Young v. Gipson

*665 ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS

JON S. TIGAR, United States District Judge

Before the Court is the above-titled petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254 by petitioner Robert Young, challenging the validity of a judgment obtained against him in state court. Respondent has filed an answer to the petition, and petitioner has filed a traverse. For the reasons set forth below, the petition is granted in part and denied in part.

I. PROCEDURAL HISTORY

On October 17, 1990, in a capital case trial, an Alameda County Superior Court jury found petitioner guilty of three counts of first degree murder, Cal. Penal Code § 187 (counts 1, 5, and 8), two counts of robbery, id. at § 211 (counts 2 and 7), two counts of attempted murder, id. at §§ 664/187 (counts 3 and 6), and one count of attempted robbery, id. at §§ 664/211 (count 4). The jury found true the enhancement allegations that petitioner personally used a firearm during the commission of each crime, id. at §§ 1203.06, 12022.5, and found true the enhancement allegations attendant to the count 2 robbery and count 3 attempted murder that petitioner inflicted great bodily injury upon his victim, id. at §§ 1203.075, 12022.7. The jury additionally found true the robbery-murder special circumstance allegation charged attendant to the count 1 and count 5 murders, id. at § 190.2(a)(17)(i) (now (a)(17)(A)), and lastly found the multiple-murder special circumstance allegation true as well, id. at § 190.2(a)(3)). Ex. A at 992-99, 1006-15; Ex. B at 3719-26. 1 Petitioner subsequently admitted the truth of a prior-conviction allegation. Ex. A at 1022; Ex. B at 3728-30.

On November 8, 1990, the jury returned its penalty-phase verdict against petitioner, fixing his punishment at death. Ex. A at 1067; Ex. B at 4103-04.

On December 17, 1990, the trial court sentenced petitioner to death on the count 1 and count 5 first degree murder convictions, and sentenced him to life in prison without the possibility of parole on the count 8 first degree murder conviction. With respect to the remaining convictions and enhancements the trial court imposed a 45-year determinate state prison sentence, but ordered that sentence stayed under Cal. Penal Code § 654 . Ex. A at 1088-93; Ex. B at 4135-40.

Petitioner’s automatic appeal to the California Supreme Court proceeded. Petitioner filed his Appellant’s Opening Brief on April 13, 2001, Ex. C, the People of the State of California filed their Respondent’s Brief on October 1, 2001, Ex. D, and petitioner subsequently filed his Appellant’s Reply Brief, Ex. E. Petitioner made 11 attacks on the guilt-phase judgment against him in his briefing, including claims of insufficient evidence, prosecutorial misconduct, and instructional error. Exs. C, E. Petitioner also made numerous attacks on the death judgment against him. Id.

On April 23, 2003, petitioner filed a Petition for Writ of Habeas Corpus in the California Supreme Court, again making allegations attacking the guilt-phase judgment against him, including claims of ineffective assistance of counsel and some of the claims he had raised on direct appeal. Ex. F. In his state habeas application peti *666 tioner also attacked the penalty-phase judgment against him, and argued therein that he had established a prima facie case that he was mentally retarded. Id. (citing Atkins v. Virginia, 536 U.S. 304 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 (2002) (holding the execution of a mentally retarded person violates the Eighth Amendment)).

On December 30, 2003, with respect to petitioner’s state habeas application, the People of the State of California filed an Informal Response to Petition for Writ of Habeas Corpus in the California Supreme Court. Ex. G.

On January 31, 2005, the California Supreme Court issued its opinion in petitioner’s direct appeal, rejecting all of his assignments of error and affirming both the guilt and death judgments against him. Ex. H; People v. Young, 34 Cal.4th 1149 , 24 Cal.Rptr.3d 112 , 105 P.3d 487 (2005).

On February 2, 2005, in the California Supreme Court, petitioner filed a Reply to Informal Response to Petition for Writ of Habeas Corpus. Ex. I.

On May 6, 2005, petitioner filed a Petition for Writ of Certiorari in the United States Supreme Court, seeking discretionary review of the California Supreme Court’s decision on direct appeal. Ex. J. On October 3, 2005, the United States Supreme Court denied certiorari. Young v. California, 546 U.S. 833 , 126 S.Ct. 57 , 163 L.Ed.2d 86 (2005).

On October 11, 2006, the California Supreme Court issued the following order in petitioner’s state habeas proceeding:

Each request for judicial notice is denied. (P eople v. Rowland (1992) 4 Cal.4th 238 , 268 fn. 6 [ 14 Cal.Rptr.2d 377 , 841 P.2d 897 ].) The Director of the Department of Corrections and Rehabilitation is ordered to show cause in the Alameda County Superior Court, when the matter is placed on calendar, why petitioner’s death sentence should not be vacated and petitioner sentenced to life imprisonment without the possibility of parole on the ground that he is mentally retarded within the meaning of Atkins v. Virginia[,] [] 536 U.S. 304 [ 122 S.Ct. 2242 ], as alleged in Claim XIII of the petition for writ of habeas corpus filed April 23, 2003. (See In re Hawthorne (2005) 35 Cal.4th 40 [ 24 Cal.Rptr.3d 189 , 105 P.3d 552 ].) The return is to be filed on or before November 9, 2006. All other claims set forth in the petition for writ of habeas corpus are denied. Each claim is denied on the merits. Except insofar as they allege ineffective assistance of counsel as a substantive basis for relief, the following claims are additionally barred to the extent they were raised and rejected on appeal (In re Harris (1993) 5 Cal.4th 813, 825, 829-841 [ 21 Cal.Rptr.2d 373 , 855 P.2d 391 ]; In re Waltreus (1965) 62 Cal.2d 218, 225 [ 42 Cal.Rptr. 9 , 397 P.2d 1001 ]): claims II, IV, V, and XXI. Kennard, J., is of the opinion an order to show cause should be issued as to claims XV and XIX.

Ex. K.

On October 8, 2010, the Alameda County Superior Court issued an order granting petitioner habeas corpus relief vacating his death sentence. The court found that petitioner had sustained his burden of proof that he is mentally retarded. The court then resentenced petitioner to life imprisonment without the possibility of parole on counts 1 and 5. Ex. L.

On October 7, 2011, petitioner filed a Petition for Writ of Habeas Corpus in this Court, raising 20 claims of federal constitutional error. Docket No. 1. These attacks on his convictions are ones he raised on direct appeal in state court, on state' habe-as, or both.

II. STATEMENT OF FACTS

The following background facts describing the crime and evidence presented at *667 trial are from the opinion of the California Supreme Court on direct appeal: 2

1. The Attempted Murder and Robbery of Manzine Miller and the Murder of Terry Rivers

In the early morning hours of January 30, 1989, Manzine Miller and Terry Rivers were selling rock cocaine in front of Miller’s house on East 24th Street in Oakland (Miller’s house). Around 2:30 a.m., Miller observed a black-over-green Ford turn onto Highland Avenue from East 24th Street and park. Moments later, defendant and another man walked from Highland Avenue and approached Miller. Defendant told Miller he wanted to purchase $50 worth of rock cocaine. Miller indicated to defendant that he could sell him the drug, but would have to get it from his supplier. Defendant told his companion to watch the street and then followed Miller along a pathway through a nearby vacant lot known as the “swamp,” towards Miller’s supplier. As they walked, defendant pulled out a gun, told Miller to get on his knees, and robbed him of the rock cocaine he had in his pocket. As Miller begged defendant not to shoot him, defendant shot him above his right hip. Miller survived the gunshot wound and watched defendant walk back towards his (Miller’s) house. Miller heard three gunshots shortly after defendant left. When the police arrived at Miller’s house, they found the body of Terry Rivers lying across the front entryway.

£ Murder of Glen Frazier and Attempted Robbery ofMelva Fite

Sometime after 2:00 a.m. on January 30, 1989, on 89th Avenue in Oakland, defendant exited a vehicle and approached Melva Fite and Glen Frazier as they talked with Frazier’s cousin, Ricky Smith. Defendant suddenly began shooting at Smith. Smith ran to a house, and Fite and Frazier ran up 89th Avenue. Defendant followed Fite and Frazier in his vehicle. Defendant’s cousin, Patrick Jackson, was riding in the front passenger seat. When defendant caught up with Fite and Frazier near the intersection of 90th Avenue and Cherry Street, he exited the vehicle and demanded their money. Frazier told defendant they did not have anything. Defendant then accused Frazier of previously robbing him. Frazier replied that he did not know defendant. As he and Fite crouched down on their knees, they begged defendant not to shoot. Defendant told Fite to run, and moments later, Fite heard two shots fired. She saw Frazier slump to the ground. Frazier died later that morning from a gunshot wound to his lower back.

3. Murder of Sylvester Davis; Attempted Murder of Luther Thomas; Robbery of Gerald Livingston

In the early morning hours of February 19, 1989, defendant crashed through the living room window of a “crack house” on 74th Avenue (74th Avenue house). Luther Thomas, Veronica Robinson, Joseph Lee Batiste, Gerald Livingston, Veronica Hackett, and Sylvester Davis were present in the house. Defendant immediately began shooting at Thomas, the “doorman,” as he ran towards the kitchen. Thomas suffered a gunshot wound to his forearm and escaped from the house. During the commotion, Davis left the northwest bedroom, and entered the southwest bedroom where he jumped out of the window. Robinson, who had been hiding in the closet, followed Davis out of the window. *668 Meanwhile, defendant entered the northwest bedroom and robbed Livingston of $40. Defendant then left the bedroom and entered the southwest bedroom. Livingston heard the sound of a window breaking, followed by three gunshots. Within minutes after the shooting stopped, defendant entered the northwest bedroom, looked at Livingston, and then left the house through the front door. Outside, Robinson had crawled toward the front of the house while Davis had crawled toward the rear of the house. Robinson heard Davis say, “Oh, they going to kill me” and another gunshot. Shortly after defendant left the house, Livingston went to the front door and looked out. He saw defendant standing on the sidewalk and heard Davis moaning in pain. A vehicle pulled up in front of the house as Livingston went back into the house.

A Ballistics Evidence

Chester Young, a retired ballistics expert formerly employed by the Oakland Police Department, analyzed six bullets recovered from the three crime scenes in this case: the three bullets recovered from each of the bodies of Miller, Rivers, and Frazier; a bullet recovered from the living room wall at Miller’s house; and two bullets recovered from the 74th Avenue house. Young explained to the jury that two bullets are declared “a positive match” when they share a particular number and type of identification characteristics. When the bullets do not share common identification characteristics, the presence of a “pseudo land impression,” a very rare mark that is caused by a defect in the gun, very strongly suggests that the bullets were fired from the same gun. Based on his analyses, Young concluded that because all six bullets had one or two pseudo land impressions, there was a “very strong” likelihood that'all of the bullets were fired from the same gun. That gun was never recovered.

People v. Young, 34 Cal.4th 1149, 1166-68 , 24 Cal.Rptr.3d 112 , 105 P.3d 487 (2005).

III. DISCUSSION

A. Standard of Review

This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254 (a); Rose v. Hodges, 423 U.S. 19, 21 , 96 S.Ct. 175 , 46 L.Ed.2d 162 (1975).

A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court’s adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254 (d); Williams v. Taylor, 529 U.S. 362, 412-13 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000). Additionally, habeas relief is warranted only if the constitutional error at issue “ ’had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Penry v. Johnson, 532 U.S. 782, 795 , 121 S.Ct. 1910 , 150 L.Ed.2d 9 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993)).

A state court decision is “contrary to” clearly established Supreme Court precedent if it “applies a rule that contradicts the governing law set forth in *669 [the Supreme Court’s] cases,” or if it “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [its] precedent.” Williams, 529 U.S. at 405-06 , 120 S.Ct. 1495 . “Under the ’unreasonable application’ clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413 , 120 S.Ct. 1495 . “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411 , 120 S.Ct. 1495 .

Section 2254(d)(1) restricts the source of clearly established law to the Supreme Court’s jurisprudence. “[C]learly established Federal law, as determined by the Supreme Court of the United States” refers to “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412 , 120 S.Ct. 1495 (internal quotation marks omitted). “A federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme Court] is, at best, ambiguous.” Mitchell v. Esparza, 540 U.S. 12, 17 , 124 S.Ct. 7 , 157 L.Ed.2d 263 (2003).

Here, the California Supreme Court, in its opinion on direct review, addressed nine of the claims petitioner raises in the instant petition. The California Supreme Court thus was the highest court to have reviewed the claims in a reasoned decision, and, as to those claims, it is the California Supreme Court’s decision that this Court reviews herein. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 , 111 S.Ct. 2590 , 115 L.Ed.2d 706 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005. 3 The remaining claims were presented to the California Supreme Court only in petitioner’s state petition for writ of habeas corpus, which was summarily denied as to all claims other than the claim that petitioner’s death sentence should be vacated on the ground that he is mentally retarded. When presented with a state court decision that is unaccompanied by a rationale for its conclusions, a federal court must conduct an independent review of the record to determine whether the state court decision is objectively reasonable. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.2000). This “[independent review ... is not de novo review of the constitutional issue, but rather, the only method by which [a federal court] can determine whether a silent state court decision is objectively unreasonable.” See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.2003). “Where a state court’s decision is unaccompanied by an explanation, the ha-beas petitioner’s burden still must be met by showing there was no reasonable basis for the state court to deny relief.” See Harrington v. Richter, 562 U.S. 86 , 131 S.Ct. 770, 784 , 178 L.Ed.2d 624 (2011).

B. Petitioner’s Claims

Petitioner raises twenty claims for federal habeas relief in his petition. The claims are most sensibly addressed in the following order, with the original enumeration shown in parentheses: 1) prosecuto-rial misconduct during jury selection (claim 3); 2) selective prosecution (claim 2); 3) prosecutorial misconduct in closing *670 argument (claim 4); 4) prosecutorial misconduct in presenting “false and misleading evidence” (claim 5); 5) prosecutorial misconduct in failing to disclose exculpatory evidence (claim 6); 6) ineffective assistance of counsel during guilt-phase investigation (claim 7); 7) ineffective assistance of counsel during guilt-phase performance (claim 8); 8) ineffective assistance of counsel in investigating and presenting mental health evidence (claim 9); 9) improper rebuttal (claim 10); 10) insufficient evidence as to count 1 (claim 11); 11) insufficient evidence as to count 5 (claim 12); 12) jury misconduct (claim 13); 13) instructional error in court’s limiting of instructions (claim 14); 14) instructional error regarding robbery-murder special circumstance (claim 15); 15) false and unreliable ballistics evidence (claim 16); 16) actual innocence (claims 17-19); 17) missing record (claim 1); and 18) cumulative error (claim 20).

1. Jury Selection

Petitioner claims that the prosecutor used peremptory strikes to remove from the jury pool all of the African-American women. 4 The parties do not dispute the California Supreme Court’s description of the relevant trial court proceedings, as follows:

During jury selection, and after the prosecutor exercised his ninth peremptory challenge, defense counsel asserted that the prosecutor had used his peremptory challenges to strike all of the African-American female prospective jurors from the jury panel — namely, D.D., V.S., and B.W. 4 He added that' two African-American male prospective jurors were seated on the panel. The trial court indicated it was not, at that time, finding a prima facie- case of discrimination. Counsel then noted for the record that “all of the black women called into the jury box at this time have been excused by the prosecution.” The parties proceeded to use their remaining peremptory challenges and ultimately selected a jury and four alternates. Three African-American males were among the jurors selected.

Fn 4: Although defendant initially identified B.W. as one of the prospective jurors against whom the prosecutor discriminated, defendant now concedes that the prosecutor “may have had a legitimate basis for exercising a peremptory challenge” against this prospective juror given her apparent difficulty with accepting the testimony of drug users as credible evidence, and given many of the prosecution’s percipient witnesses were drug users. Therefore, our analysis is limited to whether defendant stated a prima fa-cie case of purposeful discrimination only as to Prospective Jurors D.D. and V. S.

Thereafter, out of the jury’s presence, the trial court addressed defendant’s Wheeler motion. It identified the African — American female prospective jurors by name (D.D. and V.S.), noted they were members of two cognizable groups, i.e., women and African-Americans, and then ruled that the defense had not made a prima facie case of discrimination.

Young, 34 Cal.4th at 1171-72 , 24 Cal.Rptr.3d 112 , 105 P.3d 487 .

a. Equal Protection Standard

The use of peremptory challenges by either the prosecution or defense to exclude cognizable groups from a jury may violate the Equal Protection Clause. See Georgia v. McCollum, 505 U.S. 42, 55-56 , 112 S.Ct. 2348 , 120 L.Ed.2d 33 (1992). The Supreme Court first held that the Equal Protection Clause forbids the chal *671 lenging of potential jurors solely on account of their race, see Batson v. Kentucky, 476 U.S. 79, 89 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), and later extended this protection to challenges solely based on gender, see J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 130-48 , 114 S.Ct. 1419 , 128 L.Ed.2d 89 (1994)). 5 Batson permits prompt rulings on objections to peremptory challenges under a three-step process: (1) the defendant must make out a prima facie case that the prosecutor exercised peremptory challenges on the basis of race (or gender) “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose;” (2) if the prima facie case is made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question; and (3) if the prosecutor carries the burden of showing a race-neutral explanation, the defendant has the burden to prove purposeful discrimination. Batson, 476 U.S. at 93-94, 97-98 , 106 S.Ct. 1712 . A party establishes a prima facie equal protection violation based on race by showing that: (1) the defendant is a member of a cognizable racial group, (2) the group’s members have been excluded from the jury, and (3) the circumstances of the case raise an inference that the exclusion was based on race. Batson, 476 U.S. at 96 , 106 S.Ct. 1712 .

b. Standard of Review

Here, petitioner challenged the prosecutor’s use of peremptory strikes by way of a motion under People v. Wheeler, 22 Cal.3d 258, 280 , 148 Cal.Rptr. 890 , 583 P.2d 748 (1978). The trial court denied the motion because it found, relying on Wheeler , no prima facie case of racial discrimination. The Wheeler motion procedure used by California courts does not satisfy the constitutional requirement laid down for the first step of Batson , however. Johnson v. California, 545 U.S. 162, 168 , 125 S.Ct. 2410 , 162 L.Ed.2d 129 (2005); Wade v. Terhune, 202 F.3d 1190, 1197 (9th Cir.2000). California courts have routinely imposed the more stringent requirement that the defendant “show a strong likelihood,” Wheeler, 22 Cal.3d at 280 , 148 Cal.Rptr. 890 , 583 P.2d 748 , rather than merely “raise an inference,” Batson, 476 U.S. at 96 , 106 S.Ct. 1712 , that the prosecutor had excluded venire members from the petit jury on account of their race. Wade, 202 F.3d at 1196-97 . Because California courts using the Wheeler procedure have not applied federal law as clearly established by the United States Supreme Court, a federal habeas court need not defer to the California court’s findings as it would otherwise be required to do under 28 U.S.C. § 2254 (d). Wade, 202 F.3d at 1197 .

In People v. Johnson, 30 Cal.4th 1302 , 1 Cal.Rptr.3d 1 , 71 P.3d 270 (2003), the California Supreme Court attempted to rectify the situation by concluding that “Wheeler’s terms ‘strong likelihood’ and ‘reasonable inference’ state the same standard” — one.that is entirely consistent with Batson. 30 Cal.4th at 1313 , 1 Cal.Rptr.3d 1 , 71 P.3d 270 . Batson , the state high court held, “permits a court to require the objector to present, not merely ‘some evidence’ permitting the inference, but ‘strong evidence’ that makes discriminatory intent more likely than not if the challenges are not explained.” Id. at 1316, 1 Cal.Rptr.3d 1 , 71 P.3d 270 (emphasis added). The Supreme Court of the United States disagreed, and made clear that “California’s ‘more likely than not’ standard is at odds with the prima facie inqui *672 ry mandated by Batson.” Johnson v. California, 545 U.S. at 173 , 125 S.Ct. 2410 . To satisfy Batson’s first step, a defendant need not persuade the judge that the challenge was more likely than not the product of purposeful discrimination; rather, he need only produce evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. Id. at 171 , 125 S.Ct. 2410 . Accordingly, federal habeas courts should continue to apply Wade’s de novo review requirement whenever state courts use the “strong likelihood”/“more likely than not” standard, as these courts are applying a lower standard of scrutiny to peremptory strikes than the federal constitution permits. Accord Paulino v. Castro, 371 F.3d 1083, 1090 (9th Cir.2004) (applying de novo review where state court applied “strong likelihood” standard); Cooperwood v. Cambra, 245 F.3d 1042, 1047 (9th Cir.2001) (same).

Here, the California Supreme Court upheld the trial court’s finding that petitioner had not established a prima facie case of racial discrimination by the prosecutor. The California Supreme Court’s decision was announced after the United States Supreme Court had granted a petition for a writ of certiorari, but before it had announced its decision in Johnson v. California. Consequently, the California Supreme Court applied California’s “strong likelihood”/“more likely than not” standard in finding that petitioner had not made a prima facie case of discrimination under Batson. Young, 34 Cal.4th at 1172 , 24 Cal.Rptr.3d 112 , 105 P.3d 487 . As that is the wrong standard, pursuant to Wade , this Court will review de novo the California Supreme Court’s finding of no prima facie case of discrimination. 6

c. Analysis

As a preliminary matter, the Court notes that while Batson prohibits discrimination based on race or gender, neither the Supreme Court nor the Ninth Circuit has recognized that the combination of race and gender, such as “black males,” may establish a cognizable group for Batson purposes. Turner v. Marshall, 63 F.3d 807, 812 (9th Cir.1995), overruled on other grounds, Tolbert v. Page, 182 F.3d 677, 685 (9th Cir.1999) (en banc). See also United States v. Dennis, 804 F.2d 1208, 1210 (11th Cir.1986), cert. denied, 481 U.S. 1037 , 107 S.Ct. 1973 , 95 L.Ed.2d 814 (1987) (holding Batson does not apply to claims based on “black men” or “black women”). Thus, this Court limits its inquiry to whether petitioner has made a prima facie case of racial discrimination under Batson , without regard to gender. 7

Here, the first and second elements of the Batson prima facie case of discrimination are met because the prospective jurors are African-American and the prosecutor used peremptory strikes to remove them. See Batson, 476 U.S. at 96 , 106 S.Ct. 1712 . The issue is whether the third element is met, namely whether the circumstances of the case raise an inference that the challenges were based on race. See id.

*673 In Batson , the Supreme Court noted that, in “ ‘deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances,’ and noted that a ‘prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose.’ ” Williams v. Runnels, 432 F.3d 1102, 1107 (9th Cir.2006) (quoting Batson, 476 U.S. at 96-97 , 106 S.Ct. 1712 ). The Supreme Court reiterated in Johnson that “a defendant may rely on ‘any other relevant circumstances’ to raise an inference of discriminatory purpose.” Id. (quoting Johnson, 545 U.S. at 170 , 125 S.Ct. 2410 ).

In assessing “all relevant circumstances” surrounding challenged peremptory strikes, for purposes of determining whether there is an inference of discrimination under Batson , “Supreme Court precedent requires a comparative juror analysis.” Boyd v. Newland, 467 F.3d 1139, 1149 (9th Cir.2006). Comparative juror analysis involves determining whether non-challenged jurors possess any of the characteristics on which the prosecution challenged jurors in the protected group. Snyder v. Louisiana, 552 U.S. 472, 482-83 , 128 S.Ct. 1203 , 170 L.Ed.2d 175 (2008); Boyd, 467 F.3d at 1150 . Contrary to the view of the California courts, comparative juror analysis should take place on appeal even when the trial court did not engage in such analysis. 8 Id. at 1148-50 .

In his petition, petitioner does not challenge the prosecution’s decision to strike B.W. Indeed, on direct appeal, petitioner ultimately conceded that the prosecutor may have had a legitimate basis for excusing B.W., “given her apparent difficulty with accepting the testimony of drug dealers as credible evidence, and given many of the prosecution’s percipient witnesses were drug dealers.” Ex. H at 9, n.4. Petitioner contends, however, that the prosecutor’s decision to strike D.D. and V.S. was based on unconstitutional considerations. Petition at 63-65. The record does not support this contention, however, as it reveals unique qualities of D.D.’s and V.S.’s answers to the jury questionnaires and voir dire that provide race-neutral reasons for striking them.

As to D.D., the prosecutor learned that D.D. had worked with his office and with law enforcement on sexual assault cases. Ex. B. at 1304, 2307-08. The prosecutor explained that he had spoken with colleagues from his office and learned that they held the opinion that D.D. had “a difficult time perceiving the truth” and that she had exaggerated her own credentials or qualifications. See id. As the California Supreme Court further found, D.D. worked as a therapist, and the prosecutor may have reasonably believed that D.D. would have difficulty setting aside her own expertise as a therapist in evaluating the evidence, particularly the penalty phase evidence pertaining to extreme mental disturbance or emotional illness. Young, 34 Cal.4th at 1174 , 24 Cal.Rptr.3d 112 , 105 P.3d 487 . Finally, D.D. stated in voir dire that she believed one explanation for the increase in crime is an “increase in the double standard of our governmental system.” Ex. A at 6913; Ex. B at 1294. And when asked in voir dire, “But you indicated there is no reason why you couldn’t be a fair and impartial juror after evaluating all the evidence in this case?,” *674 D.D. answered “I don’t know.” Ex. B at 1306. Although these distinctive aspects of D.D.’s answers are not conclusive that she would not have been a good juror, the Court is mindful that at the voir dire stage lawyers are only making their best guess at how a prospective juror may act, and D.D.’s answers certainly provide a race-neutral basis for the perception that she might not have been impartial. No other jurors gave an anti-government explanation for the increase in crime. See United States v. Steele, 298 F.3d 906, 913-14 (9th Cir.2002) (finding it permissible' and race neutral to challenge a juror based on his opinions of the criminal justice system, even where the opinion is that the system is racist). Nor did any other jurors have a therapy background or experience working with the district attorney’s office. See Mayes v. Premo, 766 F.3d 949, 968-59 (9th Cir.2014) (finding trial court’s acceptance of prosecutor’s background checks was not an objectively unreasonable application of Batson). As a result, a comparative juror analysis does not raise an inference of discrimination as to D.D.

As to V.S., the prosecutor explained that she worked for the California State Automobile Association where she assisted insurance defense lawyers. Ex. B at 2308. The prosecutor felt that this made V.S. more likely to identify with the defense team. Id. The record supports this explanation. As summarized by the California Supreme Court:

Regarding Prospective Juror V. S., the prosecutor reasonably might have challenged her because of her experience as an insurance claims specialist. V.S. disclosed she assisted defense attorneys in preparation for litigation and arbitration. In response to questioning, she indicated she sometimes took an active role in the process. Although V.S. stated she might not speak up in settlement conferences or negotiations “[i]f our defense attorney is a strong attorney and he doesn’t need my input,” she said she would “have something to say” if the attorney “doesn’t put forth something that I think is essential to evaluating the claim and helping the judge make a decision as to, you know, what is fair or in helping the judge.” In light of these voir dire responses, the prosecutor might reasonably have challenged V.S. on the basis that she might be overly defense oriented in evaluating and deliberating the charges against defendant.

Young, 34 Cal.4th at 1174 , 24 Cal.Rptr.3d 112 , 105 P.3d 487 . Finally, the prosecutor also noted that V.S. was pregnant and expressed his opinion that someone who is “bearing new life” might “find it very difficult to exterminate someone else’s life.” Ex. B at 2308. Again, there is nothing in the record showing that other jurors similarly situated to V.S. were permitted to remain on the jury. There were no other jurors, for example, who reported that they worked in defense litigation or who reported that they were pregnant at the time of jury selection. A comparative juror analysis does not raise an inference of discrimination. 9

*675 In sum, the record in this case does not create an inference of discrimination in the prosecutor’s peremptory challenges to three African-American female prospective jurors. The prosecutor did not strike all of the African-American or women ven-irepersons; the state courts found race-neutral reasons for striking the prospective jurors at issue; this was not a case that involved gender or race discrimination 10 ; and a comparative juror analysis does not raise an inference of discrimination. As a result, petitioner has not established a prima facie case of discrimination under the first step of the Batson analysis.

Accordingly, petitioner is not entitled to habeas relief on this claim.

2. Selective Prosecution

Petitioner claims the prosecution and trial were “permeated with racial bias and discrimination,” which the Court construes as a claim for selective prosecution. Petition at 47-59. Petitioner presented this claim to the California Supreme Court only in his state habeas petition, which was summarily denied on the merits. Ex. F at 18-40.

Although the decision whether to prosecute and what charges to bring generally rests entirely in the prosecutor’s discretion, this discretion is subject to constitutional constraints. United States v. Armstrong, 517 U.S. 456, 464 , 116 S.Ct. 1480 , 134 L.Ed.2d 687 (1996). One of these constraints is that the prosecutorial decision may not violate equal protection by resting on “ ‘an unjustifiable standard such as race, religion, or other arbitrary classification.’ ” Id. Courts presume that prosecutors have properly discharged their official duties. Id. In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present “ ‘clear evidence to the contrary.’” Id. A prosecutor’s charging decision cannot be judicially reviewed absent a prima facie showing that' it rested on an impermissible basis, such as gender, race, or denial of a constitutional right. United States v. Diaz, 961 F.2d 1417, 1420 (9th Cir.1992).

To establish a prima facie ease of selective prosecution, the claimant must show that the prosecutorial policy (1) had a discriminatory effect and (2) was motivated by a discriminatory purpose. Armstrong, 517 U.S. at 465 , 116 S.Ct. 1480 . In order to establish a discriminatory effect, the claimant must show that similarly situated individuals of a different race were not prosecuted. See id. The fact that he is part of a protected class does not alone provide a colorable basis for believing that a selection has taken place; nor would evidence that other members of the protected class were prosecuted. See United States v. Aguilar, 883 F.2d 662, 705-08 (1989), superseded by statute on other grounds, P.L. No. 99-603, 100 Stat. 3359 , as stated in Khan v. Holder, 584 F.3d 773, 783 (9th Cir.2009).

Petitioner supports his claim by pointing to declarations submitted by two Alameda County public defenders, Charles Denton and Michael Ogul, in the 1994 capital case of People v. Johnny Lee Barnes, Alameda County Superior Court, Case No. 103157. Ex. 103 to Ex. F. The Court has reviewed the declarations. The Denton declaration offers evidence of Alameda *676 County murder cases involving non-African-American defendants in which the prosecutor chose not to seek death at the penalty phase. The declaration, and the cases discussed therein, are offered in support of petitioner’s argument that the prosecution was racially motivated in bringing capital charges. As discussed above, petitioner’s death sentence has been vacated, and thus, this is no longer a capital case. Petitioner’s argument that the sentencing charges were discriminatory is therefore moot.

The Ogul declaration offers evidence of Alameda County murder cases involving non-African-American defendants in which special circumstances were either filed or could have been filed but the defendants were either not prosecuted for any special circumstances or the prosecution agreed to a disposition that did not result in the finding of any special circumstances. The Ogul declaration lists and describes nine cases, as follows:

Luis Chavez [ASC # H-14646], a Hispanic or Asian male was charged with murder with special circumstances. Although he had previously suffered two prior convictions for murder, the Alameda County District Attorney’s Office allowed him to plead guilty to second degree murder without any special circumstances.

David Misch [ASC # H-13968], a white male, was charged with murder and ultimately pled to second degree murder, although he was arrested for murder and violation of Vehicle Code section 1085, the evidence demonstrated probable cause to believe that a robbery special circumstance was true, and he had suffered at least three prior felony convictions in proceedings brought and tried separately.

Amalie Cooper [ASC # 110025], a female, was charged with murder but pled guilty to voluntary manslaughter as a lesser offense although the evidence disclosed that she took the defendant’s wallet during the commission of the homicide, thereby demonstrating probable cause to believe the truth of a robbery special circumstance; moreover, Ms. Cooper had a substantial record of previous criminal offenses.

John Jaco [ASC # H-16129A], a Hispanic male was allowed to plead guilty to second degree murder although the evidence demonstrated probable cause to believe that the murder occurred during the commission of a robbery, thereby supporting a robbery- special circumstance, and despite the fact that he had previously suffered three felony convictions in separate proceedings, including a prior conviction for manslaughter.

Edwin Pauley [ASC # 89786], pled guilty to second degree murder pursuant to a negotiated disposition with the Alameda County District Attorney’s Office. He was originally charged with murder, robbery, and a robbery-murder special circumstance.

Hal Haydon [ASC # 95433] was charged with murder and one robbery-murder special circumstance but was allowed to plead guilty to second degree murder pursuant to a negotiated disposition with the Alameda County District Attorney’s Office.

Joey Lockett, aka Mohammed Akmad [ASC # 109424], was found guilty of first degree murder after a jury trial. The jury had specifically been instructed on first degree felony murder during the commission of a robbery. Although the evidence patently demonstrated probable cause to believe the truth of a robbery special circumstance, no special circumstance was charged — despite the fact that Mr. Lockett had suffered at least one prior felony conviction.

Michael Horton [ASC # 101599] was charged and convicted of first degree *677 murder on a felony (robbery) murder theory. The Court of Appeal subsequently reversed his conviction for instructional error, but specifically ruled that the felony murder instruction was proper and that the evidence was sufficient to support a conviction on that theory. Nevertheless, Mr. Horton was never charged with any special circumstance.

James Hollister, Charles Ellis, and Caleb Ellis are currently charged with murder in Alameda County Superior Court [ASC # 109256A, 10956B, and 109256C]. Although the evidence demonstrates probable cause to believe the truth of robbery or kidnapping murder special circumstances, none of the defendants is charged with any special circumstance.

Ex. 103 to Ex. F.. Petitioner uses this declaration to support his argument that the prosecutor in his case charged petitioner with special circumstances when similarly situated non-African-American defendants were not so charged.

As an initial matter, the Ogul declaration concedes that special circumstances were in fact charged in three of the above nine cases and is silent as to whether special circumstances were charged as to another three of these cases. Thus only the last three of the listed cases, in which Ogul is clear that no special circumstances were charged, can be considered as support for petitioner’s differential charging claim. Three cases is not a large enough sample size to find differential charging.

In any event, the Court does not agree that the facts of these nine cases, as represented by Ogul, are more serious than the facts in the underlying case. To reiterate, the evidence here shows that petitioner embarked on a heinous crime spree that covered two days and three locations and resulted in two robberies, two attempted murders causing serious bodily injury, and three murders performed via point-blank shootings. Petitioner has not shown that the crimes committed in the nine above-listed cases were similar in seriousness, such that the prosecutor’s decision to charge petitioner with robbery-murder and multiple-murder special circumstances was based on petitioner’s race. Thus, the state court had reasonable grounds to deny this claim.

Accordingly, petitioner is not entitled to habeas relief on this claim. 11

3. Prosecutorial Misconduct in Closing Argument

Petitioner claims several instances of prosecutorial misconduct in closing argument. Petitioner contends that the prosecutor committed misconduct in several different comments he made during the guilt phase portion of the trial, and that, singly or cumulatively, this misconduct amounted to a due process violation. Petition at 66-83. Petitioner also contends that the prosecutor committed numerous acts of misconduct at the penalty phase, rendering his death sentence unconstitutional. See id. at 66, 80-81, 83-94. Given that petitioner is no longer subject to a death sentence, having been granted habeas relief in state court, the Court will not address his penalty phase allegations of prosecutorial misconduct. 12

*678 Prosecutorial misconduct is cognizable in federal habeas corpus; “the appropriate standard of review for such a claim ... is the narrow one of due process, and not the broad exercise of supervisory power.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464 , 91 L.Ed.2d 144 (1986) (internal quotation marks omitted). A defendant’s due process rights are violated when a prosecutor’s misconduct renders a trial fundamentally unfair. Id.; Smith v. Phillips, 455 U.S. 209, 219 , 102 S.Ct. 940 , 71 L.Ed.2d 78 (1982) (noting, “the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial,, not the culpability of the prosecutor”). Under Darden , the first issue is whether the prosecutor’s remarks were improper; if so, the next question is whether such conduct “infected the trial with unfairness.” Tan v. Runnels, 413 F.3d 1101 , 1112 (9th Cir.2005). A prosecutorial misconduct claim is decided by “examining the entire proceedings to determine whether the prosecutor’s remarks so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir.1995) (internal quotation marks omitted).

With respect to the guilt-phase allegations of prosecutorial misconduct, petitioner specifically alleges that the prosecutor: (1) engaged in a pattern of attacks on defense counsel’s honesty and integrity, Petition at 68-77; (2) engaged in a pattern and practice of denigrating petitioner, id. at 77-78; and (3) argued “false ‘facts’ not in evidence,” id. at 78-83. Respondent argues that this claim is procedurally defaulted, and, even if it were addressed on its merits, it must be denied.

a. Procedural Default

The state appellate court determined that petitioner had waived all three claims:

Defendant claims the prosecutor engaged in numerous acts of misconduct during closing arguments in the guilt phase. Except as noted below, defense counsel failed to request an assignment of misconduct or an admonition, or both, as to each asserted claim of misconduct. Defendant concedes we have held that, in general, failure to request an assignment of misconduct and an admonition forfeits a claim of prosecutorial misconduct on appeal unless an objection or request for admonition would have been futile or an admonition would not have cured the harm. (People v. McDermott (2002) 28 Cal.4th 946, 1001 , 123 Cal.Rptr.2d 654 , 51 P.3d 874 .) He contends the trial court’s responses to defendant’s objections during summation and rebuttal suggested any objection or request for an admonition would have been futile. Citing our decision in Hill, supra, 17 Cal.4th at pages 820-821, 72 Cal.Rptr.2d 656 , 952 P.2d 673 , defendant also argues he should be excused from the legal obligation to object to prosecu-torial misconduct because the prosecutor’s summation was “so poisonous” that repeated objections by counsel would have risked angering the court or the jurors.

Defendant, however, fails to show that any of these exceptions applies to any of his failures to object. We therefore conclude that defendant has forfeited each claim of misconduct.

Young, 34 Cal.4th at 1188 , 24 Cal.Rptr.3d 112 , 105 P.3d 487 .

A federal court will not review questions of federal law decided by a state court if the decision also rests on a state law ground that is independent of the federal question and adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729-30 , 111 S.Ct. 2546 , 115 *679 L.Ed.2d 640 (1991). In cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred. See id. at 750 , 111 S.Ct. 2546 . The rule cited here by the Court of Appeal, specifically, that a defendant must make a contemporaneous objection at trial. in order to preserve an issue on appeal, has been found to be a sufficiently independent and adequate procedural rule to support the denial of a federal petition on grounds of procedural default. See Paulino v. Castro, 371 F.3d 1083, 1092-93 (9th Cir.2004) (finding claim procedurally defaulted based on California’s contemporaneous objection rules). The claim is therefore procedurally defaulted.

b. Merits Analysis

Although the California Supreme Court found that the prosecutorial misconduct claims were procedurally waived, it also found that the claims failed on the merits. In each instance, it found that either the prosecutor did not commit misconduct or that any misconduct he did commit was harmless even absent admonition. Young, 34 Cal.4th at 1188-98 , 24 Cal.Rptr.3d 112 , 105 P.3d 487 . Given the length of the state court’s discussion, this Court will not repeat it here. This Court has reviewed the state court’s analysis and finds that its basis for denying relief was objectively reasonable. See id. The state court’s rejection of this claim was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent.

Finally, even assuming any of the prosecutor’s comments was inappropriate, it cannot be said that the comments “so infected the trial with unfairness” as to make the conviction a denial of due process. See Johnson, 63 F.3d at 929. The jury was instructed that the arguments of the attorneys were not evidence. Young, 34 Cal.4th at 1193, 1197 , 24 Cal.Rptr.3d 112 , 105 P.3d 487 . See Drayden v. White, 232 F.3d 704, 713 (9th Cir.2000) (rejecting prosecutorial misconduct claim in part because court had instructed jury that attorneys’ statements were not evidence); Richardson v. Marsh, 481 U.S. 200, 206 , 107 S.Ct. 1702 , 95 L.Ed.2d 176 (1987) (jury is presumed to have followed' the trial court’s instructions). Finally, the evidence at trial — particularly the identification evidence, the testimony of Patrick' Jackson, and the ballistics evidence — overwhelmingly pointed to petitioner’s guilt.

Accordingly, petitioner is not entitled to habeas relief on this claim.

4. Prosecutorial Misconduct in Presenting “False and Misleading Evidence”

Petitioner claims the prosecutor presented false and misleading evidence. Petition at 94. Specifically, he asserts that the prosecutor “attempted to insinuate to the jury that petitioner was responsible for a fourth killing that had not been charged, failed to control a government witness, and committed other misconduct in concealing, manufacturing, and manipulating evidence as well as presenting false and misleading evidence.” Id. at 95.

Petitioner cites four different events in support of this claim: prosecution questioning of Patrick Jackson; prosecution questioning of ballistics expert Chester Young; prosecution questioning of surviving victim Manzine Miller; and intentional placement of a witness in petitioner’s jail cell to create aggravating evidence for use in the penalty phase. Id. at 96-99. Once again, the Court does not address the last of these events as it concerns the penalty phase, and petitioner has already received state-court habeas relief vacating his death sentence.

*680 The remaining allegations of guilt-phase prosecutorial misconduct concerning the presentation of evidence are ones that petitioner made on direct appeal in the California Supreme Court. Ex. C at 136-51. He reiterated them in his habeas petition in the California Supreme Court. Ex. F at 119-27. The California Supreme Court, on direct appeal, summarized and rejected the claim as follows:

a) References to Uncharged Homicides and the Valente Bullet

Defendant complains the prosecutor improperly implied defendant had committed uncharged homicides during his direct examination of Jackson, defendant’s cousin. Jackson testified that shortly after defendant shot Frazier, defendant told Jackson he did so because Frazier had robbed him earlier. The prosecutor asked, “Aside from what you have testified here as to witnessing, did the defendant, your cousin, tell you that he had killed other people?” Defense counsel objected on relevance grounds. The trial court overruled the objection, and Jackson answered, “No.” The prosecutor then asked, “Did you tell the police on March 13th of 1989 that your cousin had told you of other killings?” During a conference held outside the jury’s presence, defense counsel objected to the prosecutor’s questions on the ground of irrelevance because there was no evidence defendant was involved in either the Rivers or Davis murders or any other uncharged killings. The prosecutor explained he intended to ascertain only whether defendant told Jackson about the Rivers or Davis murders, and that the factual basis of his question was the transcript of an interview of Jackson by Sergeants Brian Thiem and Ramon Paniagua. The transcript, however, indicated only that the police officers asked Jackson if defendant told him of any other “shootings” and that Jackson responded, “Uh-huh.” When Sergeant Thiem then asked Jackson what defendant said about other shootings, Jackson declined to discuss the matter further. The trial court indicated it was unsure whether there was a factual basis for the prosecutor’s question, because Jackson was questioned only about other shootings, not other killings, and then sustained defense counsel’s relevance objection on that ground. The trial court granted defense counsel’s subsequent request to strike any references to “any other shootings,” instead of “killings,” and admonished the jury to “disregard any other reference to any other shootings,” again instead of “killings.”

Contrary to respondent’s assertion, we believe defendant has preserved his claim of prosecutorial misconduct for review. Although he did not request an assignment of misconduct or an admonition that the jury disregard the impropriety, through his relevance objection he gave the trial court an opportunity to correct the asserted abuse — an opportunity the court took advantage of by striking any references to “any other shootings” and admonishing the jury to “disregard any other reference to any other shootings.”

Although preserved for review, defendant’s claim of prosecutorial misconduct nonetheless fails on the merits. It is well established that a prosecutor may not “ ‘ask questions of a witness that suggest facts harmful to a defendant, absent a good faith belief that such facts exist.’ ” (People v. Bolden (2002) 29 Cal.4th 515, 562 , 127 Cal.Rptr.2d 802 , 58 P.3d 931 .) In other words, “a prosecutor may not examine a witness solely to imply or insinuate the truth of the facts about which questions are posed.” (People v. Visciotti (1992) 2 Cal.4th 1, 52 , 5 Cal.Rptr.2d 495 , 825 P.2d 388 .) Here, contrary to defendant’s assertion, the trial court did not find the prosecutor *681 lacked a good faith belief for his question regarding other killings defendant may have mentioned to Jackson; instead, the court concluded it was unsure whether there was a factual basis for the question. Further, the circumstance that the prosecutor failed to distinguish between “other shootings” and “other killings” in his question to Jackson is unremarkable in this case because each of the three murder victims — Rivers, Frazier, and Davis — was killed in a shooting. We therefore conclude the prosecutor’s question about other killings was not improper.

Defendant next complains that during the direct examination of its ballistics expert, the prosecutor improperly insinuated a second time that he had committed uncharged homicides. The expert testified regarding his comparison of the bullet recovered from Frazier’s body with bullets recovered from the 74th Avenue house. The prosecutor then asked the expert whether he had received a “request from homicide” to examine other bullets. The expert responded that he retrieved four bullets from the property room, identifying them as the “Rivers,” “Frazier,” “Miller,” and “Valente” bullets. When the prosecutor began to question the expert specifically regarding his examination of the Valente bullet, defense counsel objected to the question as follows: “If it please the court, it has no relevance.” The prosecutor interjected, “That is why we are getting rid of it right now.” The prosecutor and defense counsel ultimately stipulated the Valente bullet had different characteristics and was not related to this case or to defendant, and this stipulation was read to the jury. Assuming the contention was preserved for appellate review, any misconduct was harmless given the stipulation that the Valente bullet had nothing to do with defendant’s case.

b) Miller’s “No Remorse” Response

Defendant contends the prosecutor engaged in misconduct by intentionally eliciting inadmissible and prejudicial testimony from prosecution witness Man-zine Miller. He further complains this misconduct constituted error under Griffin v. California (1965) 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 , by implying, contrary to his Fifth Amendment privilege against compelled self-incrimination, that defendant’s failure to testify supported an inference of guilt.

At the conclusion of the prosecutor’s redirect examination of Miller, the prosecutor asked, “Is there any doubt in your mind that the defendant shot you?” Miller answered, “There’s no doubt. He still has that same look when he did shoot me, no remorse whatsoever.” Defense counsel objected that the response was “purposely conclusionary on the part of the witness” and moved that the response be stricken. The trial court overruled counsel’s objection and effectively denied the motion to strike.

We reject defendant’s claim of prosecu-torial misconduct at the threshold because he failed to request an assignment of misconduct or an admonition that the jury disregard the impropriety on the ground now asserted. ([People v.] Ayala, supra [2000], 23 Cal.4th [225] at p. 284, 96 Cal.Rptr.2d 682 , 1 P.3d 3 .)

We also reject the claim on the merits. A prosecutor engages in misconduct by deliberately eliciting inadmissible testimony. (People v. Valdez (2004) 32 Cal.4th 73, 125 , 8 Cal.Rptr.3d 271 , 82 P.3d 296 (Valdez).) Here, no such misconduct occurred. Miller’s “no remorse” remark was nonresponsive. Further, there is no reasonable likelihood that the jury would have under *682 stood Miller’s response as referring to defendant’s failure to testify. (See [People v .] Clair, supra [1992], 2 Cal.4th [629] at pp. 662-663, 7 Cal.Rptr.2d 564 , 828 P.2d 705 , citing Griffin v. California, supra, 380 U.S. at pp. 611-615, 85 S.Ct. 1229 .) Thus, no Griffin error occurred.

Young, 34 Cal.4th at 1185-88 , 24 Cal.Rptr.3d 112 , 105 P.3d 487 .

In light of the foregoing, petitioner’s allegations — that false and misleading evidence was presented amounting to prose-cutorial misconduct — fail. First, the Miller “no response” allegation is proeedurally defaulted pursuant to California’s contemporaneous objection rule. See Coleman, 501 U.S. at 729-30 , 111 S.Ct. 2546 ; Paulino, 371 F.3d at 1092-93 .

Second, the Court finds that the state court’s analysis denying relief was objectively reasonable. Applying the-legal principles on prosecutorial misconduct outlined above to petitioner’s current allegations, the state court’s rejection of this claim was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent.

Finally, even assuming error, the evidence of petitioner’s guilt was so strong that any due process violation did not have a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993). As discussed above, petitioner’s identity as the murderer was supported by physical evidence, identification evidence, and the testimony of witnesses.

Accordingly, petitioner is not entitled to habeas relief on this claim.

5. Prosecutorial Misconduct — Failure To Disclose Exculpatory Evidence

Petitioner claims that the prosecutor committed misconduct by suppressing possibly exculpatory evidence. Specifically, petitioner claims the prosecution suppressed: (1) evidence of possible third party culpability, (2) impeachment evidence regarding prosecution witness Melva Fite, and (3) evidence that government agents used force and coaching to obtain Patrick Jackson’s statement implicating petitioner. Petition at 99. Petitioner presented these claims in state court only in his state habe-as petition, which the California Supreme Court summarily denied on the merits.

In Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87 , 83 S.Ct. 1194 . In order to succeed on a Brady claim, a petitioner must show: (1) that the evidence at issue is favorable to the accused, either because it is exculpatory or impeaching; (2) that it was suppressed by the prosecution, either willfully or inadvertently; and (3) that it was material (or, put differently, that prejudice ensued). Banks v. Dretke, 540 U.S. 668, 691 , 124 S.Ct. 1256 , 157 L.Ed.2d 1166 (2004). Evidence is material if “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Cone v. Bell, 556 U.S. 449, 469-70 , 129 S.Ct. 1769 , 173 L.Ed.2d 701 (2009).

a. Third Party Culpability

As to evidence of possible third party culpability, the jury convicted petitioner of the attempted murder of Luther Thomas, the robbery of Gerald Livingston, and the murder of Sylvester Davis (counts 6, 7, and 8, respectively), all of which occurred in the early morning hours of February 19, 1989, at the “crack house” located at 2661 *683 74th Avenue in Oakland. Petitioner contends that' the prosecution “withheld evidence which would have provided powerful evidence of third-party culpability” for these three convictions, “including evidence of numerous robberies and armed assaults” that occurred at 2661 74th Avenue prior to February 19, 1989. Petition at 99, ¶ 267.

Petitioner supported this alleged Brady violation in state court, and continues to support the allegation, with the declaration of one Joseph Lee (“J.L.”) Batiste, who lived at 2661 74th Avenue in 1988 and 1989. Petition at 101-02 (citing Ex. 51 to Ex. F). Therein Batiste declared:

Two days before Sylvester Davis was killed the house was robbed. This was at about five o’clock in the morning. I was in the living room with Tyrice Ross and two or three other people. There was a knock on the door, and when I opened it, two men were standing there wearing masks and pointing guns at me. The men wore black ski masks, but I could tell they were black men by their voices. They were much taller and bigger than I was, but I cannot accurately estimate their height today. One .of them said “Give me the money. Give me the dope.” He repeated this several times. They also said, “don’t be looking at us,” and made us lie down on the floor. I told them we didn’t have any money or dope, and they warned us, “Don’t sell dope out of this place no more.” They then left the house.

Ex. 51 to Ex. F at p. 2, ¶ 8.

The “Tyrice Ross” to whom Batiste referred provided a declaration to substantially the same effect as Batiste’s. See Ex. 64 to Ex. F at 2, ¶ 7. According to petitioner, during the February 17 incident “the perpetrators used language strikingly similar to that used by the perpetrators of the February 19 incident, announced that the house was in their.turf, stated that they had warned Batiste previously against selling drugs in the house, and warned they would return if they heard Batiste or others were selling drugs again.... Had these reports been disclosed, the defense could have presented convincing evidence that Davis was killed not by petitioner, but by third parties.... ” Petition at 101-02.

The California Supreme Court reasonably rejected this claim of Brady error. Richter, 131 S.Ct. at 789 . Petitioner’s claim that the prosecution withheld this “third-party culpability” information from the defense in violation of Brady fails because Batiste specifically disclaimed that police came to the home after this February 17 incident and that he spoke to the occupants about it. Ex. 51 to Ex. F at 2-3, ¶ 8. Ross offered nothing to the contrary. Ex. 64 to Ex. F. The United States Supreme Court has never held that law enforcement has actual or constructive knowledge of an unreported crime that occurred days before at the scene of the crime, such that law enforcement has a Brady obligation to turn the unreported information over to the defense. Carey v. Musladin, 549 U.S. at 74-77, 127 S.Ct. 649 (denying habeas relief in absence of clearly established federal law). Further, the only commonality between the February 17, 1989 and February 19, 1989 incidents is that the assailant used the language along the lines of, “Give me money. Give me dope.” Ex. 51 to Ex. F at 2-3, ¶¶ 8, 9. The state court could have reasonably concluded that this slim link was insufficient to show that the February 17 perpetrators were also culpable of the February 19 incident. Cone, 556 U.S. at 469-70 , 129 S.Ct. 1769 . 13

*684 Batiste also averred in his declaration to the California Supreme Court that in December 1988 his cousin Demard Williams and Demard’s girlfriend, Dorthea (“Dot”) Johnson, were also living at 2661 74th Avenue, and that on the 14th:

I was in my room in the basement of the house when gunmen came in, robbed the house, and shot Dot. I remember the date because it was my birthday. The police were called to the house and took reports after that incident.

Ex. 51 to Ex. F at 1, ¶ 4.

The California Supreme Court reasonably rejected this claim of Brady error because the information is not material. Richter, 131 S.Ct. at 789 . There is no reasonable probability — a probability sufficient to undermine confidence in the outcome — that had the prosecution disclosed this evidence to the defense petitioner would have received a different result on counts 6, 7, and 8. Cone, 556 U.S. at 469-70 , 129 S.Ct. 1769 . The state high court could have reasonably concluded that it was pure conjecture.by petitioner that had the jury learned that a robbery and shooting occurred at 2661 74th Avenue on December 14, 1988, by unidentified “gunmen,” that the jury would have then had a reasonable doubt in the testimony of Luther Thomas and Gerald Livingston, who identified petitioner as the perpetrator of the attempted murder, robbery, and murder that occurred at 2661 74th Avenue on February 19, 1989. Ex. B at 2926-30, 2990-91, 3022.

Petitioner next claims, “At least two other home invasion felonies were committed in this residence during a period of approximately six months prior to the Davis homicide. However, no reports of any of these incidents were disclosed to the defense.” Petition at 101, ¶ 269. The California Supreme Court could have reasonably rejected this claim of Brady error on the grounds it was a conclusory allegation, given that petitioner did not submit any evidence substantiating the other alleged home invasion felonies. Nor does petitioner provide any documentation to support the claim herein. 14 Clearly established federal law does not permit the grant of habeas relief on conclusory and unsupported claims. Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir.1995) (mere conclusions of violations of federal rights in a federal habeas petition without specifics do not state a basis for habeas corpus relief).

Accordingly, petitioner is not entitled to habeas relief on this claim.

b. Melva Fite

As to evidence allegedly impeaching Melva Fite, the eyewitness to the killing of Glen Frazier, petitioner asserts that the prosecution suppressed evidence that Fite “was addicted to crack cocaine and alcohol, had a long history of lying and dissembling to the courts, and suffered from psychiatric illness which caused her to fabricate and fantasize accounts.” Petition at 102, ¶ 270. In support of this claim, petitioner cites to the report and other documents from the probation officer’s file of Fite’s 1987 forgery case. Petition at 102-03 (citing Exs. 86-87 to Ex. F). Specifically, petitioner relies on a July 1987 letter from Fite’s probation officer to Fite’s trial court, in which the officer states that Fite had given the officer “much false information, especially with regard to data in the Social Services files from Children’s Protective Services. She has a history of non-compliance and noncooperation as well as lying and dissembling to the Court, according to Social Services information. She has not cooper *685 ated properly during the presentence period and has failed to keep one of her two scheduled appointments and submit information requested of her.” Id. Petitioner next points out that a September 1987 probation department memo to the same court stated that Fite had become homeless and lost each of her six children to foster care, and admitted “a recent problem with both alcohol and drug abuse.” Id. The probation officer told the court that she had referred Fite “to a community health program for psychotherapy, in view of her painful childhood experiences of rejection and abuse, about which she fantasizes and fabricates various accounts.” Id. Petitioner asserts that the foregoing evidence “would have permitted the defense to thoroughly demolish the credibility of Melva Fite’s testimony, both with respect to her version of the events of January 30, 1989, and with respect to her identification of petitioner as the perpetrator of the Glen Frazier killing.” Petition at 103, ¶ 272.

A review of the record shows that defense counsel did impeach Fite with her felony forgery conviction. Ex. B at 2744, 2754. Defense counsel also challenged Fite’s identification of petitioner as the perpetrator. Specifically, on cross-examination of Melva Fite during her testimony in the prosecution’s guilt-phase case-in-chief, and also during the defense guilt-phase case, defense counsel established that on March 1, 1989, Fite viewed a photo lineup that included a picture of petitioner. She identified that picture as the photo of the man who assaulted her and killed Frazier, but was not absolutely sure. Ex. B at 2656-57, 2659-61, 2751-52, 2757-58. Fite told the police that she could identify the assailant in person, but at a physical lineup held on March 3, 1989 — a lineup that included petitioner — she did not identify anyone, and only expressed uncertainty about someone other than petitioner. Id. at 2657-58, 2661-68, 2744-47, 2758, 3235-40.

Defense counsel also challenged Fite’s version of events. Specifically, at the prosecution’s guilt-phase case-in-chief, Fite testified that in the early morning hours of January 30, 1989, as she and Glen Frazier proceeded up 89th Avenue, the assailant and another person pulled up to them in a black-over-green Ford LTD. Ex. B at 2639-42, 2748-49, 2680-8. Petitioner, whom Fite had never seen before, exited the passenger’s seat and, in Fite’s words, “walked behind me and Glen going towards Plymouth and 89th. And then he turned around looking towards Rick and asked: are you talking to me?” Id. at 2642, 2648-49, 2727. Fite denied having told Oakland Police officer Derek Norfleet that the gunman had exited a blue Cadillac, and denied telling Norfleet that the driver never exited the car. Ex. B at 2686-87, 2693.

In the defense case, by way of impeachment, petitioner presented evidence that when Officer Norfleet took a statement from Melva Fite on the morning of January 30, 1989, she was “shocked” and very emotional. Ex. B at 3161-62, 3168-70, 3175-76. Norfleet testified that Fite had told him that earlier that morning she saw two men in the same car at both 89th and 90th Avenues and that it was the passenger who got out and did the shooting at both locations. Id. at 3164-65. At no point did Fite tell Norfleet that the driver had exited the car. Id. at 3165, 3183. She did say that she thought the car was as an older model blue Cadillac. Id. at 3180.

Oakland Police sergeant Brian Thiem also took a statement from Fite at headquarters when Norfleet brought her there at around 7:35 a.m. on January 30, 1989. Ex. B at 3230, 3233, 324142. Fite initially told Thiem that the person who had fired the gun at both 89th and 90th Avenue *686 exited the passenger’s side of the car. Id. at 3231-32. However, later in the interview Fite said she thought the shooter might have gotten out of the driver’s side of the car at 90th Avenue. Id. at 3245-47. Even later in the interview, after further discussion, while still sure the shooter had exited the passenger’s side on 89th Avenue, Fite became convinced the shooter had exited the driver’s side of the car on 90th Avenue. Id. at 3247-51. Fite repeated that the same person had gotten out of the car at both locations and said she remembered this clearly because of the jacket the gunman wore, and also because of his face. Id. at 3250-51.

When Sergeant Thiem showed Fite a book that contained pictures of cars, she was sure the gunman’s car was either a Chevrolet Impala or a Chrysler New Yorker, of approximately a 1972 vintage. Ex. B at 3233-34, 3253-55, 3259. Fite described the color as “turquoise greenish, bluish,” with a dark top. Id. at 3256-57.

Finally, in guilt-phase summation, defense counsel vigorously attacked Fite’s credibility. Ex. B at 3514-18, 3521-24, 3526-30, 3534. For example, defense counsel argued in closing that:

Melva Fite kept adapting her statements to fit the situation that existed at the time she was giving the statement.

Ms. Fite is the person that [the prosecution] would like to have you believe. And she is a person who has been convicted of forgery, a felony. Now, she tells you she thinks it is a misdemeanor. Well, it is not a misdemeanor at all. The record reflects it is a felony. She. had been convicted of a felony. Forgery is saying something is genuine when, in fact, it isn’t.

Well, that is exactly what she is doing in this courtroom. She is saying that this is the genuine article that committed that crime against Frazier when, in fact, it isn’t.

Ex. B at 3514-18.

In light of the above, the state court could have reasonably found that any additional impeachment evidence that could be garnered from Fite’s 1987 probation file, had it been presented at trial, would not have changed the result of the proceeding.

Accordingly, petitioner is not entitled to habeas relief on this claim.

c. Patrick Jackson

As to petitioner’s cousin, Patrick Jackson, petitioner contends that the prosecution “failed to reveal that Jackson’s tape-recorded statement to [police investigators], obtained on or about March 13 and 15, 1989, was obtained through physical intimidation and threats which occurred prior to the time when the officers turned on the tape recorder and read Jackson the Miranda warnings.” Petition at 107, ¶ 284. Petitioner further contends that the officers periodically coached Jackson on what to say at times when the tape recorder was turned off. Id.

The record reflects that on March 13, 1989, Oakland Police sergeants Brian Thiem and Ramon Paniagua traveled to a California Youth Authority facility in Sacramento and interviewed Patrick Jackson regarding the January 30, 1989 killing of Glen Frazier. Ex. B at 3125-26. At petitioner’s guilt-phase trial, Jackson testified under a grant of immunity and essentially corroborated the testimony of Melva Fite by giving testimony from which the jury could have reasonably inferred that his cousin, petitioner, shot Glen Frazier on an Oakland street on the morning of January 30, 1989. Id. at 2767-2811. At various points during that testimony, in an attempt to refresh recollection, the prosecutor provided Jackson with the transcript of his tape-recorded March 13, 1989 interview *687 with Paniagua and Thiem. Ex. B at 2771-73, 2786-87, 280607, 2808-09.

Petitioner offered the California Supreme Court no documentation supporting his allegation of police coercion and coaching of Jackson. For example, petitioner does not provide a declaration from Jackson recanting the testimony or attesting to the conditions of the police interview. The state court could have therefore reasonably denied the claim as conclusory. Richter, 131 S.Ct. at 789 ; Jones v. Gomez, 66 F.3d at 204-05 . Further, Jackson appeared at trial for cross-examination regarding his out-of-court testimony and the police interrogation techniques; a fact that courts have recognized safeguards admission of such statements against a due process violation. Nasrichampang v. Woodford, 288 Fed.Appx. 367, 368 (9th Cir.2008) (quoting Williams v. Woodford, 384 F.3d 567, 596 (9th Cir.2004)).

Accordingly, petitioner is not entitled to habeas relief on this claim. 15

6. Ineffective Assistance of Counsel— Guilt-Phase Investigation

Petitioner asserts multiple claims of ineffective assistance of his trial counsel, Alexander Selvin and Bud Meloling. All claims variously allege that counsel failed to investigate and present exculpatory evidence pertaining to the guilt-phase of his trial. Petition at 108-132. Petitioner presented this claim only on state habeas to the California Supreme Court, which summarily denied it on the merits.

Claims of ineffective assistance of counsel are examined under Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). In order to prevail on a claim of ineffectiveness of counsel, a petitioner must establish two factors. First, he must establish that counsel’s performance was deficient, i.e., that it fell below an “objective standard of reasonableness” under prevailing professional norms, id. at 687-88 , 104 S.Ct. 2052 , “not whether it deviated from best practices or most common custom,” Harrington v. Richter, 562 U.S. 86 , 131 S.Ct. 770, 788 , 178 L.Ed.2d 624 (2011) (citing Strickland, 466 U.S. at 690 , 104 S.Ct. 2052 ). “A court considering a claim of ineffective assistance must apply a ‘strong presumption’ that counsel’s representation was within the ‘wide range’ of reasonable professional assistance.” Id. at 787 (quoting Strickland, 466 U.S. at 689 , 104 S.Ct. 2052 ).

Second, he must establish that he was prejudiced by counsel’s deficient performance, i.e., that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694 , 104 S.Ct. 2052 . A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. Where the petitioner is challenging his conviction, the appropriate question is “whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt.” Id. at 695 , 104 S.Ct. *688 2052 . “The likelihood of a different result must be substantial, not just conceivable.” Richter, 131 S.Ct. at 792 (citing Strickland, 466 U.S. at 693 , 104 S.Ct. 2052 ). It is unnecessary for a federal court considering an ineffective assistance of counsel claim on habeas review to address the prejudice prong, i.e., the second factor of the Strickland test, if the petitioner cannot establish incompetence, as required under the first prong. Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir.1998).

The standards of both 28 U.S.C. § 2254 (d) and Strickland are “highly deferential, and when the two apply in tandem, review is doubly so.” Richter, 131 S.Ct. at 788 (quotation marks and citations omitted). “[T]he question [under § 2254(d) ] is not whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.

“[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 690-91 , 104 S.Ct. 2052 . “In any ineffectiveness case, a particular decision hot to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Id. at 691 , 104 S.Ct. 2052 .

That an attorney might have conducted a more thorough investigation does not establish deficient performance. Burger v. Kemp, 483 U.S. 776, 794 , 107 S.Ct. 3114 , 97 L.Ed.2d 638 (1987). “[T]he duty to investigate does not force defense lawyers to scour the globe on the off chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste.” Rompilla v. Beard, 545 U.S. 374, 383 , 125 S.Ct. 2456 , 162 L.Ed.2d 360 (2005). The question is not what the best lawyer or even what most good lawyers would have done, but whether a reasonable lawyer could have acted as defense counsel did. Coleman v. Calderon, 150 F.3d 1105, 1113 (9th Cir.1998), rev’d on other grounds, 525 U.S. 141 , 119 S.Ct. 500 , 142 L.Ed.2d 521 (1998). Thus, the relevant inquiry is not what trial counsel could have done, but whether counsel’s actions were reasonable. Babbitt v. Calderon, 151 F.3d 1170, 1174 (9th Cir.1998).

To succeed on a claim that counsel was ineffective in failing to call a favorable witness, a federal habeas petitioner must identify the witness, provide the testimony the witness would have given, show the witness was likely to have been available to testify and would have given the proffered favorable testimony, and demonstrate a reasonable probability that, had such testimony been introduced, the jury would have reached a verdict more favorable to the petitioner. See Alcala v. Woodford, 334 F.3d 862, 872-73 (9th Cir.2003). A petitioner’s mere speculation that the witness would have given helpful information if interviewed by counsel and called to the stand is not enough to establish ineffective assistance. See Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir.2001), amended, 253 F.3d 1150 (9th Cir.2001).

In Dows v. Wood, 211 F.3d 480 (9th Cir.2000), the Ninth Circuit denied a petitioner’s claim that his counsel had been ineffective in failing to investigate and call a witness, where the petitioner only provided his own “self-serving affidavit” and no other evidence, such as “an affidavit from [the] alleged witness,” that the witness would have given helpful testimony. *689 Id. at 486-87 ; cf. Alcala, 334 F.3d at 872 & n. 3 (distinguishing, inter alia, Dows ; finding ineffective assistance of counsel where petitioner submitted interviews reflecting testimony missing witnesses would have provided).

At the outset, the Court notes petitioner has offered only his own concluso-ry statements and fails to provide a factual showing that his trial counsel in fact failed to investigate the purported exculpatory information. Petitioner thus fails to show ineffectiveness on the part of defense counsel. See United States v. Schaflander, 743 F.2d 714, 721 (9th Cir.1984) (holding petitioner must make sufficient factual showing to substantiate ineffective assistance of counsel claim). On this basis alone, the state court had reasonable grounds to deny the claims. Richter, 131 S.Ct. at 786 . The Court nonetheless addresses each claim below.

a. Crimes Against Manzine Miller and Terry Rivers

Petitioner alleges the following claims of alleged ineffective assistance of counsel in the investigation of the Rivers homicide and Miller shooting incident (counts 1, 2, and 3).

i. Miller’s Identification of Petitioner

Petitioner claims defense counsel did not properly investigate victim Man-zine Miller’s eyewitness identification of petitioner as his assailant in connection with count 2 (robbery) and count 3 (attempted murder). Petition at 110-11. Petitioner states that had counsel conducted a proper investigation they would have learned that Miller’s identification suffered from many of the “biasing factors” that empirical social science research data has established “taint” identifications (e.g., Miller had never seen petitioner before; attacks are stressful and the accuracy of eyewitness identification “plummets when the observer is in a stressful situation”; Miller had ingested a large amount of alcohol and crack cocaine; there is no correlation between certainty and accuracy; and the lineup procedures the police used with Miller “were themselves suspect”). Id. Petitioner concludes that counsel should have “retained] an expert witness to analyze Miller’s testimony or to testify regarding the inaccuracy of eyewitness testimony or Miller’s identification of petitioner, ... and it is at least reasonably probable that a more favorable result would have been obtained had counsel retained such an expert and presented evidence undercutting the credibility of Miller’s identification.” Id. at 111 .

Petitioner has offered no evidence that an identification expert would have provided favorable testimony at trial. He merely speculates that such an expert could be found. Such speculation is insufficient to establish prejudice. See Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir.1997) (“Speculation about what an expert could have said is not enough to establish prejudice.”).

Further, closing argument shows that defense counsel defended against counts 2 and 3 by acknowledging that petitioner went into the swamp with Miller, but arguing that petitioner didn’t rob Miller, and shot him only because he (petitioner) credibly felt that Miller was about to rob him. Ex. B at 3500-09, 3513.

Now, if you believe Mr. Miller that, in fact, [petitioner] took his rock of cocaine as part of a break yourself, give me all your money routine, then it is a robbery. The law is clear it is a robbery. But I submit to you before you come to that conclusion, you consider the other factors; whether or not something like that under those conditions could even be observed under those facts.

Did he shoot him because he was afraid he was going to get ripped off himself? *690 That is more reasonable. And if the evidence points to two possible reasonable interpretations of the facts, you have to adopt the reasonable. I am sorry. If one is reasonable and one is unreasonable, you adopt the reasonable, even if it points to his innocence.

If both are reasonable, you still have to adopt the one that points to his innocence.

If one is reasonable and one is unreasonable, the one that is reasonable points to guilt, then you find the one that points to guilt and you find him guilty. That is what circumstantial evidence is all about.

Did he intend to kill Manzine Miller? He shot him in the hip from six or seven feet away. He shot him in the hip.

Ex. B at 3508-09.

Here, counsel reasonably defended against counts 2 and 3 given the evidence that Miller had ample time to see his assailant, and adequate lighting to do so as well. Ex. B at 2374-77, 2382, 2427-28, 2446, 2483-86. Miller testified: “The kitchen — we went in the kitchen. You’re not going to forget the person that shoot you, I tell you that.” Id. at 2485. In interpreting Strickland , courts have repeatedly held that they will refuse to second-guess counsel’s tactical decision to present a particular theory of defense when the decision was reasonable under the circumstances. Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir.2001); United States v. Chambers, 918 F.2d 1455, 1461 (9th Cir.1990).

Accordingly, petitioner is not entitled to habeas relief on this claim.

ii. Miller’s Mental Impairments and Addictions

Petitioner claims that counsel failed to investigate Miller’s background and learn that “at the time of his testimony, Miller was undergoing treatment for brain damage, drug and alcohol addiction, and a history of psychiatric disorders, all of which severely impaired his ability to perceive, recollect, and testify credibly regarding the events of January 30.” Petition at 111.

The state court could have reasonably denied the claim as conclusory. Gomez, 66 F.3d at 204-05 . The medical records petitioner cites in support of the present sub-claim are from 1992. Ex. 80 to Ex. F. The 1992 records do not establish that in October 1990, at the time of his testimony in this case, Miller suffered from any of the ailments or difficulties described by petitioner. Petitioner fails to specify which, if any, of the facts described in the 1992 records were in existence at the time of trial and could have been discovered by counsel through reasonable diligence. Further, although the medical records state that Miller was in a confused state after being brought by paramedics for hospital treatment on May 8, 1992, nothing in the 1992 medical records addresses Miller’s ability to perceive, recollect, or testify-

As part of this second allegation of guilt-phase investigation ineffectiveness, petitioner complains that counsel did not investigate- and discover Lonnie Eugene Nero, who would have testified that Miller was a long-time abuser of crack cocaine, heroin, and alcohol. Petition at 112 (citing Ex. 56 to Ex. F). Exhibit 56 is a declaration signed by Nero in 2003, in which he states that “after midnight” throughout January 1989, “Manzine was always messed up. In addition to the drugs he used, he also drank a lot, sometimes to the point where he would pass out. Other times he would be so drunk and messed up that it didn’t seem like he knew what was going on.” Ex. 56 to Ex. F, ¶4. Nero’s declaration contains no statement that Manzine Miller was “messed up” to the point of passing out in the early morning *691 hours of January 30, 1989, nor does Nero declare that he was available to petitioner’s defense counsel in 1989 and 1990, and that he would have.testified to the contents of his declaration. These omissions are fatal to the present ineffectiveness claim. See Allen v. Woodford, 395 F.3d 979 , 1002 n. 2 (9th Cir.2005); Dows, 211 F.3d at 486 ; Bragg, 242 F.3d at 1087 ; United States v. Harden, 846 F.2d 1229, 1231-32 (9th Cir.1988).

Finally, the record shows that defense counsel Selvin and Meloling, as part of the defense presented on counts 2 and 3, went to great lengths to emphasize Miller’s admission that he was “not exactly sober” during his encounter with petitioner, in a clear effort to have the jury draw the inference that Miller lied about petitioner robbing him. Ex. B at 2400-01, 2416-18, 2443-44, 2476-79. In light of this argument, the state court could have reasonably found that any additional impeachment evidence, even assuming it was reasonably discoverable, would not have changed the result of the proceeding.

Accordingly, petitioner is not entitled to habeas relief on this claim.

in. Miller’s Psychiatric Illnesses

Petitioner next claims that defense counsel failed to investigate and discover that Miller “suffered from psychiatric illnesses which rendered his testimony inherently incredible.” Petition at 112-13. According to petitioner, “Miller was diagnosed not only with polysubstance abuse, but also with a ‘personality disorder’ not otherwise specified.... [¶] The diagnosis continued that Miller’s personality disorder demonstrated ‘antisocial traits,’ a reference to antisocial personality disorder,” which has deceit and manipulation as central features. Id.

The California Supreme Court reasonably rejected this ineffectiveness claim due to a lack of support. Jones v. Gomez, 66 F.3d at 204-05 ; James v. Borg, 24 F.3d 20, 26 (9th Cir.1994). Petitioner again cites medical records for Miller from 1992, Petition at 112 (citing Ex. 79 to Ex. F), rather than any records in existence at the time of trial some two to three years earlier. Petitioner fails to show how any information contained in the medical file could have reasonably been discovered by defense counsel.

Accordingly, petitioner is not entitled to habeas relief on this claim.

iv. Miller’s Conflicting Testimony

Petitioner’s Exhibit 120 in the California Supreme Court is two pages of notes from Oakland Police officer Voznik regarding the interview he had with Miller in the emergency room of Highland Hospital on the morning of January 30, 1989. Petitioner’s Exhibit 81 in the California Supreme Court is the police report detailing the statement Miller gave at that time — a statement that was “not completed because Miller was rushed into surgery.” Ex. 81 to Ex. F at 2. In his next allegation of guilt-phase investigation ineffectiveness, petitioner states that these two exhibits do not reflect Miller mentioning two matters he later testified to: (1) that he and his assailant went into Miller’s kitchen together, and (2) that the assailant took a $20 rock of cocaine from him when they were in the swamp together and the assailant pulled the gun. Petition at 113. Petitioner also notes that Miller told Officer Voznik that he (Miller) “did not see them” (petitioner and Jackson) “with a car,” and that Miller contradicted this statement at trial. Id.

Petitioner appears to claim that counsel should have impeached Miller with the contradiction and omissions from the police report and officer notes. The California Supreme Court could have reasonably concluded that there exists no reasonable probability of a different result had counsel impeached Miller in the manner sug *692 gested. Strickland, 466 U.S. at 694 , 104 S.Ct. 2052 . The jury likely would have understood that the omission from and contradictions between Miller’s police statement and trial testimony resulted from the fact that he gave the police statement immediately after getting shot and as he was being rushed into surgery, and therefore his failure to include or correctly recount every detail regarding the shooting was understandable.

Accordingly, petitioner is not entitled to habeas relief on this claim.

v.Other Witnesses Who Contradict Miller

Petitioner next claims that defense counsel failed to interview or develop information from Miller’s uncle, Harvey Edwards, and Terry Rivers’ girlfriend, Michelle Williams. Petition at 114. According to petitioner, “Edwards told police that he and Michelle stayed in the kitchen for twenty minutes prior to the shooting and that Miller had come into the kitchen alone.” Id. (citing Ex. 116 to Ex F). “In her contemporaneous statement to the police, Michelle Williams also agreed that she was in the house with Edwards for 15 minutes prior to the shooting, but did not mention Miller or the shooter coming into the kitchen.” Id. at 114 (citing Ex. 125 to Ex. F).

The state court had a reasonable basis to deny this claim. First, as noted above, petitioner only speculates that defense counsel failed to interview Edwards and Williams; In any event, petitioner presented no declaration from either Edwards or Williams stating that they were available to defense counsel in preparation for trial and that they would have testified in the manner petitioner now claims. Allen, 395 F.3d at 1002 n. 2; Dows, 211 F.3d at 486 .

Accordingly, petitioner is not entitled to habeas relief on this claim.

vi. Miller’s Identification of the Assailants

Petitioner claims defense counsel failed to investigate and develop evidence that Miller gave police descriptions of petitioner and of Patrick Jackson that “did not even begin to match” what petitioner and Jackson really looked like. Petition at 114-15. This claim fails because the California Supreme Court could have reasonably concluded that counsel reasonably decided to forgo a misidentification defense in favor of a defense on counts 1, 2, and 3 that placed petitioner and Jackson in the area, but had petitioner defending himself from Miller in the swamp (counts 2 and 3) and had Jackson killing Rivers (count 1). Ex. B at 3500-09, 3513. Richter, 131 S.Ct. at 789-90 (counsel had reason to question the truth of defendant’s account of events, and pursuing forensic evidence could have exposed his story as an invention). “To support a defense argument that the prosecution has not proved its case it sometimes is better to try to cast pervasive suspicion of doubt than to strive to prove a certainty that exonerates.” Richter, 131 S.Ct. at 790 .

Accordingly, petitioner is not entitled to habeas relief on this claim.

vii. Reconstruction Expert

Manzine Miller initially testified that after petitioner shot him and left, five to ten minutes passed before he (Miller) heard the sound of the three additional gunshots — see Ex. B at 2387-88, 2467-68 — the gunshots that the prosecution theorized petitioner fired to kill Terry Rivers (count 1). However, on cross-examination Miller testified that he heard the shots three minutes later, and he then admitted that it could have been less than two minutes later, “or more.” Id. at 2468-69. Miller continued: “Like I say, it could have been two to three minutes.” Id. at 2497. “Two minutes.” Id. at 2503. Finally, de *693 fense counsel asked Miller to reconstruct the time period between the shot which struck him and the three shots he heard coming from the street, slapping his thigh once for each gunshot. Id. at 2503-04. Defense counsel declared for the record that this reconstruction showed the passing of eight seconds between the time petitioner shot Miller to the time the first shot came from the street. Id. at 2504. Petitioner assumes that Manzine Miller’s “eight second” testimony was the absolute truth, and thereon claims that counsel failed to “retain a criminalist, investigate the crime scene, or attempt a reconstruction of this incident for the jury to demonstrate that no person could have covered the distance in the amount of time allotted.” Petition at 115-16.

The California Supreme Court could have reasonably rejected this claim on the ground that if Miller’s “eight second” testimony reflected what the jury was going to accept as the truth, trial counsel did not need an expert to reconstruct the incident for the jury to demonstrate that no person could have covered the distance at issue in eight seconds. Richter, 131 S.Ct. at 789 . As they did, counsel could reasonably use summation to stress this common-sense point to the jury:

Now, question, can you connect [petitioner] with the Rivers shooting factually without the gun? And the answer is, no, you can’t. You can’t. Because from a time standpoint, and we went through this very carefully with Manzine Miller. Manzine Miller first said in response to a question by [the prosecutor] was five or ten minutes from the time he was shot until the time he heard the three shots up above.

First he said [Petitioner] ran up the hill and then there were three shots. He crawled across 23rd Street and was taken over there by the paramedics and was taken to Highland Hospital and treated and so on. All right.

On the witness stand he said first on direct examination two to three minutes. And you will recall this, I am sure, when it came right down to it, from the standpoint of sequence of events, I asked him very carefully. Mr. Miller, would you illustrate for us the time lapse between the time you were shot and the time that you heard the other shots. And he said there was — he said I was shot and then he paused and he went and he patted himself on the thighs. And I recorded eight seconds between the two. The judge recorded nine seconds. But in any event, the record reflects that eight seconds passed.

Now, by the best evidence that the prosecution has established through one of the officers, I think it is Officer Bow-den — I can be mistaken about his name, but I think it was Officer Bowden — was 125 to 150 feet from the point where Mr. Miller was shot to the point in front of the house.

Mr. Miller says it is between five and six hundred feet. You can look at the aerial photo and it will show the path that had to be traversed from the point down here at the tree. This is the tree that is down right here. Up the hill, up here, up the swamp, back over to the front of the house and shoot Terry Rivers after he shot Manzine Miller.

I submit to you that it is not factually possible based on the evidence you heard that you cannot conclude beyond a reasonable doubt that that happened that way.

Why isn’t it just as reasonable to assume, if you will, that Patrick Jackson, standing in front of that house, who had been there watching the house, and who had been there watching the street, why can’t you just reasonably, just as reason *694 ably assume and find, if you will, that Patrick Jackson, who has been given immunity from that murder in order to testify, that he killed Terry Rivers.

Ex. B at 3511-12. 16

No criminalist was needed. In any event, petitioner provides no declaration from a criminalist showing what he or she could have said at trial.

Accordingly, petitioner is not entitled to habeas relief on this claim.

viii. Petitioner’s Ankles

Petitioner’s next several claims of guilt-phase investigation ineffectiveness concern the failure of defense counsel to investigate and present the evidence that in the early morning hours of January 30, 1989, petitioner was still suffering from the severely sprained ankles he had first injured on January 2, 1989. According to petitioner, this evidence would have shown that it was physically impossible for him to have committed the killing of Terry Rivers as he could not have covered the terrain necessary in the time allotted by Manzine Miller. Petition at 115-19 (citing Exs. 18, 115,128 to Ex. F).

The state court had reasonable basis to deny this claim. First, the actions of counsel are often determined or influenced by the defendant’s own statements or actions. Strickland, 466 U.S. at 691 , 104 S.Ct. 2052 . Petitioner does not provide evidence that he ever told counsel about his ankles. He thus fails to show that counsel was put on notice to investigate a “physical impossibility” defense. See Hensley v. Crist, 67 F.3d 181, 186 (9th Cir.1995) (rejecting ineffectiveness claim that counsel should have explored the possibility of an insanity defense because defendant fails to show that counsel was put on notice to explore an insanity defense).

Further, in light of Miller’s conflicting testimony, the basis for this claim is itself speculative. As discussed above, the state court could have reasonably concluded that the jury relied on Miller’s “five minute” or “two-to-three minute” testimony in reconstructing the time lapse between the shots. As such, it was unlikely that petitioner’s ankle would prove “physical impossibility.”

Finally, the documents petitioner submits to show the injury are jail records from 1989 and 1990 documenting ankle injuries (Ex. 18 to Ex. F), and Highland Hospital medical records from 1989 documenting the same (Ex 115 to Ex. F). No doctor or medical expert expresses an opinion as to whether petitioner had the mobility to commit the offenses against Miller and Rivers in the manner described by the prosecution.

Accordingly, petitioner is not entitled to habeas relief on this claim.

ix. Zorana Hodges

Sixteen-year-old Zorana Hodges was interviewed by police on the morning of January 30, 1989, regarding the shootings that had occurred on East 24th Street *695 earlier that morning, and she said she saw a “hit man” in the neighborhood “before the shooting” and watched him enter the swamp with two other men. Ex. 126 to Ex. F at 11-13. Petitioner assigns deficient investigation to defense counsel for making “no effort” to interview Hodges, for failing “to further investigate her story,” for failing to “effectively cross-examine Miller on this matter,” and for failing to “present this information to the jury.” Petition at 119-20. Petitioner alleges that it is reasonably probable he would have received a more favorable verdict had counsel contacted Hodges and followed up on her police report:

Hodges would have testified that she and Mack were dealing crack cocaine out of a car on East 23rd Street on the night of the shooting. [Citation.] Miller himself was a regular customer of Hodges’ and had purchased a $20 rock of crack cocaine from her earlier that evening. Hodges would have testified that the area in which the shooting took place was the center of a turf dispute between a gang called “the Momos” and a newer gang which had only recently moved into the area and was drawing customers away from the Momos and cutting into their profits. Hodges, who was affiliated with the Flames, had herself been warned by the Momos not to sell crack in the neighborhood. Hodges would have also testified that fandan-gling, or selling fake crack cocaine, as Terry Rivers was doing, was considered so serious an offense in the community that a crack seller who did so would be unlikely to be alive 24 hours later. Hodges would also have confirmed that she saw the tall “hit-man” in the neighborhood on the day of the shooting. Hodges would also have severely undercut Manzine Miller’s credibility. She would have testified that when he came up to her reporting that he had just been shot, he referred to multiple perpetrators and made it sound as though he had been caught in a cross-fire. [Citation.] This would have contradicted Miller’s testimony at trial that he had been robbed and shot by a single perpetrator, giving rise to the suspicion that Miller decided to lie about what happened in order to protect himself from retaliation by the Momos, the rival gang, or the hit-man and instead jumped at the chance to pin the crime on a single perpetrator from a different neighborhood.

Petition at 120 (citing Ex. 66 to Ex. F).

The state court had reasonable basis to deny this claim because it could have reasonably concluded that counsel would have not been able to secure Hodges’s testimony. Hodges does not state in her state high court declaration that she would have testified, which is fatal to the present ineffectiveness claim, Dows, 211 F.3d at 486 , and in fact states in her declaration that after her police interview, “I left that neighborhood as soon as I could after that. I did not want, to be involved in that business and I never went back.” Ex. 66 to Ex. F, at 3, ¶ 11.

Zorana Hodges has also declared that she tried to tell the police “as little as possible.” Ex. 66 to Ex. F at 3, ¶ 9. “Everything that I said to the police was true, but the whole time I was trying to say as little as possible because I knew that everything that I said could come back to haunt me.” Id. “I have been shown a transcript of the statement I made to the police on the day of the crime and I was surprised to see that I said as much as I did, especially about the hit-man. If anyone had found out, I would have been in big trouble.” Id. at 3, ¶ 10. Based on these statements, the state court could have reasonably found that, even if counsel had found Hodges, she would not have been cooperative with them, or testified.

*696 Although petitioner is correct that defense counsel, even -without Hodges herself, could have attempted to introduce Hodges’s statement to the police, as discussed above, it was a reasonable tactical decision to forgo a defense that completely-exonerated petitioner in favor of a defense that placed petitioner and Jackson in the area, but had petitioner defending himself from Miller in the swamp and had Jackson killing Rivers. Indeed, Miller’s purported statement to Hodges that “some guys had come up and just started shooting,” id. at 2, ¶ 6, was not entirely inconsistent with the prosecution’s version of events placing both petitioner and Jackson at the scene.

Accordingly, petitioner is not entitled to habeas relief on this claim.

x.Lonnie Eugene Nero

Petitioner claims that defense counsel did not investigate and discover Lonnie Eugene Nero so that Nero could have testified that count 1 victim Terry Rivers sold a man named Kenny McDaniel fake crack on January 27, 1989 on East 24th Street, and that on both the 28th and 29th of January, McDaniel returned to the neighborhood, armed, looking to retaliate against Rivers. Petition at 120-21 (citing Ex. 129 to Ex. F). The California Supreme Court could have reasonably rejected this ineffectiveness claim because petitioner has not provided a declaration from Nero stating that he would have testified in the manner petitioner describes. Allen v. Woodford, 395 F.3d at 1002 n. 2; Dows v. Wood, 211 F.3d at 486 . Indeed, exhibit 129 to exhibit F is a barely legible copy of a statement Nero presumably gave to police following the crime. Nero makes no mention of McDaniel in the declaration he submitted to the state court. See Ex. 56.

Accordingly, petitioner is not entitled to habeas relief on this claim.

xi.Larry Galbert

Petitioner claims defense counsel failed to investigate and discover that in January 1989 petitioner “worked as a delivery and errand boy for Larry Galbert, one of East Oakland’s largest drug dealers,” and thus “had no motive to rob a small-time crack dealer” like Manzine Miller “of a single $20 rock.... If petitioner had wanted money or drugs, Galbert would have given it to him.... Petitioner was also from a different part of East Oakland some 50 blocks away from the scene of the East 24th Street incident. There was no reason for petitioner to travel all the way across town in order to rob a total stranger of a single $20 rock of crack cocaine.” Petition at 121 (citing Exs. 53 and 54 to Ex. F).

The state court had a reasonable basis to deny this claim. First, petitioner presents no evidence that he put counsel on notice that he worked for Galbert. See Hensley, 67 F.3d at 186 . Second, assuming counsel could have discovered such evidence through reasonable diligence, petitioner suffered no prejudice because petitioner makes no showing counsel could have presented the evidence. Although Galbert declares that petitioner worked for him and that he (Galbert) would have given petitioner money or drugs had petitioner asked, Ex. 54 to Ex. F, Galbert’s declaration does not state that he was available to counsel in 1989 and 1990 and would have testified then, if asked, that he was a large-scale drug dealer who employed petitioner and who would have given petitioner money or drugs. Galbert declares only that he would have testified “about [petitioner’s] character and about what was going on in the neighborhood.” Ex. 54 to Ex. F at 4, ¶ 10. See Allen v. Woodford, 395 F.3d at 1002 n. 2; Dows v. Wood, 211 F.3d at 486 .

Accordingly, petitioner is not entitled to habeas relief on this claim.

xii.Other Interviews

Petitioner claims defense counsel failed to interview Patrick Jackson; Montrece *697 Martin Fields’s adoptive brother, Darius Fields; and unnamed “others.” Petition at 121-22. According to petitioner, had counsel conducted these interviews and conducted a “complete investigation” into Fields’s background, counsel would have discovered that it was Fields and Jackson who were together on East 24th Street on the morning of January 80, 1989, and Fields who perpetrated the robbery and attempted murder of Manzine Miller. Id. The California Supreme Court reasonably rejected this ineffectiveness claim due to a lack of support. Jones v. Gomez, 66 F.3d at 204-05 ; James v. Borg, 24 F.3d at 26 . Petitioner provides no declarations from Patrick Jackson, Darius Fields, or the unnamed “others” stating that they were available to trial counsel and would have testified in a manner that exculpated petitioner and inculpated Jackson and Mon-trece Fields on counts 1, 2 and 3.

Accordingly, petitioner is not entitled to habeas relief on this claim.

b. Grimes Against Glen Frazier and Melva Fite

Petitioner alleges the following claims of alleged ineffective assistance of counsel in the investigation of the attempted robbery of Melva Fite (count 4) and the murder of Glen Frazier (count 5).

i. “Claim of Right” Defense

At trial, Patrick Jackson testified that moments before petitioner committed his crimes against Frazier and Fite, petitioner had been robbed, and Frazier was one of the robbers. Ex. B at 2780, 2788, 2796. Petitioner claims that defense counsel performed ineffectively by not accepting Patrick Jackson’s testimony as true, and not developing other information through other witnesses to establish that Frazier and Fite’s cousin Ricky Smith had indeed robbed petitioner. Petition at 123. From that evidence, petitioner continues, counsel should have argued that petitioner had “a ’claim of right’ defense to the crimes of robbery or attempted robbery and would have eliminated any felony murder theory or special circumstance.” Id. (citing People v. Tufunga, 21 Cal.4th 935, 950 , 90 Cal.Rptr.2d 143 , 987 P.2d 168 (1999)).

The state court reasonably rejected this claim because defense counsel could have reasonably believed they had no evidentiary support for a claim-of-right defense on counts 4 and 5. Under California law a claim-of-right defense provides that a defendant’s good faith belief, even if mistakenly held, that he or she has a right or claim to property they take from another negates the felonious intent necessary for conviction of theft or robbery. People v. Tufunga, 21 Cal.4th at 938 , 90 Cal.Rptr.2d 143 , 987 P.2d 168 . A California trial court is not required to instruct on a claim-of-right defense unless there is substantial evidence that the defendant acted with a subjective good faith belief he or she had a lawful claim on the taken property. Id. at 944 , 90 Cal.Rptr.2d 143 , 987 P.2d 168 ; see also People v. Barnett, 17 Cal.4th 1044, 1145 , 74 Cal.Rptr.2d 121 , 954 P.2d 384 (1998). Here, petitioner presents no supporting documentation, nor is there anything in the record, establishing that petitioner had the requisite good faith belief that would entitle him to a claim-of-right defense.

Furthermore, as discussed above, counsel defended petitioner against counts 4 and 5 by vigorously attacking the credibility of Melva Fite, including her identification of petitioner. Counsel used that evidence, plus some of Fite’s prior inconsistent statements regarding who had approached her and Glen Frazier, to argue that it was Patrick Jackson who shot and killed Glen Frazier, and that there existed reasonable doubt that a robbery of Fite even took place. Ex. B at 3514-35. Counsel could have reasonably decided *698 not to present the alternative or contradictory defense that petitioner committed the robbery but did so with a “claim of right.” See Correll v. Stewart, 137 F.3d 1404, 1411 (9th Cir.1998) (counsel’s tactical decision to choose one reasonable defense theory to the exclusion of a different, conflicting theory cannot support a claim of ineffective assistance of counsel).

Accordingly, petitioner is not entitled to habeas relief on this claim.

ii.Intoxication Defense

Petitioner asserts he was “intoxicated on alcohol or drugs at the time of the incident” comprising counts 4 and 5 and that “Patrick Jackson had so testified and others at the scene could have done so as well.” Petition at 124. Petitioner claims counsel’s failure to investigate this evidence “deprived petitioner of a theory of reduced culpability.” Id.

The state court had a reasonable basis to deny this claim. Jackson testified only that petitioner may have had a beer or two in the time period preceding the encounter with Fite and Frazier. Ex. B at 2829-31, 2860-61. This alone does not establish intoxication, and there is nothing else in the record showing petitioner was intoxicated. Further, there is no evidence that petitioner put his counsel on notice of this defense. See Dyer v. Calderon, 122 F.3d 720, 733 (9th Cir.1997) (no ineffectiveness in failing to investigate whether defendant was high on PCP at the time of the crime where defendant had not told counsel he had smoked PCP prior to the crime) vacated on other grounds on reh’g en banc, 151 F.3d 970 (9th Cir.1998).

Accordingly, petitioner is not entitled to habeas relief on this claim.

iii.Fite’s Intoxication

Next petitioner alleges that victim Melva Fite had spent the entire evening of January 29, 1989, “drinking at the Apartment C bar on East 14th Street. At the time of the incident, she was under the influence of a combination of alcohol and' crack cocaine, and had come to a notorious crack cocaine hotspot to purchase more. Thus, her ability to attend, perceive, and recollect the events of that evening were severely impaired.” Petition at 124. Petitioner claims counsel should have investigated this information. The California Supreme Court reasonably rejected this ineffectiveness claim due to a lack of support. Jones v. Gomez, 66 F.3d at 204-05 ; James v. Borg, 24 F.3d at 26 . Petitioner points to nothing in the record to support his allegations.

Accordingly, petitioner is not entitled to habeas relief on this claim.

iv.Impeachment Evidence Relating to Fite

Petitioner next claims that counsel failed to conduct sufficient investigation into Fite’s “lengthy background of criminal activity, deception and falsehoods, addictive behavior, and psychiatric problems which reflected adversely upon her veracity and credibility.” Petition at 124. Part of the evidence petitioner faults counsel for not discovering is the evidence petitioner claims the prosecution withheld from the defense in violation of Brady : the July 1987 letter from Fite’s probation officer, discussed above in section III.B.5.b, supra, in which the officer states that Fite had given the officer “much false information, especially with regard to data in the Social Services files from Children’s Protective Services. She has a history of non-compliance and noncooperation as well as lying and dissembling to the Court, according to Social Services information. She has not cooperated properly during the presen-tence period and has failed to keep one of her two scheduled appointments and submit information requested of her.” Id. at 124-25 (citing Ex. 87 to Ex. F at 15). Petitioner also points out that a September *699 1987 probation department memo to the court stating that Fite had become homeless and lost each of her six children to foster care, and admitted “a recent problem with both alcohol and drug abuse.” Ex. 87 to Ex. F at 2-3. The probation officer told the court that she had referred Fite “to a community health problem for psychotherapy, in view of her painful childhood experiences of rejection and abuse, about which she fantasizes and fabricates various accounts.” Id.

The Court first notes that petitioner fails to establish that the July 1987 letter was available to defense counsel. Not only does petitioner admit that this evidence was never turned over by the prosecution, but a review of Exhibit 87 to Exhibit F reveals that the probation report was under seal. Even assuming that defense counsel somehow could have discovered the report and that it constituted permissible impeachment evidence, petitioner suffered no prejudice from its absence at trial. Trial counsel extensively impeached Melva Fite and extensively argued to the jury in summation that her testimony lacked credibility. Ex. B at 3514-18, 3521-24, 3526-30, 3534. That impeachment included evidence that Fite had a prior felony conviction for forgery, id. at 2744, 2754, and the evidence that while Fite had told the police she could identify Glen Frazier’s killer in person, at a physical lineup held on March 3, 1989, a lineup which included petitioner, she did not identify anyone and only expressed uncertainty about someone other than petitioner, id. at 265758, 2661-68, 2744-47, 2758, 3235-40. The jury nevertheless believed Fite. It is not reasonably probable any additional impeachment evidence would have caused the jury to change its mind. See Brown v. Uttecht, 530 F.3d 1031, 1036 (9th Cir.2008) (“We give ’great deference’ to ’counsel’s decisions at trial’ ” regarding cross-examination of witnesses). 17

Accordingly, petitioner is not entitled to habeas relief on this claim.

v. Fite’s Identification of Petitioner

At petitioner’s guilt-phase trial, the prosecution presented evidence that Fite, at petitioner’s preliminary hearing, identified petitioner as her attempted robber and as the murderer of Glen Frazier. Ex. B at 2659, 2668-70. At trial, Fite remained positive that petitioner was the assailant. Id. at 2656, 2659, 2762. Petitioner claims that defense counsel performed ineffectively in not retaining an expert on eyewitness identification to establish that Fite suffered from many of the biasing factors that taint identifications. Petition at 126-27.

As discussed above, the record shows that on cross-examination of Fite during her testimony in the prosecution’s case-in-chief at the guilt phase, and also during the defense’s guilt-phase case, petitioner’s attorneys established that on March 1, 1989, Fite viewed a photo lineup which included a picture of petitioner. She identified that picture as the assailant, but was not absolutely sure. Ex. B at 2656-57, 2659-61, 2751-52, 2757-58. Although Fite told the police that she could identify Frazier’s killer in person, at a physical lineup held on March 3, 1989 — a lineup that included petitioner — she did not identify anyone, and only expressed uncertainty about someone other than petitioner. Id. at 2657-58, 2661-68, 2744-47, 2758, 3235-40. As also discussed above, defense counsel also vigorously attacked Fite’s credibility and identification in guilt-phase summation:

*700 Melva Fite says oh, no, same guy. I would recognize him if I saw him in a lineup.

Well, she was shown a lineup on the Third of March. She was shown a lineup at the Oakland Police Department. The photographs are here. You can look at them. It looks just like this man here. He was not quite as heavy as he was now. He has been consuming jail food for the last year and a half. And he hasn’t gotten much exercise, so he is heavier now. But he looks exactly the same otherwise. His face is exactly the same. And she didn’t pick him out. As a matter of fact, she not only didn’t pick him out, but she picked out somebody else, a filler as being the person by question mark, mind you, not with an “X,” but a question mark.

But she didn’t even indicate to any degree that this man was responsible.

Sure, when she got to Oakland Municipal Court in January of last year, after all he is sitting at the counsel table. He is the only Black in front of the counsel rail. He is sitting at the counsel table between [co-counsel] and myself and she says that is the man.

Well, he is accused of these crimes. Everybody knows who he is at that time and she knows who he is at that time. So she is reinforcing her identification. Yeah, that is him. And in court she has no trouble. That is him. Well, God, if we had somebody else in here we were defending, we would be in the wrong courtroom. It has to be [petitioner]. Who else are we defending in this case?

Ex. B at 3517-18.

On this record, the state court reasonably rejected this claim. Trial counsel did not demonstrate incompetence by deciding to address the accuracy of the identification made by Melva Fite through argument, rather than through expert testimony. Such testimony was not guaranteed to be helpful to the defense, especially after it was subjected to cross-examination. As quoted above, during summation trial counsel devoted attention to Fite’s eyewitness identification of petitioner, and listed factors the jury could consider in determining the accuracy of the identification evidence. Apart from the portion of the argument quoted above, counsel continued to vigorously attack Fite’s credibility, relying on certain inconsistent statements and alleged implausibilities in her account of the morning of January 30, 1989. Ex. B at 3521-24, 3526-30, 3534. A decision to appeal to the jury’s common sense, rather than to attempt to impress them with expert testimony, does not demonstrate incompetence, but is instead a rational tactical choice. See e.g., Cantu v. Collins, 967 F.2d 1006, 1016 (5th Cir.1992); Jones v. Smith, 772 F.2d 668, 674 (11th Cir.1985). In any event, petitioner again fails to establish what an identification expert would have said at trial.

Accordingly, petitioner is not entitled to habeas relief on this claim,

vi. Where Bullet Entered Glen Frazier

Petitioner claims counsel “failed to adequately investigate, develop, and challenge the prosecution theory regarding the manner in which” Glen Frazier was killed. Petition at 128. Petitioner notes that the pathologist testified that the bullet wound to Frazier was consistent with him having been shot from behind while down on his hands and knees. Ex. B at 2621. Because Melva Fite, Patrick Jackson, and Delores White all testified that the perpetrator was facing Frazier at the time he shot him, petitioner proffers that the sole explanation for this discrepancy “is that the perpetrator fired the shot downward, either at Frazier’s legs or at the sidewalk itself, and the bullet caromed off the sidewalk and a short retaining wall behind the spot where Frazier was kneeling before striking Fra *701 zier in the back.” Petition at 128 (citing Ex. 108 to Ex. F). According to petitioner,

In spite of this discrepancy in the testimony and the obvious implications of the only logical explanation, counsel did not retain a criminalist, further investigate, develop, or present evidence, or cross-examine the prosecution’s witnesses regarding this matter. This evidence would have been crucial because it would have demonstrated that even if petitioner had been the perpetrator, the perpetrator did not intend to kill Frazier.

Id.

The California Supreme Court reasonably rejected this ineffectiveness claim. Petitioner presents nothing to support his claim that the bullet which killed Glen Frazier entered his back after careening off the sidewalk and a retaining wall. Presumably counsel recognized that even if they could somehow establish from the bullet trajectory that petitioner had no intent to kill Frazier when he shot him, petitioner was still guilty of first degree murder under the prosecution’s felony-murder theory. 18 Ex. B at 3479-81; Cal. Penal Code § 189 .

Accordingly, petitioner is not entitled to habeas relief on this claim,

vii. Investigation of Patrick Jackson

As noted earlier, defense counsel argued to the jury in summation that based upon the evidence before the jurors there existed a reasonable doubt that any robbery of Melva Fite or Glen Frazier took place, and that the most reasonable inference from the evidence was that it was Patrick Jackson, and not petitioner, who shot and killed Glen Frazier. Ex. B at 3514-35. Petitioner now alleges that “Patrick Jackson, not petitioner, killed Glen Frazier.” Petition at 129. Petitioner claims that “[cjounsel could have discovered this information through interviews with Jackson himself and through a complete investigation into the incident.” Id.

The California Supreme Court reasonably rejected this allegation of guilt-phase investigation because petitioner does not offer the necessary declaration from Patrick Jackson or any other evidence suggesting Jackson would have confessed to killing Glen Frazier to petitioner’s attorneys. Nor does petitioner offer details as to what counsel should have done to conduct a more “complete investigation” that would have led to the discovery of admissible evidence conclusively proving that Jackson killed Frazier. Petitioner does present the declaration of his mother, who avers that Patrick Jackson confessed to her in 2001 that he killed Frazier. Ex. 62 to Ex. F. There is no evidence that any such confession was available eleven years earlier, at the time of trial.

Accordingly, petitioner is not entitled to habeas relief on this claim.

c. Crimes Against Sylvester Davis, Luther Thomas, and Gerald Livingston

Petitioner alleges the following claims of alleged ineffective assistance of counsel in the investigation of the attempted murder of Luther Thomas, the robbery of Gerald Livingston, and the murder of Sylvester Davis (counts 6, 7, and 8).

i. Investigation of Other Perpetrators

The crimes comprising counts 6, 7, and 8 occurred at 2661 74th Avenue in Oakland on the morning of February 19, 1989. Petitioner faults counsel for not discovering the exculpatory “evidence” that petitioner claims the prosecution withheld in violation of Brady : (1) that on December 14, 1988, “gunmen” entered 2661 74th Avenue, “robbed the house,” and shot one of the *702 occupants, Ex. 51 to Ex. F at 1, ¶ 4, and (2) that on February 17, 1989, at about 5:00 a.m., J.L. Batiste and Tyrice Ross were in 2661 74th Avenue when two masked 'men with guns entered. Batiste declares: “The men wore black ski masks, but I could tell they were black men by their voices. They were much taller and bigger than I was, but I cannot accurately estimate their height today. One of them said ‘Give me the money. Give me the dope.’ He repeated this several times. They also said, ‘don’t be looking at us,’ and made us lie down on the floor. I told them we didn’t have any money or dope, and they warned us, ‘Don’t sell dope out of this place no more.’ They then left the house.” Ex. 51 to Ex. F at 2, ¶ 8; see also Ex. 64 to Ex. F at 2, ¶ 7.

According to petitioner, the above shows that on February 19,1989:

..-. more than one perpetrator was present at the scene of the offense at the time the offense was committed; that the offense was committed by drug suppliers who were upset with JL Batiste, the operator of the crack house, for selling drugs purchased from other suppliers in their turf; that Batiste, not Davis, was the intended target of the perpetrators; that previous shootings and robberies had occurred at the crack house shortly before this incident; and that the perpetrators warned and threatened Batiste and others that they would return and kill Batiste if he continued to sell the wrong drugs there; and that the eyewitness identification testimony of Luther Thomas and Gerald Livingston was inherently unreliable.

Petition at 129, ¶ 292.

The California Supreme Court reasonably rejected this claim. First, as petitioner himself conceded above, defense counsel was not aware of the earlier offenses occurring at 2661 74th Avenue, and, as discussed above, it appears that the February 17 incident was never reported to the police. Defense counsel cannot be faulted for failing to interview the occupants of the house because they were likely hostile to the defense and unlikely to cooperate.

Further, there exists no reasonable probability — that is, no probability sufficient to undermine confidence in the outcome — that had counsel presented the jury with the evidence of other crimes at 2661 74th Avenue petitioner would have received a different result on counts 6, 7, and 8. Strickland, 466 U.S. at 692-94 , 104 S.Ct. 2052 . Specifically, it is not reasonably probable that, had the jury learned that a robbery and shooting occurred at 2661 74th Avenue on December 14, 1988, by unidentified “gunmen,” it would have had a reasonable doubt in the testimony of Luther Thomas and Gerald Livingston identifying petitioner as the perpetrator of the attempted murder, robbery, and murder which occurred at 2661 74th Avenue on February 19, 1989. The same reasoning applies to what allegedly occurred on February 17, 1989.

Accordingly, petitioner is not entitled to habeas relief on this claim.

ii. Thomas and Livingston Identifications

Last, petitioner claims defense counsel should have hired an expert to demonstrate that the identifications of petitioner by Thomas and Livingston were unreliable. Petition at 130-31. The record shows the following: Livingston described his February 19, 1989 assailant as being about six feet tall, and wearing a red shirt with a black waist-length “Members Only” jacket and a dark knit Navy-style beanie. Ex. B at 2891, 2894, 2914-17, 2920. Thomas described his perpetrator as being in his early twenties, between five feet six inches and five feet eight inches tall, about 155 pounds, and wearing a dark three-quarter length coat with a hood and *703 a New York Yankees cap. Ex. B at 2979, 3000-02.

Defense counsel stressed all of this in summation, arguing that because of the disparate descriptions by Thomas and Livingston, and because of Thomas’s statement to police that “they” (not a he) had come to the front door of the residence, there existed evidence of multiple perpetrators. And, because there existed no direct evidence of who shot Sylvester Davis, there existed reasonable doubt as to petitioner’s guilt of that murder charge, especially considering that the prosecution’s theory was that petitioner was the direct perpetrator. Ex. B at 3547-3600. Counsel also stressed to the jury that they had reason to doubt the accuracy of Livingston’s identification given his cocaine ingestion on the evening in question, and given that while he identified petitioner at the live lineup, he had failed to identify petitioner at the photo lineup. Id. at 3563-64, 3575-77. “Ask yourself one question. Five days later he goes and sees a lineup. Is it possible, perhaps, that the person he sees in the lineup is the person, one of the people he saw in the photo? Is that what activates him, his mind process, as opposed to being the person who he saw at the time?” Id. at 3576.

On this record, the state court reasonably rejected this claim. As with the other identifications discussed above, counsel did not demonstrate incompetence by deciding to address the accuracy of the Thomas and Livingston identifications through argument, rather than expert testimony. Such testimony would have been subject to cross-examination and was not guaranteed to help the defense. Petitioner again fails to establish what an identification expert would have said at trial.

Accordingly, petitioner is not entitled to habeas relief on this claim.

d. Cumulative Error

Petitioner’s cumulative error argument is also without merit. In some cases, although no single trial error is sufficiently prejudicial to warrant reversal, the cumulative effect of several errors may still prejudice a defendant so much that his conviction must be overturned. Alcala v. Woodford, 334 F.3d 862, 893-95 (9th Cir.2003). Cumulative error is more likely to be found prejudicial when the government’s case is weak. United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir.1996). In this instance, as discussed above, many of petitioner’s ineffective assistance of counsel claims are based upon conclusory and unsupported allegations. In every other case, the Court has found that counsel’s performance did not fall below an objective standard of reasonableness. Where there is no single constitutional error existing, nothing can accumulate to the level of a constitutional violation. Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir.2011); Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir.2002).

Accordingly, petitioner is not entitled to habeas relief on this claim.

7. Ineffective Assistance of Counsel— Guilt Phase Performance

Petitioner asserts multiple claims of ineffective assistance of his trial counsel, all of which variously allege that counsel provided prejudicially deficient “guilt-phase performance.” Petition at 132-53. Petitioner presented this claim only on state habeas to the California Supreme Court, which summarily denied it on the merits,

a. Petitioner’s Alias

Petitioner’s first claim of guilt-phase performance ineffectiveness concerns an alleged “alias,” i.e., “Robert Carter.” Petition at 133-36. Specifically, petitioner claims that counsel not only failed to consistently use his true name, “Robert Young,” but also failed to object to the use *704 of the “a.k.a. Robert Carter” in the Information; failed to move for an order prohibiting reference to the “a.k.a.” before the jury; failed to object when the prosecutor and witnesses referred to petitioner as “Robert Carter” in front of the jury; and repeatedly referred to petitioner as “Robert Carter.” Id. Petitioner argues that counsel’s reference to petitioner by an alias was prejudicial not only because it suggested that petitioner was a member of the supposed “criminal class,” but also because it provided non-evidentiary support for the prosecutor’s baseless argument that petitioner was “a gangster, an out and out gangster,” and “a street gangster.” Id. at 135-36 (citing Ex. B at 4044, 4050).

The record confirms that witnesses referred to petitioner as “Robert Carter” and that at times both the prosecutor and defense counsel referred to petitioner as “Robert Carter” (as well as “Robert Young”). See e.g., Ex. B at 2332, 2767, 2926, 3116, 3121, 3127, 3137, 3141, 3143, 3144, 3211, 3240, 3748, 3762, 3772, 3779. However, the California Supreme Court reasonably rejected this claim of guilt-phase performance ineffectiveness. No reason for the existence or use of “Carter” was ever elicited or otherwise given to the jury. In other words, no evidence was ever presented explaining why petitioner had the last name “Carter” in addition to “Young,” and no evidence was ever presented as to the significance of the “Carter” name. The trial court instructed the jury that it could decide the issues in this case based only on the evidence presented. Ex. B at 3653. Because there existed no evidence regarding the significance of why petitioner was known as “Robert Carter,” the alias had no probative value and could not have been prejudicial. The prosecutor never made any argument that petitioner’s use of a second last name inculpated him. For the jury to have reached any conclusions about petitioner having the name “Carter” in addition to ‘Young,” the jury would have had to engage in speculation, contrary to the instructions given them. See Richardson v. Marsh, 481 U.S. 200, 206 , 107 S.Ct. 1702 , 95 L.Ed.2d 176 (1987) (jury is presumed to have followed the trial court’s instructions). Even assuming that the jury did draw unsupported conclusions from the alias, the evidence against petitioner was strong enough that it cannot be said that the alias tilted the balance against petitioner.

Accordingly, petitioner is not entitled to habeas relief on this claim.

b. Ballistics Expert

Petitioner’s next several allegations of guilt-phase performance ineffectiveness concern the prosecution’s ballistics evidence. Petition at 136-40. More specifically, petitioner alleges that because the ballistics and tool-mark evidence was so crucial, defense counsel Selvin and Melding were “obliged, at a minimum,” to retain their own ballistics expert; have that expert examine the bullets in evidence to either confirm or dispute the conclusions of the prosecutor’s ballistics expert, criminalist Chester Young; have the expert assist in cross-examination of Young; and have the expert testify. Petition at 136-37, ¶ 302, 304. Petitioner also claims that counsel “deficiently” addressed the prosecution’s ballistics evidence, in that counsel did not challenge “the scientific validity of bullet matching” in part through a “Kelly/Frye” motion. Id. at 136, 140, ¶¶ 302, 311. 19 Petitioner claims counsel *705 should have used a ballistics expert of their own to emphasize through testimony that Young was offering only opinions— and ones based on “questionable assumptions” at that. Petition at 137-38, ¶ 305-06. Petitioner faults counsel for not cross-examining Young “with respect to his demonstrable bias,” and particularly faults counsel for acknowledging the expertise of Young by agreeing to stipulate to his qualification as an expert. Id. at 139-40, ¶¶ 309-10. According to petitioner “there was no conceivable reason for the defense -to actually endorse the expertise of this prosecution witness and enhance his credibility in the eyes of the jurors.” Id.

The California Supreme Court reasonably rejected these allegations of guilt-phase performance ineffectiveness. Trial counsel could have reasonably believed that they could gain credibility with the jury by endorsing the qualifications of Chester Young and his ballistics opinions in this case. Indeed, Young was so well-respected as a firearms identification expert that the trial court remarked that if the defense would not stipulate to his expertise, the court “would take judicial notice of it.” Ex. B at 3032.

In any event, the record makes clear defense counsels’ strategy with respect to Young and the ballistics evidence. The defense wanted to emphasize Young’s expertise and experience because, as counsel explored with Young during cross-examination, a determination of whether fired bullets match by examining their striations, “depends on the experience of the examiner.” Ex. B at 3095. And, as defense counsel also probed with Young, a very experienced examiner like himself could classify only two of the bullets as positively matching (the Miller mantel bullet and the Rivers body bullet — two bullets counsel urged Patrick Jackson fired), notwithstanding Young’s “strong suspicion” or belief in the likelihood that the same gun had fired all six bullets at issue in this case:

Q. Well, as an expert Mr. Young, you were looking at these bullets to determine whether or not, in fact, they were fired from the same gun; isn’t that true?

A. Well, it is not all black and white. There is a gray area in between. And this falls in the gray area closer to one end than the other end.

Q. It is in a gray area?

A. It is in a gray end closer to the match than not match.

Q. But is still not a match?

A. Correct.

Q. Because you are not satisfied that it is a match?

A. Correct.

Q. And you are the expert, right?

A. Yes.

Ex. B at 3100. In summation, defense counsel vigorously argued that the “gray area” referred to by Chester Young could not equal proof beyond a reasonable doubt that petitioner committed all the shootings in this case. Ex. B at 3535-40. Thus, petitioner’s current criticisms establish nothing but hindsight disagreement with an unsuccessful trial tactic, which is insufficient to sustain an ineffectiveness finding. See Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir.1984) (tactical decisions do not constitute ineffective assistance simply because, in retrospect, better tactics are known to have been available).

Furthermore, the California Supreme Court could have reasonably concluded that no relief was warranted because petitioner faded to present evidence demonstrating that a defense ballistics expert would have yielded a more favorable result. The Court does not read petitioner’s only supporting evidence, the 2002 Criminal Law Bulletin article, see Ex. 1 to Ex. F, as containing information that would *706 have led counsel to information in 1989 that would have sustained a successful Kelly/Frye motion precluding Young from offering his opinions. And petitioner provides no declaration from any expert stating he or she would have so testified at trial, which is fatal to his claim. See Allen, 395 F.3d at 1002 n. 2; Dows, 211 F.3d at 486 ; Grisby, 130 F.3d at 373 (noting “[speculation about what an expert could have said is not enough to establish prejudice”).

Finally, although petitioner maintains trial counsel could have asked cross-examination questions to explore Chester Young’s “demonstrable bias” as a former employee of the Oakland Police Department and should not have stipulated to criminalist Young’s expert qualifications as they did, the California Supreme Court could have reasonably found that it was not reasonably probable such further questioning or challenge to his qualifications would have led the jury to reject Young’s opinions.

Accordingly, petitioner is not entitled to habeas relief on this claim.

c. Competency Proceedings

Petitioner next claims that by the end of the guilt phase counsel were aware of substantial evidence that petitioner was incapable, because of mental disease or defect, of understanding the nature of the proceedings against him or of assisting in his defense, such that counsel should have moved for a competency hearing. Petition at 140-41. Petitioner states the following as evidence of his incompetence to stand trial:

On October 6, 1990, three days before the defense rested its case, Dr. Robert Kaufman, a neuropsychologist who had examined petitioner for the defense, completed a report of his findings. In that report, Kaufman concluded that petitioner had a total IQ score of only 75, placing petitioner in what Kaufman stated was the borderline range of intelligence, at just the fifth percentile among adults nationwide. However, Kaufman found that petitioner’s verbal IQ of 73 placed him in only the fourth percentile for his age group. His subtests in this area were “uniformly poor” and “especially impaired” in the areas of acquired general knowledge and comprehension. Petitioner could not correctly state the number of weeks in a year or name recent presidents of the United States. He was unable to define simple words and had only a “marginal vocabulary.” His standard scores were the equivalent of those of a fourth-grader. Kaufman found that petitioner demonstrated “compromise in higher-level reasoning skills” and “compromised brain functioning.”

Petition at 140-41, ¶ 312 (citing Ex. 98 to Ex. F).

The California Supreme Court reasonably rejected this claim. Dr. Kaufman never expressed an opinion that petitioner was not competent to stand trial. To the contrary, Dr. Kaufman’s report specifically states:

[Petitioner] appeared to be well-oriented to time, person, and place and displayed no signs of impairment in logical thought processes. He was able to communicate his thoughts and appear to understand all instructions and questions posed to him_ [Petitioner’s] thought processes appeared to be logical and sequential, though he had some difficulty remembering some dates regarding his past.

Ex. 98 to Ex. F.

Indeed, the California Supreme Court, on direct appeal, specifically rejected a penalty phase claim that counsel rendered ineffective assistance by failing to request a competency hearing. People v. Young, 34 Cal.4th at 1214-18 , 24 Cal.Rptr.3d 112 , 105 P.3d 487 . Significantly, the state *707 court noted that Dr. Kaufman made no diagnosis that petitioner suffered from a developmental disability and specifically testified that petitioner was not suffering from a thought disorder. See id. The Court has reviewed the state court’s analysis and finds that its basis for denying relief was objectively reasonable.

Accordingly, petitioner is not entitled to habeas relief on this claim.

d.Crimes Against Manzine Miller and Terry Rivers

With respect to the Manzine Miller assault and robbery (counts 2 and 3) and Terry Rivers homicide (count 1), petitioner claims that “counsel failed to competently investigate evidence demonstrating that petitioner was not present at the scene of the incident, evidence undermining the credibility of Manzine Miller, or substantial evidence of third party culpability.” Petition at 141. This claim repeats several of petitioner’s allegations of guilt-phase investigation ineffectiveness. It fails here for the same reasons discussed above. See discussion at III.B.6.a, supra.

Accordingly, petitioner is not entitled to habeas relief on this claim.

e.Physical Impossibility Defense

Petitioner next claims that trial counsel failed to “develop and present” the “physical impossibility” evidence, i.e., the medical records showing that petitioner had badly sprained both ankles on January 2, 1989. Petition at 142. For the reasons this claim failed as an allegation of guilt-phase investigation ineffectiveness it fails as an allegation of guilt-phase performance ineffectiveness. See discussion at III. B.6.a.viii, supra.

Accordingly, petitioner is not entitled to habeas relief on this claim.

f.Failure to Argue Against Felony Murder Instruction

The trial court instructed the jury on robbery, in part, as follows:

The commission of the crime of robbery is not confined to a fixed place or a limited period of time.

A robbery is still in progress after the original taking of physical possession of the stolen property while the perpetrator is in possession of the stolen property and fleeing in an attempt to escape. Likewise, it is still in progress so long as the immediate pursuers are attempting to capture the perpetrator or regain the stolen property.

A robbery is complete when the perpetrator has alluded [sic] any pursuers, has reached a place of temporary safety, and is in unchallenged possession of the stolen property after having affected [sic] an escape with such property.

Ex. B at 3686.

The jury convicted petitioner on count 1 of the first degree murder of Terry Rivers, either under a premeditation-deliberation ■ theory or a felony-murder (robbery) theory. Ex. B at 3480, 3670-73, 3719. The jury also found true the special circumstance allegation that petitioner killed Rivers during the commission of a robbery. Id. at 3719-20.

Petitioner claims that even if there was sufficient evidence that he shot Manzine Miller and shot and killed Terry Rivers, there was insufficient evidence that he committed the crimes during the commission of a robbery, and trial counsel Selvin and Meloling performed ineffectively in not making such an argument. Petition at 142-45. More specifically, according to petitioner, there was no evidence that his leaving the scene of the Miller robbery and walking to the front of Miller’s home was a flight or an escape from that robbery. “Here there was nothing to ’escape’, from. The Miller shooting occurred in an unlighted area in an overgrown vacant lot shielded from view from-the street, and there were no other wit *708 nesses, real or apparent. Miller himself was unarmed, had been shot, and would certainly not have attempted to follow petitioner, nor was it likely that anyone else would [have] come walking through the area until the following day. Thus, it is difficult to characterize petitioner’s actions following the Miller shooting as ’flight.’ ” Id. at 144, ¶ 319. And, petitioner continues: “Certainly by the time he arrived at the sidewalk in front of Miller’s, house, if not sooner, petitioner had reached a place of temporary safety. Since petitioner must have reached this location before the fatal shot was fired at Terry Rivers, the Rivers killing cannot have occurred during the flight after the Miller robbery.” Id. at 145, ¶ 321.

The California Supreme Court reasonably concluded that defense counsel were not ineffective in failing to make the above arguments in guilt-phase summation. The record reflects that defense counsel had a different theory. They argued to the jury that the most reasonable interpretation of the evidence was that petitioner went into the swamp with Man-zine Miller, but he did not rob Miller and shot him only because he thought Miller was about to shoot first. Ex. B at 3500-09, 3513. As stated earlier, trial counsel have great latitude to present a particular theory of defense and present it via summation. See Richter, 131 S.Ct. at 790 (“There is a ‘strong presumption’ that counsel’s attention to certain issues to the exclusion of others reflects trial tactics rather than ‘sheer neglect.’ ”).

Second, the California Supreme Court reasonably rejected petitioner’s claim that counsel should have argued that there existed insufficient evidence to support the theory that he killed Terry Rivers during the commission of the Manzine Miller robbery because, as the state high court held on direct appeal, petitioner’s view of the evidence is incorrect:

Defendant contends ... that even if there existed sufficient evidence that he killed Rivers, the evidence is insufficient to establish the murder occurred during the commission of the Miller robbery. We disagree. First, the evidence demonstrates overwhelmingly that defendant robbed Miller — that is, defendant took property from Miller by means of force or fear with the specific intent to permanently deprive him of that property. ([Cal. Penal Code] § 211.) Second, a rational trier of fact could have found the Miller robbery was not complete when defendant shot and killed Rivers. A robbery is not complete until the perpetrator reaches a place of temporary safety (People v. Salas (1972) 7 Cal.3d 812, 822 , 103 Cal.Rptr. 431 , 500 P.2d 7 ), and the jury here was so instructed. [ ] Miller testified Rivers had been “fandangling,” i.e., selling fake drugs, in front of the house and may have been outside at the time he left with defendant and headed towards the “swamp” to buy some cocaine from one of his suppliers. The jury thus could have reasonably inferred that defendant killed Rivers in order to eliminate a potential witness against him in a prosecution for the robbery and attempted murder of Miller. (See People v. Fields (1983) 35 Cal.3d 329, 365-368 , 197 Cal.Rptr. 803 , 673 P.2d 680 .) In addition, because “[t]he scene of a robbery is not a place of temporary safety ...” (People v. Ramirez (1995) 39 Cal.App.4th 1369, 1375 , 46 Cal.Rptr.2d 530 ), the jury reasonably could have found that the robbery was not yet complete at the front of Miller’s house at 2:30 a.m., approximately 120 to 150 feet from the “swamp” where defendant had robbed Miller moments before.

Accordingly, the record contains sufficient evidence that defendant shot and killed Rivers during the commission of a *709 robbery, and thus committed first degree murder under the theory of robbery felony murder.

Young, 34 Cal.4th at 1175-77 , 24 Cal.Rptr.3d 112 , 105 P.3d 487 . For all the reasons explicated in this analysis, defense counsel could have reasonably decided that arguing against a felony-murder finding, in relation to the Terry Rivers murder, would be futile.

Accordingly, petitioner is not entitled to habeas relief on this claim.

g.Admitting Petitioner’s Presence

As noted above, defense counsel defended petitioner against the count 2 and count 3 charges that he attempted to murder and robbed Manzine Miller by tacitly acknowledging that petitioner went into the swamp with Miller, but arguing that petitioner did not rob Miller and shot him only because he (petitioner) credibly felt that Miller was about to rob him. Ex. B at 3500-09, 3513. Petitioner contends that this constituted prejudicial deficient performance. Petition at 14546. Petitioner elaborates: “There was no conceivable tactical reason for counsel to have made these admissions. Not only did they contradict what their client had told them, they also contradicted the medical evidence which counsel had in their files showing that petitioner could not have been the person who shot Miller. Counsel’s improper concessions and admissions placed petitioner in a false light and greatly prejudiced his case.” Id. at 146, ¶ 324.

The California Supreme Court could have reasonably rejected this claim as an improper conclusory allegation of ineffectiveness. Harrington v. Richter, 131 S.Ct. at 789 ; Jones v. Gomez, 66 F.3d at 204-05 ; James v. Borg, 24 F.3d at 26 . Petitioner offers no declaration or other evidence in support of his claim that he told counsel he did not shoot Miller. Dows v. Wood, 211 F.3d at 486 ; Tinsley v. Million, 399 F.3d 796, 808 (6th Cir.2005) (no ineffectiveness absent affidavits from the omitted witnesses to show what favorable information they had); Allen v. Woodford, 395 F.3d at 1002 n. 2. Petitioner also fails to offer support for the claim that medical evidence existed in counsel’s files “showing that petitioner could not have been the person who shot Miller.” To the extent he is referring to his ankle injury, the claim has been discussed and rejected above.

Accordingly, petitioner is not entitled to habeas relief on this claim.

h.Failure to Make “Claim of Right” Defense

Petitioner next contends that defense counsel “performed deficiently with regard to the Frazier homicide in failing to present evidence of the robbery of petitioner, argue a claim-of-right defense, or request an instruction on this theory.” Petition at 146, ¶ 325. According to petitioner, “Had counsel argued this theory and requested appropriate instructions on it, counsel would have eliminated the first-degree felony murder verdict and the robbery special circumstance, and petitioner’s conviction with respect to this count would have been for an offense no greater than second-degree murder.” Id. at 147, ¶ 326. For the reasons this claim failed as an allegation of guilt-phase investigation ineffectiveness, it fails as an allegation of guilt-phase performance ineffectiveness. See discussion at III.B.6.b.i, supra.

Accordingly, petitioner is not entitled to habeas relief on this claim.

i.Impeachment of Melva Fite

Petitioner next claims that counsel performed with unconstitutional ineffectiveness “in failing to impeach Melva Fite with evidence of her cocaine addiction, mental health problems, and other evidence of her lack of credibility.” Petition at 147, ¶ 327. For the reasons this claim failed as an allegation of guilt-phase investigation inef *710 fectiveness, it fails as an allegation of guilt-phase performance ineffectiveness. See discussion at III.B.6.b.iii-iv, supra.

Accordingly, petitioner is not entitled to habeas relief on this claim.

j.Identification Expert

Petitioner claims. “Counsel also failed to impeach the credibility of the prosecution’s supposed eyewitnesses — Melva Fite, Gerald Livingston, Manzine Miller, and Luther Thomas — by retaining and presenting an expert witness regarding the unreliability of eyewitness testimony.” Petition at 147-48, ¶ 328. For all of the reasons this claim failed when petitioner presented it as a multi-pronged claim of guilt-phase investigation ineffectiveness, it fails here. See discussion at III.B.6.a.i, III.B.6.b.v, and III.B.6.c.ii, supra.

Accordingly, petitioner is not entitled to habeas relief on this claim.

k.Failure to Object to Prosecution’s Closing Argument

Petitioner claims trial counsel rendered ineffective assistance by failing to object to all of the instances of misconduct committed by the prosecutor during his guilt-phase summation as alleged above. See discussion at III.B.3, supra. Petition at 148^49, ¶¶ 329-30. According to petitioner, “Although the prosecutor’s argument to the jury — particularly his rebuttal argument at the guilt phase — was replete with abusive misconduct, counsel let much of this misconduct pass by without objection or comment.” Id. at 148, ¶ 329.

The California Supreme Court had reasonable basis to deny this claim on state habeas because on direct appeal the state high court had already addressed each of the allegations of prosecutorial misconduct in summation on the merits, and concluded that some of the allegations were without merit, and others that were meritorious, either singly or cumulatively, were harmless. See People v. Young, 34 Cal.4th at 1188-98 , 24 Cal.Rptr.3d 112 , 105 P.3d 487 . Petitioner (1) has not identified any unob-jected-to allegation of prosecutorial misconduct in summation that the California Supreme Court did not address on the merits on direct appeal; and (2) has not shown that such an allegation was meritorious and prejudicial. See also Garcia v. Bunnell, 33 F.3d 1193, 1200 (9th Cir.1994) (“ ’many trial lawyers refrain from objecting during closing argument to all but the most egregious misstatements by opposing counsel on the theory that the jury may construe their objections to be a sign of desperation or hyper-technicality’ ”); United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir.1993) (“Because 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.”).

Accordingly, petitioner is not entitled to habeas relief on this claim.

1.Failure to Object to Other Instances of Prosecutorial Misconduct

Petitioner claims that defense counsel performed deficiently in four more respects in failing to object to prosecutorial misconduct:

Counsel also failed to move in limine to prevent the prosecutor from referring to the “Valente” bullet, which was not related to this case, but which the prosecutor introduced into his questioning of Chester Young to insinuate that police suspected petitioner of a fourth killing. ([Exh. B at] 3049-3051.) Counsel also performed deficiently in failing to request a jury admonition and mistrial when the prosecutor questioned his expert on this subject. Counsel also performed deficiently in failing to request a jury admonition and mistrial when the prosecutor committed egregious miscon *711 duct in asking Patrick Jackson whether petitioner had admitted other killings, in spite of the fact that the prosecutor had no good faith basis for this question. ( [Exh. B at] 2838-2841.) Counsel was also deficient in failing to object on explicit prosecutorial misconduct grounds when Manzine Miller gratuitously testified that petitioner had “no remorse” for shooting him. ([Exh. B at] 2502.)

Petition at 149-50, ¶ 331.

The California Supreme Court reasonably rejected this claim on state habeas because on direct appeal the state high court had already held that: (1) “the prosecutor’s question about other killings was not improper”; (

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