bag protruding from a hole in a cinder block. They removed what .proved to be two plastic produce bags with green writing on them, containing a paper bag from a Santa Fe drug store. The bags contained jewelry, later identified as including rings and other items belonging to Paul and Yvonne Weden. Stella also gave police a folding knife in a black sheath. They asked her for the gold rope chain he had left behind; she said “Absolutely and also gave them some of his soiled laundry from the washing machine.
Detective Sheila Hancock, who was investigating the possibility that defendant was involved in ‘the Weden crimes, contacted Santa Fe police to report the homicide in Oceanside involving theft of jewelry. She flew to New Mexico on June 13, and searched the residence of Stella Orozco. She also saw defendant at the police department; she noticed he was smoking Camel brand cigarettes.
Several items; including the cigarette butt, a dinner knife, a jewelry case, a sock, and knives, were tested at the Serological Research Institute in Richmond, California. Both Yvonne Weden and defendant had the same blood type and were both secretors; their blood tested differently in only three genetic markers tested. Researchers at the institute examined the saliva on the cigarette butt using polymerase chain reaction (PCR) DNA testing. An employee of the institute was of the view that bloodstains from the knife and sock, as well as saliva from the cigarette butt, could have come from defendant, Yvonne Weden, or others with the same DNA characteristics. There were no identifiable fingerprints on the cigarette butt. Blood on the jewelry box had the same blood type as defendant and Yvonne Weden. Microfibers similar to fibers from Yvonne Weden’s pajamas were found on defendant’s socks and sweatshirt.
A partial print in “orangish-red,” possibly blood, was found on a metal doorjamb to the utility room of the Weden residence. Photographs were taken of it, and an attempt was made to lift a fingerprint; the doorjamb was thereafter removed at Detective Hancock’s direction for further testing. Attempts .were made by an expert to obtain a usable print from the doorjamb, but were unsuccessful. Thereafter, the doorjamb, which was kept after the testing in a locked evidence area in Oceanside, Was found to be missing.
For his part, defendant introduced evidence as follows.
On the evening of June 9, both Frank Orozco and his wife were out, and defen *983 dant was supposed to watch their children. Whén Frank returned home, he found defendant “completely and totally inebriated, drunk to the point that he was falling down.” This was the first time he had found him drunk at his home. He picked defendant up and led him .to the bedroom. His wife was angry and they discussed asking defendant to leave. He checked on defendant an hour later; defendant had “passed out.”
On June 10, he awoke defendant around 7:00 or 8:00 a.m. by shaking him. Defendant asked, “What’s wrong? What’s wrong?” Frank and his wife argued with' defendant about his drinking. Defendant complained that Frank’s wife was treating him “like a slave” and stated that he wanted to return to Santa Fe. That evening, Frank- drove him to the bus depot for the trip to Santa Fe, and gave him money for the ticket and food.
A forensic pathologist estimated that Yvonne Weden had been murdered as early as 8:00 p.m. on June 9 or as late as 4:00 a.m. on June 10. A police detective recalled that he was asked to take defendant’s fingerprints and compare them with prints collected-- at the crime scene, including the doorjamb; he recalled being told there was no.match. A fingerprint expert was of the view that the print on the doorjamb was of a finger or thumb, rather than a palm; he was unable to exclude the victim as the maker of the print because of the poor quality of the prints that were taken from her.
Another fingerprint expert concluded that the print on the doorjamb could have been left by someone wearing surgical latex gloves; similar glove's appeared in a photograph taken after the crime of a trash can outside the side door leading to the Wedens’ garage. But he could not tell by looking at the photograph of the print on the doorjamb whether the person who left the print was wearing gloves. Emergency personnel from the Oceanside Fire Department testified that it was standard procedure to wear latex gloves, but they were not usually disposed of at a crime scene; A resident of Oceanside who had hired defendant to do yard work in the spring of 1989 did not remember seeing him use gloves.
A newspaper delivery girl and her father drove past the Wedens’ house on June 10, about 6:30 a.m., and noticed two cars in the street near the driveway.
B. Penalty Phase
. The People presented evidence in aggravation to the following effect.
Defendant was convicted of six prior felonies in New Mexico, for larceny; auto burglary, shoplifting, attempted residential burglary, and burglary. He was also involved in four violent incidents in New Mexico;
On September 15,1976, at 10:30 in the evening, Santa Fe Police Officer Robert Guillen attempted to stop defendant’s car, which had jumped the curb. Defendant sped away and was followed, in a high-speed chase, through residential areas of the town. Defendant pulled up to his mother’s house. A passenger in his car fired several gunshots at Officer Guillen; defendant backed his ear into Guillen, causing Guillen to hit the hood of his patrol car. Another police officer chased defendant, who fled into his .mother’s house and hid under a bed. After he was pulled out from under the bed, he broke away and attempted to hide behind his .mother to avoid arrest.
On July 23, 1982, Curtis Bruce encountered George Cervantes .near a store in Santa Fe. An argument ensued about $2 Cervantes owed for marijuana cigarettes. After, an exchange of pushes, Bruce ran toward the store. Cervantes and three others, including defendant, *984 followed and a fight ensued. During the fight, defendant sprayed Bruce’s arm, neck, and face with silver paint. Someone stabbed Bruce; he managed to flee. Defendant was arrested carrying a can of spray paint and two marijuana cigarettes. It was the same kind of paint defendant would ordinarily “sniff’ in order to become “high.”
On June 15,1985, the Santa Fe police, including Officer Joseph Lopez, were telephoned by Stella Orozco about a domestic dispute; she wanted defendant to leave her house after he threatened her with a knife. Officer Lopez found defendant in the bedroom and told him that Stella wanted him to leave. Angry and intoxicated, defendant responded with loud cursing, but eventually was persuaded to leave. As he left the house, he swore at the police and started coming toward the officers. He resisted arrest, trying to hit them. He was carrying a container of marijuana in his pocket.
On May 11, 1986, Carmen Annette Pacheco, who identified herself as defendant’s former girlfriend, went to a Mother’s Day dinner with Stella Orozco and Theresa Romero. After she dropped them off at home, she bought two glass bottles of water, for herself and defendant, and went to find him in a park. He had “round, blank, scary eyes” and was “high.” He grabbed the bottles, then attacked her, hitting, punching, kicking and throwing her to the ground. She deliberately broke the' bottles so he could not use them in his attack. She yelled for help and was assisted by her sister and two friends, who were driving by. Later that evening, defendant told police that “someone had beaten the fuck out of him.” They took defendant to the hospital, where Pacheco was also being treated. She declined to press charges and subsequently saw him a few times. Defendant did not remember hitting Pacheco and did not apologize.
As to the murder of Yvonne Weden, the autopsy physician testified that it involved a struggle and numerous stab wounds inflicted over several minutes. There were abrasions on her face and stab wounds to her lungs, armpit, abdominal cavity, windpipe, and a large artery. Several wounds were inflicted while she was no longer moving.
In mitigation, defendant introduced evidence relating to his background and character.
Stella Orozco left school in the third grade and did not learn to read or write. She spent the ages between 13 and 19 first in a convent and then in a reform school in New Mexico. She then worked in California, returning at age 20 to New Mexico, where she married John Orozco. They lived in a one-room .house built by her husband, without water or utilities. He could not have children because “he was sterilized or something.” They adopted a son, Frank. After John began “gambling and going out on” her, she became pregnant, with defendant, by another man. She offered to give defendant away if John would remain with her, but then decided to keep him. John divorced her before defendant was born and did not return; her mother, who had been living with her, also left.
Stella drank alcohol while she was pregnant with defendant. When he was 18 months old, defendant fell from his crib and broke his front teeth; his aunt took him to the hospital, but his mother refused to come.
Stella was “basically” a “prostitute” when she was not living with a man. The family was poor. She later lived with a truck driver for three years and bore his child, Ralphie. She had another child, Theresa, with Dewie Brazfield, a heavy drinker who beat her every weekend and burned her with a hot knife. He also *985 hit defendant and the other children. Frank, who lived on and off with his grandmother, finally joined the Marines to get away from home.
Defendant was nicknamed “Mojo” or “Mojado’-Spanish slang for “wetback”by Stella. She did not show him affection, as she did the other children; she never praised him or told him that she loved him. He was a difficult child and frequently truant from school. At one point, he was left alone with his brother Ralphie and began drinking alcohol. He also sniffed paint. By the time he was 21, he had been involved in several drug programs. Stella did not accompany him.
Two former employers testified that defendant was a dependable employee.
Defendant also presented testimony concerning his drug and mental problems.
Lucie Madrid, a certified alcohol counselor, met defendant in 1076 through a residential alcohol treatment program and became his counselor. He participated in the program over a 10-year period. He was “deep in the disease of alcoholism” and had “very little” self-esteem. Once, Madrid found him crying in a park; he described himself as a failure who was unable to make a different life for himself. Madrid, herself a recovering alcoholic, explained that, like defendant, she sometimes had blackouts, for as long as eight days.
Nan Busby knew defendant from Seadrunar, a drug .and narcotics treatment center in Seattle, which he attended from June 1987 until February 1989. She described him as shy and withdrawn at first, but eventually more expressive about his feelings. He had several relapses during the program arid left the aftercare program after four days.
James Blackmer, a judge and former prosecutor, prosecuted defendant in 1986 for four pending felony cases. Defendant pleaded guilty to charges including auto burglary, shoplifting, attempted residential burglary, and burglary. After he was evaluated by the New Mexico Department of Corrections, he was sentenced to a term of eight years, six months, which was suspended on the condition that he enter a residential drug program. He enrolled at Seadru-nar, which Blackmer described as “often tougher than going to prison.”
Timmen Cermak, M.D., a psychiatrist, evaluated defendant 'and his family. He found that defendant had significant impairment from brain dysfunction, a schizoid personality structure, and was profoundly chemically dependent since age nine, resulting in disruption of his personality development. Intelligence testing indicated organic-based learning disabilities. Cermak considered .it likely that defendant had organic brain damage, possibly -the .result of fetal alcohol effects, but did not believe he met the criteria for diagnosis as an “anti-social personality.” Defendant also suffered “psyche numbing” as the result of physical and emotional abuse. He experienced memory blackouts since the age of nine, when he starting sniffing glue and using alcohol. Regarding the time of Yvonne Weden’s murder, defendant told Dr. Cermak that he took drugs on “Thursday” and “the next thing he remembered was getting off the bus in Santa Fe.” He said that he had “absolutely no idea how he got the jewelry.”
In rebuttal, the prosecution presented the testimony of Steven Bucky, Ph.D., a clinical psychologist. Bucky reviewed Dr. Cermak’s report and a videotaped interview of Stella Orozco but did not personally interview defendant or his family and did not review the trial testimony of Stella or Frank Orozco. In his opinion, defendant had a long-standing multi-polysubstance abuse problem and a per *986 sonality disorder “closely aligned to an anti-social personality disorder.” He disputed Dr. Cermak’s conclusions that defendant’s alcoholism was genetic and that defendant suffered from a schizoid personality or posttraumatic stress syndrome. It was his view that defendant suffered from a “mild, subtle brain dysfunction” caused by substance abuse.
Roybal, 19 Cal.4th at 495-502 , 79 Cal. Rptr.2d 487 , 966 P.2d 521 .
III. PROCEDURAL MATTERS
A. Procedural Default
Generally, when a state court’s rejection of a federal claim “rests oñ a state law ground that is independent of the federal question and adequate to support the judgment,” a habeas petitioner has prócédurally defaulted his claim. Coleman v. Thompson, 501 U.S. 722, 729 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991). To be adequate, the state procedural rule “must have been ‘firmly established and regularly followed’ by the time as'of which it is to be applied.” Fields v. Calderon, 125 F.3d 757, 760 (9th Cir.1997), quoting Ford v. Georgia, 498 U.S. 411, 424 , 111 S.Ct. 850 , 112 L.Ed.2d 935 (1991). “For a state procedural rule to be ‘independent,’ the state law basis for the decision must not be interwoven with federal law.” La Crosse v. Kernan, 244 F.3d 702, 704 (9th Cir.2001), citing Michigan v. Long, 463 U.S. 1032, 1040-41 , 103 S.Ct. 3469 , 77 L.Ed.2d 1201 (1983) and Harris v. Reed, 489 U.S. 255, 265 , 109 S.Ct. 1038 , 103 L.Ed.2d 308 (1989). If found to be both adequate and independent, “federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750 , 111 S.Ct. 2546 .
1. Dixon
On state habeas review, the California Supreme Court denied habeas relief on Claims 13, 23, 24 and 33 of the FAP (raised in state court as Claims 6, 8, 7, and 4, respectively) on the merits, and alternatively stated that “claims 4, 6, 7, 8, and 9 3 are denied on the ground that they could have been, but were not, raised ‘on appeal, (In re Dixon (1953) 41 Cal.2d 756, 759 , 264 P.2d 513 .)” (Lodgment No. 144.)
a. Independence
“For a state procedural rule to be ‘indépendent,’ the state law basis for the decision must not be interwoven with federal law.” La Crosse, 244 F.3d at 704 , citing Long, 463 U.S. at 1040-41 , 103 S.Ct. 3469 and Harris, 489 U.S. 255, 265 , 109 S.Ct. 1038 . In 1998, the California Supreme Court announced that it would thereafter refrain from considering federal law in determining whether a claim was procedurally defaulted. See In re Robbins, 18 Cal.4th 770, 811-12 , 77 Cal.Rptr.2d 153 , 959 P.2d 311 (1998); see also Park v. California, 202 F.3d 1146, 1152 (9th Cir.2000) (“The California Supremé Court has adopted in Robbins a stance from which it will now decline to consider federal law when deciding whether claims are procedurally defaulted.”) The independence of a state procedural rule is examined at the time the rule is applied. See Park, 202 F.3d at 1151-53 . In this case, the rule was applied by the California Supreme Court when Petitioner’s state habeas petition was denied on January 3, 2013.
*987 - While the Ninth Circuit has- not ruled that a post-Robbins application of the Dixon procedural bar was* independent of federal law, several California district courts have found the procedural bar to be independent. See e.g. Protsman v. Pliler, 318 F.Supp.2d 1004, 1007-08 (S.D.Cal. 2004); Gallardo v. Barnes, 2014 WL 2854162 (C.D.Cal.2014) (collecting cases). As the Dixon rule was applied in this case nearly fifteen years after Robbins and the California Supreme Court’s stated intention to refrain from considering federal law in applying state procedural bars, this Court is in accord with other' district courts in concluding that the procedural rule was independent of federal law at the time of its application to Petitioner’s habeas claims.
b; Adequacy
To be adequate, a state procedural rule “must have been ‘firmly established and regularly followed’ by the time as of which it is to be applied.” Fields, 125 F.3d at 760 , quoting Ford, 498 U.S. at 424 , 111 S.Ct. 850 . In Bennett v. Mueller, 322 F.3d 573 (9th Cir.2003), the Ninth Circuit outlined a burden-shifting test to determine the adequacy of a state procedural bar, stating that:
[T]he ultimate burden of proving the adequacy of the California state bar is upon the State of California.... Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner. The petitioner may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority-demonstrating inconsistent application of the rule. Once having done so, however, the ultimate burden is the state’s.
- Accordingly, because it is the State who seeks dismissal based on the procedural bar, it is the State who must bear the burden of demonstrating that the bar is applicable-in this case that the state procedural rulé has'been regularly and consistently applied in habeas actions. '
Bennett, 322 F.3d at 585-86 .
Respondent asserts that Claims 13, 23, 24, and 33 are procedurally defaulted under Dixon and that the procedural rule in question was both independent and adequate. (Ans. at 15-17.) Here, Respondent has satisfied the initial burden of pleading the Dixon procedural bar as an affirmative defense, and the burden shifts to Petitioner. See Bennett, 322 F.3d at 586 .
Petitioner ‘.‘may satisfy this burden by asserting specific factual allegations that demonstrate the .inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule.” Id. “Because the Dixon rule precludes collateral, review of a claim that could have been.-.brought-on direct appeal, the procedural default, though announced by the California Supreme,Court when the habeas petition is denied, technically occurs at the moment the direct appeal did not include those claims that should have been included for review.” Fields, 125 F.3d at 761 . Petitioner’s default with respect to the’ Dixon rule occurred on June 16,1997, the date he filed an opening brief on direct appeal. (Lodgment No. 123.)
Petitioner argues that “Dixon was not being followed in the vast majority of cases at the time of Petitioner’s alleged default,” and cites Dennis v. Brown, 361 F.Supp.2d 1124, 1130-31 (N.D.Cal.2005), which in turn noted 200 cases demonstrating inconsistent application of state procedural bars, including Dixon. (Traverse at *988 19-20.) Petitioner also argues: “It is notable that, when federal courts have examined California’s application of Dixon on the basis of evidence from both the petitioner and respondent, they have found the rule inadequate to bar federal habeas review. Only when there has been a technical failure on the part of a petitioner to present any evidence at all have the courts ruled on behalf of respondent and held the bar adequate.” (Traverse at 20-21) (footnotes omitted.) Petitioner cites to numerous cases in which the Dixon rule was found inadequate, as well as numerous other cases in which Dixon was ruled adequate on “technical grounds.” (Id.) Given Petitioner’s argument and citation to authority showing the Dixon rule has been applied inconsistently, the Court finds that Petitioner has satisfied the “burden to place that defense in issue.” Bennett, 322 F.3d at 586 .
Therefore, “the ultimate burden is the state’s.” Id.; see also King v. LaMarque, 464 F.3d 963, 967 (9th Cir.2006). Because Respondent has not attempted to demonstrate the adequacy of the Dixon bar, the Court cannot conclude that this state procedural rule is sufficient to bar consideration of Petitioner’s claims on the merits. The Court will consider Claims 13, 23, 24, and 33 on the merits.
2. Contemporaneous Objection
Respondent contends that “Claim Twelve is procedurally barred because the California Supreme Court found that the claim was not preserved for appellate review.” (Ans. at 17, citing Roybal, 19 Cal.4th at 520 , 79 Cal.Rptr.2d 487 , 966 P.2d 521 .) The state supreme court denied this claim on alternative grounds, as follows:
As a threshold matter, because he did not object to the prosecutor’s remarks, defendant failed to preserve the claim of prosecutorial misconduct for review. (People v. Wash (1993) 6 Cal.4th 215, 259-260 , [ 24 Cal.Rptr.2d 421 , 861 P.2d 1107 ].) But the claim also fails on its merits, in the absence of prejudice.
Roybal, 19 Cal.4th at 520 , 79 Cal.Rptr.2d 487 , 966 P.2d 521 .
Petitioner argues that claims denied on the merits are not barred from federal habeas review unless “the state court ‘actually relied’ on the procedural bar as an independent basis for disposing of the claim.” (Traverse at 23.) In this case, it appears that the state court did rely upon a state procedural bar as an independent basis for denying Claim 12, and the procedural bar stands regardless of the state court’s decision to also adjudicate the claim on its merits. See Harris, 489 U.S. at 264 n. 10, 109 S.Ct. 1038 (“[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court’s judgment, even when the state court also relies on federal law.”)
Petitioner does not appear to offer any specific argument on the independence or adequacy of this particular procedural bar, but instead generally argues that “[t]o the extent that this Court might find that a claim for relief in the First Amended Petition is defaulted because the California Supreme Court denied relief based on an adequate and independent state procedural bar, Petitioner is excused from that default because he can demonstrate cause and prejudice.” (Traverse at 23.) Petitioner offers a lengthy argument asserting that the ineffective assistance of counsel he suffered satisfies cause and prejudice for any defaulted claims. (Id. at 23-28, 88-91, 94-96.) With respect to the allegations raised in Claim 12, Petitioner has separately alleged in Claim 9 that trial counsel’s failure to object to the prosecutor’s comments is *989 an independent claim of constitutional error.
“ ‘Cause’ is a legitimate excuse for the default; ‘prejudice’ is actual harm resulting from the alleged constitutional violation.” Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir.1984). The Supreme Court has held that a cause and prejudice analysis applies to the contemporaneous objection rule. See e.g. Wainwright v, Sykes, 433 U.S. 72, 90-91 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977); United States v. Frady, 456 U.S. 152, 167-68 , 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982).
The Supreme Court has explained that while “[attorney ignorance or inadvertence is not ‘cause’ because the attorney is petitioner’s agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must ‘bear the risk of attorney error,’ ” that “[attorney error that constituted ineffective assistance of counsel is cause, however.” Coleman, 501 U.S. at 753-54 , 111 S.Ct. 2546 . “Where a petitioner defaults a claim as a result of the denial of the right to effective assistance of counsel, the State, which is responsible for the denial as a constitutional matter, must bear the costs of any resulting default and the harm to state interests that federal habeas review entails.” Id. at 754 , 111 S.Ct. 2546 .
In this case, trial counsel’s failure to object to the prosecutor’s biblical argument prevented the preservation of that prosecutorial misconduct claim for appeal. Again,' “counsel’s ineffectiveness will constitute cause only if it is an independent constitutional violation.” Coleman, 501 U.S. at 755 , 111 S.Ct. 2546 . With respect to trial counsel’s failure to object, the Ninth Circuit has indicated that “[b]ecause many lawyers refrain from objecting during opening statement and closing argument, absent egregious misstatements, the failure to object during closing argument and opening statement is within the ‘wide range’ of permissible professional legal conduct.” Cunningham v. Wong, 704 F.3d 1143, 1159 (9th Cir.2013), quoting United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir.1993). However, as discussed below with respect to Claim 9, the prosecutor’s exhortation to the jury about biblical law was egregious, and defense counsel’s failure to object to the misconduct fell outside the admittedly “wide range” of constitutionally tolerable conduct. In light of the prosecutor’s clearly and conspicuously improper remarks, the Court concludes that Petitioner’s claim of ineffective assistance satisfies cause in this regard. See Edwards v. Carpenter, 529 U.S. 446, 451 , 120 S.Ct. 1587 , 146 L.Ed.2d 518 (2000) (“Although wé have not identified with precision exactly what constitutes ‘cause’ to excuse a procedural default, we have acknowledged that in certain circumstances counsel’s ineffectiveness in failing properly to preserve the claim for review in state court will suffice.”), citing Murray v. Carrier, 477 U.S. 478, 488-89 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986).
Petitioner has also shown “actual prejudice.” Coleman, 501 U.S. at 750 , 111 S.Ct. 2546 . Prejudice is “actual harm resulting from the claimed constitutional violation.” LaGrand v. Stewart, 173 F.3d 1144, 1148 (9th Cir.1999), citing Magby, 741 F.2d at 244 . The California Supreme Court recognized that the prosecutor’s remarks constituted “clear misconduct.” See Roybal, 19 Cal.4th at 521 , 79 Cal.Rptr.2d 487 , 966 P.2d 521 . Here, given the closeness of the penalty phase case, evidenced by the fact that the jurors deliberated for several days, during which they requested read back of witness testimony, received supplemental instructions and repeatedly expressed that they were deadlocked prior to finally reaching a verdict, in combination with the inflammatory nature of the improper remarks, it is evident to this *990 Court that Claim 12 is meritorious, and that the misconduct at issue resulted in “actual harm.” LaGrand, 173 F.3d at 1148 . Petitioner has demonstrated cause and prejudice sufficient to excuse the procedural default. Accordingly, the Court will evaluate Claim 12. on the merits.
B. Teague v. Lane
“Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be. applicable to those cases which have become final before the new rules are announced.” Teague v. Lane, 489 U.S. 288, 316 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989) (plurality); see also Stringer v. Black, 503 U.S. 222, 227 , 112 S.Ct. 1130 , 117 L.Ed.2d 367 (1992) (“Subject to two exceptions, a case decided after a petitioner’s conviction and sentence became final may not be the predicate for federal habeas corpus relief unless the decision was dictated by precedent existing when the judgment in question became final.”) A new rule is one that “breaks new ground or imposes a new obligation on the States or the Federal Government,” or one whose “result was not dictated by precedent existing at the time defendant’s conviction became final.” Teague, 489 U.S. at 301 , 109 S.Ct. 1060 . The two exceptions to Teague are if the new rule in question: (1) “places ‘certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe,’ ” or (2) “requires the observance of’ procedures ‘implicit in the concept of ordered liberty.’” Id. at 307 , 109 S.Ct. 1060 , quoting Mackey v. United States, 401 U.S. 667, 692, 693 , 91 S.Ct. 1160 , 28 L.Ed.2d 404 -(1971). “That a new procedural rule is ‘fundamental’ in some abstract sense is not enough; the rule must-be one ‘without which the likelihood of án accurate conviction-is seriously diminished.’” Schriro v. Summerlin, 542 U.S. 348, 352 , 124 S.Ct. 2519 , 159 L.Ed.2d 442 (2004), quoting Teague, 489 U.S. at 313 , 109 S.Ct. 1060 . “[I]f the State does argue that the defendant seeks the benefit of a new rule of constitutional law, the court must apply Teague v. Lane before considering the merits of the claim.” Caspari v. Bohlen, 510 U.S. 383, 389 , 114 S.Ct. 948 , 127 L.Ed.2d 236 (1994).
Here, Respondent generally references Teague, but fails to offer any argument specific to the claims in the FAP, stating only that: “To the extent any of Roybal’s claims rely upon a new rule of constitutional law, including so-called ‘actual innocence,’ the non-retroactivity doctrine forecloses federal habeas relief because, at the time his conviction became final, existing precedent did not ‘compel’ the result he now seeks.” (Ans. at 18.) The Ninth Circuit has previously declined to conduct a Teague analysis when it is noted “only in passing.” Arredondo v. Ortiz, 365 F.3d 778, 781 (9th Cir.2004) (“Normally we decline to address an issue that is simply mentioned but not argued, and we see no reason to depart from that practice in a habeas appeal;”) (internal citation omitted). In this case, Respondent does not offer any specific Teague ’ argument with respect to the claims in the FAP and has not properly raised the issue before the Court. See Arredondo, 365 F.3d at 782 (“No true Teague argument having been made by the state in this case, we decline to conduct a Teague analysis on our own.”), citing Caspari, 510 U.S. at 389 , 114 S.Ct. 948 .
IV. STANDARDS OF REVIEW
A. Standard of Merits Review under AEDPA
The provisions of the Anti-Terrorism and Effective Death Penalty Act [“AED-PA’’] apply to federal habeas petitions filed after its. effective date of April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336 , 117 S.Ct. 2059 , 138 L.Ed.2d 481 (1997); Woodford v. Garceau, 538 U.S. 202, 207 , *991 123 S.Ct. 1398 , 155 L.Ed.2d 363 (2003). Because Petitioner filed his federal petition in this Court after that date, AEDPA applied to this case.
Pursuant to AEDPA, a state prisoner is not entitled-to federal habeas relief on a claim that the state court adjudicated on the merits unless that ruling: “(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.” Harrington v. Richter, 562 U.S. 86, 97-98 , 131 S.Ct. 770 , 178 L.Ed.2d 624 (2011), quoting 28 U.S.C. § 2254 (d)(1)-(2).
A. decision is “contrary to” clearly established law if “the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” 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 clearly established 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). “Section 2254(d)(1)’s ‘clearly established’ phrase ‘refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions at the time of the relevant state-court decision.’ ” Lockyer v. Andrade, 538 U.S. 63, 71 , 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003), quoting Williams, 529 U.S. at 412 , 120 S.Ct. 1495 .
“[C]ircuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court,’ 28 U.S.C. 2254(d)(1). It therefore cannot form the basis for habeas relief under AEDPA.” Parker v. Matthews, 567 U.S. —, 132 S.Ct. 2148, 2155 , 183 L.Ed.2d 32 (2012). However, “circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably.” Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir.2011), quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir.2010); see also Marshall v. Rodgers, 569 U.S. —, 133 S.Ct. 1446, 1450-51 , 185 L.Ed.2d 540 (2013) (per curiam) (While a reviewing court may “look to circuit, precedent to ascertain whether it has already held that the particular point in issue .is clearly established by Supreme Court precedent, ... it may not canvass circuit decisions to determine whether a particular rule of law is so widely accepted among Federal. Circuits that it would, if presented to [the Supreme] Court, be accepted as correct.”) (internal citations and quotations omitted).
Additionally, with respect to section 2254(d)(2), “[t]he question under AEDPA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable — a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 , 127 S.Ct. 1933 , 167 L.Ed.2d 836 (2007), citing Williams, 529 U.S. at 410 , 120 S.Ct. 1495 . “State court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.’ ” Rice v. Collins, 546 U.S. 333, 338-39 , 126 S.Ct. 969 , 163 L.Ed.2d 824 (2006), quoting 28 U.S.C. § 2254 (e)(1).
“A state court’s determination that a claim- lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Richter, 562 U.S. at 101 , 131 S.Ct. 770 , quoting Yarborough v. *992 Alvarado, 541 U.S. 652, 664 , 124 S.Ct. 2140 , 158 L.Ed.2d 938 (2004). “If this standard is difficult to meet, that is because it was meant, to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceed-ings.... It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with, [the Supreme] Court’s precedents.” Richter, 562 U.S. at 102 , 131 S.Ct. 770 .
' Claims 4-11, 13, 23-30, and 32-39 were each denied on the merits by the California Supreme Court in a January 2, 2013, Order which stated in relevant part:
The “Petition for Writ of Habeas Corpus” filed October 1, 2007, is denied. Claim 19 is denied as premature without prejudice to petitioner’s filing a renewed petition after any execution date is set. (People v. Lawley (2002) 27 Cal.4th 102, 169, fn. 25 , 115 Cal.Rptr.2d 614 , 38 P.3d 461 .) All remaining claims are denied on the merits.
(Lodgment No. 144.)
Because these claims were denied on the merits without a statement of reasoning, the Court will conduct an independent review of the record with respect to Claims 4-11, 13, 23-30, and 32-39 4 in order “to determine whether the state court, clearly erred in its application of Supreme Court Law.” See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.2002); see also Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.2000) (in the absence of a reasoned decision by the state court, “[o]nly by [an independent review of the record] may we determine whether the . state court’s decision was objectively unreasonable.”)
‘Petitioner also argues that a number of claims in the FAP are “not' entitled to deference because there was a complete breakdown in the state habeas corpus procedure as a result of the destruction of the trial files by former habeas counsel,” and asserts that de novo review is instead appropriate. (FAP at 139.) Petitioner contends that “the lack of a complete or even cohesive trial record makes it impossible to determine which facts could have been presented by current habeas counsel or considered by the California Supreme Court in its ‘postcard’ denial on the merits” with respect to Claims 4-10 and 25-26. (Id.) He also asserts that de novo review of Claim 1 is appropriate because the state court proceeding was “procedurally defective.” (Id. at 153-54.) The Court will address these arguments in the merits discussion of those claims.
B. Standard for Evidentiary Hearing
For claims previously decided on the merits by a state court, the Supreme Court has held that a federal habeas court’s “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170 , 131 S.Ct. 1388, 1398 , 179 L.Ed.2d 557 (2011). “Although state prisoners may sometimes submit new evidence in federal court, AEDPA’s statutory scheme is designed to strongly discourage them from doing so.” Id. at 1401. Section 2254(d)(2), meanwhile, expressly limits a reviewing court to the “evidence presented in the *993 State court proceeding.” 28, U.S.C. § 2254 (d)(2).
Section 2254(e)(2) of AEDPA further limits the circumstances under which a district court may hold an evidentiary hearing. If the prisoner “has failed to develop the factual basis of a claim in State court proceedings,” a district court is precluded from holding an evidentiary hearing unless the prisoner meets certain narrow exceptions. 28 U.S.C. § 2254 (e)(2). The claim in question must either rely upon “(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 the prisoner must show that “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.” Id. “Section 2254(e)(2) continues to have force where 2254(d)(1) does not bar habeas relief,” for instance, “when deciding claims that were not adjudicated on the merits in state court.” Pinholster, 131 S.Ct. at 1401 .
“Because the deferential standards prescribed by 2254 control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evidentiary hearing is appropriate.” Landrigan, 550 U.S. at 474 , 127 S.Ct. 1933 . “It follows; that if the record refutes the applicant’s factual allegations or otherwise precludes relief, a district court is not required to hold an evidentiary hearing.” Id.; see also Sully v. Ayers, 725 F.3d 1057, 1075 (9th Cir.2013) (“[A]n evidentiary hearing is pointless once the district court has determined that § 2254(d) precludes habeas relief.”)
In light of these limitations, the Court will therefore conduct a section 2254(d) review, provided the. claims'-at issue are subject to section- 2254(d), together with the evaluation of whether Petitioner’s federal habeas claims warrant an evidentiary hearing.
V. DISCUSSION
The claims presented in the FAP include allegations of ineffective assistance of counsel, trial court error, prosecutorial misconduct, juror bias, claims of error in jury instructions during the guilt and penalty phase proceedings, an Atkins claim, claims concerning issues surrounding Petitioner’s post-conviction representation and destruction of the record, and several claims alleging defects in California’s death penalty statute.
A, CLAIMS OF TRIAL COURT ERROR AND JUROR BIAS
1. Claim 1
Petitioner alleges that his sentence and incarceration are in violation of the United States Constitution “because of the trial court’s rulings that a bloody, fingerprint found at the Weden residence — a fingerprint made by someone other, than Mr. Roybal — was not exculpatory evidence and because of the trial court’s refusal to appropriately instruct the jury given the circumstances surrounding the collection including, but not limited to the negligent preservation of this evidence.” (FAP at 140.) - -
á. State Court Decision
The California Supreme Court rejected this claim on direct appeal, detailing the background of the claim and the grounds for the ruling, as follows;
During the search of the Weden residence, police found an “orangish-red” print on a doorjamb. The print was photographed and, after . unsuccessful attempts to lift it, the doorjamb was removed for further analysis.- When de *994 fense counsel later sought to view the doorjamb, it was missing from the police department facility where it had been stored after testing.
Defendant moved to dismiss or, in the alternative, for sanctions, on the grounds that the prosecution had lost or destroyed exculpatory evidence in violation of the due process clause of the Fourteenth Amendment, and that comparable evidence could not be obtained by other reasonable means. Both the defense and the prosecution subpoenaed numerous 'witnesses to testify at the hearing on the motion. At the hearing, the superior court determined' that, to “streamline” the procedure, defendant would first be required' to make an offer of proof, which the court would take “at face value” subject to further examination; the prosecution would then be permitted to rebut the offer of proof through the testimony of witnesses, who would also be available for cross-examination by defendant. Defense counsel reluctantly agreed to the procedure: “I’m •only hesitant because of the nature of the'proof, your honor. The quality of my talking to the court versus live testimony is a concern to me. And, as you’ve indicated, you have the power in ‘this courtroom to decide. And I still have my reservations about- proceeding this way; but I will, if that’s the court’s desire.”
Defendant’s offer of proof was to the effect that the print “was believed to have been made by the person who committed the homicide or by a person involved,” and that analysis showed that it was not defendant’s print. Police were subsequently unable ' to produce the doorjamb for inspection by the defense because it was missing.
With the exception of two witnesses-Lee Smith, an expert in fingerprint comparison who purportedly would have testified that the photograph was limited in usefulness compared to the doorjamb itself, and Prosecutor James Koerber, who purportedly would have been asked why it took two years to arraign defendant formally on murder charges-all of defendant’s proposed witnesses were called by the prosecution and cross-examined by defendant. Their testimony regarding the identity of the print was to, the effect that attempts to lift the print from the doorjamb were unsuccessful, but the photographs of the print were of sufficient quality for comparison purposes. Based on analysis of the photographs, the print could not be positively identified as belonging to defendant, but neither could defendant be eliminated as a donor. The superior court denied defendant’s request to permit his expert, Smith, to sit in on the testimony of one of the prosecution’s witnesses on this point, Joe Sypnicki, a print examiner for the Department of Justice.
The testimony of the prosecution’s witnesses as to the disappearance of the doorjamb was to the effect that it was routinely booked into the Oceanside Police Department but disappeared during the time when 'the police department moved its evidence facilities. Police personnel made several unsuccessful searches to locate, the item.
At the close of the prosecution’s presentation of evidence, the superior court asked defendant whether he wished to present a “[w]itness or evidence on behalf of the defense.” Defendant declined: “We rest, your honor, after submitting what’s been submitted,”
The superior court ruled that the print had “no exculpatory value for the defendant” because it was not of sufficient quality to determine whether it matched defendant’s prints. It also ruled that there was no bad faith by the police: “[T]his is probably an administrative screw up — [T]his door jamb has been somehow misplaced- or misfiled.”
*995 At trial, witnesses for both the defense and the prosecution testified that there was not a match between the print on the doorjamb and defendant’s fingerprints. Defendant’s witnesses included expert Smith, who also testified that the print was not defendant’s. At the close of .evidence, defendant verbally requested an instruction to the effect that the police department’s loss of the doorjamb made testing the print for blood impossible and police error prevented use of various forensic methods to enhance the print. The superior court rejected the proposed instruction as argumentative, but did not preclude defendant from submitting a written proposed instruction concerning the doorjamb. Defendant did not do so.
Defendant claims the superior court erred in 'failing to impose sanctions based on the disappearance of the doorjamb.' The claim is without merit.
Law enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence “that might be expected to play a significant role in the suspect’s defense.” (California v. Trombetta (1984) 467 U.S. 479, 488 , [ 104 S.Ct. 2528, 2534 , 81 L.Ed.2d 413 ]; accord, People v. Beeler (1995) 9 Cal.4th 953, 976 , [ 39 Cal.Rptr.2d 607 , 891 P.2d 153 ].) To fall within the scope of this duty, the evidence “must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (California v. Trombetta, supra, 467 U.S. at p. 489, [104 S.Ct. at p. 2534]; People v. Beeler, supra, 9 Cal.4th at p. 976, 39 Cal.Rptr.2d 607 , 891 P.2d 153 ). The state’s responsibility is further limited when the defendant’s challenge is to “the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” (Arizona v. Youngblood (1988) 488 U.S. 51, 57 , [ 109 S.Ct. 333, 337 , 102 L.Ed.2d 281 ].) In such case, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” (Id. at p. 58 [109 S.Ct. at p. 337]; accord, People v. Beeler, supra, 9 Cal.4th at p. 976, 39 Cal.Rptr.2d 607 , 891 P.2d 153 .)
Oh review, we must determine whether, viewing the evidence in the light most favorable to the superior court’s finding, there was substantial evidence to support its ruling. (People v. Griffin (1988) 46 Cal.3d 1011, 1022 , [ 251 Cal. Rptr. 643 , 761 P.2d 103 ].) Under that standard, the superior court did not err in concluding that the evidence at issue did not possess an exculpatory value that was apparent before it disappeared; the print may or may not have been defendant’s and may or may not have been the perpetrator’s. Nor did- it err in concluding that the disappearance of the doorjamb was inadvertent and not the product of bad faith conduct by the police; conclusion, indeed, nothing in defendant’s offer of proof disputed such a conclusion. FN3
*996 Defendant also claims that the superi- or court erred by refusing to permit him to call witnesses or to allow his expert to observe the examination of the prosecution’s expert, by limiting cross-examination of Sypnicki about specific forensic techniques, and by refusing to give his proposed instruction. The claims are unavailing; the superior court properly concluded that the evidence did not, in any event, have apparent exculpatory value. Moreover, the record reveals that, although the prosecution was permitted to present its witnesses first, defendant was not precluded from presenting his case or from examining most of the witnesses mentioned in his offer of proof; he did not seek to present additional witnesses after the prosecution rested. As defendant concedes, the superior court had discretion to regulate the order of proof. (Evid. Code, § 320.) Nor did the superior court abuse its discretion by excluding all witnesses from the courtroom during Sypnicki’s testimony (see Evid. Code, § 777 [with limited exceptions, “the court may exclude from the courtroom any witness not at the time under examination so that such witness cannot hear the testimony of other witnesses”]), or by limiting the cross-examination of Sypnicki about forensic techniques on relevance grounds. In light of its conclusion that the evidence did not have apparent exculpatory value, it was instruction also not on error the ground for the that superior it was court argumentative, to refuse defendant’s proposed instruction on the ground that it was argumentative. FN4
Roybal, 19 Cal.4th at 508-11 , 79 Cal. Rptr.2d 487 , 966 P.2d 521 (alterations in original).
*997 b. Standard of Review
Petitioner argues that the Court should review Claim 1 de novo because the state court’s fact-finding process was deficient, asserting that:
In this ease, the hearing on the loss or destruction of the doorjamb was proee-durally defective in that (1) it precluded the defense from presenting witnesses prior to the prosecution’s witnesses and (2) the trial court ordered the defense expert excluded during the testimony of Joseph Sypnicki, thereby precluding the trier of fact from determining all the facts and circumstances surrounding the condition of the fingerprint and its potential exculpatory value. Finally, the trial court refused to offer any curative instruction in lieu of a sanction such as dismissal.
(FAP at 153-54.)
“[A] federal court may not second-guess a state court’s fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable.” Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir.2004). “[B]efore we can determine that the state-court factfinding process is defective in some material way, or perhaps non-existent, we must more than merely doubt whether the process operated properly. Rather, we must be satisfied that any appellate court to whom the defect is pointed out would be unreasonable in holding that the state court’s fact-finding process was adequate.” Id. at 1000 . “If, for example, a state court makes evidentiary findings without holding a hearing and giving petitioner an opportunity to present evidence, such findings clearly result in an ‘unreasonable determination’ of the facts.” Id. at 1001 , citing Weaver v. Thompson, 197 F.3d 359, 363 (9th Cir.1999) and Nunes v. Mueller, 350 F.3d 1045, 1055 (9th Cir.2003).
Here, Petitioner fails to persuasively show that the hearing on the defense motion regarding the loss/destruction of the doorjamb evidence was somehow defective or inadequate. Petitioner first contends that the trial court “precluded the defense from presenting witnesses prior to the prosecution’s witnesses.”' (FAP at 153.) Specifically, Petitioner argues that “[instead of permitting’live téstimony, the trial court limited' Mr. Roybal’s attempt to establish that the prosecution had lost and/or destroyed exculpatory evidence to an offer of proof,” and that “[t]he power to control the order of proof is neither synonymous nor coextensive with the court’s power to exercise control over the admission of evidence.” (FAP at 170.) The California Evidence Code provides that “the court in its discretion shall regulate the order of proof.” Cal. Ev. Code § 320 .
Moreover, the California Penal Code instructs that “[i]t shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious, and effective ascertainment of the truth regarding the matters involved.” Cal.-Penal Code § 1044. After reviewing the record, it is clear that the trial court was within its discretion in conducting the hearing in this manner. Petitioner does not show that the trial court prevented him from presenting relevant evidence, only that he was directed to -initially present such evidence through an offer of proof rather than via live testimony. 5
*998 Petitioner’s reliance on Old Chief v. United States, 519 U.S. 172 , 117 S.Ct. 644 , 136 L.Ed.2d 574 (1997), is distinguishable from the instant situation, as first, that case concerned, a defendant’s attempt to stipulate to the commission of a prior offense. Petitioner insists that the situations are “parallel,” arguing that:
While Petitioner was not compelled to accept a stipulation, like a party so compelled, Mr. Roybal was forced to forgo presentation of his case via live witnesses, and, instead, present his evidence in the lifeless form of an offer of proof. As Justice Souter reasoned in Old Chief, supra, “[a] syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it.” Id., at 189 , 117 S.Ct. 644 .
(FAP at 171.) The Old Chief Court held that in most situations “the prosecution is entitled to prove its case by evidence of its own choice, or, more exactly, that a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it.” Old Chief, 519 U.S. at 186-87 , 117 S.Ct. 644 . However, it is also clear that the Old Chief Court was specifically concerned with the impact of evidence on a criminal trial jury. See e.g. id. at 187 , 117 5.Ct. 644 (“Jury duty is usually unsought and sometimes resisted, and it may be as difficult for one juror suddenly to face the findings that can send.another human being to prison, as it is for another to hold out conscientiously for acquittal. When a juror’s duty does seem hard, the evidentiary account of what a defendant has thought and done can accomplish what no set of abstract statements ever could,
... ”) The Court finds no compelling “parallel” to the current case, which concerns evidence presented at a pre-trial motion hearing before a trial judge, presented in the form requested by that judge, rather than a proceeding before a jury.
The trial court did not prevent the defense from examining the live witnesses that were called to testify by the prosecution after the offer of proof, and indeed, the defense engaged in an often extensive cross-examination of the witnesses. (See e.g. PRT 6 71-86 (cross of DOJ latent print examiner Joe Sypnicki), PRT 105-20 (San Diego County Sheriffs examiner Frederick Freiberg), PRT 127-35 (Detective Richard Trotter), PRT 152-67 (Detective Sheila Hancock), PRT 183 (Sergeant William Krunglévich).) Nor was the defense precluded from calling witnesses on their behalf, as the trial court provided the defense an opportunity to call witnesses or present additional evidence, evidenced by the following exchange between the trial judge and defense counsel:
The Court: Witnesses or evidence on behalf of the defense?
Ms. Cannon: We rest, Your Honor, after submitting what’s been submitted.
(PRT 185.)
Ultimately, the majority of the witnesses mentioned in the defense’s original offer of proof testified at the hearing- only prosecutor Koerber and fingerprint analyst Lee Smith did not. After hearing the offer and proof and testimony, the trial court stated that Mr. Koerber’s testimony was “not necessary,” and the prosecutor declined to provide an offer of proof. (PRT 185.) With respect to Mr. Smith, as noted above, the record reflects that the defense affirmatively declined to present additional evidence or testimony.
Similarly unavailing is Petitioner’s second argument, in which he asserts that the procedure was defective because the *999 trial court “ordered the defense expert excluded during the testimony of Joseph Sypnicki(FAP at 153.) When Sypnicki was about to testify, defense counsel requested that Smith be allowed to listen to the testimony; the trial court denied that request. (PRT 36-37.) As Petitioner acknowledges, it is within a trial court’s discretion to exclude witnesses from the courtroom who have not yet testified. (See FAP at 171-72.); see also Cal. Ev. Code § ,777 (“[T]he court may exclude from the courtroom any witness not at the-time under examination so that such witness cannot hear the testimony of other witnesses.”) Moreover, it was defense counsel that initially requested the exclusion of all testifying witnesses from the courtroom. Just prior to commencing the offer of proof, defense counsel stated: “At this time I would ask the Court to exclude all witnesses to this héaring,” and when'asked to identify the witnesses, counsel included both Mr. Sypnicki and Mr. Smith in the list; the trial,court granted the request. (PRT 18-19.) Defense counsel also requested that the trial court “admonish them not to speak to each other with regard to the nature of the circumstances of the facts relating to this area;” the trial court accordingly issued an admonishment not to discuss the testimony, or .offers of proof until the witnesses had been called to testify. (PRT 18.) The Court finds no abuse of discretion in the .trial court’s ruling.
Third, Petitioner' simply contends that de novo review is required because the “trial court refused to offer any curative instruction in lieu of a sanction. such as dismissal.” (FAP at 153-54.) At the conclusion of the pre-trial hearing on the request for sanctions due to the loss or destruction of evidence,, the Court held that a curative instruction was not warranted because,the defense failed to meet the standards set forth in Youngblood and Trombetta with respect to the doorjamb. (See PRT 197.) Petitioner fails to persuasively explain how the trial court’s final ruling implicates the adequacy of the state court’s fact-finding process so as to warrant de novo review of this claim.
Given that the trial court’s procedure allowed for the presentation of evidence and the examination of witnesses, that the trial court specifically asked the defense if they wished, to present additional evidence or witnesses prior to issuing its ruling, and that the,request to exclude witnesses from the courtroom came from defense counsel, the trial court’s actions, appear to be well within the bounds of discretion. The Court remains unpersuaded-that the state court’s fact-finding process was deficient, nor does Petitioner demonstrate the much higher burden demanded by Taylor. Id., 366 F.3d at 1000 (“Rather, we must be satisfied that any appellate court to whom the defect is pointed out would be unreasonable in holding that the state court’s fact-finding process was adequate.”) For the reasons stated above, de novo review is not appropriate. Accordingly, the Court -will evaluate this claim -pursuant to § 2254(d).
c. Discussion
“[Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either tp guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963). “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding, would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in,the outcome.” United States v. Bagley, 473 U.S. 667, 682 , 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985).
*1000 “Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed; and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Trombetta, 467 U.S. at 488-89 , 104 S.Ct. 2528 (footnote and internal citation omitted). In Youngblood, the Supreme Court further held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” 488 U.S. at 58 , 109 S.Ct. 333 .
Petitioner asserts that: “When taken together, the trio of Brady, Trombetta, and Youngblood , set up a tripartite test for determining the government’s duty to preserve and disclose evidence depending on the strength of the exculpatory character of the evidence.” (FAP at 156.) He argues that: “The distinctions between the three tests are significant in this case because as the investigation progressed, as the prosecution learned more about the exculpatory naturé of the bloody print oh the door jamb, its duty to preserve the print became more exacting. From the moment the prosecution learned that the bloody print on the door jamb was not Mr. Roybal’s, that evidence became material exculpatory evidence which the prosecution was bound to preserve, disclose, and make available for examination to the defense.” (Id.)
The trial court held that the doorjamb had “no exculpatory value” for Petitioner, stating that: “The print, patent that it is, I’m satisfied is not of sufficient quality for any qualified examiner to render an opinion that it does or does not belong, that is match, with known prints or exemplars, ...” (PRT 196.) The trial court stated that: “It’s essentially a piece of neutral evidence in terms of its forensic value, that is its fingerprint value, and accordingly, I also conclude that the investigating agency had no knowledge of its exculpatory nature.” (Id.) The trial court also concluded that the “far better evidence is the photograph of the bloody palm print on the door jamb, and of course that is available,” that the photo was “comparable evidence, in fact better evidence” than the doorjamb, and reiterating that the print was insufficient for identification purposes. (PRT 197.) The trial court also concluded there was no proof of bad faith, 7 stating that “this is probably an administrative screw up,” as the police had followed procedures and “this door jamb has been somehow been misplaced or misfiled.” (Id.)
These conclusions appear reasonable. Smith indicated, through an offer of proof, that the doorjamb was better evidence than the photograph, as the original item would contain greater detail, and that “the photograph of the bloody print was limited in its usefulness.” (PRT 33-34.) However, Sypnicki, who examined-both items, stated that while neither the photo nor the doorjamb was particularly good evidence, the photo was sufficient for comparison purposes. (PRT 50, 55-57.).Specifically, Syp-nicki stated that: “Well, I looked at the print on the door frame that had been dusted, and I found that was of absolutely no value whatsoever. By the time it had been dusted, it was more or less a black smudge.” (PRT -61.) He noted that the photos were better, as: “That shows the print in its unadulterated form. It hasn’t *1001 been touched, It’s just a straight photo, one-to-one photo of a fingerprint or palm print.” (PRT 68.) He also indicated that, in his opinion, neither the doorjamb nor the photos was very useful for either eliminating or identifying anyone, and that he was not able to either match or eliminate Petitioner as the donor of the print. (PRT 58-59, 69-70.) It is apparent from the record that this evidence merely was not inculpa-tory as to Petitioner, rather than being exculpatory, and the trial judge reasonably concluded that the lost doorjamb itself was “essentially a piece of neutral evidence.” (PRT 196.)
Freiberg photographed the print at the crime scene in June 1989, unsuccessfully attempted to lift and preserve it by applying powder, and attempted to illuminate it to obtain more detail, (PRT 93-95.) Frei-berg agreed that the print was-“not a real good quality” print, stating that “the print was of a marginal quality.” (PRT 99, 118.) Freiberg also later performed a quick comparison of the print to an inked print card provided by Detective Trotter, and recalled telling Trotter that he could not say whether the prints were a match. (PRT 97-99, 118.) Trotter affirmed Frei-berg’s statement, testifying that: “He said he felt it was not Roybal’s prints.” (PRT 126.) Trotter relayed that information to Detective Hancock, whose notes indicated that: “Bloody print is not Roybal’s. None of the other prints belong to Roybal.” (PRT 155-57.) Hancock’s later written report stated the print “did not appear” to be Roybal’s. (PRT 161.)
With respect to the loss of the doorjamb, Detective Hancock stated that the' doorjamb was removed from the victim’s home on June 22, 1989, she took it to the Department of Justice for Sypnicki’s examination on June 23, that she was present for the testing, and afterwards, she booked the item into evidence on September 21, 1989. (PRT 143-47.) Between June 23 and September 21, the item was locked in the Sheriff’s facility. (PRT 147.) Hancock last saw the' doorjamb in January or February of 1991, just prior to the police department’s move to a new evidence facility; when she accompanied defense counsel to the new evidence facility in November 1991, they were unable to locate the item. (PRT 147-50.) Sergeant Krunglevich, who administered the evidence and property clerks, stated that they located the tag for the doorjamb, which showed that the item had not been removed from the facility after it was booked into evidence in September 1989. (PRT 173-78.) Krunglevich noted that the police department moved to a new evidence facility in February 1991, while he became aware that the item was missing two months prior to the February 1992 hearing, and the misfiled box that previously held the doorjamb had been located one month prion (PRT 179, 181— 82.) The police department had conduced unsuccessful searches looking for the item, and there had not been any similar loss or inability to find evidence. (PRT 182.) The department had procedures in place for storing evidence, and Krunglevich stated that those procedures had been followed. (PRT 183.)
As noted previously, the California Supreme Court rejected Petitioner’s claim of error, reasoning:
[T]he superior court did not err in concluding that the evidence at issue did not possess an exculpatory value that was apparent before it disappeared; the print may or may not have been defendant’s and may' or may not have. been the perpetrator’s. Nor did it err in concluding that the disappearance of the doorjamb was inadvertent and not the product of bad faith conduct by the police; indeed, nothing in defendant’s offer of proof disputed such a conclusion.
*1002 Roybal, 19 Cal.4th at 510 , 79 Cal.Rptr.2d 487 , 966 P.2d 521 .
Petitioner now argues that once the police knew that Petitioner had been excluded as a donor of the bloody print, they had a duty to preserve the evidence, and alleges that the police and prosecution acted in bad faith in losing the evidence and misleading the trial court about its value. (FAP at 159-60.) Petitioner also asserts the doorjamb evidence was “uniquely exculpatory” in comparison to the photos of the print. (Id. at 164.) First, a review of the testimony presented at the pre-trial hearing does not reflect that the trial court erred in concluding the doorjamb was not exculpatory. Again, both Sypnicki and Freiberg testified that the evidence,was not of a good quality, and Sypnicki opined that the evidence would not be useful for identification or elimination. Meanwhile, Smith’s offer of proof at the hearing did not include any testimony about whether Petitioner’s prints matched or did not match the evidence, while Freiberg’s brief review of the prints did not match them to Petitioner, and Sypnicki testified that he was unable to either exclude or match the print to Petitioner.
Petitioner argues that the trial testimony shows that the prosecution misled the trial court about the evidentiary value of the doorjamb, and asserts that trial testimony revealed that, “Sypnicki did indeed eliminate Mr. Roybal as the donor of the print, assuming that it was a fingerprint, Us opposed to a palm print, which he agreed it most likely was.” (See FAP at 164, citing Reporter’s Transcript [“RT”] 8592-93.) A review of the record does not support Petitioner’s assertion. At one point during the examination, Sypnicki stated that hé felt he “could eliminate the fingerprints, but not the palm prints” of known exemplars, including Petitioner’s, as having made the print on the doorjamb, but went on to clarify that: “Wherever that print was, that print I couldn’t make or I would say I couldn’t find anything at all that would lead me to believe that it could be those people. But that print could very well be a portion of a palm, and that part I can’t, on the known prints, I wouldn’t eliminate anybody.” (RT 3595-96.) Sypnicki reaffirmed several times that, due to the poor quality of the print, he was unable to eliminate either Petitioner or Mr. Weden, the victim’s husband, as donors of the print on the doorjamb; this conclusion was also clearly reflected in his written report. (See RT 3597-98, 3600-01.) 8
The Court also remains unpersuaded that the doorjamb was “uniquely” exculpatory. Defense expert Smith testified, via the offer of proof, that he believed the doorjamb was better evidence than the photo because it was likely to provide more detail, as it was the original surface of the print. However, Sypnicki, who actually examined both the photos and the doorjamb, opined that neither item was particularly good evidence, and that the *1003 photo actually showed more detail than the doorjamb, which had been dusted with fingerprint powder in an attempt to lift the print. The trial.court reasonably credited Sypnicki’s testimony. Petitioner also argues that the doorjamb would have provided additional evidence in support of his defense that someone else had committed the crime, and had done so while wearing gloves; testimony in support of this theory was presented at trial. (FAP at 164-65.) Petitioner cites to conflicting expert trial testimony about whether the photographs reflect visible sweat pores, and argued that the doorjamb would have provided evidence superior to that from the photos. However, it is clear that the preserved photographs allowed the experts to examine. the evidence and testify on the matter. Petitioner only speculates that an examination of the doorjamb could have revealed additional evidence that could have further supported the defense theory; this assertion is insufficient to show that the doorjamb was in fact exculpatory. See Youngblood, 488 U.S. at 57 , 109 S.Ct. 333 (“The Due Process Clause' of the Fourteenth Amendment, as interpreted' by Brady , makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which- no more can be said than that it could have been subjected to tests, the results, of which might have exonerated the defendant.”) Moreover, irrespective of Petitioner’s assertions as to the evidentiary value of the doorjamb, the loss or destruction of that item, did not leave Petitioner without “comparable evidence,” in the form of the photographs, that he could use in his defense. See Trombetta, 467 U.S. at 489 , 104 S.Ct. 2528 .
Indeed, despite the loss of the doorjamb evidence, several experts testified at trial about whether Petitioner, was included or excluded as a donor of the print based on their examination of the photographs. As discussed, Sypnieki testified at trial that he could not eliminate or identify Petitioner ás having made the print on the doorjamb. (RT 3597-98.) Larry Harper, an FBI print examiner, compared the photographed print to those of Petitioner, as well as other individuals, and testified that' he eliminated Petitioner and the other known individuals from having made the print. (RT 3518-20.) Harper could not eliminate the- victim as a donor, 'explaining that her prints were not clearly recorded, and acknowledged' that taking, prints from a person with arthritis could be difficult. (RT 3520-21.) Defense expert Smith testified that he compared the prints of Mr. Weden and Petitioner to the photographed print, and was able to exclude both individuals as the donor of the print. (RT 4267-72.) Smith was also able to exclude some of the victim’s fingers as’ having made the prints, but not others, given the condition of the victim’s rolled prints. (RT. 4268-69.) The defense also called Freiberg, Trotter, and Hancock to testify about Freiberg’s brief comparison of the prints; as at the pretrial hearing, Freiberg again.indicated that he was unable to match the print on the doorjamb to the known prints, Trotter stated that Freiberg indicated the prints were not a match, and Hancock again testified that her understanding of the results of the comparison was that the print was not Petitioner’s. (RT 4380-82 (Freiberg), 4536-39 (Trotter), 4548-49 (Hancock).) Thus, the primary exculpatoiy evidence presented and argued at the pretrial hearing, that Petitioner’s prints did not match the print on the doorjamb, was ultimately introduced into evidence at trial.
Petitioner contends that the trial court’s conduct of the pre-trial hearing and refusal to provide the jury with a curative instruction violated his constitutional rights, *1004 and that the trial court’s refusal to allow Smith to observe Sypnicki’s testimony violated a myriad of constitutional rights, including his right to due process, to effective assistance of counsel, and to confront and cross-examine witnesses. (FAP at 175.) He also asserts that the trial court’s refusal to allow the defense to cross-examine Sypnicki about proper procedures to preserve the print violated due process. (Id. at 177.) The California Supreme Court rejected this claim on appeal, reasoning as follows:
Defendant also claims that the superior court erred by refusing to permit him to call witnesses or to allow his expert to observe the examination of the prosecution’s expert, by limiting cross-examination of Sypnicki about specific forensic techniques, and by refusing to give his proposed instruction. The claims are unavailing; the superior court properly concluded that the evidence did not, in any event, have apparent exculpatory value.
Roybal, 19 Cal.4th at 510 , 79 Cal.Rptr.2d 487 , 966 P.2d 521 .
With respect to the trial court’s refusal to allow Smith to observe the testimony of Sypnicki, as the Court has determined in the section above, the trial court acted within its discretion in excluding witnesses from the courtroom. Moreover, as previously noted, the original request to exclude witnesses came from the defense. Petitioner fails to demonstrate that the trial court’s ruling amounts to error of a constitutional dimension. See Estelle v. McGuire, 502 U.S. 62, 68 , 112 S.Ct. 475 , 116 L.Ed.2d 385 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”)
Regarding the trial court’s refusal to allow the defense to cross-examine Syp-nicki about proper print-taking procedures, Petitioner fails to show that any error in limiting the cross-examination resulted in prejudice. While the trial court held the procedural questions were not relevant to the noticed motion insofar as it was based on the loss of the doorjamb, the trial court still allowed the defense to argue that Freiberg’s decision to apply powder to the print was evidence of bad faith. (See RT 188-89.) In any event, the ultimate issue at the hearing was whether exculpatory evidence had been lost or destroyed, and Petitioner fails to demonstrate that allowing him to question Sypnicki on procedures would have resulted in a different outcome, as there was no dispute that the evidence had been lost or destroyed. Given that the trial court allowed defense argument on bad faith despite the tenuous relevance to the issue at hand, Petitioner fails to show that the trial court’s ruling limiting cross-examination on this subject rose to the level of constitutional error. See McGuire, 502 U.S. at 68 , 112 S.Ct. 475 .
Finally, Petitioner asserts that the trial court’s refusal to provide the jury with a curative instruction, and in particular, the court’s rejection of his proposed jury instruction, was erroneous. As previously noted, at the conclusion of the pre-trial hearing, the court held that a curative instruction was not warranted because the defense failed to meet the standards set forth in Youngblood and Trombetta with respect to the doorjamb. (See RT 197.) The trial court also stated that: “This will not prevent — this ruling will not prevent questioning before the jury concerning the print. It may be somewhat embarrassing to the prosecution and the investigating officers, but that’s life.” (RT 198.) During the discussion on guilt-phase jury instructions, the defense proposed the following instruction:
There is evidence in this case the Oceanside Police Department lost the doorjamb containing the bloody print. In *1005 considering any prosecution argument, the print on the doorjamb was not in blood, you should keep in mind it was the police department’s loss of the doorjamb that made testing for blood impossible.
Further, in considering the quality of the bloody print and the ability of the experts to examine it, you should keep in mind it was the police error in powdering the bloody print that prevented use of other methods, such as super glue, ninhydrin, and laser examination from being used to enhance the print.
Further, in considering the testimony of the fingerprint experts, you should consider the prosecution obtained Deputy Freiberg, Joseph Sypnicki, and Larry Harper.
(RT 4741-42.) The prosecution contended the requested instruction was argumentative, and the trial court stated: “My inch-nation is to sustain the objection. You can argue this.” (RT 4742.) After brief discussion about a proposed modification to the instruction, the trial court refused the instruction. (RT 4743.) The defense also proposed several other instructions about the poor quality of prints obtained from the victim, the police failure to seize latex gloves from the trash, and allowing the victim’s family into the home to clean a few days after the crime — each of these proposed instructions were also refused as argumentative. (RT 4744-53; 4825.) Defense counsel and the trial court then had the following exchange:
Mr. Campbell: Your Honor, maybe it would be helpful if I inquire. The defense would like to get some instruction along Zamora lines. I can make these — try to make these instructions less argumentative. My goal is to draw the jury’s attention to the fact that evidence was lost here by the prosecution and it prejudiced the defense, and thats [sic] something it ought to consider.
The Court: I think the only thing I can tell you, Mr. Campbell, is that I have to have a written proposed instruction upon which to rule, and I don’t have that right now.
Mr. Campbell: All right, I understand. Thank you.
(RT 4825-26.)
The California Supreme Court found as follows:
At the close of evidence, defendant verbally requested an instruction to the effect that the police department’s loss of the doorjamb made testing the print for blood impossible and police error prevented use of various forensic methods to enhance the print. The superior court rejected the proposed instruction as argumentative, but did not preclude defendant from submitting a written proposed instruction concerning the doorjamb. Defendant did not do so.
Roybal, 19 Cal.4th at 509 , 79 Cal.Rptr.2d 487 , 966 P.2d 521 . The California Supreme Court rejected Petitioner’s claim of instructional error, reasoning that: “In light of its conclusion that the evidence did not have apparent exculpatory value, it was also not error for the superior court to refuse defendant’s proposed instruction on the ground that it was argumentative.” Id. at 511 , 79 Cal.Rptr.2d 487 , 966 P.2d 521 .
Given the trial court’s reasonable conclusion that the doorjamb was not exculpatory, Petitioner fails to demonstrate that refusing the proposed instruction was erroneous, much less that it amounted to error of a constitutional dimension. See McGuire, 502 U.S. at 68 , 112 S.Ct. 475 . Even assuming there was error, Petitioner fails to demonstrate that the absence of this instruction had any impact on the outcome of the guilt phase proceedings. See Brecht v. Abrahamson, 507 U.S. 619, 637 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993) (habeas relief not available unless error *1006 had a “substantial and injurious effect or influence in determining the jury’s verdict;”) At the pre-trial hearing, the trial court explicitly noted that the' defense could question witnesses about the print. (PRT 198.) While rejecting the later-proposed instruction, the trial court again specifically indicated that the defense was free to argue the matter, stating: “My inclination is to sustain the objection. You can argue this.” (RT 4742.)
In opening arguments, defense counsel argued at length about the print on the doorjamb — not only that the prints did not match Petitioner’s, but also about the processing and collection of the évidence, its loss, and the comparison of the print to both the prints of the victim and those of the victim’s husband, and argued that the print belonged not to any of those three individuals, but belonged to the real killer. (RT 2619-24, 2627.) The defense reiterated that the doorjamb itself was missing and then discussed the photographs taken of the print as follows:
Now, realizing this was a very important print because the inference was obvious that it must have belonged to the killer or Yvonne’Weden, realizing the significance of this print, the Sheriffs crime lab criminalist, Fred Freiberg, first photographed the print. And thank God he did because at this point that’s the only evidence we have of this bloody print.
(RT 2619-20.) The defense also addressed the police department’s handling of the print, arguing:
Mr. Freiberg, although he is an experienced criminalist and somewhat of a fingerprint expert, put this black powder on the bloody print on the door jamb. This was a mistake. That’s not how you’re supposed to handle prints like that because that bloody print was not a latent print, this is to say invisible, .that you can make visible only with the application of powder or some other substance. Rather it was a patent print, a print that you can see with the eye even before you treated it. You don’t put powder on those prints, but Mr. Freiberg did.
At that point or some point later, apparently realizing the mistake had been made, the door jamb itself was seized in the hopes that maybe the powder could be removed or something retrieved from this bloody print.
(RT 2620.)
During the guilt phase, the defense elicited testimony, from Freiberg about powdering the print; while Freiberg testified that the powder would not have interfered with later efforts to test the doorjamb for blood, the defense elicited that no such tests had been done prior to the loss of the doorjamb, and that the doorjamb had not been located. (RT 3675-77.). Similarly, the defense elicited testimony from Detective Hancock about the storage of the doorjamb at the police department’s evidence facility, the move to a new evidence facility, that the doorjamb was noted missing in November 1991, and the inability to locate the doorjamb despite repeated searches. (RT 4123-28.)
The defense also questioned Sypnicki about procedures, and Sypnicki testified that he would not have powdered the print after photographing it, but instead would have attempted to examine the print first, then would have tried light and other chemicals prior to powder. (RT 3181-85.) FBI analyst Harper similarly stated that he would apply powder last, after first photographing the print and then attempting to use chemicals. (RT 3529.) In closing, the defense again criticized the processing of the scene, arguing that: “Now, there’s obviously the fact that the latex gloves were not seized. I’ll come back to that. There’s the fact that the bloody print was first powdered, which destroyed it for pur *1007 poses of all other testing. There’s the fact that the doorjamb itself was lost. But there were other mistakes too.” (RT 4950.) The defense asserted: “That bloody print was not Rudolph Roybal’s and it was not Paul Weden’s. We know that from the experts who testified here.” (RT 4954.) The defense then engaged in an extended discussion on the bloody print and the expert testimony comparing the print to known prints. (RT 4954-57.) The defense also pointedly noted that the inability to test the print for blood was due to its loss, arguing that: “Now, it is true that I can’t prove to you by a scientific test that the bloody print, Pm calling it the bloody print because it was a bloody print, was in blood, and that’s because the doorjamb has been lost.” (RT 4957-58.) The defense also argued that the print belonged to the perpetrator of the crime and discussed the problems the experts had encountered in comparing the print to those of the victim, given the quality of the victim’s prints. (RT 4958-60.) The defense again advanced its theory that the print had been made by the perpetrator, an individual • wearing gloves, and argued at length about latex gloves in a garbage can that had been photographed by police but had not been seized. (RT 4961-67.)
Thus, in light of the fact that the jury was presented-with expert testimony that the print did not match Petitioner, testimony and argument about the loss of the doorjamb, and the resultant inability to test it for further evidence, Petitioner fails to demonstrate that the trial court’s rejection of the proposed instruction covering similar ground had a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637 , 113 S.Ct. 1710 . Petitioner fails to demonstrate that the California Supreme Court’s rejection of this claim was either contrary to, or an unreasonable application of, clearly established federal law, or that it was based upon an unreasonable determination of the facts. Petitioner is not entitled to habeas relief on Claim 1.
2. Claim 2
Petitioner contends that the trial court erred in excusing prospective juror Cynthia Steele for cause based on her views about the death penalty, violating his right to an impartial jury, a reliable penalty determination, and due process of law under the Fifth, Sixth, Eighth and Fourteenth Amendments. (FAP at 217.)
Petitioner raised this, claim, on direct appeal, and the California . Supreme Court rejected it on the merits, as follows:
During voir dire, the superior court granted the' prosecution’s challenge for cause with regard to prospective juror Cynthia Steele, on the ground that she “clearly stated that her religious convictions prevent her from voting for the death penalty.” Juror Steele indicated in a written questionnaire that the death penalty was against her religious beliefs. In response to the question, “In what types of cases/offenses do you feel the death penalty should be imposed?,” she wrote: “In some of these case[s], when a person kill (sic) 5 or 7 people, but really can’t say because it really isn’t right to take another person[’s] life.” In voir dire, she gave consistent answers. When asked by the superior court: ‘Would your religious conviction prevent you from voting for a death penalty in this case knowing what you know about the legal procedures here? Would you be precluded, would you absolutely not vote for the death penalty because of your religious convictions,” she responded: ‘Yeah, I wouldn’t vote- for that. I wquldn’t-I-I would for guilty, but I-I wouldn’t feel right. Because like I say, I’d be taking another person’s life and I wouldn’t feel. right.” Asked to give a “yes” or “no” answer to the same ques *1008 tion, she said: “Yes.” When asked, at the request of defense counsel, whether she had “some situation in mind where you think the death penalty might be appropriate,” she answered: ‘Tes. Yes, like that case of that-that guy kills people, I can’t think of his name, and he cut them up and ate parts of their body— I’m not crazy about the death penalty but that was really bad.” When the superior court repeated the question whether she would be unable to vote for the death penalty in this case, however, she again answered in the affirmative. The superi- or court denied a request by defense counsel to ask her whether she would “have an open mind” with respect to considering the death penalty “if in this case it were proven the defendant intentionally killed a 65-year-old woman in the course of a burglary of her house.”
Defendant claims that the superior court erred in excusing prospective juror Steele for cause. He contends that the record supports only a conclusion that she had some religious scruples about the death penalty, not blanket opposition thereto. He argues that her answer to the. superior court’s question regarding whether she would vote for the death penalty in this ease did not support a challenge for cause. The point fails.
The question on review of this claim is whether was exclusion warranted because the juror’s views concerning capital punishment would “‘prevent or substantially impair the performance of his duties as a juror (Wainwright v. Witt (1985) 469 U.S. 412, 424 [ 105 S.Ct. 844, 852 , 83 L.Ed.2d 841 ] ; accord, People v. Samayoa (1997) 15 Cal.4th 795, 822 , [ 64 Cal.Rptr.2d 400 , 938 P.2d 2 ].) “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. Samayoa, supra, 15 Cal.4th at p. 822, 64 Cal.Rptr.2d 400 , 938 P.2d 2 .) Questions directed to a juror’s attitudes toward the particular facts of the case are not relevant to the death-qualification process; however, “‘a court may properly excuse a prospective juror who would automatically vote against the death penalty in the case before him, regardless of his willingness to consider the death penalty in other cases.’ ” (People v. Pinholster (1992) 1 Cal.4th 865, 917-918 , [ 4 Cal.Rptr.2d 765 , 824 P.2d. 571 ].)
The record supports the superior court’s determination that prospective juror Steele harbored views unfavorable toward the death penalty that would substantially have impaired her ability to sit as a juror. She repeatedly stated that she would not vote for the death penalty “in this case,” i.e., a case involving a single victim. She explained that she might do so, albeit reluctantly, only in an extreme case, such as, for example, one involving multiple victims and cannibalism. The questioning by the superior court properly elicited her views about the death penalty in the abstract; the particular facts of the case were not presented to her. Indeed, the superior court refused to permit defendant to also ask about her views regarding the specific ease, i.e., whether she would have an “open mind” with respect to considering the death penalty for a person who killed a 65-year-old woman in the course of a residential burglary.
Roybal, 19 Cal. 4th at 518-19 , 79 Cal. Rptr.2d 487 , 966 P.2d 521 (footnote omitted).
*1009 “[T]he proper standard for determining when a prospective juror may .be excluded for cause because of his or her views on capital punishment .., is whether the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance, with his instructions and his oath,’ ” Wainwright v. Witt, 469 U.S. 412, 424 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985), quoting Adams v. Texas, 448 U.S. 38, 45 , 100 S.Ct. 2521 , 65 L.Ed.2d 581 (1980),
“[W]hether a venireman is biased has traditionally been determined through voir dire culminating in a finding by the trial judge concerning the venireman’s state of mind. We also noted that' such' a finding is based upon determinations of demeanor and credibility that are peculiarly within a trial judge’s province. Such determinations were entitled to deference even on direct review; ‘[t]he respect paid such'findings in habeas proceeding certainly should‘be no less.’” Witt, 469 U.S. at 428 , 105 S.Ct. 844 , quoting Patton v. Yount, 467 U.S. 1025, 1038 , 104 S.Ct. 2885 , 81 L.Ed.2d 847 (1984) (footnote omitted); see also Uttecht v. Brown, 551 U.S. 1, 9 , 127 S.Ct. 2218 , 167 L.Ed.2d 1014 (2007) (“Deference to the trial court is appropriate because it is in a position to assess the demeanor of the venire, and of the individuals that compose it, a factor of critical importance in assessing the attitudes and qualifications of potential jurors.”)
After recounting several answers provided in Steele’s written questionnaire, the trial court inquired on voir dire as to her views about the death penalty, as follows:
[The Court]: Do you have a firm religious conviction that taking another’s life is wrong or not justified?
A: I think it’s unjustified. I feel it’s unjustified.
Q: Unjustified?
A: Unjustified, yeah.
Q: All right. Would your religious conviction prevent you from voting for a death penalty in this' case knowing what you know about the legal procedures here? Would you be precluded, . would you absolutely not vote for the death penalty because of your religious convictions?
A: Yeah, I wouldn’t vote for that. I wouldn’t — I—I would vote for guilty, but I — I wouldn’t feel right. Because like I say, I’d be taking another person’s life and I wouldn’t feel right.
Q: You’ve — I need to ask the question because I need a “yes” or “no” answer, believe me.
A: All right.
Q: Would your religious convictions prevent you from voting for the death penalty in this case?
A: Yes;
(RT 2241-42.) After the prosecution’s challenge for cause, the trial court asked if defense counsel had additional questions, and the defense noted that Ms. Steele seemed to indicate in her questionnaire that there may be situations for which she did not oppose the death penalty. Upon inquiry, Steele referenced the infamous Dahmer case, involving both multiple murder and cannibalism, stating that, “I’m not too crazy about the death penalty, but that was really bad.” (RT 2242-43.) The Court then inquired:
Q: Now, in that situation you would consider voting for the death penalty?
A: Yeah, yes.
Q: All right. This case' is not going to involve cannibalism.
A: Okay.
Q: Not that I know of. Now, knowing that, that this case will not involve cannibalism, just from the little *1010 you’ve heard about the case, do your religious convictions tell you not to vote for the death penalty?
A: Wait a minute. Okay. What I meant is, like not too crazy about the death penalty, but I’ll do it if I was a juror, but I’m saying it would bother me. I’d probably have nightmares, I’d feel — let’s see.
. Q: Would you be unable to vote for the death penalty in this case? ,
A: Yes.
(RT 2243-44.) The trial court excused Steele from the venire, stating: “All right. The prosecution’s challenge for cause is granted. I’ll make a finding that Ms. Steele has clearly stated that her religious convictions prevent her from voting for the death penalty in this case.” (RT 2245.)
Petitioner contends that Steele’s 'answers, and general opposition to the 'death penalty, was insufficient to support the challenge for cause. (FAP at 186-87.) He asserts that the trial court’s inquiry into whether Steele was able to vote for death penalty “in this case” ran counter to the Supreme Court’s directions in Witherspoon v. State of Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968), which directed that such inquiry should be in the abstract. (FAP at 188, citing Witherspoon, 391 U.S. at 533 fn. 21, 88 S.Ct. 1770 .) 9 Petitioner argues that Steele was not so opposed to the death penalty that she should have been excluded, and that the state court’s rejection of this claim on direct appeal was an unreasonable application of the law to the facts under section 2254(d)(2). (FAP at 188.)
The Witherspoon Court stated that “a prospective juror cannot be expected to say in advance of trial whether he would in fact vote for the extreme penalty in the case before him.” Id., 391 U.S. at 523 n. 21, 88 S.Ct. 1770 . However, the trial court did not allow inquiry into the juror’s views about the specific facts of Petitioner’s case,- and -rebuffed defense attempts to pose pointed questions referencing the victim’s age, gender, and other particular circumstances of the crime, stating that: “I’ve asked her and she knows from listening to my questions to the 'other jurors here in her presence what the procedure is, the nature of the case and so forth.” (RT 2244.) The record also clearly reflects that Steele was aware of the nature of the case, as the prosecutor read the Amended Information, outlining the charges brought against Petitioner, to each group of prospective jurors. -(See RT 2196-99.) Instead, as the state court reasonably noted, the trial, court’s use of the'term “in this case” was used to, distinguish the general nature of the case, and Steele “repeatedly stated that she, would, not vote for the death penalty ‘in this case,’ i.e; a case involving a single victim,” as opposed to a case involving “multiple victims and cannibalism,” in which she could conceivably consider a death sentence. Roybal, 19 Cal.4th at 519 , 79 Cal.Rptr.2d 487 , 966 P.2d 521 .
Prospective juror Steele did not merely voice a general opposition to the death penalty, but instead repeatedly-affirmed an unwillingness to consider it or vote for it in all but the most “extreme” situations, “[D]eference must be paid to -the trial judge who sees and hears the juror.” Witt, 469 U.S. at 426 , 105 S.Ct. 844 . After extended inquiry, the trial court concluded “that Ms. Steele has clearly stated that her religious convictions prevent her from voting for the death, penalty in this case.” (RT 2245.) Petitioner fails to demonstrate that the trial court’s conclusion was unreasonable, and the Court finds record support for the trial court’s decision given Steele’s *1011 clearly stated opposition to the death penalty and unwillingness to-vote for it in-all but only the most “extreme” case. See Witt, 469 U.S. at 434 , 105 S.Ct. 844 (“[T]he question is not whether a reviewing court might disagree with the trial court’s findings, but whether those findings are fairly supported by the record.”), citing Marshall v. Lonberger, 459 U.S. 422, 432 , 103 S.Ct. 843 , 74 L.Ed.2d 646 (1983).
Contrary to Petitioner’s contention, “[t]he trial court’s finding of bias was made under the proper standard, was subject to § 2254(d), and was fairly supported by the record.” Witt, 469 U.S. at 435 , 105 S.Ct. 844 . Accordingly, the state court’s rejection of this claim on appeal was neither contrary to, nor an unreasonable application of, clearly established federal law, nor was it based upon an unreasonable determination of the facts. Petitioner is not entitled to habeas relief on Claim 2.
3. Claim 14
Petitioner alleges that the trial court erred in instructing the jurors that an aggravating factor, “standing alone,” could support a death sentence, arguing that the instruction “effectively told the jurors that one aggravating factor alone could override the duty to compare the evidence in aggravation with evidence in mitigation,” in violation of his constitutional rights to due process and a reliable penalty determination. (FAP at 301.)
The California Supreme Court considered and rejected this claim on direct appeal, reasoning as follows:
After listing the penalty factors of Penal Code section 190.3 for the jurors, the superior court instructed: “These various factors in aggravation and mitigation may be' assigned different weights by you. Thus, it is not the number of factors necessarily, but also the weight you assign to them which should control. For instance, you could find that one specific factor on one side weighs so heavily in your consideration that it outweighs all of the determined factors on the other side.... Any aggravating factor, standing alone, may be sufficient to support a decision that death is the appropriate punishment. [¶] If a mitigating circumstance or aspect of the defendant’s background or character arouses sympathy and compassion in you, you may consider that a circumstance in mitigation and impose life in prison without possibility of parole instead of the death sentence. [¶] Any mitigating factor standing alone may be sufficient to support a decision that life without possibility of parole is the appropriate punishment.”
Defendant claims the superior court erred. He argues that the instruction was inconsistent with Penal Code section 190.3, which requires jurors to consider the aggravating and mitigating circumstances and to impose a sentence of death if it concludes that the aggravating circumstances outweigh the mitigating circumstances. He concedes that a juror could properly decide that one aggravating factor outweighed everything else and warranted a.sentence of death. He contends, however, that the superior court’s instruction was misleading because it referred to any aggravating factor “standing alone.” He insists that the phrase “standing alone” means “by itself, without reference to anything else,” and that jurors were thus instructed that they could altogether ignore mitigating evidence. He is unpersuasive.
There was no reasonable likelihood that the jurors could have so understood the instruction. It did not, as defendant asserts, authorize jurors to disregard all mitigating evidence and consider any single penalty factor in isolation, i,e., without reference to anything else, in determining penalty. On the contrary, *1012 the superior court referred to each of the statutory factors in mitigation as well as in aggravation, and specifically instructed jurors that they could consider all the circumstances, including any sympathetic aspect of defendant’s character or background as a mitigating factor. It also expressly instructed jurors to weigh all of the relevant factors in determining the appropriate punishment, while making it clear that the weighing process should not consist of a merely mechanical process of comparing the number of aggravating and mitigating factors. In this context, the phrase “standing alone” did not suggest that jurors could refuse to consider mitigating evidence. FN14
Roybal, 19 Cal.4th at 521-22 , 79 Cal. Rptr.2d 487 , 966 P.2d 521 (alterations in original).
Clearly established

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7235093. Public record. Not legal advice.