Hoover v. Carey (508 F. Supp. 2d 775, 2007)

ORDER GRANTING A WRIT OF HABEAS CORPUS

LARSON, Chief United States Magistrate Judge.

I. Factual and Procedural Background

A. Court of Appeal Decision and Findings of Fact

Crossan David Hoover, Jr. was convicted June 22, 1984 of first degree murder, with use of a deadly weapon. Five days after his conviction, the jury found him to be legally sane. The California Court of Appeal, King, J., affirmed his conviction and the California Supreme Court denied review. The court of appeal found the facts to be as follows:

“The killing occurred within the context of a bizarre conspiracy, led by Mark Richards, for a paramilitary takeover of Marin County and creation of a modern-day Camelot with Richards as King Arthur and his crew of teenaged construction workers as his knights. Richards, a 29-year-old contractor, employed a number of teenagers, including 17-year-old Hoover. In regular meetings, Richards promoted his plan to isolate Marin County by destroying the Golden Gate and Richmond-San Rafael bridges and to defend the new kingdom through the use of laser guns placed on Angel Island and Mt. Tamalpais. The conspiracy was called Pendragon.

“Richards developed financial difficulties in mid-1982. He decided to kill his friend Richard Baldwin in order to obtain money. Baldwin was known to carry large amounts of cash.

“After failing in an attempt to solicit two of his followers to kill Baldwin, Richards turned to Hoover and another teenaged employee, Andrew Campbell. He told them Baldwin owed him money and was a “Nazi” and a “faggot,” and it “would be a service to the public to get rid of such a menace.” The two agreed to participate in the killing in exchange for a share in the proceeds from the sale of property to be taken from Baldwin’s house, as well as lodging in a remodeled portion of Richards’ house. Hoover later stated he had expected to receive $5,000, a car, and a place to live.

“On July 6,1982, Richards drove Hoover and Andrew to Baldwin’s house to work on a construction job there. In the afternoon, pursuant to a plan devised by Richards, he asked Baldwin to show him and Hoover classic cars located in Baldwin’s auto shop. The three left around 2 p.m. in Richards’ truck. Andrew stayed behind and searched the house.

“At the shop, upon a prearranged signal from Richards, Hoover struck Baldwin on the head with a baseball bat. Hoover then stabbed Baldwin in the head with a screwdriver and in the chest with a chisel.

“Richards and Hoover returned to Baldwin’s house. With Andrew, they took $3,000 in cash and various other items from the house, including guns and marijuana. Later that day Richards bought a boat, using Baldwin’s’ money to make a down payment, he and the two teenagers retrieved Baldwin’s body from the auto shop and used the boat to dump the body in San Francisco Bay.

“Over the next few days Hoover admitted the killing to several persons. Baldwin’s body was found on July 13. The next day the Marin County Sheriffs Department received an anonymous telephone call which led to the arrest of Hoover and Richards on July 16.” People v. Hoover, 187 Cal.App.3d 1074, 1078, 231 Cal.Rptr. 203 (1986), rev. denied February 25, 1987.

The judgment was affirmed on appeal and the California Supreme Court denied state habeas relief, although arguably not on all claims contained in this federal ha-beas petition.

B. Habeas Petition

Hoover filed, pro se, a petition for writ of habeas corpus on October 14, 1999. The parties consented to this Court’s jurisdiction pursuant to 28 U.S.C. § 636(c) and Civil Local Rule 73. Respondent moved to dismiss, as the petition was filed after the expiration of the one-year limitation period set forth in 28 U.S.C. § 2244(d). This Court in its order filed September 26, 2002 (Docket Number 21) held that Hoover was entitled to equitable tolling, and also to appointed counsel, if he qualified financially, due to the complex procedural and legal issues of the case, as well as Hoover’s limited education and possible learning disabilities.

This Court concluded that equitable tolling was warranted based on Hoover’s lack of access to his case files or to the trial record between April 1996 and the summer of 1998. His attorneys had ignored his pleas for his files and the records at the Marin County Courthouse had been destroyed in a flood and had to be reconstructed from microfiche.

This Court, therefore, unconditionally rejected Respondent’s motion to dismiss the petition on the grounds of untimeliness and directed Hoover to prepare and submit a Financial Affidavit to verify his eligibility for appointed counsel.

Respondent did not appeal the Court’s denial of its motion to dismiss Hoover’s petition as untimely.

C. Mbtion to Strike

Initially the case was referred to the Federal Public Defender to represent Hoover but panel counsel was appointed September 24, 2003 and began reviewing the voluminous file. Hoover’s appointed counsel filed an amended petition on July 13, 2005. The petition raised several claims that had not been raised in the original petition. Respondent moved to strike those claims as untimely and not relating back to the original petition.

The Court by its order of December 12, 2005 struck from the amended petition Hoover’s claim of ineffective assistance of counsel for failure to plea bargain and for failure to appeal the trial court’s denial of a motion for a change of venue and for the trial court’s failure to hold a hearing on a juror’s fitness to deliberate or to seat an alternate juror during the sanity phase of his trial. The Court struck all these claims based on their not relating back to exhausted claims in the original petition. The Court issued an order to show cause.

Respondent filed an answer and supporting exhibits June 20, 2006. Hoover filed a Traverse September 11, 2006. After a status conference in early 2007 the parties briefed issues for an evidentiary hearing. The Court conducted a hearing on April 30, 2007. The parties argued their respective positions but presented no new evidence.

D. Amended Petition

Hoover was able to maintain the following cognizable claims: 1) the State violated his due process rights by giving an incorrect jury instruction on sanity; 2) Hoover received ineffective assistance of counsel because his attorney failed to object to the prosecution’s inconsistent theories and manipulation of the prosecution expert’s testimony. 3) the State violated his due process rights by using inconsistent theories in the successive trials of Hoover and his co-defendant Richards; and 4) the State violated his due process rights by withholding evidence from its expert witness to manipulate the expert’s testimony.

II. Standard of Review

A. Generally

This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

The writ may not be granted with respect to any claim that was addressed on the merits in state court unless the state court’s adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). The court must presume correct any determination of a factual issue made by a state court unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.2003). While circuit law may be “persuasive authority” for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court’s holdings are binding on the state courts and only those holdings need be “reasonably” applied. Clark, 331 F.3d at 1069.

Furthermore, habeas relief is available where the state court of appeal fact-finding is unreasonable, by clear and convincing evidence. A “determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). The “presumption of correctness is equally applicable when a state appellate court, as opposed to a state trial court, makes the finding of fact.” Sumner v. Mata, 455 U.S. 591, 592-593, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982); Norton v. Spencer, 351 F.3d 1, 6 (1st Cir.2003).

Clear and convincing evidence is evidence which produces in the mind of the trier of fact an abiding conviction that the truth of a factual contention is “highly probable.” Colorado v. New Mexico, 467 U.S. 310, 316, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984). Only after a petitioner successfully rebuts the presumption of correctness by clear and convincing evidence may the court determine if the resulting decision was based on an unreasonable determination of the facts. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Therefore, it is possible that a state court finding is incorrect but not unreasonable.

B. Application to this case

1. Jury Instruction — If the state court disposed of a constitutional error as harmless under an appropriate standard of review, federal courts must, for purposes of application of the “unreasonable application” clause of § 2254(d)(1), first determine whether the state court’s harmless error analysis was objectively unreasonable. Medina v. Homung, 386 F.3d 872, 878 (9th Cir. 2004). If the federal court determines that the state court’s harmless error analysis was objectively unreasonable, and thus an unreasonable application of clearly established federal law, the federal court then proceeds to the Brecht analysis. Id. at 877. Analysis under the “contrary to” clause of § 2254(d)(1) is not affected by this rule. Id.

2. Ineffective Assistance of Counsel — Subject to the general standard.

3. Inconsistent theories — Prosecutorial misconduct is cognizable in federal habeas corpus. The appropriate standard of review is the narrow one of due process and not the broad exercise of supervisory power. See Darden v. Wainwright, 477 U.S. 168,181,106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).

4. False evidence — Hoover did not raise this issue on direct appeal but did present it in his state habeas petition. The California Supreme Court denied relief. (Exhibit 8 to Answer to Amended Petition). The state court order cited five California Supreme Court decisions, all of which relate to state procedural defaults, and it is arguable that the Supreme Court did not reach the merits of this claim. In such cases the deference standard of § 2254(d) does not apply and the federal court on the habeas petition conducts a de novo review. Pir-tle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.2002); Menendez v. Terhune, 422 F.3d 1012,1026 (9th Cir.2005).

III. Claims and Analysis

A. The State violated Hoover’s due process rights by giving an incorrect jury instruction on sanity; error was not harmless — jury was reasonably likely to have reached a different result had it been given the correct instruction; state court decision was based on an unreasonable construction of the facts.

Hoover argues that the jury instructions given on the issue of insanity were incorrect and deprived him of a fair trial. The jury found he was legally sane at the time of the commission of the crime (RT: 2821).

1. Incorrect Insanity Instruction under Skinner

The trial court gave this instruction (CALJIC 4.0):

“A person is legally insane when by reason of mental distress (sic) or illness he was incapable of knowing or understanding the nature and quality of his act and incapable of distinguishing right from wrong at the time of the commission of the offense.” (RT: 2790:27-28-2791:1-3)

In addition, the written instruction was sent into the jury room during deliberation:

“A person is legally insane when [by reason of mental disease or mental defect] he was incapable of knowing or understanding the nature and quality of his act and incapable of distinguishing right from wrong at the time of the commission of the offense.” (CT: 457; CT: 463-465)

A jury instruction may be incorrect under state law and yet not a basis for habeas relief. Estelle v. McGuire, 502 U.S. 62, 71, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). The only question for the federal court is “whether the ailing instruction itself so infected the entire trial that the resulting conviction violates due process.’ ” Id. at 72, 112 S.Ct. 475 (quoting Cupp v. Naughten, 414 U.S. 141, 146-147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)). The definition of an insanity defense is therefore a state-level decision, but is reviewed within the outline of the Constitution. Leland v. State of Oregon 343 U.S. 790, 801, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952).

California voters adopted an insanity defense through Proposition 8 in 1982, incorporated as California Penal Code § 25(b). The voter initiative reinstated a two-prong M’Naghten test for insanity: “[T]his defense shall be found only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong.” Cal.Pen.Code § 25(b). This standard was characterized by some as the “drooling idiot” or “wild beast” criterion for insanity, that a defendant must have sunk to the level of an infant or an insentient animal to be found legally insane.

The California Supreme Court later held that the conjunctive test, in which both prongs of the test must be proved by a preponderance of the evidence, was not the electorate’s intent, and held that the test should be used disjunctively, such that a defendant need only prove one of the prongs. People v. Skinner, 39 Cal.3d 765, 777, 217 Cal.Rptr. 685, 704 P.2d 752 (1985). The court held that the conjunctive test would have returned the insanity defense to the days when an accused could be found insane only if he was “ ‘totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast.’ ” Id. (quoting Rex v. Arnold, 16 Howell St. Tr. 695, 765 (1724)).

The statutory, conjunctive definition of insanity was in effect at the time of Hoover’s trial, but Skinner had been decided by the time of his direct appeal. The instruction was correct as a matter of law at the time it was given, but the court of appeal considered Hoover’s claim of prejudice due to the jury instruction on insanity. The court reasoned that reversal on the insanity issue is required only if it is reasonably probable that a finding of insanity would have been made absent the error. People v. Leever (1985) 173 Cal.App.3d 853, 869, 219 Cal.Rptr. 581; People v. Wat son (1956) 46 Cal.2d 818, 836, 299 P.2d 243, cert. denied in Watson v. Tests, 355 U.S. 846, 78 S.Ct. 70, 2 L.Ed.2d 55 (1957).

The court of appeal noted that both the Attorney General and Hoover agreed that the test in Watson applied. That is: “[t]hat a ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” Id.

In Hoover’s case the court of appeal relied on something Hoover told a clinical psychologist in September 1982, two months after the killing:

“It was like [Richards] was coaching me. He would listen to what I said and push me on. When I was with Baldwin, I kept thinking this is the guy standing between me and the money. It made me excited. I thought about guns I could buy and all the other stuff. I knew it was wrong, but I didn’t give a shit. Did you ever think of getting $5,000? Did you ever think of wanting to be with your mother? My mother could come back to Marin County. I could have my own room so I wouldn’t have to look at her all the time. Oh, man. I was just thinking of how happy I’d be, how much love I would get, how many things I’d have.” (Emphasis added)

People v. Hoover, 187 Cal.App.3d at 1082, 231 Cal.Rptr. 203.

The court of appeal concluded, “This admission of contemporaneous knowledge of wrongfulness clearly demonstrates Hoover was capable of distinguishing right from wrong at the time of the killing, and the prosecutor made it a fundamental part of his closing argument on the insanity issue.” Id.

The court of appeal characterized a defense expert as “equivocal on the ‘right from wrong’ issue.” Id.

“When defense counsel first asked whether Hoover was capable of distinguishing right from wrong at the time of the killing, the witness answered only that ‘I’m not sure I could answer that except to say that he — what he was doing, he felt, was right. He had been conditioned for that.’ When counsel repeated the question the witness answered, ‘Well, I’m sure he wasn’t even thinking of that at the time of the act.’ This was followed shortly by the following colloquy: [The witness] ‘I’m of the opinion that he was conditioned not to be thinking about those sorts of things. That he was conditioned to feel at a gut level that what he was doing was necessary.’ [Defense counsel] ‘So based upon that conditioning, would it be your answer to the question that he did not know that he was doing was wrong?’ [The witness] ‘Under those circumstances, yes.’ (Emphasis added.) On cross-examination, when confronted with Hoover’s prior admission that T knew it was wrong, but I didn’t give a shit,’ the witness never denied that the statement indicated contemporaneous awareness of wrongfulness, but simply emphasized the part of Hoover’s statement that referred to coaching by Richards.

“Thus the defense expert never asserted unequivocally that Hoover was incapable of distinguishing right from wrong at the time of the killing. The witness was unequivocal only to the extent he asserted Hoover was ‘conditioned’ not to think about right and wrong but instead to feel that the killing was ‘necessary.’ The expert’s single assertion of unawareness of wrongfulness was qualified by the phrase ‘under those circumstances,’ apparently referring to such conditioning. This was not an assertion of incapability of distinguishing right from wrong, but simply one of conditioning not to think about it. Id. at 208 The court rejects the defense expert’s testimony as equivocal, especially in light of Hoover’s statements demonstrating “contemporaneous awareness of wrongfulness,” concluding that “it is not reasonably probable the jury found Hoover was incapable of distinguishing right from wrong at the time of the killing. The instructional error was harmless.” Id.

The court of appeal analyzed only the second prong of the M’Naghten test— whether Hoover knew right from wrong. The court glossed over the question whether he failed to appreciate the nature and quality of his actions by summarily dismissing testimony that he was temporarily psychotic, delusional and hallucinating at the time of the killing.

The court of appeal found that the only issue on appeal was whether it was reasonably probable the jury found Hoover was incapable of distinguishing right from wrong at the time of the killing. The court cited the following reasoning in Leever. “First, had the jurors been persuaded that [defendant] did not know the nature and quality of his act ..., the instruction [requiring both elements] would have been harmless as a matter of law, for ‘a person who is unaware of the nature and quality of his act by definition cannot know that the act is wrong. In this circumstance the ‘nature and quality’ prong subsumes the ‘right and wrong’ prong. Thus the only potential harm in the instruction would be the converse situation — that is, if they found that he did not know his act was wrong but nevertheless found him sane because they believed that he knew the nature and quality of his act.” 173 Cal. App.3d at 869, 219 Cal.Rptr. 581 (internal citations omitted)

2. Error was not harmless

If the state court disposed of a constitutional error as harmless under an appropriate standard of review, federal courts must, for purposes of application of the “unreasonable application” clause of § 2254(d)(1), first determine whether the state court’s harmless error analysis was objectively unreasonable. Medina v. Hornung, 386 F.3d 872, 878 (9th Cir.2004). If the federal court determines that the state court’s harmless error analysis was objectively unreasonable, and thus an unreasonable application of clearly established federal law, the federal court then proceeds to the Brecht analysis. Id. at 877. Analysis under the “contrary to” clause of § 2254(d)(1) is not affected by this rule. Id.

The court of appeal concluded that the jury was unlikely to have found Hoover to be legally insane, despite the improper instruction, due to the evidence that he knew right from wrong. The court of appeal found the improper jury instruction harmless because the weight of evidence in favor of Hoover’s sanity was so great. Accordingly, the court of appeal found the conjunctive instruction was not prejudicial and therefore the error was harmless.

This is deeply troubling, in light of the evidence of Crossan Hoover’s psychological turmoil before the killing, the influence of Richards and the Pendragon fantasy over him, and the stark evidence of his disconnection from reality at the time of the killing itself.

Hoover’s ability to orient to reality had been a long-term struggle, interspersed with psychotic and violent outbursts, hallucinations, and suicidal introversion, culminating in an attachment to a manipulative cult leader promising escape from a world of disillusionment. By 1981, two years before Baldwin’s death, Hoover’s sixteen-year life history had formed a pattern Dr. Marian Saunders, his school psychologist, recognized and anticipated would lead to disaster. Michael Bodkin, for seven years a youth counselor, confirmed emotional encounters with this ‘unsophisticated’ Bay Area teenager; he expressed deep concern to Marian Saunders and the Probation Department supervisor, describing Crossan Hoover as “one of the most disturbed kids” he had ever seen. (Appellant’s Opening Brief: 39-42; 36:11-12)

Hoover’s own account of the killing is chilling evidence that he was out of touch with reality when he killed Baldwin. He testified that Baldwin continued to talk to him, after he struck him in the head with a baseball bat. So he hit him again. And again. And again — four times in all. Then he stabbed him in the chest with a chisel and in the eye with a screwdriver. In fact, Dr. Harold Brazil, the state’s pathologist, testified that his autopsy revealed only a single blow to the head, the probable cause of Baldwin’s death. RT: 438-440; 457-458; CT: 18; See RB 16, fn. 7; 7:16-17). Significantly, given Hoover’s testimony that he stabbed Baldwin in the eye with a screwdriver, and that Baldwin continued to talk after the blow to the head, Dr. Brazil stressed that there were no detectable signs of trauma to the face or eyes, which would have been discernible during his examination of the body. (RT: 457-460; CT: 24) It simply didn’t happen the way Hoover described it.

This evidence undermines the first prong of the M’Naghten test because it presents “serious challenge” to the notion that Hoover had the mental capacity to form specific intent — how could he if he was unable to appreciate the nature and quality of his act? Respondent contends that Hoover struck Baldwin several times with the bat. Presumably this inference relies on what Hoover told Dr. Ramon Rodriguez, that he hit Baldwin a number of times with the baseball bat because Baldwin kept talking to him after the first blow; he said he then stuck a screwdriver into Baldwin’s eyes to pierce his brain, presumably to stem the flow of words. (RT: 2264-2265) Hoover’s recollection of Baldwin’s injuries does not jibe with Dr. Brazil’s autopsy report. ( RT: 438-440; 457-460).

Dr. Rodriguez and Dr. Gould both raised the specter of hallucinations at work. Hoover could have entered into a transient psychotic state as he delivered the fatal blow to Baldwin upon Richards’ command, hallucinating what was happening, rather than perceiving it accurately. (RT: 2264-2266). Even though Hoover may have discussed the plan to murder Baldwin before and after it occurred, it is far from certain that he appreciated the nature and quality of his actions as they were happening. (Ex. 2 to Respondent’s Exhibits in Support of Answer to Amended Petition — Respondent’s Brief on Appeal: 13, 24; Cf., Ex. 1 to Respondent’s Exhibits in Support of Answer to Amended Petition — Appellant’s Opening Brief on Appeal: 41)

Neither Dr. Gould nor Dr. French rendered an opinion at the sanity phase as to whether Hoover was capable of appreciating the nature and quality of his act, or if he could distinguish right from wrong at the time of the killing. Dr. Gould did testify that Hoover lacked “an appreciation of what was happening.” (RT: 1948:25-26) Nevertheless, the defense’s objection to his ultimate opinion on Hoover’s sanity was overruled. (RT: 1949), and Dr. Bueh-ler offered his opinion, uneducated as to Pendragon, in rebuttal. (RT: 2422) Labels to fit Hoover’s psychological spectrum of problems are severe enough to explain the inconsistencies in the mental health professionals’ conclusions about him. All considered him to be deeply troubled. Even Dr. Buehler admitted that his opinion might have been entirely different had he fully considered the impact on Hoover of his entanglement with Mark Richards and with Pendragon. Amended Petition 51:17-22; RT: 2483:2-3.

Hoover believed he was obliged to kill Baldwin out of loyalty to Richards and his duty as a believer in the Pendragon cult. If a defendant is compelled by psychological infirmity to believe that he or she is “ordained [to] the commission of a crime, we think it cannot be said of the offender that he knows the act to be wrong.” People v. Skinner, 39 Cal.3d 765, 783, 217 Cal.Rptr. 685, 704 P.2d 752 (1985).

In that case Jesse Skinner believed God had instructed him to kill his former wife because He had commanded “the marriage vow ‘til death do us part’ bestows on a marital partner a God-given right to kill the other partner who has violated or was inclined to violate the marital vows.” People v. Skinner, 39 Cal.3d 765, 770, 217 Cal.Rptr. 685, 704 P.2d 752. Even a homicidal act based upon such a belief must be judged legally void as the product of a mind incapable of distinguishing moral right from wrong. Id., at 783, 217 Cal. Rptr. 685, 704 P.2d 752. For the same reason, if Crossan Hoover believed his act was justified because, through a combination of severe psychological pressures, he perceived Pendragon as a viable means to free himself, a jury could reasonably conclude that he did not have the moral capacity to appreciate the moral wrong of taking another’s life in pursuit of those needs.

Given the testimony by Dr. Rodriguez that Hoover did not appreciate the nature of what happened and Dr. Buehler’s admission that he would likely have testified differently, had he known about Pendra-gon and of Mark Richards’ influence over Hoover, it is reasonably probable that the jury would not have found Hoover legally sane if the defective instruction hadn’t been given. It is reasonably probable, absent the error of the ‘drooling idiot’ or ‘wild beast’ instruction, and without the distortion in the weight of the evidence caused by the prosecution’s withholding evidence from Dr. Buehler, the jury would have reached a different verdict on Hoover’s sanity.

3. Conclusion that error was harmless was based on an unreasonable construction of the facts

The court of appeal set out two key factors which it believed to demonstrate an absence of prejudice of the improper jury instruction on insanity: (1) Hoover’s own comments several months after the killing, indicating an awareness at the time of the killing that the act was wrong, and (2) the equivocal nature of testimony by the only defense expert to testify on the sanity issue.

This Court disagrees and finds that this conclusion is founded on an unreasonable construction of the facts. 28 U.S.C. § 2254(d)(2). The conclusion that the erroneous instruction was harmless rested on two factual premises: first, that Hoover’s comments several months after the killing in fact reflected his awareness at the time of the killing that his acts were wrong; and second, that only a single defense expert, Dr. Roman Rodriguez, opined on the sanity issue and that his testimony was equivocal on that point. People v. Hoover, 187 Cal.App.3d 1074, 1080, 231 CaLRptr. 203 (1986). These findings are not supported by a fair reading of the record.

A state court’s determination of a factual issue is entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). See Rushen v. Spain, 464 U.S. 114, 120, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983). Federal courts must defer to state court factual findings “in the absence of ‘convincing evidence’ to the contrary,” ... and may set them aside only if they “lac[k] even ‘fair support’ in the record.” Marshall v. Lonberger, 459 U.S. 422, 432, n. 8, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983); Wiggins v. Smith, 539 U.S. 510, 528, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (petitioner has the burden of overcoming the presumption of correctness by clear and convincing evidence.) This stringent standard is met here.

The state court’s findings reflect an improper and prejudicial selectivity. In the first place, the analysis ignored the overwhelming evidence of legal insanity that was presented throughout the entire trial, focusing instead on only two pieces of testimony in isolation from the rest. To avoid needless repetition, the parties had agreed and the trial court concurred that the jury at the sanity stage should be instructed to consider all of the evidence introduced at both phases of the trial. ( RT: 2265-2267). Defense counsel’s opening statement in the sanity phase stressed the importance to the jury of considering all of the evidence in the case. In closing, both sides relied, without distinction, on evidence presented at both stages of the trial. On appeal, however, the court disregarded virtually all the testimony adduced by the defense at the guilt phase. As a result, the court substantially overstated the significance of one of the many post-offense statements Hoover made, and grossly underrated Dr. Rodriguez’ confidence in his opinion that Hoover was legally insane.

The court placed the greatest emphasis on one of Hoover’s statements to a clinical psychologist in September, 1982. In describing the circumstances leading to the killing, Hoover stated, “It was like [Richards] was coaching me. He would listen to what I said and push me on. When I was with Baldwin, I thought about the money. It made me excited. I thought about the guns I could buy and all that stuff. I knew it was wrong, but I didn’t give a shit .... Oh, man, I was just thinking how happy I’d be, how much love I would get, how many things I’d have.” (Emphasis added.) The court treated this statement as a conclusive admission that Hoover knew right from wrong at the time of the killing.

That, however, was not the conclusion drawn by Dr. French, the clinical psychologist who conducted the interview. (Petitioner’s Supplemental Exhibit F.) Indeed, Dr. French’s notation immediately after the quoted statement was: “As these verbatim quotes suggest, Crossan became almost psychotic at this point in the interview.” (Petitioner’s Supplemental. Exhibit F, 6) (emphasis added).

The statement selected by the court was only one of the many emotionally-charged revelations made to Dr. French during that six-hour examination. Dr. French observed that, “Whenever he discussed Richards, Pendragon, or the murder, a torrent of loosely associated themes would pour from his mouth. Violence, homosexuality, mother, and power became all jumbled as he rambled on .... Crossan became more and more grandiose and emotionally loose as he proceeded with this story.” Wflien asked about his reaction to the proposal that he kill Baldwin, he replied:

“I was just shocked for a minute, he began telling me Baldwin was a homosexual, a rapist. Later when I was driving down the street with Baldwin, he was looking at kids, staring at them, talking about them. It turned my insides inside-out, it makes me angry — I don’t like that — I can’t handle those kind of people. It makes me sick, man. — why the hell do they do that. It made me get more angry at him and I didn’t even know him.”

Following the interview, Dr. French administered an array of standard psychological tests to Hoover. He concluded as follows: “Test data clearly indicate that Crossan is suffering a major degree of disabling psychopathy. These data confirm interview impressions that Crossan can become transiently psychotic in times of emotional stress. In fact, such stress need not be especially intense. He seems particularly vulnerable to any encounters related to violence, sexuality, or his parents. He presents compelling evidence of poor reality-testing, distortion of the idea-tional process, loose emotional controls, and poor problem solving ability .... Crossan was probably not ‘sane’ at the time of the murder.”

In ignoring both the context of the statement and Dr. French’s contemporaneous observations, the state court seriously distorted the record and the meaning of Hoover’s words. Accordingly, the presumption of correctness must yield as to the finding that Hoover admitted knowing right from wrong at the time of the killing and that his unvarnished statement should be taken as conclusive. The court’s obligation to examine the nuances and context of such a statement in a mental state defense is much more extensive.

The court’s characterization of Dr. Rodriguez’s testimony as “equivocal on the right and wrong issue” reflected the same overly selective parsing of the record. While the state court was technically correct in describing Dr. Rodriguez as the only witness who testified for Hoover at the sanity trial, that was not the only evidence presented by the defense. By agreement and instruction, the evidence at the sanity trial encompassed all the expert testimony adduced by the defense in the guilt phase as well.

At the guilt phase, one clinical psychologist, Dr. French, two psychiatrists, Drs. Gould and Rodriguez, and a number of other mental health professionals testified about Hoover’s propensity for psychotic dissociation under stress. Most of these experts also spoke of Richards’ controlling influence over Hoover — his manipulation of Hoover’s rage and his fantasies of reuniting with his mother. To fairly reflect the record and Dr. Rodriguez’s opinion, all this evidence had to be taken into account.

Instead, the state court focused only on Dr. Rodriguez’s testimony in the sanity phase. The court regarded as equivocation Dr. Rodriguez’s sincere efforts to relate Hoover’s diagnosis and symptomatolo-gy to the legal insanity test — the wrong test, at that. Any fair reading of his trial testimony shows that Dr. Rodriguez had concluded unequivocally that (1) Hoover was transiently psychotic and hallucinatory during the killing; and (2) he had been conditioned over time by Richards to unthinkingly carry out Richards’ commands. As a result, according to Dr. Rodriguez, Hoover could not appreciate the nature and quality of his act nor know it was wrong at the time of killing.

Q [Torrico]: [T]hat he was incapable of knowing the nature and quality of his act and such that he was incapable of distinguishing right from wrong at the time of the act. And—

A [Rodriguez]: Well, I think I have answered it in my last two questions ... So the temporary psychotic quality, yes, does exist with Crossan.

Q: Now, in the general borderline condition, where a person can have temporary psychosis, or could that temporary psychosis, be such that it could prevent a person from understanding the nature and quality of his act?

A: Yes.

Q: And could it be such that it would prevent that person from being incapable [sic] of knowing the difference between right and wrong?

A: Yes.

Q: So if I understand the answer to your question, it would be a question that in Crossy’s case that he does suffer from temporary psychosis?

A: Within the framework of his borderline condition, yes.

(RT 2684-85.) (Emphasis added.)

There was no ambiguity in these responses. Indeed, in answering yes to each of the posed questions, Dr. Rodriguez testified unequivocally that Hoover was legally insane under both prongs of the M’Naghten test. Nor was there any equivocation in the following colloquy between defense counsel and the witness:

Q: So based upon that conditioning [by Richards], would it be your answer that he did not know that he was doing was wrong?

A: Under those circumstances, yes.

(RT 2689.)

First, the court erroneously characterizes this testimony as Dr. Rodriguez’s single assertion of unawareness of wrongfulness, and seizes on the phrase “under the circumstances” to conclude the opposite, that “[t]his was not an assertion of incapability of distinguishing right from wrong.” (emphasis in original.) Had this answer been given in isolation or in response to a hypothetical question, the court’s contradictory construction might have been reasonable. But, the answer did not stand alone. It was the condensation of a great deal of evidence, offered by Drs. Gould and French, as well as Dr. Rodriguez, regarding Richards’ conditioning regime — one so extreme that the state’s own witness, Dr. Joseph Gustadt, compared it to the Jones-town phenomenon. (RT 2752.)

As such, the only plausible reading of Dr. Rodriguez’s terse answer is that, in his view, Hoover had been conditioned by Richards to suspend his own sense of right and wrong and to believe that whatever Richards commanded him to do was right, justified and necessary. Conversely, without that constant conditioning, Hoover would have known that his acts were wrong, as he acknowledged once Richards’ overbearing influence was removed.

It follows that the state court’s characterization of Dr. Rodriguez’s testimony as equivocal is incorrect and in manifest conflict with any fair reading of the record. Moreover, because that mischaracterization is one of the crucial anchors of its prejudice assessment, the court’s finding of harmlessness is rejected as contrary to fact, as well as legally flawed.

B. Although Hoover arguably received ineffective assistance of counsel because his attorney failed to object to the inconsistent theories and manipulation of the prosecution expert’s testimony, this claim fails because Hoover cannot show actual prejudice under Strickland.

Hoover contends trial counsel was ineffective for failing to object to the prosecution’s use of a theory inconsistent with the one used at Richards’ trial and for failing to provide a proper foundation for Dr. Buehler’s opinions.

1. Applicable Federal Law

The test for evaluating a claim of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Williams v. Taylor, 529 U.S. at 390, 120 S.Ct. 1495. The petitioner must show (1) that counsel’s representation “fell below an objective standard of reasonableness,” and (2) that counsel’s performance prejudiced the defendant. Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052. To establish prejudice the petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id., at 694, 104 S.Ct. 2052. Where it is easier to dispose of an ineffectiveness claim on prejudice grounds that course should be followed. Id., at 697, 104 S.Ct. 2052. Absent a complete denial of counsel courts “normally apply a ‘strong presumption of reliability’ to judicial proceedings and require a defendant to overcome that presumption ____” Smith v. Robbins, 528 U.S. 259, 286, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000), citing Strickland. The “Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices.” Roe v. Flores-Ortega, 528 U.S. 470, 479, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). Review of a state court’s denial of a Strickland claim is “doubly deferential.” Yarborough v. Gentry, 540 U.S. 1, 6, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (per curiam).

2. Application to this case

Defense counsel was clearly familiar with the record from Richards’ trial and the previous approach taken by the prosecution. Early in his closing argument at the guilt phase counsel noted that the relationship between Richards and Hoover was an important issue. Counsel advised the jury, “In the Mark Richards trial, Mr Berberian [the prosecutor] said it is important in talking about this relationship — that it is important in explaining the relationship to understanding how he [Richards] could manipulate Crossan Hoover to commit the murder.” He then quoted the prosecutor’s assertion that Richards “ ‘was able to manipulate Crossan Hoover into the position where he actually killed a man. He was able to tell him certain things and tell it in a fashion and in a way that made Crossan Hoover believe, believe that he was capable of committing a murder and to get away with it and profit by it.’ ” RT 2541. Counsel emphasized, “that was the approach that Mr. Berberian took in relating the Pendragon materials and Mark Richards to Crossan Hoover in the Richards trial.” RT 2542. He then went on to discuss in detail the mental health testimony about Hoover, the relationship between Richards and Hoover, and the effect, in counsel’s view, of the Pendragon materials.

Defense counsel focused on the relationship between Richards and Hoover and argued that it demonstrated a lack of intent to kill. Through his argument he suggested to the jury that the prosecutor had viewed Richards as more influential in the Richards trial than he was now asserting in Hoover’s trial. Because counsel’s actions were objectively reasonable there was no deficient performance.

Similarly, counsel used the Pendragon material with his experts and directed questions based on the material to Dr. Buehler, the prosecution’s expert. Defense counsel’s failure to raise any objections did not amount to deficient performance.

C. The State did not violate Hoover’s due process rights by using inconsistent theories in the successive trials of Hoover and his co-defendant Richards

The cases against Hoover and Mark Richards were prosecuted by the same Deputy District Attorney, Edward Berberian. Hoover argues that the prosecutor presented factually inconsistent theories at the two trials. First, in Richards’ trial he emphasized the Pendragon cult and Richards’ brainwashing and manipulation of Hoover. After obtaining Richards’ conviction for first degree murder, he negated the importance of the Pendragon theory in Hoover’s trial, relying instead on Hoover’s financial motive to convict him. Amended Petition at 35:7 — 40:8.

Under California law, claims of prosecutorial misconduct must be objected to at trial in order to be preserved upon appeal. See People v. Fosselman, 33 Cal.3d 572, 580-81, 189 Cal.Rptr. 855, 659 P.2d 1144 (1983). But of. Thomas v. Hubbard, 273 F.3d 1164, 1176 (9th Cir.2001), (overruled on other grounds at Payton v. Woodford, 299 F.3d 815 (9th Cir.2002)) (holding that under California law an objection to evidence in the form of a motion in limine is normally sufficient to preserve the issue for appeal even in the absence of a contemporaneous objection at trial). A petitioner who fails to observe a state’s “contemporaneous objection” rules may not challenge the constitutionality of the conviction in federal court. See Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); United States v. Frady, 456 U.S. 152, 162-169, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (while plain error applies in determining whether a defendant may raise a claim for the first time on direct appeal, cause and prejudice standard applies in determining whether that same claim may be raised on habeas).

A petitioner is not barred and therefore does not have to show cause and prejudice, however, when a reviewing state court overlooks the procedural default and considers the claim on the merits. See Thomas, 273 F.3d at 1176 (holding that alleged procedural default was no bar to claim where state court addressed procedural default issue but left resolution of the issue uncertain, failing to make a clear and express statement that its decision was based on a procedural default); Panther v. Hames, 991 F.2d 576, 580 (9th Cir.1993); Walker v. Endell, 850 F.2d 470, 474 (9th Cir.1987) (relying on Engle to find that review on the merits for plain error by a state appellate court negates the defendant’s procedural default), cert. denied, 488 U.S. 926, 109 S.Ct. 309, 102 L.Ed.2d 328 (1988).

The state court of appeal considered Hoover’s appeal on this issue on the merits, removing the procedural bar.

The courts have generally agreed that the “harmless beyond a reasonable doubt” test of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) applies to due process violations. See, In re Sakarias, 35 Cal.4th 140, 165, 25 Cal. Rptr.3d 265, 106 P.3d 931 (2005). Hoover argues that in light of the extensive evidence of settled mental illness presented by the defense, there can be little doubt that the prosecutor’s adamant denial of the reality of Pendragon and of Richards’ overbearing influence on Hoover had a substantial and injurious effect in determining the jury’s verdict at both phases of the trial.

The prosecution’s use of inconsistent theories was challenged on various grounds on direct appeal and in Hoover’s state habeas petitions. The only reasoned decision on the issue was rendered by the California Court of Appeal, affirming Hoover’s conviction. With respect to the specific argument presented herein, the court stated:

First, no rule of misconduct or due process binds a prosecutor to a theory asserted in closing argument in a related prosecution. Broadly speaking, “The right of counsel to discuss the merits of a case, both as to the law and the facts, is very wide, and he has the right to state fully his views as to what the evidence shows, and to the conclusions to be fairly drawn therefrom. The adverse party cannot complain if the reasoning be faulty and the deductions illogical, as such matters are ultimately for the consideration of the jury.” [California citations omitted.] At Hoover’s trial his counsel was as free to argue a Pendra-gon theory as was the prosecutor to argue financial gain.

(Respondent’s Exhibit 4, at 12.)

The court of appeal’s assumption that prosecutorial misconduct is negated-— rather than aggravated — by defense counsel’s ineffectiveness is unsupported in law. It may be noted that in every case in which the prosecutor’s use of inconsistent theories resulted in reversal, the court could have held, as the court of appeal did here, that the defense attorney was as free to argue the original, more favorable, theory as the prosecutor was to deviate from it. But no court addressing the issue has absolved the prosecutor of his constitutional duties by shifting the burden to the defense. The duty of the prosecutor to seek justice is non-delegable. See ABA Model Code of Professional Responsibility, EC 7-13; United States v. Kattar, 840 F.2d 118, 127 (1st Cir.1988); Cf. Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (defendant’s failure to request favorable evidence does not leave the prosecutor free of obligation).

Prosecutorial misconduct is cognizable in federal habeas corpus. The appropriate standard of review is the narrow one of due process and not the broad exercise of supervisory power. See Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). A defendant’s due process rights are violated when a prosecutor’s misconduct renders a trial “fundamentally unfair.” See id.; Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (“the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor”).

The prosecutor in his closing argument at Darden’s trial for murder engaged in an intemperate diatribe in which he attempted to put some of the blame on the Florida Division of Corrections for releasing him on a weekend furlough, when he committed the murder. He also seemed to imply that only the death penalty could guarantee that a similar situation couldn’t happen again. He referred to Darden as an “animal,” who should only be out of his cell on a leash with a prison guard on the other end. He finally expressed the wish that Darden had fired his gun on himself or that someone else had blown Darden’s head off.

The Supreme Court found that the remarks were repugnant, but held that they did not violate Darden’s right of due process: “ The prosecutor’s argument did not manipulate or misstate the evidence, nor did it implicate other specific rights of the accused such as the right to counsel or the right to remain silent.” Furthermore, “much of the objectionable content was invited by or was responsive to the opening summation of the defense.” Darden 477 U.S. at 181-182, 106 S.Ct. 2464.

Factors in this case which this Court may take into account in determining whether misconduct rises to a level of due process violation are: (1) the weight of evidence of guilt, compare United States v. Young, 470 U.S. 1, 19, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (finding “overwhelming” evidence of guilt) with United States v. Schuler, 813 F.2d 978, 982 (9th Cir.1987) (in light of prior hung jury and lack of curative instruction, new trial required after prosecutor’s reference to defendant’s courtroom demeanor); (2) whether the misconduct was isolated or part of an ongoing pattern, see Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir.1987); (3) whether the misconduct relates to a critical part of the case, see Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (failure to disclose information showing potential bias of witness especially significant because government’s case rested on credibility of that witness); and (4) whether a prosecutor’s comment misstates or manipulates the evidence, see Darden, 477 U.S. at 182, 106 S.Ct. 2464.

This Court, before analyzing the factors above, must determine whether it may reach the merits of this claim within the parameters of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”).

Respondent contends that prosecutors are not bound to follow the same theories in subsequent trials, but also -argues that the court cannot even reach the merits on this petition because there is no relevant Supreme Court authority on the issue. Respondent’s Answer to Amended Petition 6:10-12. Where there is no Supreme Court precedent on an issue, a state court’s decision on that issue cannot be “contrary to” federal law. Brewer v. Hall, 378 F.3d 952, 955 (9th Cir.2004). See also Williams v. Taylor, 529 U.S. 362, 381, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). (“If this Court has not broken sufficient legal ground to establish an asked-for constitutional principle, the lower federal courts cannot themselves establish such a principle with clarity sufficient to satisfy the AEDPA bar.”). Thompson and other cases cited by Hoover were decided or filed prior to the enactment of AEDPA, but this case is governed by the new statute. Respondent relies on Justice Thomas’ concurrence in Bradshaw v. Stumpf, 545 U.S. 175, 190, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005), in which he writes that the Court has “never hinted, much less held, that the Due Process Clause prevents a State from prosecuting defendants based on inconsistent theories.” Id.

Stumpf pled guilty to aggravated murder in a robbery that left one victim wounded and another victim dead, but never admitted killing him. In his habeas appeal, he argued that in his death penalty hearing the State claimed that he was the principal actor in the crime because he had shot a victim who died, yet in the trial of his co-defendant, the State flip-flopped and pinned the fatal shooting on Stumpf s co-defendant. Id. The Court remanded for a determination of whether the prosecution’s use of inconsistent theories could be the basis of relief, without necessarily finding that it could constitute a due process violation. The majority of the Supreme Court declined to address the issue of prosecuto-rial inconsistency because it was irrelevant to whether the petitioner’s confession was knowing, voluntary, and intelligent, and the precise identity of the gunman was immaterial to an aggravated murder conviction. The majority upheld the plea but remanded on the sentencing claim:

The prosecutor’s use of allegedly inconsistent theories may have a more direct effect on Stumpfs sentence, however, for it is at least arguable that the sentencing panel’s conclusion about Stumpfs principal role in the offense was material to its sentencing determination. The opinion below leaves some ambiguity as to the overlap between how the lower court resolved Stumpfs due process challenge to his conviction and how it resolved Stumpfs challenge to his sentence. It is not clear whether the court of appeals would have concluded that Stumpf was entitled to re-sentencing had the court not also considered the conviction invalid ... In these circumstances, it would be premature for this Court to resolve the merit’s of Stumpfs sentencing claim, and we therefore express no opinion on whether the prosecutor’s actions amounted to a due process violation, or whether any such violation would have been prejudicial.

Id. at 187-188, 125 S.Ct. 2398.

Respondent contends that even if the decision in Stumpf had clearly established a rule that inconsistent theories violate due process, it did not do so until June 2005, long after Hoover’s case became final when review was denied in 1987. “ ‘[Cjlearly established federal law1 ” under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision. Lockyer v. Andrade, 538 U.S. 63 at 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). In 1987 reasonable jurists could disagree as to whether there was such a rule, demonstrating that it was not clearly established. Schardt v. Payne, 414 F.3d 1025, 1037 (9th Cir.2005) (“If a case creates a new rule under Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), then it is not a clearly established rule under 28 U.S.C. § 2254(d)(1)”); see Kane v. Garcia Espitia, 546 U.S. 9, 10, 126 S.Ct. 407, 163 L.Ed.2d 10 (2005).

Hoover responds that the Court in Stumpf was not reserving the prosecutorial misconduct issue for future resolution but, due to the lack of clarity of the Sixth Circuit’s reasons for vacating Stumpfs sentence, remanding for a determination whether the prosecutor’s actions amounted to a prejudicial due process violation at sentencing. Stumpf, 545 U.S. at 188, 125 S.Ct. 2398. Hoover argues that the Court was not articulating a possible new rule of law regarding prosecutorial misconduct but merely applying a rule that already existed: that due process constraints on prosecutorial behavior are clear, and no multi-pronged factor tests are required. The lack of a Supreme Court case expressly addressing a prosecutor’s use of inconsistent and misleading arguments does not bar habeas relief.

Furthermore, habeas relief is available where the state court of appeal fact-finding is unreasonable by clear and convincing evidence. A “determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). The “presumption of correctness is equally applicable when a state appellate court, as opposed to a state trial court, makes the finding of fact.” Sumner v. Mata, 455 U.S. 591, 592-593, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982); Norton v. Spencer, 351 F.3d 1, 6 (1st Cir.2003).

Clear and convincing evidence produces in the mind of the trier of fact an abiding conviction that the truth of a factual contention is “highly probable.” Colorado v. New Mexico, 467 U.S. 310, 316, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984). Only after a petitioner successfully rebuts the presumption of correctness by clear and convincing evidence may the court determine if the resulting decision was based on an unreasonable determination of the facts. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Therefore, it is theoretically possible that a state court finding is incorrect but not unreasonable.

No rule of misconduct or due process yet binds a prosecutor to a theory asserted in closing argument in a related prosecution. Broadly speaking, “The right of counsel to discuss the merits of a case, both as to the law and facts, is very wide, and he has the right to state fully his views as to what the evidence shows, and as to the conclusions to be fairly drawn therefrom. The adverse party cannot complain if the reasoning be faulty and the deductions illogical, as such matters are ultimately for the consideration of the jury.” (People v. Beivelman (1968) 70 Cal.2d 60, 76-77, 73 Cal.Rptr. 521, 447 P.2d 913, overruled on other grounds in People v. Green (1980) 27 Cal.3d 1, 33-34, 164 Cal.Rptr. 1, 609 P.2d 468, quoting People v. Eggers (1947) 30 Cal.2d 676, 693, 185 P.2d 1, and People v. Sieber (1927) 201 Cal. 341, 355-356, 257 P. 64). At Hoover’s trial his counsel was as free to argue a Pendragon theory as was the prosecutor to argue the financial gain theory. Whether this should remain the rule is not for this Court to decide.

Furthermore, the Mark Richards judgment could not have had the claimed collateral estoppel effect or have established that Hoover was insane as a matter of law, because Hoover’s motive and sanity were not issues that were “necessarily decided” at Richards’ trial. (People v. Taylor (1974) 12 Cal.3d 686, 691, 117 Cal.Rptr. 70, 527 P.2d 622) Hoover concedes his insanity was not necessarily decided, but argues “it may be implied that an issue ‘necessarily decided’ at the Richards trial was that he was found guilty of murder on the People’s theory that he manipulated Crossan Hoover into committing the crime by brainwashing him to believe he was doing it for Pendragon.” It is impossible to know, however, the theory upon which the Richards jury reached its verdict.

The prosecutor’s theories at Richards’ and Hoover’s trials varied, but they were not necessarily inconsistent. At Richards’ trial the prosecutor’s theory was that due to the relationship between Richards and Hoover in the course of the Pendragon conspiracy. Richards “was able to manipulate Crossan Hoover into the position where he actually killed a man.” At Hoover’s trial the prosecutor conceded, consistently, that “Mr. Richards manipulated Crossan Hoover,” but added that “there is a far difference between mani