Full opinion text
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING REQUEST FOR EVI-DENTIARY HEARING ILLSTON, District Judge. Currently before this Court is petitioner Paul Anthony Brown’s second amended petition for a writ of habeas corpus under 28 U.S.C. § 2254. The parties have fully briefed the merits of this petition, and Brown has requested an evidentiary hearing. After considering the arguments of the parties, this Court hereby DENIES petitioner’s petition for writ of habeas corpus and DENIES petitioner’s request for an evidentiary hearing. BACKGROUND On February 18, 1992, at approximately 9:15 p.m., a man armed with a Calico .9 millimeter semi-automatic or automatic weapon entered Bosn’s Locker bar in North Oakland and sprayed the bar with 49 rounds of ammunition; seven individuals were hit by gunshots, three of whom were killed. A. Procedural History On September 24, 1992, Brown, along with co-defendant Keith Barber, was charged by information with three counts of murder, one special circumstance of multiple murder, and four count of attempted willful, premeditated murder, along with other allegations. Trial in Alameda County Superior Court began on July 27, 1993. On September 8, 1993, the jury informed the trial court that it was deadlocked as to both defendants and the court declared a mistrial. On November 10, 1993, the court granted the prosecution’s motion to dismiss all charges against Barber. On March 7, 1994, Brown’s second trial began. On March 29, 1994, the jury returned guilty verdicts on three counts of murder in violation of California Penal Code § 187 and four counts of willful and deliberate attempted murder under California Penal Code §§ 187 and 664. The jury also found true a multiple murder special circumstance allegation (CaLPenal Code § 190.2(A)(3)); that Brown personally used a firearm in the commission of all the offenses (Cal.Penal Code § 12022.5); and that Brown inflicted great bodily injury during the commission of two of the four attempted murders (Cal.Penal Code § 12022.7). After the verdict and before the penalty phase, Brown made a Mars-den motion based on trial counsel Are-lene West’s failure to investigate and present testimony by a witness named King McCarthy. West had been retained by Brown during municipal court proceedings and then appointed once Brown could no longer pay for her services. After holding a hearing on the issue, the trial judge denied Brown’s Marsden motion. On April 11, 1994, the penalty phase began. On April 21, 1994 the jury returned a verdict of life without the possibility of parole. After the jury’s verdict, Brown renewed his Marsden motion, and a hearing was held on May 20, 1994. The court again denied Brown’s motion. On July 6, 1994, the trial court denied Brown’s motion for a new trial and motion to reduce the attempted murder verdicts, and sentenced him to three life terms without the possibility of parole for the three first degree murder convictions, with four year enhancements for firearm use on all three counts. The court also imposed life terms for the four counts of attempted murder, with four year enhancements for firearm use on all four counts, and three year enhancements for each of the two findings of infliction of great bodily injury The court ordered all sentences to be served concurrently to the first sentence of life without the possibility of parole. Brown is currently incarcerated at High Desert State Prison in Susanville California. B. Evidence at Trial Two individuals who were in the bar at the time of the- shooting later served as witnesses for the prosecution at Brown’s criminal trial. Winnie Tomlin, who was standing ten feet from the door through which the gunman entered, saw a tall man enter and, although her view of the gun was obstructed, heard the shooting begin. She testified that she looked into the face of the gunman for four or five seconds, and that the area where the gunman was standing was well lit by the disk jockey’s equipment. Following the shooting, Tomlin was sent to the hospital to treat a superficial chest injury caused by the ricochet of a bullet, where she was administered a tranquilizer to calm her hysteria. Two hours after the shooting, she was interviewed at the hospital by Officer Joyner and she provided a physical description of the shooter: he was a dark-complexion black male, 18 to 25 years old, five feet eight inches tall, • and 150 to 160 pounds, and wore a green hat with a bill, clear plastic goggle-type glasses, and a multi-colored jacket. Two days after the shooting, Tomlin identified Brown as the shooter out of a photographic lineup but would not sign the back of the photograph, telling the homicide detective that she was not sure of her identification. Tomlin later claimed to have been afraid to identify Brown rather than uncertain. Tomlin also told a therapist that she could identify the gunman but did not want to do so. After Tomlin was subpoenaed to testify at a preliminary hearing, she informed defense counsel that she was unable to identify the shooter. She was not called to testify at the preliminary hearing. However, subsequently, Tomlin identified Brown as the gunman, attributing her change of heart to her anger at the deaths of two friends in the Bosn’s Locker shooting. At trial, Tomlin testified that the gunman was tall, thin, light-skinned and dark around the beard area; that he wore a cap and a nylon jacket with green in it; and that he wore clear goggles over his eyes that were similar to plastic safety glasses used for target practice. She identified Brown as the shooter. Tomlin was impeached by Tommietta Winston, a defense witness who had been with Tomlin at Bosn’s Locker on the night of the o shooting, who testified that Tomlin told her she could not be sure of her identification of the gunman. Vernon Wallace, who had consumed three or four drinks before the shooting, hit the floor at the moment that the shooting began. At trial he testified that, after a few seconds, he crawled into a position where he could see the right profile of the gunman, whom he described as wearing a black pullover hat, like a ski mask rolled up, so that Wallace could only see his eyes. The gunman was approximately 16 to 18 feet away but the disk jockey’s lights enabled him to view the shooter. After the shooting, Wallace described the gunman as light skinned and approximately six foot one or two. The next day, Wallace picked Brown’s picture out of a photographic lineup. At trial, he identified Brown as the shooter. However, he was impeached with a number of prior inconsistent statements. When he called 911 immediately following the shooting, Wallace stated that he had not seen the gunman and could not identify him. His first description of the shooter to the police did not mention a ski mask, but stated that a black turtleneck pulled up just beneath the eyes hid most of the shooter’s face. At the preliminary hearing, Wallace did not mention a ski mask and stated that he could not identify Brown as the shooter. At an evidentiary hearing, Wallace stated that the shooter had green eyes and identified Barber as the shooter, changing his mind only after the prosecutor showed him his signature on the back of Brown’s photograph in the lineup. It was at that evidentiary hearing that Wallace first mentioned the ski mask. Gwendolyn Williams also testified for the prosecution. She testified that on the night of the shooting she had been talking to her friends “Linda, Faye and Mary” on Faye Jamerson’s porch, approximately one block from Bosn’s Locker. Some time after 8:30 p.m., Brown drove up in a white Corvette and stopped to talk to Williams. Michael Baxter came by and told Brown, “There is some dude sitting in the bar.” Brown walked in the direction of Bosn’s Locker, and was gone for approximately ten minutes. When he was gone, Williams heard something that sounded like firecrackers. When Brown returned, he asked, “Did you hear that?” and told Williams that the sounds were gunshots. He then said, “I’m outta here,” and drove away in his car. Williams stated that Brown did not have a gun with him that night. Williams’ testimony was impeached by Faye Jamerson and Mary Whitehead, who testified that they had not been with Williams on the night of the shooting Jam-erson testified that she had been in Arkansas attending her brother-in-law’s funeral at the time of the shooting. After she had completed her testimony, and the defense tried to introduce the funeral program into evidence, the court noticed that the funeral service actually took place in Texas; the prosecution then successfully moved to introduce this exhibit to impeach Jamerson’s testimony and referenced this discrepancy in discrediting her testimony during closing arguments. Jamerson was not recalled to explain the discrepancy because she was ill; instead, in her closing, defense counsel suggested that Jamerson might have gone from the funeral in Texas to visit her family in Arkansas. Whitehead testified that on the evening of the shooting, which took place on her wedding anniversary, she was at the Greyhound bus station picking up her grandchildren who had been on a school outing, and that at the time of the shooting she had gone to Safeway. During cross-examination, she could not remember her grandson’s name. The prosecution also called Michael Baxter as a witness, who testified that he had not seen or spoken with Brown the day of the shooting. The prosecution then impeached Baxter with the fact that he had dealt crack cocaine for Brown for three months prior to the shooting. Baxter testified that during this time period he made a few hundred dollars while Brown made $3000 to $4000 from drug dealing activities. The court advised the jury that this evidence was relevant only to Baxter’s credibility. Officer Gus Galindo of the Oakland Police Department testified that he arrested Brown three days after the shooting. He had also stopped Brown the day before his arrest, at which time he observed “a black knit-like skull cap” in Brown’s car. A black ski mask was seized from Brown’s car after his arrest. When Brown was notified that he had been arrested on charges of murder and attempted murder, he responded that “he did not care what he was arrested for, that it was no big deal.” C. Post-Trial Appeals On November 22, 1996, the California Court of Appeal modified petitioner’s sentence by striking six of the gun use enhancements but otherwise affirmed the judgment. On March 12, 1997, the California Supreme Court denied Brown’s petition for review without explanation. On March 9, 1999 the California Supreme Court denied a petition for a writ of habe-as corpus without any briefing or issuance of an order to show cause. On March 24, 1999, Brown filed an amended petition for writ of habeas corpus in this court, and an order to show cause was subsequently issued. On August 5, 1999, respondents filed a motion to dismiss the habeas petition on the ground that petitioner had failed to exhaust his state remedies for two of the claims asserted in his petition. After considering the arguments of both parties, on October 6 1999 this Court granted respondents’ motion to dismiss but allowed petitioner leave to amend his petition to include only exhausted claims. On October 19, 1999, petitioner filed a second amended petition for writ of habeas corpus omitting the unexhausted claims, and on October 27, 1999 this Court issued an order to show cause. Respondents filed their answer on January 4, 2000. On February 8, 2000, Brown filed a traverse and a request for an evidentiary hearing. Brown filed a motion seeking leave to conduct a deposition of witness King McCarthy on June 1, 2000. On June 8, 2000, the Court granted Brown’s motion for leave to conduct the deposition and request for financial assistance to conduct the deposition. On July 7, 2000, August 21, 2000 and September 19, 2000 Brown filed motions seeking extensions of time to submit evidence in support of his request for an evidentiary hearing. The first two requests were granted by the Court, but on February 2, 2001, the Court denied the third request for an extension of time. As of this date, Brown has not sought leave to submit additional evidence in support of his request for an evidentiary hearing. Brown’s current petition alleges twelve grounds for relief. LEGAL STANDARD A petition for writ of habeas corpus may be granted “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) applies to this petition for ha-beas corpus, since it was filed after the AEDPA’s effective date of April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). In relevant part, 28 U.S.C. § 2254, as amended by AEDPA, states: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim ... (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. The Supreme Court recently explained that the “contrary to” and “unreasonable application” clauses of § 2254(d)(1) have independent meaning: A state court decision will be “contrary to” our clearly established precedent if the state court either “applies a rule that contradicts the governing law set forth in our cases,” or “confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.” [citation], A state court decision will be an “unreasonable application of’ our clearly established precedent if it “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.” [citation]. “[A] federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court’s application of clearly established federal law was objectively unreasonable.” [citation]. Distinguishing between an unreasonable and an incorrect application of federal law, -we clarified that even if the federal habeas court concludes that the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is also objectively unreasonable, [citation], Penry v. Johnson, — U.S.-, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001) (discussing Williams v. Taylor, 529 U.S. 362, 404-11, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). The Ninth Circuit further interprets the “unreasonable application” clause to call for clear error analysis: Under AEDPA we must reverse a state court’s decision as involving an “unreasonable application” of clearly established federal law when our independent review of the legal question does not merely allow us ultimately to conclude that the petitioner has the better of two reasonable legal arguments, but rather leaves us with a “firm conviction” that one answer, the one rejected by the court, was correct and the other, the application of the federal law that the court adopted, was erroneous — in other words that clear error occurred. Van Tran v. Lindsey, 212 F.3d 1143, 1153-54 (9th Cir.2000). Assuming constitutional error occurred, habeas relief still cannot be granted unless the error had “a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 1718, 123 L.Ed.2d 353 (1993). See also Shackleford v. Hubbard, 234 F.3d 1072, 1079 (9th Cir.2000) (error which is harmless under Brecht analysis is not “contrary to” or “unreasonable application” of clearly established federal law); Bains v. Cambra, 204 F.3d 964, 977 (9th Cir.2000) (Brecht standard applies to all § 2254 cases). DISCUSSION A. Ineffective Assistance of Counsel The Sixth Amendment guarantees the right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland framework is considered “ ‘clearly established Federal law, as determined by the Supreme Court of the United States, for the purposes of 28 U.S.C. § 2254(d) analysis.’ ” Wilson v. Henry, 185 F.3d 986, 988 (9th Cir.1999). Under AEDPA, a state court’s Strickland analysis generally would not fall within the “contrary to” clause of § 2254(d), but should be analyzed under the “unreasonable application” prong. Weighall v. Middle, 215 F.3d 1058, 1061-62 (9th Cir.2000). In evaluating the effectiveness of counsel, “[t]he benchmark for judging any claim for ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052. To establish ineffective assistance of counsel (“LAC”), a petitioner must first demonstrate that counsel’s performance was deficient by showing that counsel’s performance fell below an objective standard of reasonableness. Id. at 687-88, 104 S.Ct. 2052. To counteract the unfair influence of hindsight, judicial scrutiny of counsel’s performance must be highly deferential, and a court must indulge a strong presumption that counsel’s conduct falls within the range of reasonable professional assistance. Id. at 689, 104 S.Ct. 2052. After establishing the deficiency of counsel’s performance, a petitioner must then show that counsel’s errors were so serious as to deprive him of a fair trial. See id. at 687, 104 S.Ct. 2052. While the petitioner need not show that counsel’s deficient conduct more likely than not altered the outcome of the case, the petitioner must show that there is a reasonable probability that, but for counsel’s deficient conduct, the result of the case would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694, 104 S.Ct. 2052; see also Brown v. Myers, 137 F.3d 1154, 1157 (9th Cir.1998). 1. Failure to investigate and present King McCarthy’s testimony (Claim 1) According to Brown, his mother first informed his trial counsel, Arlene West, that King McCarthy might have exculpatory information in 1992. Brown’s mother has filed a declaration stating that in 1992 she learned of McCarthy’s statements about the case in two ways: she heard from her cousin, Clarence Wells, that McCarthy had told her cousin’s girlfriend, Germaine Baker, that he saw the shooters enter Bosn’s Locker and that Brown was not present; and Jeffie Sanders, who worked a Oakland Bail Bonds, told Brown’s mother that she had overheard McCarthy saying “they got the wrong man. He [Brown] showed up when everything was over.” Pet. Ex. F (L. Brown Decl.) ¶¶ 5-7. Baker Sanders and Wells have filed declarations confirming that they overheard these statements by McCarthy and informed Brown’s mother. Pet. Ex. G (Sanders Decl.) ¶¶ 3-6; Ex. H (Baker Decl.) ¶¶4~6; Pet. Ex. I (Wells Decl.) ¶¶4-5. Upon learning of these statements, Brown’s mother contacted McCarthy directly; she states that he told her that Brown had not been present when the shootings took place, and that he was willing to help but would speak only to West, who had represented him in the past in some criminal matters. Brown’s mother informed West about McCarthy and gave her his phone number. Pet. Ex. F (L. Brown Decl.) ¶¶ 12, 14. Brown and his mother contend that West assured them that she would investigate this witness, advised them not to speak with the defense investigator about McCarthy and specifically promised to call McCarthy as a witness during the second trial. Pet. Ex. F (L. Brown Decl.) ¶¶ 14, 17(2); Pet. Ex. N (P. Brown Decl.) ¶¶ 7,10,12. At the Marsden hearings, West stated that she had spoken with McCarthy on the phone and that he had implied that he knew of an exculpatory witness but that he himself had not actually witnessed the events. Ex. B at 2570. West complained that she was unable to meet with McCarthy in person because he was “literally hiding out” — McCarthy failed to appear at three meetings that she had scheduled with him and moved from the area in an apparent attempt to avoid her and her investigator. She also stated that she had unsuccessfully attempted to contact McCarthy by driving by the school where he picked up his child on at least three occasions, and that she had never known his address and only recently learned his phone number. Ex. B at 2570-71, 2575-76. West’s May 1998 declaration sets forth the same explanation. Pet. Ex. J (West Decl.) ¶¶ 7-9. West’s representations regarding her efforts to meet with McCarthy are contradicted by hearsay statements by McCarthy to Brown’s mother, Baker, and another witness, Jacqueline Coleman; these witnesses claim that McCarthy told them that West was the one who failed to attend the arranged appointments. Pet. Ex. F (L. Brown Decl.) ¶ 15; Pet. Ex. H (Baker Decl.) ¶ 6; Pet. Ex. L (Olivier Decl.) ¶ 20. After the defense rested but before the close of trial, West and/or T.J. Hicks, who had been employed as the investigator for the first trial, went to McCarthy’s house to attempt to speak with him. When this effort failed, they pushed a subpoena through an open window. Pet. Ex. F (L Brown Decl.) ¶¶ 20-22; Pet. Ex. O (Hicks Decl.) ¶ 19; Pet. Ex. J (West Decl.) ¶ 11. After McCarthy failed to appear in response to this subpoena, West went to the trial judge to seek an arrest warrant. The court informed West that the witness’s identity would be revealed to the district attorney if a warrant were pursued. Ex. B at 2571-72; Pet. Ex. J (West Decl.) ¶ 12. West decided not to seek a subpoena because she did not know whether McCarthy’s testimony would be favorable and because the police or district attorney would have access to him before she would. Ex. B at 2571-72. Brown went along with this decision. Ex. B at 2571-72; Pet. Ex. J (West Decl.) ¶ 13; Pet. Ex. N (P. Brown Decl.) ¶ 17. Brian Olivier, who replaced T.J. Hicks as the investigator for the second trial, was not told of McCarthy’s existence until after the guilty verdicts were returned. Pet. Ex. L (Olivier Decl.) ¶ 14. After Brown’s mother informed him of McCarthy’s statements, Olivier interviewed Baker, Coleman and Sanders in April 1994. Pet. Ex. L (Olivier Decl.) ¶¶ 16-20. On June 9, 1994, Olivier spoke with McCarthy, who was reluctant to speak with him but stated that he saw the gunmen approaching Bosn’s Locker, that he closed his eyes and then drove off, and that he could not tell whether Brown was one of the gunmen. He denied making the statements attributed to him by Baker, Coleman and Sanders, and stated that he had wanted to meet with West but was unable to get her to schedule an appointment. Pet. Ex. L (Olivier Decl.) ¶¶ 21-23. This evidence was submitted to associate counsel Robert Braverman, who told Olivier that he would not use the information to file a motion for a new trial because Brown would have a better chance of obtaining relief on appeal. Pet. Ex. L (Olivier Decl.) ¶¶ 24-25. West has submitted a memorandum documenting a telephone call that she received from McCarthy on June 10 1994, the day after Olivier spoke with him: Mr. McCarthy called me and was upset. Mr. McCarthy said investigators keep telling him that he said “they got the wrong guy.” He said that is not true because he wasn’t able to see the two men at the crime scene. He said he was in his car in the parking lot the night of the murders, waiting for a friend, when a car pulled up and two men got out and they had ski masks on. He didn’t see any guns and was not able to see their faces. The next thing he heard were gun shots and he drove away immediately. Pet. Ex. S (memorandum). Brown now argues that counsel was ineffective for: (1) failing to locate and interview McCarthy; (2) deciding not to have the trial court enforce the subpoena against McCarthy; and (3) failing to use the evidence gathered by Olivier in the motion for a new trial. In rejecting Brown’s contention that the trial court erred by denying his Marsden motions to remove counsel, the California Court of Appeal concluded that Brown had failed to demonstrate inadequate representation. The court reasoned that “[d]efense counsel’s decision not to call McCarthy could have been made by a reasonably competent attorney acting as a diligent advocate” and had been explained in a “reasoned and credible” manner, and further concluded that Brown had not shown that had counsel acted differently a more favorable determination would have been likely. Pet. Ex. A (Calif.Ct.App.Decision) at 59. The court went on to consider Brown’s argument that counsel was ineffective for failing to adequately investigate McCarthy, and concluded that West’s perception that McCarthy would be “at best an unwilling if no hostile witness” rendered her decision not to force McCarthy’s participation in the case a reasonable one. Pet. Ex. A at 60. This Court concludes that the Court of Appeal’s decision is not an unreasonable application on clearly established federal law. The government points out that the state courts that rejected Brown’s Marsden claims credited West’s representations as to the efforts that she made to contact McCarthy, the California Court of Appeal explicitly characterizing her explanation as “reasoned and credible” and the state trial court implicitly finding the same. These findings are entitled to deference and can be overcome only by clear and convincing evidence, which Brown has not produced. 28 U.S.C. § 2254(e). The evidence that Brown has submitted which contradicts West’s explanation consists entirely of hearsay statements by individuals who claim that McCarthy claimed that West had failed to keep her appointments with him, which are not more persuasive than West’s sworn testimony to the contrary. Furthermore, the hearsay evidence is further undermined by Olivier and West’s account of their conversations with McCarthy; they both claim that he denied having made the exculpatory statements that were attributed to him. Brown’s second argument fails for the same reason. West has offered an explanation, found reasonable by the state courts, that she did not want to have McCarthy arrested because the prosecution would be able to speak with him first and she did not know what the nature of this testimony would be. Brown’s response, that if West had conducted an adequate investigation she would have known what McCarthy’s testimony would be, fails for the reasons previously articulated. Finally, Brown argues that McCarthy should have been compelled to testify in connection with the motion for a new trial, and that if he had denied making the exculpatory statements then other witnesses could have been called to testify about prior inconsistent statements. See People v. Zapien, 4 Cal.4th 929, 952, 17 Cal.Rptr.2d 122, 846 P.2d 704 (Cal.1993) (upholding multiple hearsay evidence as proof of statement that witness denied having made). The government responds that such evidence would have been insufficient to justify the grant of a new trial and that West was therefore not ineffective for failing to present this evidence if connection with the motion for a new trial. Even if McCarthy had testified favorably or if his failure to testify favorably was impeached by other witnesses, there is no reasonable probability that the trial court would have granted a motion for a new trial on this basis. 2. Failure to investigate and present evidence of Brown’s whereabouts at time of shooting (Claim 2) At the first trial, West called witnesses to establish that Brown arrived in the area of Bosn’s Locker shortly after the shootings. Angela Brown, who was attending a party next door to the bar, testified that after she heard gunshots she saw a man who was not Brown dressed in black running toward a burgundy colored car. Ex. A at 4483-84, 4539-42. She later saw Brown at the corner of 59th and Shattuck; he asked her, “What happened? Why is people making our neighborhood hot?” Ex. A at 4485-86. She also testified that she had been in Bosn’s Locker that night. Ex. A at 4503. On cross-examination, the district attorney asked her to describe the bar’s disk jockey, John Evaneski, who had been killed by gunshots that night; she responded, “an older man ... brown skinned with gray hair” and responded affirmatively to the question whether he was black. Ex. A at 4504. In his closing argument, the district attorney pointed out that Evaneski was Caucasian. Ex. A at 4799. Linda Wadsworth testified that she went outside and saw Brown drive up in his Corvette after the shooting, and that Brown stopped her at Whitney and 59th Street and asked her what was happening at the corner. Ex. A at 4383-85. Mary Randolph testified that she began driving south on Shattuck Avenue from Berkeley at approximately 9:15 p.m. and that at approximately 9:30 p.m. saw two or three black men hurriedly come from the area of Bosn’s Locker and get into a dark red car that was stopped in front of the bar, then speed down Shattuck. Ex. A at 4462-67. The prosecution’s closing argument stated that Randolph saw Brown, Barber and a third individual getting into the car after the shooting. However, Brown points out that Randolph’s testimony was that the perpetrators sped southbound on Shat-tuck, the opposite direction from the location where Wadsworth and Angela Brown testified that they saw Brown shortly thereafter. West decided not to present any witnesses who would put Brown in the area of the bar at the second trial. She therefore did not call Angela Brown, Wadsworth or Randolph. Brown’s declaration states that he told her that he disagreed with this strategy. Pet. Ex. N (P. Brown Decl.) ¶¶ 15-16. Brown now argues that this decision was unreasonable because it was made without adequate investigation and because there was no reason to abandon a successful strategy from the first trial. Brown also faults West’s investigation for failing to contact Shirley Birchett, who has filed a declaration stating that she and her son Michael saw Brown in his Corvette a half mile away from Bosn’s Locker on the night of the shooting and that when they later arrived at 59th and Shattuck they saw Brown standing there with Angie Brown. Pet. Ex. U (M. Birchett Decl.) ¶¶ 2-4; Pet. Ex. V (S. Birchett Decl.) ¶¶ 2-6. According to a declaration filed by petitioner’s habeas investigator, Michael Birchett showed the investigator the route that he and his mother drove that night before again encountering Brown, which took approximately two to three minutes to drive. Pet. Ex. W (Koehler Decl.) ¶ 17. Brown further argues' that West could have called Angie Brown again at the second trial, and countered the fact that she had misidentified the race of the disk jockey at Bosn’s Locker by pointing out that Evaneski had light brown skin and that another witness had misidentified Evane-ski as black. Ex. B at 2082. However, as long as counsel’s decision is reasonable, the decision whether to present a particular defense or to call a particular witness at trial generally falls within the realm of tactical choices to which courts should defer. See United States v. Chambers, 918 F.2d 1455, 1461 (9th Cir.1990); Morris v. State of Calif., 966 F.2d 448, 456-57 (9th Cir.1991). Here, the witness testimony that would have established Brown’s presence in the area shortly after the shooting would not have proven that he was not the shooter, and could have been viewed by jurors as incriminating rather than exculpatory. West’s decision to focus on the misidentifi-cation defense and to forego these witnesses was therefore reasonable. 3. Failure to present evidence to impeach Williams’ testimony (Claim 3) Williams was a crucial prosecution witness. Brown argues that defense counsel made insufficient efforts to impeach Williams’ testimony, and suggests that defense counsel might have been influenced by an erroneous belief that Williams’ testimony “helped us more than hurt.” Pet. Ex. M (Young Decl.) ¶ 10 (quoting West); Pet. Ex W (Koehler Decl.) (quoting West). a. Corroboration of Baxter’s testimony As discussed, during his testimony at Brown’s trial, Baxter denied having been present at 59th and Whitney or having seen Brown on the night of the shooting. The district attorney impeached Baxter with questions about his involvement in dealing drugs for Brown, and did not ask Baxter where he was at the time of the shooting or immediately prior. When asked whether she had any questions for Baxter, defense counsel responded, “[a]b-solutely none,” a fact which the district attorney emphasized in closing argument: Absolutely none. No questions of a man who comes in and says her client is his boss, and he sells crack cocaine for him, and the defendant made about three to four thousand dollars for a three month period of time— [interrupted by objection and admonition] This is what I’m saying. This is the reason why he is lying for Paul Brown because he deals drugs for him. That’s precisely the point. But Ms. West has no questions for him, one of the critical witnesses in this whole case, and “I have no questions.” She didn’t try to make him out to be a liar, didn’t try to undermine his credibility, didn’t try to impeach him. Nothing. Does this shed some light as to why Mr. Brown was so interested in some dude in the Bosn’s Locker that night? Who was the intended victim? And we’re going to get to that later. But now you know the reason why Mr. Baxter lied about the ■meeting. He’s covering for his drug-dealing boss. I wonder if they both paid taxes on that money they made. Think about that. Ex. B at 2398-99. Brown contends that defense counsel was ineffective for failing to investigate evidence that would have corroborated Baxter’s version of events and thereby undermined Williams’ critical testimony. Brown further argues that such evidence would have undermined the justification for allowing Baxter to be questioned about his drug business relationship with Brown. Defense counsel does not now remember what her trial strategy was in connection with Baxter. Pet. Ex. J (West Decl.) ¶ 28. Defense investigator Hicks met with Baxter in 1992 and 1993 but did not make any report of his interview; he recalls that Baxter stated that he was not present near Bosn’s Locker on the evening of the shooting as claimed by Williams, but that he did not want to get involved in the case. Ex. 0 (Hicks Decl.) ¶ 12. Hicks billing records do reflect five contacts or attempts to contact Baxter and one attempt to locate “C. Haines,” all of which took place prior to or during the first trial. Pet. Ex. M (Young Decl.) ¶ 11; Pet. Ex. O (Hicks Decl.) ¶ 13. Cheryl Haines, Baxter’s girlfriend, had contacted Sergeant Thiem when Baxter was arrested in connection with the Bosn’s Locker shooting to confirm that she was with Baxter at 744 56th Street on the night of the shooting; this call was recorded in Sergeant Thiem’s log. Pet. Ex. CC (Police log) ¶ 17. In 1998, an investigator for federal habe-as counsel contacted Baxter, who stated that he had been with Haines, Joey Thomas and others on the night of the shooting; that he had been working on Haines’ car all day in her driveway at 744 56th Street with Thomas and a mechanic named Red; and that when he was walking on 56th Street to return some tools he was told about the shooting by Rachelle Spencer. Pet. Ex. BB (Baxter Decl.) ¶¶ 1-4. When the investigator and Baxter located Joey Thomas, he gave the same version of events. Pet. Ex. W (Koehler Decl.) ¶ 10. A week later they located Rachelle Spencer, who signed a declaration confirming that she had seen Baxter on 56th Street shortly after the shooting. Pet. Ex. W (Koehler Decl.) ¶ 11; Pet. Ex. DD (Spencer Decl.) ¶¶ 1-3. It is uncontroverted that the defense investigator made multiple attempts to contact Baxter, and that he stated that he did not want to be involved. Furthermore, there is no evidence that Baxter told defense counsel or her investigator about Spencer or Thomas, or identified how the defense team could have discovered these witnesses. There is no declaration from Haines in the record and so it is not possible to ascertain whether she would have testified to the version of events that she reported to the' police. Similarly, there is no declaration in the record by Thomas, and Spencer’s does not state whether she would have been willing to testify. Because there is evidence in the record that the defense investigator did attempt to contact Haines, and no indication that he was told of Thomas’ or Spencer’s identity or possession of relevant information, this Court concludes that the defense investigation of Baxter’s whereabouts at the time of the shooting was reasonable. Furthermore, defense counsel’s decision not to ask Baxter any questions at trial was a reasonable one, because despite the defense investigator’s attempt to interview him, she did not know what Baxter would say and he had stated his desire not to be involved. b. Presentation of Wadsworth’s testimony At the first trial, the defense called Linda Wadsworth to impeach Williams’ testimony that Williams had been talking to Linda Wadsworth on Faye Jamerson’s porch the night of the shooting. Wads-worth testified that she had been at home asleep until after the shooting at Bosn’s-Locker. Ex. A at 4381-85. However, on cross-examination Williams had referred to the person that she was with as Linda Walker, not Wadsworth, and so the district attorney argued in closing that Linda Wadsworth was the wrong Linda and that her testimony was therefore irrelevant. Ex. A at 3518, 4796-98. Defense counsel did not present any evidence explaining this discrepancy, but in closing she argued, “There is no Linda Walker. Linda Walker is Linda Wadsworth.” Ex. A at 4853-54. Wadsworth was not called as a witness at the second trial. West’s declaration states that she does not remember why Wadsworth was not called. Pet. Ex. J (West Decl.) ¶ 27. Wadsworth has filed a declaration stating that she was available and willing to testify. Pet. Ex. Z (Wads-worth Decl.) ¶ 10. Brown points out that defense counsel could easily have clarified the discrepancy in names. In Sergeant Thiem’s notes of his interview with Williams, Linda “Wallsworth,” with an address of 5918 Whitney (Linda Wadsworth’s address), is listed as one of the three women that Williams was with on the night of the shooting. Pet. Ex. Y (Thiem Notes). Defense counsel’s reference to the misspelling of Wadsworth’s name as “Walls-worth” suggests that she had a copy of these notes. Ex. A at 4381. The government responds that the decision whether to call a particular witness is an unreviewable tactical decision, and that West could have believed that Wads-worth’s testimony would merely have been cumulative, given that she had called Jam-erson and Whitehead to testify. Furthermore, the government argues that Wads-worth’s testimony would have put Brown in the area a the time of the shooting, which the defense had decided to avoid. As discussed above, Williams’ testimony, placing Brown near the scene of the crime before and after the shooting, was central to the prosecution’s case. Moreover, the credibility of each of the other witnesses who attempted to impeach Williams’ testimony, Baxter, Jamerson and Whitehead, had been seriously undermined. Thus, Wadsworth’s testimony might have been particularly useful to impeace Williams’ testimony. The question of whether the failure to present Wadsworth as a witness was or was not a reasonable tactical decision is close. However, even assuming that the failure to call Wads-worth was not a reasonable tactical decision, the Court concludes that Brown has not demonstrated reasonable probability that the result would have been different if Wadsworth had testified Wadsworth’s testimony might have successfully impeached Williams’ testimony that she was on Faye Jamerson’s porch with Wadsworth at some point before the shooting. However, in light of the other evidence presented at trial, including the eye witness testimony and the physical evidence discovered by the police, the Court cannot say that there is a reasonable probability that but for counsel’s failure to present Wadsworth, the result would have been different. 4. Inadequate preparation and presentation of witness testimony Brown contends that defense counsel inadequately prepared Jamerson and Whitehead as witnesses, resulting in major problems in the presentation of their testimony. As discussed earlier. Jamerson’s testimony that she was in Arkansas on the night of the shooting was impeached by the admission of the funeral memorial program, which showed that the service had been held in Texas. Once the court discovered the discrepancy, investigator Olivier contacted Jamerson, who explained that she had traveled to Texas for the funeral and then accompanied her family to Arkansas, where she stayed until March. Pet. Ex. L (Olivier Decl.) ¶ 11; Pet. Ex. EE (Jamerson Decl.) ¶¶ 1-5. Counsel wanted to recall Jamerson to offer this explanation, but Jamerson stated that she was unable to come to court because of a medical condition. Jamerson did not expect the condition to keep her debilitated for long, and was willing to attend court on another day, but Olivier did not ask her about this possibility. Pet. Ex. L (Olivier Decl.) ¶ 12; Pet. Ex. EE (Jamerson Decl.) ¶¶ 10-13. Defense counsel gives the following explanation for deciding not to request a continuance in order to recall Jamerson: [F]irst, as I recall, the jury was returning to court that morning in expectation of hearing final argument. It was felt that the jury might become angry or at least annoyed with the defense for delaying the trial for a witness whose testimony would last at most perhaps a few minutes. Second, we felt it was tactically inadvisable to conclude the trial on a weak note, that is sounding defensive. We believed that the explanation of the conflict could be addressed in argument. Pet. Ex. J (West Decl.) ¶ 19. In his closing argument, the district attorney emphasized the discrepancy in Jamerson’s testimony as illustrating the fear that people in the neighborhood felt about testifying against Brown: Ladies and Gentlemen, Celebrating the Treasured Memories, Foster Whittaker, The Berean Missionary Baptist Church, 11114 Cullen Boulevard, Houston, Texas, 77047 I guess the defense ought to take a remedial brush-up on geography. Now, we prove the funeral was in Texas. I wouldn’t want to walk from Houston to Arkansas. It would take a month to do it. She says a story she was out of town. Why? Because she wants nothing to do with testifying against Paul Brown. Fear, ladies and gentleman. Fear is what it is. Ex. B at 2390-91. See also Ex. BR at 2390-91, 2406-07, 2416-17 (referencing this discrepancy). Defense counsel’s rebuttal suggested possible explanations for the inconsistency: Nothing in this transcript says that she did not go to Texas to the funeral and then on to Arkansas, where she’s from, to stay with her family or whatever.... She knew she was on a trip that month. She was never permitted to explain her exact itinerary. I don’t even care. Maybe she didn’t even remember that the first day was in Texas for the funeral. Maybe she doesn’t even remember. Maybe if she had been permitted to describe the document, she would have explained. But it is absolutely preposterous that she is coming in here because she is afraid and is testifying that she was out of state so that she doesn’t have to testify that she was in the state, standing on her lawn in the rain, talking to this lunatic woman, with people — with Paul Brown and Michael Baxter going up and down the street. Ex. B at 2463-64. Whitehead had testified that she did not see Williams on the night of the shooting. Ex. B at 2237-38. She testified that at approximately 6:00 or 7:00 p.m. she drove to the Greyhound bus station to pick up her grandchildren, who had been on a school outing, at her daughter’s request. Ex. B at 2236-42. She then went to Safeway to pick up a cake for her wedding anniversary and by the time she returned home the street was blocked off with emergency vehicles, forcing her to take a different route. Ex. B at 2237-38. During cross-examination, Whitehead became flustered, gave a confusing account of whether other children were on the bus with her grandchildren, and was unable to think of her grandson’s name. Ex. B at 2243-44. Defense counsel did not ask any questions on redirect or call any witnesses to corroborate Whitehead’s testimony. In his closing, the district attorney questioned the credibility of Whitehead’s account that her younger grandson had gone on a school outing with her older granddaughter, that they both missed the bus, and that a bus full of other children who also must have missed the bus arrived at the bus station but no other adults were there to pick them up. He stated, “we have a woman picking up imaginary kids, she doesn’t know the name of her own grandson, at a Greyhound bus depot,” and argued that this was “[p]ure and simple testimony of one who certainly doesn’t want to be involved with the defendant Paul Brown.” Ex. B at 2383-89, 2404-07. In an interview with present habeas counsel and investigator, West stated that she did not call any family members to corroborate this testimony because they “would have made it worse.” Pet. Ex. W (Koehler Decl.) ¶ 6. Brown faults defense counsel for failing to adequately prepare Jamerson for her testimony, so that the discrepancy could have been explained while she was on the stand, and for failing to examine the funeral program before offering it into evidence. Defense counsel’s declaration states that her investigator examined the program, and that she was unaware that the location printed on the program was inconsistent with Jamerson’s testimony until the Court informed her of this fact; she further claims to have spoken with every defense witness prior to his or her testimony. Pet. Ex. J (West Decl.), ¶¶ 17, 24. Both the defense investigator and Jamerson have filed declarations stating that defense counsel did not speak with Jamerson before her testimony at the second trial. Pet. Ex. EE (Jamerson Deck), ¶ 8; Pet. Ex. L (Olivier Deck), ¶¶ 8-9. Brown also argues that counsel inadequately prepared Whitehead and failed to rehabilitate her testimony. Finally, he points out that if Wadsworth had been called as a witness she could have corroborated Whitehead’s testimony not only by denying having had a conversation with Williams that evening but also by stating that Whitehead called her to tell her that something was going on up at the corner and that they met on the corner of 59th and Whitney. The government argues that because Jamerson had testified without impeachment at the first trial defense counsel had no reason to be concerned about discrepancies in her testimony or to realize that she should closely examine the funeral program. Furthermore, the government points out that defense counsel attempted to cure the error by recalling Jamerson, but her illness and defense counsel’s desire to avoid annoying the jury prevented her from doing so. Although the decision not to delay the trial in order to recall Jamerson was a reasonable one that was based on strategic considerations, the damage done to the defense by the discrepancy between Jamerson’s testimony and the funeral program was significant, and the prosecutor relied on this discrepancy as strong evidence for his contention that defense witnesses were fabricating their testimony because of their fear of the defendant. Whether the fault rests with the defense investigator or with defense counsel, the failure to examine the funeral program before offering into evidence fell below an objective standard of reasonableness. The Court cannot reach the same conclusion regarding Whitehead’s testimony. It is not necessarily within defense counsel’s control to prevent a witness from falling apart on cross-examination or to predict that she will do so and therefore refrain from calling her, and there is no evidence that counsel’s performance was deficient other than the fact that Whitehead performed poorly on cross-examination. However, viewing the failure to examine the funeral program before offering it into evidence in light of the other evidence presented at trial, including the eye witness testimony and the physical evidence discovered by the police and defense counsel’s efforts to explain the discrepancy between Jamerson’s testimony and the funeral program, the Court cannot say that there is a reasonable probability that but for counsel’s failure to examine the funeral program the result would have been different. 5. Inadequate impeachment of eyewitness testimony At both trials, defense counsel’s theory was that Brown had been misidentified by witnesses in the bar. At the first trial, counsel called Dr. Lee Coleman as an expert witness to testify about the effect of dreams on memory. His testimony was undermined by the district attorney’s cross-examination. Defense counsel did not call Coleman or any other expert on eyewitness testimony at the second trial. She has explained that “[t]his was a tactical decision agreed upon by Mr. Braver-man and me,” that she has found that juries are not favorably disposed toward expert testimony about common sense issues such as eyewitness identification, and that the prosecution often calls a counter-expert. Pet. Ex. J (West Decl.), ¶¶ 22; Pet. Ex. M (Young Decl.), ¶ 8. Furthermore, after the first trial, the jurors had told West “that they rejected Dr. Coleman’s testimony.” Pet. Ex. J (West Decl.), ¶ 22. Brown has submitted a declaration by Robert Shomer, an expert in the field of eyewitness testimony, which discusses at length the various problems with the witnesses’ identification of Brown and advances the “strong opinion” that an expert in eyewitness identification should have been used and characterizing the identifications of Brown as “two very unusual and somewhat bizarre identifications.” Ex. FF (Shomer Decl.), at 3. Brown also generally complains that defense counsel inadequately impeached these witnesses’ testimony, and urges the Court to compare her cross-examination of these witnesses with the factors identified by Shomer. However, as the government points out, West’s decision not to call an expert in the field of eyewitness identification was a tactical one that fell within the range of reasonable choices. See United States v. Labansat, 94 F.3d 527, 530 (9th Cir.1996) (reasonable counsel would not necessarily have hired eyewitness identification expert); United States v. Brewer, 783 F.2d 841, 843 (9th Cir.1986) (no prejudice resulted from failure to appoint eyewitness expert because cross-examination’ is usually effective to expose weaknesses in identification). Furthermore, counsel cross-examined the witnesses about prior inconsistencies and emphasized each of the specific problems with their identification of Brown in her closing argument, rendering her performance adequate under the Sixth Amendment. B. Evidentiary Errors The prosecution’s theory of motive was that Brown had committed the shooting as retaliation for an earlier shooting at the house of Barber’s grandfather, where Barber lived. The theory was that the shooting at Barber’s grandfather’s had been carried out by a drug gang, of which Mark Norman was a primary customer, that was engaged in a turf battle with Brown and Barber’s drug gang. Mark’s brother, Patrick, was inside Bosn’s Locker at the time of the shooting and was injured by gunshots, and the prosecution believed that he was the “dude sitting in the bar” to which Barber had referred. At the first trial, the prosecution sought to introduce evidence to support this theory. Pet. Ex. A at 9. However, the trial court ruled that this evidence was inadmissible because there was no foundation for the speculative theory of retaliation. Ex. A 1109; Ex. B at 1607-08. The trial court adhered to this ruling in the second trial despite two motions to reconsider. Ex. B 1608, 1614-15. Brown contends that despite this ruling the prosecution introduced and commented on evidence of Brown’s involvement in drug dealing. A person in custody pursuant to the judgment of a state court can obtain a federal writ of habeas corpus only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). The admission of evidence is therefore not subject to federal habeas review unless a specific constitutional guarantee is violated or the error is of such magnitude that the result is a denial of the fundamentally fair trial guaranteed by due process. See Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir.1999); Colley v. Sumner, 784 F.2d 984, 990 (9th Cir.1986). The due process inquiry in federal habeas review is whether the admission of evidence was arbitrary or-so prejudicial that it rendered the trial fundamentally unfair. See Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir.1995). Only if there are no permissible inferences that the jury may draw from the evidence, can its admission violate due process. See Jammal, 926 F.2d at 920. Juries are presumed to follow a court’s limiting instructions with respect to the purposes for which evidence is admitted. See Aguilar v. Alexander, 125 F.3d 815, 820 (9th Cir.1997). Extreme situations may arise, however, that defeat this presumption, when the instructions given will not be sufficient to overcome the prejudice from improperly admitted evidence. See id. 1. Impeachment of Michael Baxter with drug gang evidence The court allowed Michael Baxter to testify over defense objections. During his testimony. Baxter testified that he had not had the conversation with Brown that Williams claimed to have witnessed. The prosecutor then asked Baxter whether he had dealt drugs for Brown, to which Baxter responded affirmatively. Ex. B at 1916. After the defense objected, the court gave an instruction that the evidence of drug dealing was to be considered only for its relevance to Baxter’s credibility. Id. Over defense objections, the prosecution elicited Baxter’s admissions that he had earned a few hundred dollars for himself and thousands of dollars for Brown over a three month period of dealing cocaine for Brown. Ex. B at 1916-18. The court gave another limiting instruction. Id. at 1919. The prosecution exploited this evidence in his closing argument, referring to Baxter as “[t]his crack cocaine dealer for Paul Brown.” Ex. B at 2378. The prosecution argued that Baxter lied in his testimony because “[h]e works for the defendant, pure and simple ... Brown is the boss, crack dealer of Mr. Baxter.” Ex. B 2479. The prosecution also argued that Brown had considered the murder charges against him “no big deal” because he was “Mr. Big Drug Dealer on the streets” and therefore was not afraid of anybody or anything. Id. at 2380. Brown argues that the prosecution called Baxter to testify, despite its knowledge that his testimony would not support the prosecution, in order to offer otherwise inadmissible impeachment evidence. Brown argues that the trial court erred in allowing the prosecution to call Baxter as a witness, over defense objections, and then allowing him to be impeached with evidence of his involvement with Brown in drug dealing. He points to a decision by the Ninth Circuit, which interpreted federal evidence law to establish a rule that, although a party may impeach its own witness, “the government must not knowingly elicit testimony from a witness in order to impeach him with otherwise inadmissible testimony.” United States v. Gomez-Gallardo, 915 F.2d 553, 555 (9th Cir. 1990). In evaluating the reason why a witness was called, the reviewing court must “determine whether the government examined the witness for the primary purpose of placing before the jury substantive evidence which is not otherwise admissible.” Id. (emphasis in original). The California Court of Appeal concluded that the prosecution had a legitimate purpose in calling Baxter: “namely, to prevent the jury from speculating why the prosecution did not call Baxter when he was obviously such an important figure in Gwendolyn Williams’s testimony.” Pet. Ex. A at 14-15. It therefore found that the primary purpose of calling him was not to impeach his testimony and introduce otherwise inadmissible evidence. As the government points out, decisions like Gomez-Gallardo interpreting error under the Federal Rules of Evidence on direct review do not necessarily establish constitutional rules that must be followed in state court proceedings. Accordingly, “habeas relief is available for wrongly admitted evidence only when the questioned evidence renders the trial so fundamentally unfair as to violate federal due process.” See Jeffries v. Blodgett, 5 F.3d 1180, 1192 (9th Cir.1993), cert. denied, 510 U.S. 1191, 114 S.Ct. 1294, 127 L.Ed.2d 647 (1994). Moreover, “where evidence introduced by the prosecution [raises] more than one inference, some permissible, some not, we must rely on the jury to sort them out in light of the court’s instructions. Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must be of such quality as necessarily prevents a fair trial.” Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir.1991) (quotation omitted). Here the Court of Appeal found that the evidence was admissible, and primarily admitted, for the purpose of impeaching Baxter who was according to Williams, a crucial alleged witness. The trial court also repeatedly instructed the jury that the evidence about Baxter and Brown’s drug dealings could be used only to evaluate Baxter’s credibility. In these circumstances, the Court cannot say admission of the evidence rendered the trial so fundamentally unfair as to violate federal due process. 2. Officer Blackwell’s testimony about Mark Norman’s drug involvement On redirect, the prosecution elicited from Officer Charles Blackwell, who had been present at the bar prior to the shooting, that he knew of Mark Norman’s involvement in drug dealing in the neighborhood. Ex. B at 1833. Defense counsel sought permission to approach the bench and, outside the presence of the jury, objected to that line of questioning. Her objection was essentially sustained by the Court, but defense counsel did not make a motion to strike the inadmissible testimony at the time. Ex. B at 1837. After the defense rested, the prosecution revisited the issue of Officer Blackwell’s testimony and pointed out that his answer had been recorded and not stricken. Defense counsel informed the court that she had not heard the answer, and the court stated that it would consider striking the answer in the event that the jury requested that the testimony be read back. Ex. B at 2367-68; Pet Ex. A at 16-17. The court also reminded the prosecutor that he was precluded from arguing that Mark Norman was a drug dealer or that Brown was a drug dealer, except for the limited purpose related to Baxter’s impeachment. Ex. B at 2368-69. When the jury did request such a read back, defense counsel made a motion to strike, which the trial court denied. Ex. B at 2533-34. During closing argument, the prosecutor relied on this evidence to argue that Patrick Norman Mark Norman’s brother, was the “dude” in the bar to