# Jensen v. Hernandez

> District Court, E.D. California · March 30, 2012 · 864 F. Supp. 2d 869

URL: https://www.frixlaw.com/law-library/cases/8698874

## Case

- **Full name:** Keith Hugh JENSEN v. Robert J. HERNANDEZ
- **Court:** District Court, E.D. California
- **Decided:** March 30, 2012
- **Citations:** 864 F. Supp. 2d 869; 2012 U.S. Dist. LEXIS 45673; 2012 WL 1130599
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Drozd
- **Judges:** Drozd
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8698874

## Opinion text

ORDER
DALE A. DROZD, United States Magistrate Judge:
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 . The parties have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636 (c). Petitioner challenges a judgment of conviction entered against him on December 17, 2003 in the Sacramento County Superior Court on charges of spousal rape with force, false imprisonment, misdemeanor spousal battery, and making terrorist threats. Petitioner raises nineteen separate claims for federal habeas relief. Upon careful consideration of the record and the applicable law, and for the reasons set forth below, the undersigned will conditionally grant petitioner’s application for a writ of habeas corpus on his claims of Faretta error and that his appellate counsel rendered ineffective assistance in failing to raise the Faretta error on appeal, and will deny the application in all other respects.
BACKGROUND
I. Factual Background
In its unpublished memorandum and opinion affirming petitioner’s judgment of conviction on appeal 1 , the California Court of Appeal for the Third Appellate District provided the following factual summary:
Defendant Keith Hugh Jensen was convicted by jury of spousal rape, false imprisonment, misdemeanor spousal battery, and terrorists threats. The jury also found true the allegation defendant served four prior prison terms. The trial court sentenced defendant to 15 years in state prison.
On appeal, defendant contends: (1) the trial court improperly refused his request for advisory counsel, (2) the trial court improperly admitted battered women’s syndrome evidence, (3) admission, pursuant to Evidence Code section 1109, of defendant’s prior infliction of domestic abuse violated his due process and equal protection rights, and (4) a jury instruction pursuant to CALJIC No. 2.50.01 violated his due process rights. We affirm.
FACTS
On May 4, 2002, in the early morning hours, defendant called his estranged wife, Terri, to get a ride, but she refused. Defendant called a second time and told Terri his young nephew was with him at a known drug house. Terri picked up a friend, Jill Johnson, to go with her and attempted to retrieve the nephew. When she arrived, defendant got into the ear instead of the nephew and refused to get out. He demanded Terri give him a ride to his father’s house. During the drive, defendant pulled Terri’s hair and called her names. He threatened to kill those close to Terri to bring her “world to an end.”
Upon arrival at the father’s house, defendant refused to get out of the car because Terri would not go with him. She decided to drive to a friend’s house on Withington Avenue for help dealing with defendant. Her friends were not home, but others were in the house. Defendant exited the car on Terri’s side and pulled her out of the car by her shirt sleeve. He warned her that it *885 would be “the easy way or the hard way.”
Defendant pulled Terri into the house by the front of her shirt. Once inside, defendant again grabbed Terri by the shirt, pulled her towards the bedroom, and threatened, “the easy way or the hard way.” He said he wanted to talk to her. Terri entered the bedroom, fearing she would be beaten if she did not comply. Defendant kept Johnson from entering the bedroom. He closed and locked the door.
In the bedroom, defendant and Terri argued about their relationship, Terri’s illness (she thought she had cancer), and her attitude. Nothing Terri said satisfied defendant, and he hit her twice on the head. She tried to protect her head with her hands, but this made him angry. He hit her again when she put her hands down. At one point, he threatened to “take [her] world down even though it mean[t] spending the rest of [his] life on death row,” which she understood as a threat to kill her or her son. At some other point, defendant bit Terri on her arm.
Johnson knocked on the door to check on Terri because she had heard Terri tell defendant to stop. Defendant opened the door, told Johnson to go away, and assured her that Terri was fine. Terri said she was “okay,” but Johnson could not see her. Later, Johnson asked again if everything was okay, and defendant responded that everything was fine, but the door remained closed.
Defendant ordered Terri to remove her clothes. She did not want to, but feared what he would do if she refused. She complied, removing all but her underwear. Defendant removed the underwear and had intercourse with her for approximately 30 minutes. She did not resist because she did not want him to strike her. Defendant commented she could not fulfill him, and she responded with a sarcastic remark. He attempted to hit her, and she shouted at him not to. Johnson knocked on the door a third time, and defendant opened it. He asked Johnson about Terri’s phone and purse. Johnson saw Terri was putting on her blouse, had a red and swollen face, and looked horrified. Terri managed to get out of the house and ran into the middle of the street shouting for Johnson to get into the car and start it. Defendant reached the car first, attempted to start it with an old key, and smashed in the windshield when his key failed to work. He walked away, carrying Terri’s cell phone.
Terri and Johnson fled in the car to go call the police. They stopped at a bar, and Johnson dialed 911. Terri kept a lookout for defendant. The police arrived and interviewed Terri, but did not ask her for details of what happened in the room. In the meantime, defendant went to Terri’s sister’s house. He admitted hitting Terri, smashing the windshield of her car, and having a fight. Terri did not report the rape until later when she was questioned by an investigator from the district attorney’s office. Terri is very guarded about her personal life.
At trial, Terri testified to two prior incidents of sex and violence with defendant. The first occurred when defendant strapped her, naked, to the bed in a camper after she attempted to leave when he wanted to have sex. She escaped the bonds while defendant was outside the camper, but was unable to dress before he returned. She consented to sex with him because she did not want to be strapped down again. The second time defendant broke Terri’s nose when she refused to have sex with him.
*886 Defendant testified he started calling Terri for a ride at 4:00 a.m. on May 4, 2002, and it was light out when she picked him up. He claimed he did not ask to go to the house on Withington Avenue and did not force Terri to enter the house. He testified they argued about Terri’s cancer. He denied having intercourse with Terri and stated she was mistaken about having disrobed. Finally, defendant claimed his threatening statements had been taken out of context because he was referring to what would happen if Terri kept doing and selling drugs.
(Doc. No. 18-1 at 2-3.)
II. Procedural Background
On February 15, 2007, after the California Court of Appeal affirmed petitioner’s judgment of conviction, petitioner filed a petition for writ of error coram nobis in the Sacramento County Superior Court. (Resp’t’s Lod. Doc. 3.) That petition was subsequently dismissed pursuant to petitioner’s notice of rescission. (Id.)
On February 16, 2007, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. (Resp’t’s Lod. Doc. 4.) Therein, he claimed that his appellate counsel had rendered ineffective assistance in failing to return petitioner’s trial record in a timely manner and in failing to raise meritorious issues on appeal. (Id.) That petition was summarily denied by order dated February 22, 2007. (Id.)
On March 28, 2007, petitioner filed another petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. (Resp’t’s Lod. Doc. 5.) Therein, he claimed that: (1) his appellate counsel rendered ineffective assistance; (2) his rights pursuant to Faretta v. California, 422 U.S. 806, 821 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975) were violated when the prosecution charged him with additional enhancements after he waived his right to counsel; (3) the trial court violated his constitutional rights in denying his repeated requests for “advisory/co-counsel;” (4) the prosecution violated Brady v. Maryland, 373 U.S. 83, 87 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963) when it failed to disclose exculpatory material to the defense; (5) the prosecutor violated his right to due process by presenting knowingly false testimony at trial; (6) his sentence violated the ruling in Cunningham v. California, 549 U.S. 270 , 127 S.Ct. 856 , 166 L.Ed.2d 856 (2007); (7) his sentence violated state sentencing law; (8) the “superior court clerk and/or department of corrections” violated his Constitutional rights by “adding to [his] sentence;” (9) California Penal Code § 3000 is vague and unconstitutional; (10) California Penal Code § 3000.07 is unconstitutional; and (11) California Penal Code § 3004(b) is unconstitutional. (Id.) The state appellate court denied relief in an order dated May 10, 2007 with the following reasoning:
The petition for writ of habeas corpus is denied for failure to state a prima facie case as to any claim other than the contention that the trial court imposed the upper term in violation of Blakely v. Washington (2004) [ 542 U.S. 296 , 124 S.Ct. 2531 ] 159 L.Ed.2d 403 and Cunningham v. California (2007) [ 549 U.S. 270 , 127 S.Ct. 856 ] 166 L.Ed.2d 856 , and, as to the Blakely/Cunningham issue, the petition is denied for failure to specifically demonstrate that the claim has been presented to the trial court in the first instance (In re Steele (2004) 32 Cal.4th 682, 692 [ 10 Cal.Rptr.3d 536 , 85 P.3d 444 ]; In re Hillery (1962) 202 Cal. App.2d 293 [ 20 Cal.Rptr. 759 ].)
(Id.)
On June 25, 2007, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court, in which he raised the following claims: (1) his appel *887 late counsel rendered ineffective assistance; (2) the trial court violated his Faretta rights; (3) the trial court violated his constitutional rights by discussing petitioner’s request to represent himself at an ex parte meeting held outside of his presence; (4) he was “denied.advisory/co-counsel after trial court made up its mind ‘in camera;’ ” (5) the prosecution “suppressed exculpatory evidence and allowed it to be destroyed;” (6) the prosecutor knowingly introduced perjured testimony at trial; (7) the trial court improperly denied petitioner compulsory process for obtaining trial witnesses; (8) the trial court improperly admitted evidence of Battered Woman Syndrome; (9) California Evidence Code § 1109 is unconstitutional; (10) the trial court violated his right to due process by instructing the jury with CALJIC No. 2.50.01; (11) the trial court violated his right to due process by refusing to give jury instructions on his theory of the defense; (12) he was improperly sentenced to three upper terms without a jury finding of aggravated facts; (13) the trial court abused its discretion when it sentenced him to consecutive terms pursuant to California Penal Code § 667.6(C); (14) he was “not sentenced to parole nor to registration per penal code section § 290;” (15) California Penal Code § 3000(a)(4) is unconstitutional; (16) California Penal Code § 3000.07(a) is unconstitutional; and (17) California Penal Code § 3004(b) is unconstitutional. (Resp’t’s Lod. Doc. 6.) Petitioner also alleged a “supplemental” claim as part of this petition (claim 18), arguing that “new evidence” indicating that prosecution witness Jill Johnson had recanted her trial testimony demonstrated that he was innocent of the crimes for which he was convicted. (Id.)
In a written decision issued on October 1, 2007, Sacramento County Superior Court Judge Michael W. Sweet denied that petition. (Resp’t’s Lod. Doc. 6.) Citing the decision in In re Waltreus, 62 Cal.2d 218, 225 , 42 Cal.Rptr. 9 , 397 P.2d 1001 (1965), the Superior Court denied relief as to petitioner’s claims 3, 4, 8, 9, and 10 because they were raised and rejected on appeal. (Id.) Citing the decision in In re Dixon, 41 Cal.2d 756, 759 , 264 P.2d 513 (1953), the Superior Court denied relief as to petitioner’s claims 2, 5, 6, 7, and 11 because they were apparent from the record and therefore should have been raised on appeal. (Id.) Petitioner’s claim of ineffective assistance of appellate counsel, his sentencing claims (claims 12 through 17) and his supplemental claim of actual innocence based on newly discovered evidence (claim 18), were rejected by the Superior Court on the merits. (Id.)
On October 29, 2007, petitioner filed another petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. (Resp’t’s Lod. Doc. 7.) A court docket entry reflects that petition being dismissed by order dated March 13, 2008, as “duplicative of the writ petition filed on October 31, 2008.” 2 (Id.)
On October 31, 2007, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, in which he raised the same claims that he raised in his June 25, 2007 petition filed in the Sacramento County Superior Court, as well as one additional claim that “the lower court ruled contrary to, and unreasonably in light of the California and United States Supreme Court law and the facts in evidence as set forth by petitioner.” (Resp’t’s Lod. Doc. 8.) On March 14, 2008, the California Court of Appeal issued an *888 order to show cause (OSC), returnable before the Sacramento County Superior Court and ordered the matter to be heard when placed on the calendar by the Superior Court. (Id.)
On November 8, 2007, before the California Court of Appeal issued its OSC and before the Sacramento County Superior Court could place the OSC on calendar for hearing, petitioner filed a petition for writ of habeas corpus in the California Supreme Court, raising all of the claims raised in his October 31, 2007 petition filed with the California Court of Appeal. (Resp’t’s Lod. Doc. 9.) The California Supreme Court summarily denied that petition on June 11, 2008. (Id.)
On June 13, 2008, petitioner filed another habeas petition in the California Court of Appeal. (Resp’t’s Lod. Doc. 10.) That petition has not been lodged with this court and neither party has described the claims contained therein. However, the petition was summarily denied by order dated June 19, 2008. (Id.)
Meanwhile, on May 7, 2008, the Sacramento County Superior Court issued an order directing the district attorney to file a formal response to petitioner’s October 31, 2007 habeas petition. (Resp’t’s Lod. Doc. 11.) On May 13, 2008, the Superior Court issued a further order clarifying that the OSC previously issued from the California Court of Appeal covered only petitioner’s claim (18) that prosecution witness Johnson’s recantation of her trial testimony demonstrated that petitioner was innocent. (Resp’t’s Lod. Doc. 12). However, notwithstanding this clarification, the Superior Court also ordered respondent to file a response to petitioner’s claims 4, 7, 8, 9, 10, 11, and 18. (Id.) Respondent filed responsive documents on June 13, 2008, and June 19, 2008. (Resp’t’s Lod. Docs. 13,14.)
On October 30, 2008, the Superior Court ordered an evidentiary hearing on petitioner’s claim regarding Johnson’s recantation of her trial testimony (claim 18), and denied relief with respect to petitioner’s claims 4, 7, 8, 9, 10, and 11 on procedural grounds. (Resp’t’s Lod. Doc. 15.) The Superior Court held the evidentiary hearing on petitioner’s claim 18 on December 12, 16, and 17, 2008. (Resp’t’s Lod. Docs. 16-18.) On March 18, 2009, the court issued an order denying petitioner relief as to that claim on the grounds that he had “failed to make any convincing showing that Jill Johnson had committed perjury at trial.” (Resp’t’s Lod. Doc. 19.)
Petitioner filed his federal petition for writ of habeas corpus in this court on February 23, 2009.
ANALYSIS
I. Standards of Review Applicable to Habeas Corpus Claims
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254 (a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. -, -, 131 S.Ct. 13, 16 , 178 L.Ed.2d 276 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 , 112 S.Ct. 475 , 116 L.Ed.2d 385 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir.2000).
Title 28 U.S.C. § 2254 (d) sets forth the following standards for granting federal habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
*889 (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.
For purposes of applying § 2254(d)(1), “clearly established federal law” consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir.2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000)). Nonetheless, “circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably.” Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir.2010)).
A state court decision is “contrary to” clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 , 123 S.Ct. 1848 , 155 L.Ed.2d 877 (2003). Under the “unreasonable application” clause of § 2254(d)(1), 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. 3 Lockyer v. Andrade, 538 U.S. 63, 75 , 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003); Williams, 529 U.S. at 413 , 120 S.Ct. 1495 ; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir.2004). In this regard, 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.” Williams, 529 U.S. at 412 , 120 S.Ct. 1495 . See also Schriro v. Landrigan, 550 U.S. 465, 473 , 127 S.Ct. 1933 , 167 L.Ed.2d 836 (2007); Lockyer, 538 U.S. at 75 , 123 S.Ct. 1166 (it is “not enough that a federal habeas court, in its independent review of the legal question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’ ”). “A state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. -,-, 131 S.Ct. 770, 786 , 178 L.Ed.2d 624 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 , 124 S.Ct. 2140 , 158 L.Ed.2d 938 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 131 S.Ct. at 786-87 .
If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir.2008); see also Frantz v. Hazey, 533 F.3d 724, 735 , (9th Cir.2008) (en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such *890 error, we must decide the habeas petition by considering de novo the constitutional issues raised.”).
The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859 ; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir.2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir.2007) (en banc). “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Harrington, 131 S.Ct. at 784-85 . This presumption may be overcome by a showing “there is reason to think some other explanation for the state court’s decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 , 111 S.Ct. 2590 , 115 L.Ed.2d 706 (1991)). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860 ; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.2003). “Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853 . Where no reasoned decision is available, the habeas petitioner still has the burden of “showing there was no reasonable basis for the state court to deny relief.” Harrington, 131 S.Ct. at 784 .
When it is clear, however, that a state court has not reached the merits of a petitioner’s claim, the deferential standard set forth in 28 U.S.C. § 2254 (d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860 ; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir.2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir.2003). 4
II. Petitioner’s Claims
Petitioner’s nineteen claims for relief are described and considered below. For purposes of clarity and coherence, the court will address petitioner’s claim one-that his appellate counsel rendered ineffective assistance-last. All other claims will be discussed in the order in which they were presented in the petition filed with this court.
Claim Two — Breach of Agreement/Faretta Waiver
Petitioner was initially represented by counsel in the trial court, first by court appointed counsel and later by retained counsel. (Resp’t’s Lod. Doc. 1 (hereinafter CT) at 1-4.) However, on the day originally set for his preliminary examination, petitioner waived his Sixth Amendment right to counsel and, at his request, was granted permission to represent himself. 5 (CT at 4; Pet’r’s Lod. Doc. 14.) Petitioner claims that in waiving his right to counsel, he and the Superior Court Judge who accepted that waiver signed what petitioner characterizes as a written “contract” that petitioner would receive a sentence of *891 no more than eleven years in state prison. (Pet. at 25-27.) Petitioner claims that this contract was breached “by the People and the court” when the prosecutor later amended the charging Information to add four prior conviction enhancement allegations and the trial court ultimately sentenced him to fifteen years in state prison. (Id. at 25). Petitioner also complains that he was not provided with new counsel, nor asked whether he wished to renew his waiver of his right to counsel, when the Information was amended to significantly increase the maximum penalty. Petitioner contends that, therefore, “the four prior prison convictions ... must be reversed, set aside, and barred from further prosecution.” (Id. at 27.)
The background with respect to this claim is as follows. On February 25, 2003, prior to petitioner’s preliminary hearing, the court granted his request to represent himself. (CT at 103.) On that same date, petitioner signed a document which advised him of the risks of proceeding without counsel (the so-called “Faretta warnings”). (Id. at 104.) Among other things, petitioner was advised that the maximum penalty with respect to the charges brought against him in the then-pending Complaint was eleven years in state prison and a $10,000 fine. (Id.) Sacramento County Superior Court Judge Gerald Bakarich acknowledged by his signature on the Record of Faretta Warnings form that petitioner had “knowingly, intelligently and voluntarily decided to represent himself with full knowledge of the risks and dangers of doing so.” (Id.) In open court, Judge Bakarich also verbally informed petitioner that the “maximum possible penalty” he faced on the charges against him was “about ten years, eleven years, in prison; $10,000 fine.” (Pet’r’s Lod. Doc. 14, at 2.)
Petitioner’s preliminary hearing was subsequently held on April 17, 2003 and April 22, 2003 before Sacramento County Superior Court Judge Shelleyanne W.L. Chang. (CT at 223.) Petitioner represented himself at the preliminary hearing. (Id.) At the conclusion thereof, petitioner was held to answer on the charges as amended to conform to the evidence presented, the Complaint was deemed to be an Information, petitioner entered pleas of not guilty to all charges and confirmed that he wished to continue to represent himself. (CT at 329-31.)
Thereafter, on May 16, 2003, the prosecutor filed a motion to amend the Information, seeking to add the four prior conviction enhancement allegations. (Id. at 221-22.) That motion was granted after a hearing on May 16, 2003, by Sacramento County Superior Court Judge Ronald Tochterman. (Resp’t’s Lod. Doc. 21 (RT of May 16, 2003 Proceedings); see also CT at 52-55 (original information); 335-37 (amended information)). The entire colloquy with respect to the prosecution’s motion to amend seeking to add the four prior prison term enhancement allegations was as follows:
MR. PHILLIPS: (the prosecutor): Judge, I have — I have a twofold motion, to amend the Complaint to allege four prison priors, and I believe that Mr. Jensen has notice of the motion.
THE COURT: Is this a complaint or information?
MR. PHILLIPS: Information. Excuse me.
THE COURT: Do you oppose the motion, Mr. Jensen?
THE DEFENDANT: Which one?
MR. PHILLIPS: This is the motion to include the prison priors from your prior convictions and subsequent sentences to state prison. I believe you have notice, and I think you have got a copy.
THE COURT: The question is, Mr. Jensen, do you oppose the motion?
THE DEFENDANT: Yeah.
*892 THE COURT: On what grounds?
THE DEFENDANT: It’s my understanding everything is suppose to be filed by the preliminary hearing.
THE COURT: I grant the motion. I order that the Amended Information be filed.
Do we have a copy of it, Mr. Jensen?
THE DEFENDANT: I have a copy of the motion.
THE COURT: Do you have a copy of the Amended Information, too?
THE DEFENDANT: Yes.
THE COURT: Do you agree I don’t have to read it to you now, you can read it for yourself?
THE DEFENDANT: Yeah, I have read it.
THE COURT: That’s fine.
What is your next motion?
(Resp’t’s Lod. Doc. 21 at 1-2.) Unfortunately, petitioner was not arraigned on the Amended Information filed on May 16, 2003 6 , nor was he advised that the maximum sentence he faced had been increased as a result of the amendment. Petitioner did not request the appointment of counsel or attempt to revoke his previous waiver of his right to counsel at that time, nor was he asked whether he wished to do so.
On July 17, 2003, and August 1, 2003, petitioner requested that advisory counsel and/or standby counsel be appointed for him. (CT at 541, 687, 691, 699-706.) On July 17, 2003, Assigned Superior Court Judge Joseph A. Orr denied petitioner’s request without prejudice (CT at 541, 691) and on August 1, 2003, denied petitioner’s renewed request, informing him that he could “either represent yourself or you have somebody represent you, but you can’t have it both ways.” (Id. at 700.) Petitioner did not seek to withdraw his waiver of his right to counsel at that time.
On the first day of petitioner’s trial, the parties discussed a possible resolution of the case in the presence of the assigned trial judge, Sacramento County Superior Court Judge James I. Morris. (Reporter’s Transcript on Appeal (RT) at 2-39.) During that discussion, petitioner was erroneously advised that his maximum potential prison sentence on the charges against him, including the prior conviction enhancement allegations that had been added by amendment, was thirteen years and four months in state prison. (RT at 7-9.) 7 Specifically, the trial judge erroneously informed petitioner that “the maximum penalty could be as much as 12 or 13 years four months depending on how I rule on motions and whether you’re even convicted of anything.” (Id. at 9.) Once again, following discussion of the maximum possible penalty faced, petitioner did not request the appointment of counsel or attempt to revoke his previously entered waiver of his right to counsel, nor was he asked whether he wished to do so.
At a jury instruction conference as the trial neared its conclusion, but prior to jury deliberations, petitioner asked the trial judge whether it was proper that addi *893 tional enhancement allegations had been brought against him after he signed the Faretta waiver. (Id. at 2159-60.) The trial judge advised petitioner that “there is nothing that I’m aware of that says once a defendant decides to go — to represent himself that prevents any additional charges from being added.” (Id.) The judge also explained that “prison priors and prior conviction allegations” could be added to the information “even up to and during trial.” (Id.) Finally, the trial judge noted that petitioner was “made perfectly aware of what your sentence exposure was ... with the prison priors when we started the trial.” (Id.)
Following his conviction petitioner was sentenced on March 26, 2004 to an aggregate state prison term of fifteen years. (Id. at 2560, et seq.) At the beginning of the sentencing hearing, petitioner stated to Judge Morris:
As far as my pro per contract, I was guaranteed no more than 11 years state prison time. Now probation is trying to give me 15.
You yourself stated prior to trial that I would receive no more than 18 years, four months ..., that I would not be subject possibly to no more than 12 years.
(Id. at 2561.) Petitioner also argued at the sentencing hearing that the amendment of the Information after his preliminary hearing to add the four prior prison term enhancement allegations violated California law. (Id.) Petitioner objected to being sentenced on the enhancements, and asked that the court impose a sentence of eight years in state prison. (Id. at 2562.) The trial judge denied petitioner’s request and sentenced him to the aggregate term of fifteen years in state prison. (Id. at 2565.) The trial judge later recalled petitioner’s sentence due to concern regarding some of the consecutive sentences originally imposed on certain counts of conviction and re-sentenced petitioner on April 22, 2004. (Id. at 2569-2603.) However, the adjustment in petitioner’s sentence again resulted in the imposition a total aggregate prison term of fifteen years. (Id. at 2601.)
The parties agree that the last reasoned decision on petitioner’s claim two is the October 1, 2007 written decision of the Sacramento County Superior Court denying petitioner’s June 11, 2007 petition for writ of habeas corpus. After a review of the complicated procedural history of petitioner’s state court challenges to his judgment of conviction and sentence, set forth above, this court agrees with the parties’ conclusion in this regard. 8 As discussed above, the Sacramento County Superior Court rejected petitioner’s claim for relief based on alleged Faretta error on the grounds that such a claim was barred by the holding of In re Dixon, 41 Cal.2d 756, 759 , 264 P.2d 513 (1953) (“claims that could have been, but were not, raised on appeal are not grounds for relief.”). (Resp’t’s Lod. Doc. 6 at consecutive pp. 1-2.)
Petitioner’s Faretta claim before this court raises several distinct issues. First, petitioner argues that the Faretta waiver form he signed constituted a contractual agreement with the trial court and the prosecution, the terms of which were that he would not face any additional charges or allegations and that *894 his maximum possible sentence would be eleven years in state prison. 9 Petitioner is mistaken in this regard. The Faretta waiver form utilized by the Sacramento County Superior Court is clearly designed solely to warn a criminal defendant of the dangers of self -representation and to provide a written assessment and record that the defendant’s waiver of the constitutional right to counsel was knowing and intelligent at the time it was entered. It is not a “contract” in the legal sense. Similarly, the Faretta colloquy in open court did not constitute a promise by either the trial court or the prosecutor that petitioner would not be subject to additional penalties in the event the charges were amended. The cases cited by petitioner in support of his argument in this regard, which all involve the contractual nature of a plea bargain agreement, are not on point. There was no plea agreement in this case. Petitioner’s breach of contract claim lacks both a factual and a legal basis and it will therefore be rejected. 10
Petitioner also argues that the trial court violated his federal constitutional rights when it failed to obtain another waiver of counsel from him at the time the Information was amended to add the prior prison term enhancement allegations. (Doc. No. 1 at 25.) Petitioner claims that he was “forced” to represent himself on the new enhancement allegations added by way of amendment. (Id.) Petitioner is essentially arguing that the change in circumstances, the increased maximum term of imprisonment caused by the amendment to the Information, required the trial court to obtain anew his Faretta waiver. Respondent did not address this aspect of petitioner’s claim in the answer filed in this action. Accordingly, by order dated December 2, 2010, the court directed respondent to file a response addressing pe *895 titioner’s claim in this regard. (Doc. No. 38.) Respondent was also asked to address whether petitioner was accurately-advised by the trial court of his maximum possible sentence, in light of the record reflecting that he was originally advised by the court that he faced a maximum of eleven years in state prison, was told just prior to trial that he faced a maximum of possibly up to thirteen years and four months imprisonment, but in fact was eventually sentenced to fifteen years in state prison. (Id. at 4.)
On February 3, 2011, respondent filed a brief in response to this court’s December 2, 2010 order. Therein, respondent argues that petitioner’s Faretta claim is procedurally barred based on the Sacramento County Superior Court’s reliance on In re Dixon in rejecting that claim. (Doc. No. 39 at 6.) Respondent also argues that the claim is barred by the decision in Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989). (Id. at 8.) However, respondent’s position as stated in the supplemental briefing is that in the event petitioner’s Faretta claim is found to be neither subject to a procedural bar nor barred by Teague , it is meritorious and this court should grant relief. (Id. at 15.)
The court turns first to respondent’s argument that petitioner’s Faretta claim is subject to a procedural bar as a result of the Sacramento County Superior Court’s reliance on In re Dixon in denying relief when petitioner presented that claim to it in his June 11, 2007 habeas application. As a general rule, “[a] federal habeas court will not review a claim rejected by a state court ‘if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.’ ” Walker v. Martin, 562 U.S.-,-, 131 S.Ct. 1120, 1127 , 179 L.Ed.2d 62 (2011) (quoting Beard v. Kindler, 558 U.S. 53 , -, 130 S.Ct. 612, 615 , 175 L.Ed.2d 417 (2009)). See also Maples v. Thomas, — U.S. -, -, 132 S.Ct. 912, 922 , 181 L.Ed.2d 807 (2012); Greenway v. Schriro, 653 F.3d 790, 797 (9th Cir.2011); Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir.1996) (quoting Coleman v. Thompson, 501 U.S. 722, 729 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991)). In order for a state procedural rule to be found independent, the state law basis for the decision must not be interwoven with federal law. Cooper v. Neven, 641 F.3d 322, 332 (9th Cir.2011); Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir.2003); LaCrosse v. Keman, 244 F.3d 702, 704 (9th Cir.2001). To be deemed adequate, the rule must be well established and consistently applied. Walker, 131 S.Ct. at 1128 ; James v. Schriro, 659 F.3d 855, 878 (9th Cir.2011); Greenway, 653 F.3d at 797-98 ; Poland v. Stewart, 169 F.3d 573, 577 (9th Cir.1999). Even if the state rule is independent and adequate, the claims may be reviewed by the federal court if the petitioner can show: (1) cause for the default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider the claims will result in a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 , 120 S.Ct. 1587 , 146 L.Ed.2d 518 (2000); Coleman, 501 U.S. at 749-50 , 111 S.Ct. 2546 ; see also Maples, 132 S.Ct. at 922 .
Respondent argues, and petitioner agrees, that the procedural rule set forth in In re Dixon is independent of the federal question and adequate to support the judgment. (Doc. No. 18 at 28-29; Doc. No. 41 at 4.) 11 Petitioner contends, howev *896 er, that the erroneous failure of his appellate counsel to raise this Faretta error issue on direct appeal constitutes cause for his default with respect to that claim. (Doc. No. 41 at 4.) In other words, petitioner argues that his procedural default was caused by the ineffective assistance of his appellate counsel in failing to raise the Faretta error issue on appeal.
Ineffective assistance of counsel will establish cause to excuse a procedural default if it was “so ineffective as to violate the Federal Constitution.” Edwards, 529 U.S. at 451 , 120 S.Ct. 1587 (citing Murray v. Carrier, 477 U.S. 478, 486-88 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986)). See also Cook v. Schriro, 538 F.3d 1000, 1027 (9th Cir.2008). Moreover, the ineffective assistance claim must be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default. Edwards, 529 U.S. at 451 , 120 S.Ct. 1587 (citing Carrier, 477 U.S. at 489 , 106 S.Ct. 2639 .) Here, as noted above, petitioner presented his ineffective assistance of appellate counsel claim to the state courts. Further, for the reasons described below, the court concludes that petitioner’s Faretta claim is, and was at the time of his direct appeal, meritorious. The failure of petitioner’s appellate counsel to raise a clearly meritorious argument on appeal constitutes ineffective assistance of appellate counsel and establishes cause to excuse petitioner’s procedural default on his Faretta claim in this case. Edwards, 529 U.S. at 451 , 120 S.Ct. 1587 ; Cook, 538 F.3d at 1027 . See also Martinez v. Ryan, - U.S. -, 132 S.Ct. 1309, 1312 , 182 L.Ed.2d 272 (2012) (“[A]n attorney’s errors during an appeal on direct review may provide cause to excuse procedural default; for if the attorney appointed by the State to pursue the direct appeal is ineffective, the prisoner has been denied fair process and the opportunity to comply with the State’s procedures and obtain an adjudication on the merits of his claims.”) (citing Coleman v. Thompson, 501 U.S. 722, 754 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991)).
As noted, respondent also contends that the granting of federal habeas relief as to petitioner’s Faretta claim is barred by the decision of the Supreme Court in Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989). The non-retroactivity principle announced in Teague “prevents a federal court from granting habeas corpus relief to a state prisoner based on a rule announced after his conviction and sentence became final.” Caspari v. Bohlen, 510 U.S. 383, 389 , 114 S.Ct. 948 , 127 L.Ed.2d 236 (1994).
“[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Teague v. Lane, supra, 489 U.S., at 301 , 109 S.Ct., at 1070 . In determining whether a state prisoner is entitled to habeas relief, a federal court should apply Teague by proceeding in three steps. First, the court must ascertain the date on which the defendant’s conviction and sentence became final for Teague purposes. Second, the court must “[s]urve[y] the legal landscape as it then existed,” Graham v. Collins, supra, 506 U.S. [461], at 468, 113 S.Ct. [892], at 898 [ 122 L.Ed.2d 260 (1993) ], and “determine whether a state court considering [the defendant’s] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution,” Saffle v. Parks, 494 U.S. 484, 488 , 110 S.Ct. 1257, 1260 , 108 L.Ed.2d 415 (1990). Finally, even if the court determines that the defendant seeks the benefit of a new rule, the court must decide whether that rule falls within one of the two narrow exceptions to the nonretroactivi *897 ty principle. See Gilmore v. Taylor, 508 U.S. 333, 345 , 113 S.Ct. 2112, 2113 , 124 L.Ed.2d 306 (1993).
Id. at 390 , 114 S.Ct. 948 . See also O’Dell v. Netherlands 521 U.S. 151, 157 , 117 S.Ct. 1969 , 138 L.Ed.2d 351 (1997); Dyer v. Calderon, 151 F.3d 970, 989 (9th Cir. 1998). 12
It is- well established that Courts are to “indulge in every reasonable presumption against waiver” of the constitutional right to counsel. Brewer v. Williams, 430 U.S. 387, 404 , 97 S.Ct. 1232 , 51 L.Ed.2d 424 (1977). See also Patterson v. Illinois, 487 U.S. 285, 307 , 108 S.Ct. 2389 , 101 L.Ed.2d 261 (1988) (noting the “strong presumption against” waiver of the right to counsel); United States v. Forrester, 512 F.3d 500, 507 (9th Cir.2008). It is also true that a valid waiver of counsel generally carries forward through all stages of the proceedings. See e.g. Arnold v. United States, 414 F.2d 1056, 1059 (9th Cir.1969) (“A competent election by the defendant to represent himself and to decline the assistance of counsel once made before the court carries forward through all further proceedings in that case unless appointment of counsel for subsequent proceedings is expressly requested by the defendant or there are circumstances which suggest that the waiver was limited to a particular stage of the proceedings”); see also United States v. Unger, 915 F.2d 759, 762 (1st Cir.1990) (holding that the district court was free to find that the defendant’s earlier Faretta waiver was still in force at the sentencing hearing “in the absence of an intervening event”).
However, by May 29, 2006, many courts had- made clear that if after the waiver of counsel the circumstances faced by the defendant significantly changed, a new Faretta inquiry is required because under such circumstances the defendant could no longer be said to have knowingly and intelligently waived his constitutional right to counsel. See United States v. Erskine, 355 F.3d 1161, 1165 (9th Cir.2004) (Reversing a conviction because the court failed to advise the defendant “of the correct maximum penalty” or ask him “whether in light of the new and different information as to the penalty he faced, he desired to withdrawhis Faretta waiver.”); United States v. Fazzini, 871 F.2d 635, 643 (7th Cir.1989) (“Once the defendant has knowingly and intelligently waived his right to counsel, only a substantial change in circumstances will require the district court to inquire whether the defendant wishes to revoke his earlier waiver[.]”); Schell v. United States, 423 F.2d 101, 103 (7th Cir.1970) (conviction set aside where in waiving his right to counsel the defendant was advised that the maximum penalty he faced was five years but, because of changed circumstances, the court imposed a six year term of imprisonment at the time of sentencing without a new Faretta inquiry); see also Davis v. United States, 226 F.2d 834, 840 (8th Cir.1955) (petitioner’s waiver of the right to counsel was still valid at the time of sentencing four days later, where “nothing happened in the meantime, such as an unreasonable lapse of time, newly discovered evidence which might require or justify advice of counsel, new charges brought, a request from the defendant, or similar circumstances.”) (emphasis added.) 13
*898 Moreover, a valid Faretta waiver has long been recognized as requiring that at the time of the waiver the defendant has an accurate understanding of the maximum possible penalty faced. United States v. Robinson, 913 F.2d 712, 714-15 (9th Cir.1990) (“The second requirement under this circuit’s reading of Faretta is that the defendant’s waiver of the right to counsel must be made knowingly and intelligently; ‘that is, a criminal defendant must be aware of the nature of the charges against him, the possible penalties, and the dangers and disadvantages of self representation.’ ”) (quoting United States v. Balough, 820 F.2d 1485, 1487 (9th Cir.1987)); Harding v. Lewis, 834 F.2d 853, 857 (9th Cir.1987) (same); United States v. Aponte, 591 F.2d 1247, 1249-50 (9th Cir.1978) (same).
Finally, the Ninth Circuit has relied on several decisions rendered prior to petitioner’s trial for the proposition that “a properly conducted Faretta colloquy need not be renewed in subsequent proceedings unless intervening events substantially change the circumstances existing at the time of the initial colloquy.” United States v. Hantzis, 625 F.3d 575, 580-81 (9th Cir.2010) (emphasis added) (citing United States v. Springer, 51 F.3d 861, 864-65 (9th Cir.1995), Arnold, 414 F.2d at 1059 and White v. United States, 354 F.2d 22, 23 (9th Cir.1965)).
Respondent argues that the instant case does not present “significant changed circumstances” and that most of the court decisions addressing the “changed circumstances” issue, concluded that no additional Faretta waiver was required under the circumstances presented in those cases. However, that argument is only pertinent to whether petitioner’s Faretta claim is meritorious, not to whether the “changed circumstances” rule existed at the time petitioner’s conviction became final on May 29, 2006. Surveying the legal landscape as of May 29, 2006, the court notes the numerous decisions addressed above dating back to 1970, including the Ninth Circuit’s 2004 decision in Erskine . These decisions, in turn, were all based on Supreme Court decisions regarding the Sixth Amendment right to counsel. Many of the cases cited above required that the defendant be aware of the actual maximum penalty at the time of his Faretta waiver. Under these circumstances, this court concludes that the principle that a change in the maximum penalty faced by a defendant required a re-affirmation of a Faretta waiver was not a “new rule” for purposes of Teague’s non-retroactivity doctrine. *899 Put another way, the rule that “changed circumstances” require a new Faretta waiver was dictated by precedent existing at the time petitioner’s conviction became final. Teague, 489 U.S. at 301 , 109 S.Ct. 1060 ; see also Fields v. Brown, 431 F.3d 1186, 1195-96 (9th Cir.2005) (finding petitioner’s claim of implied or presumed juror bias was not Teague barred even though the Supreme Court had considered, but not resolved the issue); Gonzalez v. Pliler, 341 F.3d 897, 904 (9th Cir.2003) (the holding that use of a stun belt on a defendant at jury trial failed to meet minimum constitutional standards with respect to the use of physical restraints in the courtroom was not a new rule under Teague because the specific form of physical restraint used “is irrelevant to the application of the constitutional standards” that were well-established)
Accordingly, Teague does not bar petitioner’s Faretta claim in these federal habeas proceedings and this court must decide that claim on its merits. Because the Sacramento County Superior Court denied petitioner’s Faretta claim on procedural grounds, this court must therefore review the claim de novo. Stanley, 633 F.3d at 860 ; Reynoso, 462 F.3d at 1109 ; Nulph, 333 F.3d at 1056-57 . 14
The court will now turn to the merits of petitioner’s claim of Faretta error. 15 As noted above, a defendant wishing to waive the right to counsel must be made aware of the nature of the charges against him, the possible penalties he faces, and the dangers and disadvantages of representation. McCormick v. Adams, 621 F.3d 970, 977 (9th Cir.2010); Robinson, 913 F.2d at 714-15 ; Harding, 834 F.2d at 857 ; Balough, 820 F.2d at 1487 ; Aponte, 591 F.2d at 1249-50 . A waiver of counsel is not valid “in the absence of some knowledge of [defendant’s] understanding of the seriousness of the charges.... ” Evans v. Raines, 705 F.2d 1479, 1480 (9th Cir.1983). See also United States v. Forrester, 512 F.3d 500, 506 (9th Cir.2008) (the waiver of the right to counsel was not knowing and voluntary where the trial court did not advise the defendant he faced a conspiracy count and erroneously informed him that his maximum possible penalty was 10 years to life in prison, when he actually faced only zero to 20 years in prison). A court’s failure to secure a valid Faretta waiver, which includes an accurate advisement as to maximum penalties, constitutes per se prejudicial error. Erskine, 355 F.3d at 1167 , 1170 n. 12 (“It is the court’s failure to inform the defendant of the correct maximum penalty that affect [the decision to represent oneself] which, in turn, gives rise to the harm and to the per se prejudice.”); Balough, 820 F.2d at 1489-90 . Here, petitioner’s waiver of his right to counsel was valid at the time it was initially made because he was appropriately advised of all the relevant factors including the correct maximum possible penalty he faced at that time before the prior prison term/felony conviction enhancements were alleged. Petitioner does not argue to the contrary.
As noted, generally a Faretta waiver remains in effect throughout the criminal proceedings, unless the circumstances change in a significant way or the waiver was limited. Hantzis, 625 F.3d at 580-81 (the trial court was not required to conduct a new Faretta colloquy at subse *900 quent hearings where, among other things, “there is nothing in the record to suggest that any changes occurred ... that would have affected [the defendant’s] understanding of the charges or penalties against him”). Therefore, “[a] properly conducted Faretta colloquy need not be renewed in subsequent proceedings unless intervening events substantially change the circumstances existing at the time of the initial colloquy.” Id. See also Fazzini, 871 F.2d at 643 ; Becker v. Martel, 789 F.Supp.2d 1235, 1243-1247 (S.D.Cal.2011) (granting federal habeas relief because the bringing of additional charges carrying an increased penalty was a substantial change that required the trial court to readvise petitioner of his right to counsel at subsequent arraignment and the failure to do so constituted per se prejudicial error); Spence v. Runnels, No. CIVS030376GEB KJM P, 2006 WL 224442 , at *12-13 (E.D.Cal. Jan. 27, 2006) (granting federal habeas relief where petitioner’s waiver of right to counsel was vitiated by later amendment of the Information adding pri- or conviction and Three Strikes allegations which increased his maximum possible penalty). “The essential inquiry is whether circumstances have sufficiently changed since the date of the Faretta inquiry that the defendant can no longer be considered to have knowingly and intelligently waived the right to counsel.” Hantzis, 625 F.3d at 581 .
The question in this case is whether the amendment of the charging Information to add the four prior prison term allegations constituted such a significant change in circumstances that it left petitioner without a clear understanding of the maximum penalties he faced and therefore rendered his previous waiver of counsel unintelligent and unknowing. Respondent concedes that “the amended information, adding four prior prison term allegations (§ 667.5(b)), is a sufficient change in circumstances triggering an obligation on the trial court to seek a renewed Faretta waiver.” (Doc. No. 39 at 15.) This court agrees.
Petitioner was not advised at the hearing on the motion to amend that the maximum punishment he could suffer had been increased by four years as a result of the addition of the prior prison term enhancement allegations. The amendment increased petitioner’s potential sentence by more than one third. It is true that the record reflects that petitioner is an experienced criminal defendant and it is certainly possible that he understood the new potential penalties at the time the Information was amended. However, there is no evidence in the record that he did. See United States v. Mohawk, 20 F.3d 1480, 1485 (9th Cir.1994) (“We think Mohawk’s decision to waive his right to counsel may well have been knowing and intelligent— but we are not free from doubt.... We therefore hold that the government has failed to carry its burden.... ”). This court cannot assume that petitioner would have wished to continue representing himself had he been advised that his possible penalty would be increased by four years. Indeed, petitioner consistently argued later that he had been promised an eleven year sentence at the time he entered his Faretta waiver. {See e.g., RT at 2561.) There is no evidence in the record that petitioner was aware at any time before or during his trial that he faced a fifteen year prison sentence. It is undisputed that the record establishes that he was not advised of that maximum penalty at the time of the hearing on the prosecution’s motion to amend the Information.
Under very similar circumstances another district court recently concluded as follows:
The Court looks at what Petitioner understood and was told at the time he waived counsel. See Erskine, 355 F.3d *901 at 1164-65 ; Balough, 820 F.2d at 1489 . On October 21, 2004, Petitioner was arraigned on a forty-one count complaint and was informed that he was facing a maximum of fifty-eight years in prison. On December 21, 2004, the district attorney amended the complaint and added twelve more counts. Therefore, the maximum penalty necessarily would have increased to more than fifty-eight years. FN6 However, the trial court did not advise Petitioner about the added counts or the revised maximum penalty he would face and whether it would have affected his decision to represent himself.
FN6. In the corrected penalties provided by Respondent, the original maximum penalty should have been 33 years and 8 months at the initial arraignment on October 21, 2004. On December 21, 2004, the maximum penalty Petitioner should have been facing was 41 years and 8 months. The maximum penalty increased by eight years from the 41-count complaint to the 53-count complaint.
Respondent argues that since it is clear Petitioner wanted to represent himself even when he believed he was facing 58 years, he did not need to be readvised of his right to counsel in subsequent proceedings. However, in Erskine , the Ninth Circuit pointed out the government’s erroneous argument that a petitioner’s Faretta waiver was valid because he was subsequently sentenced to less than what he erroneously thought was the maximum. Erskine, 355 F.3d at 1171 n. 12. The court explained that “the prejudice a defendant suffers is not the term of his sentence but rather in the decision to forgo counsel and, instead, to represent himself. The choice of self-representation, in turn, increases the likelihood of a conviction and likely length of any sentence.” Id. (emphasis in original).
Here, the [state] court of appeal erroneously applied the harmless error analysis to Petitioner’s federal claim that he was not readvised of his Faretta waiver at his subsequent arraignments. Therefore, even though Petitioner understood that his maximum penalty at the initial arraignment was fifty-eight years, the maximum penalty necessarily increased when twelve additional counts were added in the amended complaint. The addition of twelve counts and increased penalty was a substantial change that required the trial court to readvise Petitioner of his right to counsel. See Fazzini, 871 F.2d at 643 . Therefore, the trial court’s failure to readvise Petitioner about his right to counsel on December 21, 2004 was a violation of Petitioner’s Sixth Amendment right to counsel. As a result of the initial failure to read-vise Petitioner of his right to counsel on December 21, 2004, the two subsequent arraignments on the information on March 9, 2005 and July 27, 2006 were necessarily compromised and violated his Sixth Amendment right.
Respondent argues that even if there were a constitutional error, the harmless error standard should apply. However, the failure to meet the requirements for a valid Faretta waiver invoking the Sixth Amendment right to self-representation constitutes per se prejudicial error, and the harmless error standard is inapplicable. Frantz v. Hazey, 533 F.3d 724 (9th Cir.2008); United States v. Erskine, 355 F.3d 1161 (9th Cir.2004); United States v. Balough, 820 F.2d 1485, 1489-90 (1987) (citing Rose v. Clark, 478 U.S. 570, 577-78 , 106 S.Ct. 3101 , 92 L.Ed.2d 460 (1986)); U.S. v. Arlt, 41 F.3d 516, 524 (9th Cir.1994) (stating that a denial of the right to self-representation is ‘per se prejudicial error’). Therefore, in this case, because the trial court failed to readvise Petitioner of the Faretta waiver, harmless error does not apply.
Accordingly, the state court’s denial of this claim was contrary to and involved *902 an unreasonable application of clearly established federal law as determined by the United States Supreme Court, see 28 U.S.C. § 2254 (d), and the Court GRANTS the petition for writ of habeas corpus as to the claim that Petitioner was not readvised of his right to counsel at the subsequent arraignments after the initial arraignment. The Court’s determination that a Faretta error occurred here requires us to reverse the conviction.
Becker, 789 F.Supp.2d at 1246-47 .
In much the same way, the record here establishes that a significant change in the circumstances faced by petitioner occurred after the February 25, 2003 Faretta inquiry such that he could no longer be considered to have knowingly and intelligently waived the right to counsel after the Information was amended to add the additional enhancement allegations. The trial court violated petitioner’s right to counsel by failing to undertake a new Faretta advisement at the time of the amendment or thereafter. Accordingly, the writ must issue.
Respondent’s position is that if petitioner’s Faretta claim is not procedurally barred, not Teague barred and the court is required to grant relief as to that claim, “the conditional writ should direct the People to decide whether to retry Petitioner for the four prior prison term allegations, and if the People decide not to do so, the four, one-year enhancements should be struck.” (Doc. No. 39 at 15.) Petitioner appears to contend that his petition should be granted “without condition with a full reversal” because his trial was tainted by inclusion of the four enhancement allegations. (Doc. No. 41 at 6.)
The court is mindful of the Ninth Circuit’s admonition that a habeas court “ ‘has the power to release’ a prisoner, but ‘has no other power.’ ” Douglas v. Jacquez, 626 F.3d 501, 504 (9th Cir.2010) (quoting Fay v. Noia, 372 U.S. 391, 431 , 83 S.Ct. 822 , 9 L.Ed.2d 837 (1963), overruled on other grounds by Wainwright v. Sykes, 433 U.S. 72, 87 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977)) (holding that the district court exceeded its habeas jurisdiction in directing the state court to revise its judgment to reflect conviction on a lesser charge instead of granting a conditional writ). Thus, the habeas court “cannot revise the state court judgment; it can act only on the body of the petitioner.” Id. (quoting Noia, 372 U.S. at 431 , 83 S.Ct. 822 .) However, it is also the case that in such instances habeas remedies “should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.” United States v. Morrison, 449 U.S. 361, 364 , 101 S.Ct. 665 , 66 L.Ed.2d 564 (1981). See also Chioino v. Kernan, 581 F.3d 1182, 1186 (9th Cir.2009) (the district court should have remanded to for resentencing instead of ordering the state court to reduce the sentence, since habeas remedies should not unnecessarily infringe on a state’s interest in the administration of justice).
Applying these principles here, the appropriate remedy with respect to the Faretta error in this case is to conditionally grant the writ and order that petitioner’s judgment of conviction be vacated only if respondent fails to either dismiss the enhancement allegations which were added by amendment after the Faretta advisement and resentence petitioner accordingly, or initiates proceedings to retry petitioner within a reasonable time. See Douglas, 626 F.3d at 505 (“[T]he district court should have granted a conditional writ of habeas corpus and ordered that Douglas’s conviction ... be vacated only if the state court did not resentence him within a reasonable time[.] The state court would thus have an opportunity to *903 correct its own constitutional error.”); Becker, 789 F.Supp.2d at 1247-48 (“The Court GRANTS the claim that Petitioner did not knowingly and voluntarily waive his right to counsel under the Sixth Amendment at his subsequent arraignments after the arraignment ... and re-sentence Petitioner, or initiate proceedings to retry Petitioner.”) 16
Claims Three and Four — Denial of Advisory Counsel
A. Claim Three
In his third claim for relief presented to this court, petitioner alleges that the trial judge violated his federal constitutional rights when he denied petitioner’s requests for advisory counsel after conducting an “in camera hearing” out of petitioner’s presence. (Pet. at 28.) Specifically, petitioner claims that:
[the] trial court abused its discretion violating [petitioner’s] constitutional due process and equal protection rights when trial judge, district attorney, head of conflict criminal defenders office, and [petitioner’s] investigator committed governmental misconduct with bias and prejudice when they held a in camera meeting in the judges chambers and conspired to deny [petitioner’s] motion for appointment of advisory/co-counsel, after trial judge previously declared he would not object to [petitioner’s] motion.
Id.
The last reasoned state court decision addressing this claim is the opinion of the California Court of Appeal on petitioner’s direct appeal. That court rejected petitioner’s argument on the grounds that his allegations lacked a factual basis and did not demonstrate an abuse of discretion by the trial court in any event. The state appellate court reasoned as follows:
Defendant contends the decision to deny his motion to appoint advisory counsel was an abuse of discretion because it took place during an ex parte in camera hearing. To the contrary, the trial court did not decide the motion ex parte. The judge met with the director of the office of the Sacramento County Conflict Criminal Defenders. Also present were defendant’s investigator and the prosecutor. The court asked the director about the differences between advisory counsel and co-counsel. The court also discussed scheduling for the case. Defendant attempted to disqualify the trial judge as a result of the meeting, but his request was denied by another judge. Thereafter, the court considered defendant’s motion in open court, with defendant present, and, stating its reasons, denied the motion to appoint advisory counsel. The court’s inquiry concerning the difference between advisory counsel and co-counsel, without defendant’s presence, did not render the denial of the motion to appoint advisory counsel an abuse of discretion.
(Opinion at 4.)
The state court record supports the factual background described by the California Court of Appeal in its Opinion with respect to this claim. (See Pet., Exs. B, C, D, E, & CT at 762-66.) The record also contains additional relevant facts. For instance, in his “Answer” to petitioner’s request for his disqualification, As *904 signed Superior Court Judge Joseph A. Orr explained that at a hearing that took place on July 17, 2003, he denied petitioner’s request for advisory counsel without prejudice, but also advised petitioner that he could make such a request to-attorney Fern Laethem, Program Director for Sacramento County’s Conflict Criminal Defender (CCD). (CT at 764.) On August 1, 2003, a hearing was scheduled to address petitioner’s request for advisory counsel, among other things. (Id. at 765.) Judge Orr at that time explained:
Prior to commencing the hearing and before [petitioner] was brought into court for the morning calendar, Deputy District Attorney Noah Phillips, Mr. Wilcox (petitioner’s investigator), and Ms. Laethem met with me in chambers. The length and extent of any conversation was limited to Ms. Laethem’s understanding of the distinction between co-counsel and advisory counsel.
(Id. at 765.) Judge Orr denied that he had “any discussion regarding the merits of [petitioner’s] case or [petitioner’s] request for the appointment of advisory counsel or co-counsel.” (Id. at 766.)
On August 5, 2003, another hearing was held on petitioner’s request for advisory counsel, at which petitioner was given the opportunity to be heard. (Id. at 724.) Assigned Superior Court Judge Orr denied petitioner’s request but informed him that he could hire any attorney he wished to help him with the trial. (Id. at 727.)
The precise contention petitioner seeks to raise by way of his allegations in claim three of his pending petition are not entirely clear. Respondent construes petitioner’s allegations as a claim that he was denied the right to attend a critical stage of the trial when Judge Orr held the in-chambers meeting and discussed petitioner’s request for the appointment of advisory counsel outside of petitioner’s presence. (Answer, at 32-34.) Petitioner also appears to be alleging that Judge Orr’s decision to hold the hearing outside of his presence was unfair and/or indicated judicial bias, in violation of petitioner’s right to due process. This court will construe petitioner’s allegations as raising two federal constitutional claims: (1) whether he was denied the right to be present at a critical stage of the proceedings when the then-assigned judge held an in-camera meeting; and (2) whether his right to due process and to an unbiased decision was violated by his exclusion from that in-chambers hearing. 17
The California Court of Appeal addressed only one issue presented by petitioner’s argument in this regard: whether *905 the in-chambers hearing constituted an abuse of discretion under state law. The state appellate court did not address petitioner’s federal constitutional claims. Under these circumstances, the court must review these federal claims de novo. Nulph, 333 F.3d at 1056-57 . 18 However, for the reasons set forth below, petitioner is not entitled to federal habeas relief even under a de novo standard of review.
1. Right to be Present
A criminal defendant has a right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness or reliability of the procedure. Kentucky v. Stincer, 482 U.S. 730, 745 , 107 S.Ct. 2658 , 96 L.Ed.2d 631 (1987); United States v. Gagnon, 470 U.S. 522, 527 , 105 S.Ct. 1482 , 84 L.Ed.2d 486 (1985). A defendant must therefore be allowed to be present “to the extent that a fair and just hearing would be thwarted by his absence.” Stincer, 482 U.S. at 745 , 107 S.Ct. 2658 (quoting Snyder v. Massachusetts, 291 U.S. 97, 108 , 54 S.Ct. 330 , 78 L.Ed. 674 (1934)). The constitutional right to be present at every critical stage of the trial is based on the Fifth Amendment Due Process Clause and the Sixth Amendment Confrontation Clause. United States v. Marks, 530 F.3d 799, 812 (9th Cir.2008). The right to be present during all critical stages of the proceedings is subject to harmless error analysis. Rushen v. Spain, 464 U.S. 114, 117 , 104 S.Ct. 453 , 78 L.Ed.2d 267 (1983); Campbell v. Rice, 408 F.3d 1166, 1172 (9th Cir.2005).
Even if Judge Orr erred in excluding petitioner from the initial in-chambers meeting at which the subject of petitioner’s request for appointment of advisory counsel was discussed, any such error was harmless. An in-court hearing was later held on petitioner’s request, at which time petitioner was allowed to make any arguments he could have made in support thereof at the earlier in-chambers meeting. At the hearing in open court, petitioner presented his arguments, countered the arguments of the prosecutor, responded to the judge’s concerns, and put on the record his objection to the meeting that was held in chambers. (CT at 720-40.) According to the record before this court, nothing of significance was raised at the in-chambers meeting that was not also discussed at the in-court hearing. In this regard, Sacramento County Superior Court Judge Stanley Young’s order denying petitioner’s request to disqualify Judge Orr accurately stated that “the only evidence of the matters discussed in ex parte communications were limited to scheduling, administrative matters or emergencies that do not deal with substantive matters.” (Id. at 956.) In short, petitioner’s absence from the in-chambers meeting did not impair the fairness of these proceedings.
Further, contrary to petitioner’s allegations, there is no indication in the record that the in-chambers hearing exposed a “conspiracy” to deny petitioner advisory counsel. Rather, Judge Orr’s decision on petitioner’s request was based on his con *906 elusions that petitioner had already “gone through four attorneys;” it was “too late in the ball game” to appoint advisory counsel; that it was “not a death penalty case;” that the court did not want to grant a continuance to allow time for advisory counsel to familiarize themselves with the case; and that he didn’t “feel comfortable at this juncture in appointing someone.” (CT at 724-27.) This court also notes that there is no evidence in the record that petitioner was unable to present his case at trial without the assistance of advisory attorney. Indeed, it appears that petitioner’s efforts on his own behalf were competent and thorough.
For all of these reasons, petitioner is not entitled to federal habeas relief with respect to this claim.
2. Due Process
Petitioner also claims that the Judge Orr’s decision to hold an in-chambers hearing on the issue of advisory counsel outside of petitioner’s presence was unfair and evidenced bias on the part of the judge. (Pet. at 28-35.)
“A fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U.S. 133, 136 , 75 S.Ct. 623 , 99 L.Ed. 942 (1955). A judge “may not adopt procedures that impair a defendant’s right to due process or his other rights guaranteed by the constitution.” United States v. Thompson, 827 F.2d 1254, 1258 (9th Cir.1987) (district judge violated defendant’s right to due process in conducting in-camera, ex-parte examination of the prosecutor’s motives for excluding blacks from jury). Similarly, a court “may not adopt procedures that tend to significantly favor one party over the other.” Id. “The right of a criminal defendant to an adversary proceeding is fundamental to our system of justice.” Id.
A criminal defendant is also guaranteed the right to an impartial judge. “A judge’s conduct justifies a new trial if the record shows actual bias or leaves an abiding impression that the jury perceived an appearance of advocacy or partiality.” Marks, 530 F.3d at 806 . To sustain a claim of judicial bias on habeas corpus, however, the issue is “whether the state trial judge’s behavior rendered the trial so fundamentally unfair as to violate federal due process under the United States Constitution.” Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir.1995). The Ninth Circuit has recognized that there are three general circumstances in which an appearance of bias violates due process: (1) a judge who “has a direct, personal, substantial pecuniary interest in reaching a conclusion against one of the litigants;” (2) a judge who “becomes embroiled in a running, bitter controversy with one of the litigants;” and (3) a judge who “acts as part of the accusatory process.” Crater v. Galaza, 491 F.3d 1119, 1130 (9th Cir.2007) (citing cases). In order to prevail on a claim of judicial bias, a petitioner must overcome a “strong presumption that a judge is not biased or prejudiced.” Sivak v. Hardison, 658 F.3d 898, 924 (9th Cir.2011) (quoting Rhoades v. Henry, 598 F.3d 511, 519 (9th Cir.2010)).
The circumstances surrounding the denial of petitioner’s request for advisory counsel clearly do not evidence a due process violation, nor do they demonstrate bias on the part of Judge Orr. As discussed above, although Judge Orr held an in-chambers meeting outside of petitioner’s presence, an in-court hearing subsequently took place with respect to his request for advisory counsel at which petitioner was allowed to present his arguments and respond to the arguments of the prosecutor. Thus, petitioner was not unfairly prejudiced by the prior conference and the procedures utilized by Judge Orr did not significantly favor either party.
*907 In addition, there is no evidence of actual or implied bias on the part of Judge Orr. He obviously had no pecuniary interest in the outcome of petitioner’s trial, did not become “personally embroiled” in a controversy with petitioner, and he did not perform “incompatible accusatory and judicial roles.” Moreover, Judge Young’s order denying petitioner’s request to disqualify Judge Orr concluded that “no person aware of all the facts would reasonably entertain a doubt that Judge Orr would be able to be impartial in this case.” (CT at 956.) Finally, as noted above, it was Sacramento County Superior Court Judge James Morris and not Judge Orr who ultimately presided over petitioner’s trial and imposed sentence following petitioner’s conviction.
For all of these reasons, petitioner is not entitled to federal habeas relief on his claim construed as one alleging judicial bias or fundamental unfairness.
B. Claim Four
In his fourth ground for relief, petitioner claims that the his constitutional rights were violated by the repeated denial of his requests for “advisory counsel/co-eounsel.” (Pet. at 36-39.) Petitioner argues that the state trial court “was required to appoint advisory counsel or co-counsel (in the sense of an attorney who would sit by [petitioner’s] side at counsel table and consult with him) once [petitioner] had been granted permission to represent himself.” (Id. at 36.) Petitioner concedes that there is no federal constitutional right to advisory or co-counsel, but he argues, nonetheless, that Judge Orr abused his discretion in this case by denying his requests for advisory legal assistance. (Id. at 37-39.) Petitioner also complains that the decision to deny his request was made after the “ex parte” in-chambers meeting described above.
The last reasoned state court decision on these claims is the opinion of the California Court of Appeal rejecting petitioner’s arguments on direct appeal. The appellate court reasoned as follows:
Refusal of Advisory Counsel
Defendant went through four attorneys before he decided to represent himself. The court denied his request for advisory counsel. Defendant argues the trial court should have appointed advisory counsel on defendant’s request after he was allowed to represent himself. We disagree.
The California Supreme Court has “specifically held that cocounsel status, advisory counsel and other forms of ‘hybrid’ representation are not constitutionally guaranteed. [Citation.]” (People v. Clark (1992) 3 Cal.4th 41, 111 [ 10 Cal. Rptr.2d 554 , 833 P.2d 561 ].) The trial court has the discretion to appoint advisory counsel if the defendant makes a proper showing. (People v. Crandell (1988) 46 Cal.3d 833, 862 [ 251 Cal.Rptr. 227 , 760 P.2d 423 ].)
In a capital case, the denial of a motion to appoint advisory counsel is reversible if the lower court abused its discretion. (People v. Bigelow (1984) 37 Cal.3d 731, 743-746 [ 209 Cal.Rptr. 328 , 691 P.2d 994 ].) “Thus, as with other matters requiring the exercise of discretion, ‘as long as there exists a reasonable or even fairly debatable justification, under the law, for the action taken, such action will not be here set aside.... [Citations.]’ [Citation.]” (People v. Clark, supra, 3 Cal.4th at p. 111 [ 10 Cal.Rptr.2d 554 , 833 P.2d 561 ].)
Thus, the California Supreme Court has reviewed, under the abuse of discretion standard, the denial of a motion to appoint advisory counsel in a death penalty case. A defendant in a noncapital case, however, cannot make this argument.
*908 The trial court, to promote the orderly and efficient disposition of the case, may have the power to appoint advisory counsel. The defendant in a noncapital case, however, cannot assert on appeal that denial of a motion to appoint advisory counsel was error because this would “allow a defendant to complain that because of the poor quality of his self-representation, he was improperly denied effective assistance of counsel in the form of a hybrid representation.” (People v. Garcia (2000) 78 Cal.App.4th 1422, 1430-1431 [ 93 Cal.Rptr.2d 796 ] [refusing to extend Bigelow to a noncapital case absent a directive from the California Supreme Court].) Defendant’s argument, therefore, has no merit.
Even if defendant could complain of error in the denial of a motion to appoint advisory counsel, we would conclude the trial court did not abuse its discretion here. The trial court stated it was denying advisory counsel because defendant had discharged four attorneys prior to his decision to represent himself. The court was unwilling to delay the case further so that a new attorney could come up to speed. Additionally, the court was concerned about the possibility that defendant would attempt to discharge his advisory counsel, disrupting the trial. The court stated defendant had access to help from the office of the Sacramento County Conflict Criminal Defenders if he needed general advice. Finally, it noted defendant had filed several briefs on his own behalf and he appeared articulate and aware of how to conduct legal research. The trial court acted reasonably when it denied defendant’s request.
(Opinion at 3-4.)
There are several types of hybrid trial counsel. “Advisory counsel is generally used to describe the situation when a pro se defendant is given technical assistance by an attorney in the courtroom, but the attorney does not participate in the actual conduct of the trial.” Locks v. Sumner, 703 F.2d 403, 407 (9th Cir. 1983). “ ‘Standby’ counsel refers to the situation where a pro se defendant is given the assistance of advisory counsel who may take over the defense if for some reason the defendant becomes unable to continue.” Id. at 407 n. 3. Standby counsel is “a type of advisory counsel.” Id. Co-counsel “may participate directly in the trial proceedings with the defendant (examining witnesses, objecting to evidence, etc.).” Id. There is no federal constitutional right to any such type of assistance. Id. (no absolute right to advisory or standby counsel); United States v. Halbert, 640 F.2d 1000, 1009 (9th Cir.1981) (no absolute right to co-counsel). “The decision to allow a defendant to proceed with either form of hybrid representation is best left to the sound discretion of the trial judge.” Locks, 703 F.2d at 408 . See also United States v. Salerno, 81 F.3d 1453, 1460 (9th Cir.1996) (no federal constitutional right to advisory counsel); United States v. Kienenberger, 13 F.3d 1354, 1356 (9th Cir.1994) (same).
Petitioner has not cited this court to a United States Supreme Court decision, nor any federal law for that matter, establishing the right of a pro se defendant in a non-capital case to advisory counsel. Accordingly, he has failed to establish that the state court’s rejection of his argument in this regard is contrary to, or an unreasonable application of clearly established federal law, as required for the granting of habeas relief under AEDPA. See Moses v. Payne, 555 F.3d 742, 754 (9th Cir.2009); Brewer v. Hall, 378 F.3d 952, 955 (9th Cir.2004) (“If no Supreme Court precedent creates clearly established federal law relating to the legal issue the habeas peti *909 tioner raised in state court, the state court’s decision cannot be contrary to or an unreasonable application of clearly established federal law”).
In any event, the state appellate court’s conclusion that the lower court properly denied petitioner’s request for advisory legal assistance is not unreasonable. As described above, petitioner displayed competence in representing himself, and there is no evidence he was unable to proceed without the assistance of advisory counsel. Indeed, after petitioner’s initial request for advisory counsel was denied by Judge Orr, the trial judge, Judge Morris, also declined to appoint advisory counsel in large part because petitioner had demonstrated that he was able to represent himself competently. (RT at 621-25.) Petitioner has failed to show that his federal constitutional rights were violated by the state trial court’s failure to appoint advisory or standby counsel for him. Accordingly, his request for federal habeas corpus relief as to this claim will be denied.
Claim Five — Suppression and Destruction of Evidence
In his next claim, petitioner alleges that he was “denied due process and equal protection rights when the prosecutor and investigating agencies suppressed discoverable exculpatory evidence and allowed it to be destroyed.” (Pet. at 40.)
The last reasoned state court decision addressing this claim is the October 1, 2007 order of the Sacramento County Superior Court denying petitioner’s application for a writ of habeas corpus. As was the case with respect to petitioner’s claim two, the Superior Court denied relief as to this claim with a citation to In re Dixon, 41 Cal.2d 756, 759 , 264 P.2d 513 (1953). (Resp’t’s Lod. Doc. 6 at consecutive p. 1.) Respondent argues that the Superior Court’s citation to In re Dixon constitutes a procedural bar precluding this court from considering the merits of this claim. Under the circumstances presented here, this court finds that this claim can be resolved more easily by addressing it on the merits and will therefore assume that the claim is not subject to a procedural default. Because the Superior Court rejected this claim on procedural grounds, this court will review it de novo. Stanley, 633 F.3d at 860 ; Reynoso, 462 F.3d at 1109 ; Nulph, 333 F.3d at 1056-57 .
Due process requires that the prosecution disclose exculpatory evidence within its possession. Brady v. Maryland, 373 U.S. 83, 87 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963); Cooper v. Brown, 510 F.3d 870, 924 (9th Cir.2007). There are three components of a Brady violation: “[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; the evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 , 119 S.Ct. 1936 , 144 L.Ed.2d 286 (1999). See also Banks v. Dretke, 540 U.S. 668, 691 , 124 S.Ct. 1256 , 157 L.Ed.2d 1166 (2004); Silva v. Brown, 416 F.3d 980, 985 (9th Cir.2005). A failure to preserve evidence violates a defendant’s right to due process if the unavailable evidence possessed “exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” California v. Trombetta, 467 U.S. 479, 489 , 104 S.Ct. 2528 , 81 L.Ed.2d 413 (1984). A defendant must also demonstrate that the police acted in bad faith in failing to preserve the potentially useful evidence. Arizona v. Youngblood, 488 U.S. 51, 58 , 109 S.Ct. 333 , 102 L.Ed.2d 281 (1988); Phillips v. Woodford, 267 F.3d 966, 986-87 (9th Cir.2001). The presence or absence of bad faith turns on the government’s knowledge of the ap *910 parent exculpatory value of the evidence at the time it was lost or destroyed. Youngblood, 488 U.S. at 56 -57 n. *, 109 S.Ct. 333 ; see also Grisby v. Blodgett, 130 F.3d 365, 371 (9th Cir.1997); United States v. Barton, 995 F.2d 931, 934 (9th Cir.1993); United States v. Cooper, 983 F.2d 928, 931 (9th Cir.1993). “The mere failure to preserve evidence which could have been subjected to tests which might have exonerated the defendant does not constitute a due process violation.” Phillips, 267 F.3d at 987 (quoting United States v. Hernandez, 109 F.3d 1450, 1455 (9th Cir.1997)). See also Youngblood, 488 U.S. at 57 , 109 S.Ct. 333 .
Petitioner’s Brady claim is directed to three specific forms of evidence. First, he contends that the State acted in bad faith in destroying audio recordings of S.W.A.T. team members and helicopter officers who were allegedly dispatched to the property of petitioner’s father on the date of the crimes. (Pet. at 40-51.) Petitioner contends that these recordings were destroyed after he had requested them in discovery. (Id. at 40-51.) Petitioner’s theory is that the recordings may have revealed that the victim told the S.W.A.T. officers she had been raped, which would have prompted a rape test, which would in turn have confirmed that no rape had occurred. In this regard, petitioner explains, “the outcome would have been different because petitioner would have had a rape kit that would have shown that petitioner and [the victim] did not have sex that morning and that the tapes would have shown that the alleged rape was in fact alleged in the onset of the case which would have had to have, had a rape kit done which would have proven petitioner’s innocence.” (Traverse at 21.)
At a hearing on petitioner’s discovery motions, the state court found that the prosecution had failed to comply with petitioner’s discovery request for the recordings and had apparently destroyed them when they should have been retained. (RT at 354-55, 415, 420.) The court, however, declined to dismiss the case or to recuse the district attorney for this reason. (Id. at 420.) However, the trial judge did later inform the jury that petitioner had requested these recordings in discovery but that the responsive material had been destroyed by the Sheriffs Department. (Id. at 2055-2057.) The jury was further informed that they could “consider” this information and that the parties could “argue whatever they feel it pertains to.” (Id. at 2053-54.) The trial court also instructed the jury at petitioner’s trial as follows:
The prosecution and the defense are required to disclose to each other before trial the evidence each intends to present at trial so as to promote the ascertainment of the truth, save court time and avoid any surprise which may arise during the course of the trial.
Concealment of evidence or delay in the disclosure of evidence may deny a party a sufficient opportunity to subpoena necessary witnesses or produce evidence which may exist to rebut the noncomplying party’s evidence.
Disclosures of evidence are required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of trial must be disclosed immediately.
In this case the People failed to timely disclose the following evidence: Sheriffs dispatch tapes and related evidence.
The weight and significance, if any, of this failure to disclose are matters for your consideration.
However, you should consider whether this evidence pertains to a fact of importance, something trivial or subject mat *911 ters already established by other credible evidence.
(Id. at 2179-80.)
Assuming arguendo that the prosecution or law enforcement improperly destroyed the dispatch recordings in violation of a discovery order, petitioner has made no showing in this court that the recordings would have provided evidence favorable to the defense or that the exculpatory value of the tapes was apparent prior to them destruction. His claim that the recordings could have exonerated him is based on pure speculation. As noted above, “[t]he mere failure to preserve evidence which could have been subjected to tests which might have exonerated the defendant does not constitute a due process violation.” Phillips, 267 F.3d at 987 (quoting Hernandez, 109 F.3d at 1455 ). See also Grisby, 130 F.3d at 371 . Accordingly, petitioner is not entitled to relief with respect to his claim regarding the prosecution’s failure to produce the requested audio recordings in discovery.
Petitioner also complains that he did not receive “the medical report for the incident of May 4, 2002, which is the present case at hand, even though he requested said reports numerous times.” (Pet. at 51.) Petitioner notes that on May 4, 2002, the victim signed an “authorization for the release of medical information.” (Id.) It appears petitioner is arguing that the victim’s signature on this form indicates that there must have been medical records pertaining to a rape evaluation conducted on May 4, 2002, which would have proven that he did not rape the victim.
At petitioner’s trial, a sheriffs deputy testified that the victim did not mention the rape when she was first interviewed by police on May 4, 2002. (RT at 899, 906-07.) On cross-examination by petitioner, the victim testified that in signing the authorization form she “thought [she] was signing something that I didn’t need medical attention.” (Id. at 1028.) Deputy Garcia testified that he had the victim sign the authorization form because it was “standard with all reports where allegations of abuse or battery have occurred.” (Id. at 1553-54.) Respondent asserts that, contrary to petitioner’s allegations here, “there apparently were no medical records for May 4, 2002, and [the victim’s] signature on the release form was obtained as part of a routine sheriffs procedure that was unnecessary in this case.” (Answer at 27.)
Petitioner has failed to demonstrate that any medical records were actually generated on May 4, 2002, that any such records were destroyed by the police, or that if any medical records from that date existed they would have been helpful to the defense. On the contrary, the record before this court reflects that the victim was asked to sign the authorization form only because this was standard police procedure in domestic violence cases, but that no medical tests were performed. Petitioner’s allegations to the contrary are based on speculation alone. For this reason, he is not entitled to federal habeas relief on this aspect of his claim.
Finally, petitioner contends he was informed by the prosecutor that he was “going to provide leniency, offer of deal, and/or monies” to an unidentified witness in exchange for his or her testimony against petitioner, but that petitioner was never informed who that witness was. (Pet. at 54.) After several hearings before the trial court, it was determined that petitioner was mistaken in this regard and that the prosecutor was actually speaking about a warrant for another witness. (RT at 290-91, 467-68, 470, 472, 476-77, 714.) As to this aspect of his Brady claim, petitioner has failed to demonstrate that the prosecution failed to turn over any exculpatory material, that any evidence was *912 suppressed by the state, or that he suffered prejudice resulting from this alleged discovery violation. Accordingly, he is not entitled to federal habeas relief.
Claim Six — Knowing Use of Perjured Testimony
In his next ground for relief, petitioner claims that the prosecutor committed misconduct when she presented false evidence at trial, in violation of the holding in Napue v. Illinois, 360 U.S. 264 , 79 S.Ct. 1173 , 3 L.Ed.2d 1217 (1959). (Pet. at 58.) Petitioner alleges that the prosecutor knew that the victim and Deputy Garcia were giving perjured testimony at petitioner’s trial, but “allowed [it] to stand without trying to correct it, then tried to block [petitioner] from eliciting the truth of the perjured testimony.” (Id.)
Petitioner first claims that the victim testified falsely about the exact timing of petitioner’s telephone calls to her on the day of the crime. (Id. at 58-64.) The victim had testified that petitioner called her twice between 1:45 and 3:00 a.m. on the morning in question. (RT at 830-35.) She stated that she knew what time it was because she had a habit of checking her watch. (Id. at 846, 932.) Apparently, telephone records did not match the victim’s testimony as to the timing of those calls. (Id. at 972-74.) According to petitioner, “there was no calls incoming or going out between 1:45 and 4:00 a.m.” (Pet. at 60.) Rather, it appeared that petitioner spoke with the victim closer to 6:00 a.m. On cross-examination at trial, the victim conceded she “could have been wrong about the time.” (RT at 976.) Petitioner alleges that the victim “lied about checking her watch to make things look worse and the D.A. was condoning the lies and tried to cover for them.” (Pet. at 64-65.) In his traverse, petitioner explains that the prosecutor knew the victim “was lying when she testified to the time frame of. the phone calls which showed that petitioner was not even with [the victim] during the time frame as was testified to.” (Traverse at 22.) Petitioner also notes that the prosecutor was in possession of relevant phone records at the time the victim testified in this way. (Id.)
Petitioner next challenges the veracity of the victim’s testimony about what she told the responding deputies. At trial, the victim testified she told Deputy Garcia that she “just had some lumps on my head” arid did not need medical attention. (RT at 1026-27.) She testified she did not tell Garcia that she had been raped. (Id.) On cross-examination, petitioner asked why, if she had not been injured and did not request medical' attention, she had signed a medical release form. (Id. at 1028.) The victim responded that she didn’t know why she signed it. (Id.) As noted above, the victim then testified, “I thought I was signing something that I didn’t need medical attention.” (Id.) Petitioner now appears to be claiming that this testimony was false and reflects that the victim was lying about whether she was raped, or about whether she received a medical evaluation for rape. Petitioner alleges that the prosecutor also knew this testimony was false but attempted to hide information about the medical release form “and other areas that could be provided.” (Pet. at 65.)
Finally, petitioner argues that Deputy Garcia lied when he testified at trial that he did not understand certain notations on the police report regarding the events in question. (Id. at 65-68.) Petitioner argues that Deputy Garcia entered the information on the computer that was later reflected in the report, so he should have known what the notations meant. (Id.) Petitioner contends that the prosecutor knew Deputy Garcia’s testimony was false in this regard because “she had ‘Larissa Hansen’ go over the dispatch log with *913 her.” (Id. at 68.) Petitioner also asserts that Deputy Garcia testified falsely that there was no S.W.A.T. team or helicopter at the house of petitioner’s father, thus demonstrating that the victim must have claimed she had been raped or a helicopter would not have been dispatched. (Traverse at 23.) Petitioner argues that “these lies prejudiced petitioner because it helped to cover up the none [sic] existing doctors report that should have been available, and the rape kit that should have been done to show petitioner did not have sex with [the victim] on the morning of May 4, 2002.” (Id.)
Respondent informs that court that the last reasoned decision addressing these claims is the October 1, 2007 decision of the Superior Court denying petitioner’s application for a writ of habeas corpus. (Answer at 28; Resp’t’s Lod. Doc. 6.) Although it is difficult to identify the last reasoned decision addressing this claim from the record before this court, the undersigned will assume respondent’s representation is accurate. The Superior Court rejected petitioner’s prosecutorial misconduct claims with a citation to In re Dixon. (Resp’t’s Lod. Doc. 6. at 2.) Respondent argues that the Superior Court’s citation to In re Dixon constitutes a procedural bar precluding this court from considering the merits of these claims. For the same reasons set forth above with respect to other claims addressed on the merits, the court will assume the claims are not procedurally barred and will address them on the merits, conducting a de novo review.
On habeas review of a prosecutorial misconduct claim, the court may grant relief only if the misconduct rises to the level of a due process violation. See Sechrest v. Ignacio, 549 F.3d 789, 807 (9th Cir.2008). A violation of a defendant’s constitutional rights occurs if the government knowingly uses false evidence in obtaining a conviction. Giglio v. United States, 405 U.S. 150, 153-54 , 92 S.Ct. 763 , 31 L.Ed.2d 104 (1972); Napue, 360 U.S. at 269 , 79 S.Ct. 1173 ; see also United States v. Agurs, 427 U.S. 97, 103 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976) (“[T]he Court has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair.”); Morales v. Woodford, 388 F.3d 1159, 1179 (9th Cir. 2004) (“The due process requirement voids a conviction where the false evidence is ‘known to be such by representatives of the State.’ ”) (quoting Napue, 360 U.S. at 269 , 79 S.Ct. 1173 ) It is clearly established that “a conviction obtained by the knowing use of perjured testimony must be set aside if there is any reasonable likelihood that the false testimony could have affected the jury’s verdict.” United States v. Bagley, 473 U.S. 667 , 680 n. 9, 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985). See also Maxwell v. Roe, 628 F.3d 486, 506 (9th Cir.2010); Killian v. Poole, 282 F.3d 1204, 1209-10 (9th Cir.2002) (habeas relief was to be granted where “there is a reasonable probability that, without all the perjury, the result of the proceeding would have been different.”) Due process is violated in such circumstances regardless of whether the false testimony was obtained through the active conduct of the prosecutor, Hysler v. Florida, 315 U.S. 411 , 62 S.Ct. 688 , 86 L.Ed. 932 (1942); Mooney v. Holohan, 294 U.S. 103 , 55 S.Ct. 340 , 79 L.Ed. 791 (1935), or was unsolicited. Napue, 360 U.S. at 269 , 79 S.Ct. 1173 (“[t]he same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears”). This rule applies even where the false testimony goes only to the credibility of the witness. Napue, 360 U.S. at 269 , 79 S.Ct. 1173 ; Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir.2002).
There are several components to establishing a claim for relief based on the prosecutor’s introduction of perjured testimony at trial. First, the petitioner *914 must establish that the testimony was false. United States v. Polizzi, 801 F.2d 1543, 1549-50 (9th Cir.1986). Second, the petitioner must demonstrate that the prosecution knowingly used the perjured testimony. Id. Finally, the petitioner must show that the false testimony was material. United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir.2003). False evidence is material “if there is any reasonable likelihood that the false [evidence] could have affected the judgment of the jury.” Hein v. Sullivan, 601 F.3d 897, 908 (9th Cir. 2010) (quoting Bagley, 473 U.S. at 678 , 105 S.Ct. 3375 ). Mere speculation regarding these factors is insufficient to meet petitioner’s burden. United States v. Aichele, 941 F.2d 761, 766 (9th Cir.1991).
Petitioner has failed to demonstrate that the prosecutor committed misconduct by knowingly introducing false testimony at his trial. Regardless of when petitioner called the victim and asked her to give him a ride, there was no dispute that he and the victim were present together at the scene of the assault. The victim’s inability to remember the exact timing of the calls was not “false,” nor was it material to any issue at petitioner’s trial. At most, the victim may have been mistaken about the timing of her conversations with petitioner. The same is true with respect to the victim’s testimony regarding the signing of the medical release form. She explained in her trial testimony that she believed she was declining medical attention by signing the form. There is no evidence before this court that any medical information was generated. All of this is consistent with the victim’s testimony that she informed Deputy Garcia she did not need medical attention and had only suffered lumps on her head. With respect to the testimony of Deputy Garcia, petitioner has failed to demonstrate that the Deputy’s inability to decipher a notation on the dispatch report was “false testimony” or that the testimony “could have affected the judgment of the jury.” Finally, petitioner himself cross-examined these witnesses and argued to the jury that they were not credible.
In short, petitioner has failed to show that any of the challenged trial testimony was false, that the prosecutor knew that any of that trial testimony was false, or that the allegedly false testimony was material. Petitioner’s claim in this regard is also vague and conclusory and are based on speculation and innuendo. For all of these reasons, petitioner is not entitled to relief with respect to his perjured testimony claim.
Claim Seven — Denial of Compulsory Process to Obtain Witnesses
In his next ground for relief, petitioner claims that the trial court violated his rights pursuant to state law and the “5th, 6th, and 14th Amendments of the United States Constitution” when it refused him “the right to compulsory process for obtaining and confronting witnesses (law enforcement) to defend against the states accusations.” (Pet. at 69.) Petitioner alleges that, even though “a minimum of four deputies” arrived at the scene after Johnson called 911, he was only allowed to call Deputy Garcia as a witness at trial because Garcia was the officer who wrote the incident report. (Id.) Petitioner states that he was “denied to call as witnesses the other three deputies to the stand for a lack of them not producing a report.” (Id.) Petitioner also complains that his defense investigator was not allowed to get a statement from the other deputies prior to trial “due to Penal Code Section 1054.5(A).” 19 (Id.)
*915 Petitioner has attached to his petition before this court a copy of a partial transcript of a July 17, 2003 hearing held on various motions he had filed prior to his preliminary examination. (Pet., Ex. J.) At that hearing petitioner was allowed to question Deputy Garcia and the three other deputies who responded to the scene of the crime (Officers Templeton, Koontz and Elliott). (Id.) 20 Deputy Garcia testified that he authored the police report of the incident, but that he did not possess his underlying notes. (Id.) The other deputies testified that they did not write a report of the incident and that they had no independent recollection of the events. (Id.) Although Detective Koontz testified that he did not write the “official police report,” petitioner infers from that testimony that Koontz wrote his own report of the incident. (Pet. at 70.) Petitioner complains that he was not provided with a copy of Detective Koontz’s report. (Id.) Petitioner explains that he
had to give an offer of proof for any law enforcement personnel in order to call them to the stand, and because [petitioner] could not provide a written report authored by the deputy or an investigation report done by [petitioner’s] investigators (Penal Code section 1054.5(A) does not permit such.) [Petitioner] was denied any of the deputies that participated in the initial responding call, and were present during each phase on the morning of May 4, 2002. This was denied by the court with each law enforcement personnel.
(Id. at 74.) Petitioner further argues:
The court was fully aware that the district attorney’s office continually made false representations to the court on at least six explicit discovery request’s and orders for all communications, tapes, telephone, and computer printouts before they were all destroyed showing bad faith, then the court again let the district attorney’s office repeat the same bad faith when it would not continue to pursue the declaration for the tapes it ordered the D.A. to get. The court was fully aware that per Penal Code section 1054.5, [petitioner’s] investigator’s could not get any reports from law enforcement personnel and that they allegedly did not write any reports even though they were on the seen [sic] and the court still denied [petitioner’s] constitutional rights for obtaining and confronting witnesses that would be able to state the truth especially when the people’s main witness and law enforcement personnel were caught in perjury and the people did nothing to set the record right with the truth. Deputy District Attorney Lani Biafore admitted that Larissa Hansen went over the computer printed dispatch, and therefore she would know that Deputy Garcia’s testimony was false. Even knowing all of this, the *916 court still denied [petitioner] his constitutional rights.
(Id. at 75.)
In his traverse, petitioner explains that he wanted to “put the responding deputies on the stand to be able to contradict what Deputy Garcia testified to falsely concerning the S.W.A.T. team, or the computer aided dispatch computer printout that listed the 940.15 on El Verano Avenue.” (Traverse at 24.) Petitioner again states that these three officers
could have testified that [the victim] alleged the spousal rape in the onset of the case which would have been required to have a rape kit done, medical reports available, and photo’s of [the victim] which [the victim] alleged that petitioner was beating and raping her for (4) four hours, yet there was no evidence of such. No bruises, no cuts, no injuries whatsoever as she and Deputy Garcia testified to.”
(Id.)
The last reasoned decision addressing this claim is once again the October 1, 2007 order of the Sacramento County Superior Court denying petitioner’s application for a writ of habeas corpus. (Resp’t’s Lod. Doc. 6.) The Superior Court rejected the claim citing In re Dixon. (Id.) Respondent argues that the Superior Court’s citation to In re Dixon constitutes a procedural bar precluding this court from considering the merits of the claim. (Answer, at 43.) For the same reasons as the claims addressed above, the court will assume this claim is not procedurally barred and will address it on the merits applying a de novo standard of review.
The Sixth Amendment guarantees a criminal defendant the right “to have compulsory process for obtaining witnesses in his favor.” U.S. Const., Amend. VI. See also Washington v. Texas, 388 U.S. 14, 23 , 87 S.Ct. 1920 , 18 L.Ed.2d 1019 (1967). However, “more than the mere absence of testimony is necessary to establish a violation of the right [to compulsory process].” United States v. Valenzuela-Bernal, 458 U.S. 858, 867 , 102 S.Ct. 3440 , 73 L.Ed.2d 1193 (1982). A petitioner must also “at least make some plausible showing of how [the witness] testimony would have been both material and favorable to his defense.” Id. See also Williams v. Stewart, 441 F.3d 1030, 1044 (9th Cir.2006).
The state court record reflects that petitioner requested permission to call as trial witnesses all four of the deputies who were present at the crime scene. (RT at 1421.) The trial judge agreed that petitioner could call Deputy Garcia, who had written the police incident report. (Id.) The trial judge explained to petitioner that he would not allow him to call deputies Templeton, Koontz and Elliott as witnesses unless he could demonstrate the relevance of their proposed testimony. (Id.) The trial judge stated that unless the other three deputies were going to testify to something “different than Garcia,” he would not allow petitioner to “just put [them] on the stand and find out what [they’ll] say.” (Id. at 1422.) The trial judge also suggested that petitioner “take a statement” from his proposed witnesses. (Id.) Petitioner responded that his investigator had been trying to “get investigation reports on all these people.” (Id.) The trial judge noted that petitioner hadn’t “even established a reasonable belief that they will say anything that helps you.” (Id.) The trial judge reiterated that petitioner had to “tell me what it is [the witness] has to say that has any relevancy to the case beyond what anybody else has already said or will say.” (Id. at 1423.) On the following Monday, Deputy Temple-ton arrived at court pursuant to a trial subpoena. (Id. at 1464-65.) The trial judge suggested to petitioner’s investigator that he interview Deputy Templeton to *917 “see whether or not there’s any basis to need him to remain.” (Id.) 21 Deputies Elliot, Templeton and Koontz did not testify at petitioner’s trial.
In light of the events described above, petitioner has failed to demonstrate that his right to compulsory process was violated by the trial court’s refusal to allow him to call Deputies Elliot, Templeton and Koontz as witnesses at his trial. Petitioner was informed that he would be permitted to call these witnesses if he could proffer that they could give relevant, material, and non-cumulative testimony. He was unable to do so, even though he was given the opportunity to question all of these witnesses at a hearing held prior to his preliminary examination and was able to interview Deputy Templeton at the courthouse during his trial. Petitioner’s assertion that these other deputies might have contradicted Deputy Garcia’s trial testimony, or that their testimony might have provided relevant evidence on the issue of whether the victim was assaulted or raped, is based on pure speculation and does not constitute a “plausible showing of how [the witness] testimony would have been both material and favorable to his defense.” Valenzuela-Bernal, 458 U.S. at 867 , 102 S.Ct. 3440 .
In short, there is no evidence in the record before this court that the victim told the responding officers she had been raped; that she was medically evaluated to determine whether she had been raped; or that Deputy Garcia testified falsely about the presence of a S.W.A.T. team, medical records, or anything else. Petitioner’s attempts to manufacture such evidence from insinuation and innuendo do not establish a constitutional violation. Accordingly, he is not entitled to federal habeas relief on this claim.
Claims Eight, Nine and Ten
In claims eight, nine, and ten, petitioner challenges the admission into evidence of his prior acts of domestic violence as well as the giving of an instruction related to the jury’s consideration of that evidence. Below, the court will provide the background to these claims.
The prosecution filed a pretrial motion in limine seeking permission to introduce evidence of petitioner’s commission of other domestic violence offenses pursuant to California Evidence Code § 1109. (CT at 1111-16; RT at 122, et seq.) 22 At trial, the victim testified about previous acts of domestic violence committed by petitioner. (RT at 890, 1248.) Dr. Linda Barnard, a licensed marriage family therapist, also testified on the subject of Battered Woman’s Syndrome. (Id. at 1136-79.) Dr. Barnard explained the common behavior characteristics demonstrated by battered women, such as a reluctance to testify *918 against the batterer in court. (Id. at 1136-79.) At the conclusion of petitioner’s trial the court gave several jury instructions designed to inform the jury how to consider the testimony with respect to petitioner’s prior acts of domestic violence. In particular, the jury was instructed with CALJIC No. 2.50.01, as follows:
Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense other than that charged in the case.
If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crimes of which he is accused.
However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime. You must not consider this evidence for any other purpose.
(CT at 1377.)
A. Claim Eight — Evidence of Battered Women’s Syndrome
In his eighth claim for relief petitioner argues that the introduction into evidence of Dr. Barnard’s testimony on Battered Woman’s Syndrome rendered his trial fundamentally unfair, in violation of his right to due process. (Pet. at 76.) He argues that the trial court “wrongly allowed the prosecutor to introduce prejudicial evidence of Battered Woman Syndrome to bolster the credibility of the prosecutor’s main witness,” even though that evidence was “irrelevant to any legitimate issues involved in the guilt determination.” (Id.) Petitioner further argues that the admission of this evidence “allowed the prosecutor to poison the jury against [petitioner] by side-stepping the prohibition of character evidence and by using a pseudo-scientific proxy to vouch for the credibility of his star witness.” (Doc. 1-1, at 2.)
On appeal, the California Court of Appeal rejected these arguments, reasoning as follows:
Battered Women’s Syndrome Evidence
Defendant contends the trial court improperly admitted evidence about battered women’s syndrome because such evidence did not explain anything relevant to the case. He argues the prejudice from such testimony outweighed any probative value because Terri did not recant or refuse to testify. Finally, defendant asserts that admission of battered women’s syndrome evidence is reversible error because there is a reasonable probability the verdict would have been different without it. We conclude battered women’s syndrome evidence was admissible.
Expert testimony on “intimate partner battering and its effects, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge” is expressively authorized by statute. (Evid.Code, § 1107, subd. (a).)
Battered women’s syndrome evidence is permissible to aid the jury, whose lack *919 of experience with such abuse and its effects may cause it to misinterpret the counterintuitive behavior of the victim. (.People v. McAlpin (1991) 53 Cal.3d 1289, 1302 [ 283 Cal.Rptr. 382 , 812 P.2d 563 ]; People v. Morgan (1997) 58 Cal. App.4th 1210, 1214-1216 [ 68 Cal.Rptr.2d 772 ].) Such evidence is “relevant to the victim’s credibility, because it would assist the jury ‘by dispelling many of the commonly held misconceptions about battered women.’ [Citations.]” (People v. Brown (2004) 33 Cal.4th 892, 903 [ 16 Cal.Rptr.3d 447 , 94 P.3d 574 ].) It can also be used to explain apparent inconsistencies in the victim’s conduct or testimony. (People v. Morgan, supra, at p. 1215 [ 68 Cal.Rptr.2d 772 ].)
“A trial court’s ruling permitting expert testimony is reviewed on appeal under the deferential abuse of discretion standard. [Citations.]” (People v. Mayfield (1997) 14 Cal.4th 668, 766 [ 60 Cal. Rptr.2d 1 , 928 P.2d 485 ].) Likewise, a trial court’s balancing of probative value and prejudicial effect under Evidence Code section 352 will be reversed only if an abuse of discretion is found. (People v. Stewart (1985) 171 Cal.App.3d 59, 65 [ 215 Cal.Rptr. 716 ].)
“When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge. [Citation.] A trial court’s exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.]” (People v. Stewart, supra, 171 Cal.App.3d at p. 65 [ 215 Cal.Rptr. 716 ].)
Here, the record reflects a lengthy relationship with instances in which defendant violently abused Terri after she refused to have sexual relations with defendant. When testifying about these incidents, Terri minimized defendant’s behavior until the prosecutor read her prior statements and asked her if they were true. She admitted the prior, more damning statements were true. Despite the abuse, Terri married defendant and reunited with him whenever he was released from prison or jail. This continued even though their relationship ended poorly after each reunion.
Although Terri was held in the bedroom against her will, she told her friend Johnson that she was okay. When the prosecutor asked if she was indeed okay, Terri stated, “Well, I wasn’t — I wasn’t maimed.” The morning of the incident Terri did not report the rape to the police, but she later told an investigator about it. She testified she did not believe what happened to her was rape. However, she also testified she did not want to have sexual relations with defendant the morning of the incident and consented because she did not want him to beat her for refusing.
Expert testimony to explain the apparent inconsistencies and possible misconceptions flowing from these facts was relevant and did not exceed the bounds of reason. Furthermore, the probative value outweighed any prejudicial effect. The prior acts of abuse were not admitted through the expert testimony; instead, this contention includes onl

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8698874. Public record. Not legal advice.