Full opinion text
ORDER GRANTING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT, DENYING PETITIONER’S CROSS-MOTION FOR SUMMARY JUDGMENT, AND ORDER DENYING AMENDED HABEAS PETITION ROBERT S. LASNIK, District Judge. I. INTRODUCTION This matter comes before the Court on “Respondent’s Motion for Summary Judgment” (Dkt. # 272) and Jonathan Lee Gentry’s (“petitioner” or “Gentry”) “Cross Motion for Summary Judgment” (Dkt. # 275). On September 8, 2008, the Court held oral argument on the motions and heard from both parties’ counsel. For the reasons set forth below, the Court grants respondent’s motion for summary judgment, denies Gentry’s cross-motion for summary judgment, and denies Gentry’s amended habe-as corpus petition. II. DISCUSSION A. Procedural history Gentry faces a death sentence in Washington for murdering 12-year-old Cassie Holden on June 13, 1988. After approximately eight weeks of motion hearings and a six-week trial, the jury found defendant guilty of premeditated first degree murder and felony first degree murder, and also found the aggravating circumstance that the murder was committed to conceal the identity of the person committing a crime. 24 REC 13461-13462. In the penalty-phase, the jury found that there were not sufficient mitigating circumstances to merit leniency, and Gentry received a death sentence. Id. at 13591. Gentry filed a direct appeal of his conviction and sentence to the Washington Supreme Court, presenting a total of nineteen separate issues for review. On January 6, 1995, the Washington Supreme Court affirmed Gentry’s conviction and death sentence in an one-hundred-and-twelve-page, 6-3 opinion. See State v. Gentry, 125 Wash.2d 570, 888 P.2d 1105 (1995). The United States Supreme Court denied Gentry’s petition for a writ of cer-tiorari on October 2, 1995. Gentry v. Washington, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 79 (1995). Thereafter, on October 5, 1995, the Supreme Court of Washington issued its mandate, and on November 2, 1995, the Kitsap County Superior Court set December 5, 1995 for Gentry’s execution. See 35 REC 18846 (Mandate); 18851-18852 (Death Warrant). On November 6, 1995, Gentry filed a motion for stay of execution pending the filing and resolution of a personal restraint petition (“PRP”), Washington’s mechanism for collateral challenges. See 35 REC 18894-18895. On November 14, 1995, the Washington Supreme Court stayed Gentry’s execution pending the adjudication his PRP. Id. at 18895 (ordering stay of execution). On February 18, 1999, the Washington Supreme Court denied Gentry’s PRP in a forty-eight-page, 7-2 opinion. See In the Matter of the Personal Restraint Petition of Jonathan Lee Gentry, 137 Wash.2d 378, 400, 972 P.2d 1250 (1999) (“In re Gentry”), amended by 1999 Wash. LEXIS 448 (June 30, 1999). After the decision on the PRP, Gentry filed his “First Amended Petition for Writ of Habe-as Corpus Pursuant to 28 U.S.C. § 2254” with this Court. See Dkt. # 47 (hereinafter “Amended Petition” or “Dkt. #47”). The Court stayed Gentry’s execution pending resolution of this habeas proceeding. See Dkt. # 29. In total, during the history of this case, Gentry has been represented by eight attorneys. Jeffrey Robinson and Frederick Leatherman represented Gentry at trial. On direct appeal, Robert Gombiner and Michael Iaria represented Gentry along with Mr. Leatherman. Scott Engelhard, Julie Speetor, and Meredith Rountree represented Gentry during the PRP proceeding. Finally, Brian Tsuchida, Meredith Rountree and Scott Engelhard have represented Gentry in this federal habeas proceeding. B. Factual background On June 13, 1988, at approximately 4:30 p.m., Cassie Holden went for a walk near her mother’s home in Bremerton, Washington, but did not return for dinner. State v. Gentry, 125 Wash.2d at 579, 888 P.2d 1105. Her body was discovered two days later behind a large log at the bottom of a footpath that extended from a trail in the woods near a Bremerton-area golf course. Id. Cassie’s eyeglasses, earring, and a bouquet of flowers were found approximately 148 feet up the footpath on, and near the main trail, and she appeared to have been sexually assaulted given that she was partially undressed. Id. Her blue sweatshirt had also been removed from one arm and pulled up, partially covering her face. Id. She had been struck in the head approximately eight to fifteen times, suffering ten “significant injuries.” Id. Kitsap County sheriff deputies investigated the murder scene and determined that there was blood extending from the main trail, down the footpath about 148 feet to where Cassie was discovered. Id. They found a 2.2-pound rock that was believed to be the murder weapon — it had blue fibers matching the sweatshirt embedded into it, and also red marks that looked like blood. Id. The autopsy revealed that Cassie had been killed by one of the blows to her head, but it did not show the order in which the blows were delivered or which blow killed Cassie, and it did not conclusively show that she had been raped. Id. As part of the autopsy, several loose hairs consistent with Cassie’s hair were removed from her body. Id. Two “Negroid” hair fragments were also recovered from her t-shirt, a coarse brown hair believed to be Caucasian pubic hair was found on her thigh, and a red pigmented hair was found on her shoe. Id. at 580, 888 P.2d 1105. There was no identification linked with the Caucasian hair, but the Negroid hair was determined to be consistent with Gentry’s brother’s arm ham. Id. Gentry’s brother was not in Kitsap County at the time of Cassie’s murder, however, evidence showed that Gentry lived with his brother’s family and Gentry occasionally wore his brother’s clothes. Id. After the investigation focused on Gentry, his residence was searched and clothing, including a pair of shoes, was seized. Id. Examination of the shoes indicated that blood had been wiped from them. Id. Bloodstains were found on the shoe’s laces and these stains were subjected to a series of scientific tests, including: ABO, gamma marker (GM), haptoglobin (Hp), DQ-alpha polymerase chain reaction DNA (PCR DNA), and phos-phoglucomutase (PGM). Id. According to the State’s experts, none of the tests performed on the bloodstains from Gentry’s shoelaces eliminated Cassie as the source of the blood. Id. Because ABO, GM, Hp, and PCR DNA are genetically independent factors, the State’s experts used the product rule to derive a cumulative frequency showing the percentage of the population from which the blood found on Gentry’s shoelaces could have originated. Id. For the ABO test, one of the bloodstains was type 0 and Cassie had type 0 blood, which is found in 44.5% of the Caucasian population. Id. GM testing revealed that both shoelace bloodstains were type 1,2,3,11, as was Cassie’s blood, and this type is found in 14% of the Caucasian population. Id. The Hp test showed that one of the shoelace bloodstains was Hp type “2,” the same as Cassie’s blood, and Hp type “2” is present in 36.1% of the Caucasian population. Id. at 581, 888 P.2d 1105. The PCR DNA testing on the bloodstains from both shoelaces showed PCR type 1.2, 3, the same as Cassie’s blood. Id. The frequency of occurrence of type 1.2, 3 is approximately 8% in both the Caucasian and African American populations. Id. The scientist who conducted the PCR DNA testing testified that the percentage of Caucasians with type 0 blood with GM 1,2,3,11, Hp type “2,” and PCR DNA of 1.2, 3 was 0.18%. Id. The hair found on Cassie’s t-shirt was subjected to PCR testing and showed a PCR type 1.2, 1.2, which did not match Gentry, but matched his brother’s type. Id. There was other evidence presented at trial linking Gentry to the murder, including three people who reported seeing a man matching Gentry’s description near the crime scene around the time of the murder, and three former jailmates of Gentry who testified that he admitted to them that he had killed someone. Id. The factual background regarding the jailhouse witnesses is detailed in the Court’s prior rulings on Gentry’s Brady/Napue claims involving these witnesses. See Dkt. # 283 at 3-6; Dkt. # 284. C.Gentry’s habeas claims In his Amended Petition, Gentry presents twelve separate claims for relief. As the Court explains in Section II.2.D below, the Court has denied some of these claims in prior orders. Given that respondent has moved to dismiss Gentry’s entire Amended Petition on summary judgment, for clarity in the record, the Court in this order discusses each claim. Listed below are the twelve claims and the corresponding paragraphs from the Amended Petition pertaining to each claim. A. Potential Juror No. 22 was erroneously excused (¶¶ 11; 30-43); B. Ineffective assistance of counsel (“IAC”) for failing to investigate and present expert testimony regarding the crime scene evidence (¶¶ 14.3; 44-60); C. IAC for failing to rebut the State’s evidence that the fatal head injuries were caused by two blows rather than one (¶¶ 14.4; 61-79); D. IAC for failing to rebut the State’s DNA and serological statistical probability evidence (¶¶ 14.5; 80 — 111); E. The State violated Brady v. Maryland by failing to disclose impeachment evidence about the three jailhouse witnesses and two detectives (¶¶ 12; 112-222); F. The State violated Napue v. Illinois by presenting false testimony from the three jailhouse witnesses (¶¶ 13; 223-225); G. IAC for failing to fully investigate the three jailhouse witnesses and Detective Wright (¶¶ 14.1; 14.2; 226-232); H. IAC for failing to present mitigating evidence in the penalty phase regarding Gentry’s mental condition (¶¶ 14.6; 246-302); I. IAC for failing to redact a judgment and sentence during the penalty phase (¶¶ 14.7; 310-312); J. The admission of victim impact testimony resulted in an unfair sentencing proceeding and constituted IAC (¶¶ 15; 325-345); K. Jury instruction number 10 (the “to convict” instruction) was erroneous and the penalty phase instructions failed to explain the jury’s obligation to consider mitigating circumstances both individually and cumulatively, and these errors constituted IAC (¶¶ 14.8-14.10; 18; 21; 346-348); and L. The denial of discovery, an eviden-tiary hearing, and funds to retain experts and investigators in state post-conviction proceedings violated Gentry’s constitutional rights (¶¶ 22; 349-363). Before turning to the merits of these claims, however, the Court first addresses the summary judgment standard in relationship to Gentry’s Amended Petition. D. Analysis 1. Summary judgment standard under 28 U.S.C. § 2254 As a threshold matter, the parties dispute the extent to which summary judgment under Fed.R.Civ.P. 56 is applicable to this § 2254 habeas case. To be sure, “[t]he procedure on applications for habeas corpus for state prisoners is a confusing amalgam, to be found in a variety of different sources.” 17B Wright, Miller, Cooper & Amar, Federal Practice and Procedure § 4268, at 437-38 (2007). The Rules Governing Section 2254 Cases in the United States District Courts (hereinafter “Habe-as Corpus Rules”) establish that “[t]he Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.” Habeas Corpus Rule 11. As a general matter, courts have found summary judgment motions appropriate in ha-beas corpus proceedings. Blackledge v. Allison, 431 U.S. 63, 80, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000) (“As a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to summary judgment, applies with equal force in the context of habeas corpus cases.”). In Gentry’s case, however, because he filed his federal habeas petition after the April 24, 1996, enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 1214, the AEDPA amendments to 28 U.S.C. § 2254 apply. The AEDPA “placed a new restriction on the power of federal courts to grant writs of habeas corpus to state prisoners.” Williams v. Taylor, 529 U.S. 362, 399, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O’Connor, J., concurring) (“Williams ”). “AED-PA’s purpose [is] to further the principles of comity, finality, and federalism.” Williams v. Taylor, 529 U.S. 420, 436, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (“Williams II”). “Federal habeas corpus principles must inform and shape the historic and still vital relation of mutual respect and common purpose existing between the States and the federal courts. In keeping this delicate balance [the Supreme Court has] been careful to limit the scope of federal intrusion into state criminal adjudications and to safeguard the States’ interest in the integrity of their criminal and collateral proceedings.” Id. Under the AEDPA, this Court is not empowered to grant a writ of habeas corpus on a claim that was adjudicated on the merits in state court unless that adjudication: (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 acts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d); see Early v. Packer, 537 U.S. 3, 7-8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam). “Clearly established Federal law, as determined by the Supreme Court of the United States” refers to the Supreme Court’s holdings at the time of the relevant state-court decision. Williams, 529 U.S. at 412, 120 S.Ct. 1495. Section 2254(d)’s “contrary to” and “unreasonable application of’ clauses have independent meaning. Williams, 529 U.S. at 404-05, 120 S.Ct. 1495. A state court decision is “contrary to” clearly established federal law where the “state court arrives at a conclusion opposite to that reached by the [Supreme Court] on a question of law” or “if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite” the Supreme Court’s decision. Id. at 405, 120 S.Ct. 1495. “A state court decision constitutes an unreasonable application of Supreme Court precedent only if the state court decision is objectively unreasonable. That is, the state court decision must be ‘more than incorrect or erroneous.’ ” Stenson v. Lambert, 504 F.3d 873, 881 (9th Cir.2007) (quoting Cooks v. Newland, 395 F.3d 1077, 1080 (9th Cir.2005)). At bottom, “[t]he question under AEDPA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable — a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007). In light of these standards, Gentry “is not entitled to habeas relief under 28 U.S.C. § 2254(d)(1) unless the Washington court’s decision ‘was contrary to or involved an unreasonable application of [the Supreme Court’s] applicable holdings.’ ” Stenson, 504 F.3d at 881 (quoting Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 653, 166 L.Ed.2d 482 (2006)) (alternation in original). The Court may also grant relief under 28 U.S.C. § 2254(d)(2) if the state court adjudication “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. (quoting § 2254(d)(2)). The AEDPA, however, “requires federal habeas courts to presume the correctness of state courts’ factual findings unless applicants rebut this presumption with ‘clear and convincing evidence.’ ” Schriro, 127 S.Ct. at 1939-40; (quoting 28 U.S.C. § 2254(e)(1)); see Stenson, 504 F.3d at 881 (quoting Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (holding the court “may not overturn them ‘absent clear and convincing evidence’ that they are ‘objectively unreasonable’ ”)). Courts have noted the potential discord in applying the AEDPA under summary judgment standards. Under Rule 56(c), summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law,” and to this rule, courts apply the well-settled doctrine that facts must be construed in the light most favorable to the party opposing summary judgment. See Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1776 n. 8, 167 L.Ed.2d 686 (2007); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 261 n. 2, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (Brennan, J., dissenting) (asserting “the doctrine that all evidence must be construed in the light most favorable to the party opposing summary judgment.”). This doctrine, however, conflicts with § 2254(e)(l)’s provision that “a determination of a factual issue made by a State court shall be presumed to be correct[; and] [t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” In analyzing Gentry’s twelve separate claims for relief, the Court is mindful of this tension between the AEDPA’s dictates, Habeas Corpus Rule 11, and the summary judgment standard. 2. Gentry’s twelve habeas claims As discussed in Section II.C above, Gentry asserts twelve separate claims in his Amended Petition. The Court considers each claim, in the order presented in the Amended Petition, below. (a) Excusal of Juror 22 Gentry’s first habeas claim contends that Juror 22 was qualified to sit on the jury, but was unconstitutionally excused. See Dkt. # 47 (“Claim A”) at ¶¶ 11; 30-43. In January 2006, Gentry moved for summary judgment on Claim A. See Dkt. # 184. The Court denied Gentry’s motion. See Dkt. # 270 (Order on Motion for Summary Judgment). The parties have now filed cross-motions on this claim and concede that there are no disputed issues of fact precluding entry of summary judgment. See Dkt. #275 at 13 (“There are no disputed material facts, and the parties have previously briefed this issue.”). Significantly, the record before the Court on this claim is the same as when the Court denied Gentry’s January 2006 summary judgment motion. The parties acknowledge that the only event since the Court’s August 2006 order which may impact Claim A is the Supreme Court’s recent decision in Uttecht v. Brown, — U.S. -, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007). See Dkt. #275 at 14 (“The only new development since Mr. Gentry filed [his summary judgment motion] is the Supreme Court’s decision in Uttecht v. Brown [,]”). In the August 2006 order, the Court adjudicated Claim A by finding first that “the trial court reasonably applied the substantial impairment standard in excusing Juror 22,” and second “[without question, on several occasions, Juror 22 provided adequate grounds for a for-cause challenge under the Witt substantial impairment standard” and therefore the Court “deferred] to the trial court’s conclusion that Juror 22’s view on the death penalty substantially impaired his ability to follow the court’s instructions.” Dkt. # 270 at 11; 13. The Supreme Court’s reasoning in Uttecht reinforces the Court’s August 2006 order because it amplifies that “[i]t is the trial court’s ruling that counts” and “[c]ourts reviewing claims of Witherspoon-Witt error ... especially federal courts considering habeas petitions, owe deference to the trial court, which is in a superi- or position to determine the demeanor and qualifications of a potential juror.” Uttecht, 127 S.Ct. at 2228, 2231. Gentry has not advanced any additional arguments or evidence warranting reconsideration of the Court’s August 2006 order. Therefore, his renewed cross-motion for summary judgment on Claim A is denied. For the reasons set forth in the Court’s August 2006 order, the Court also concludes that the state-court decision regarding Juror 22 was not contrary to, or an unreasonable application of, clearly established federal law. See Uttecht, 127 S.Ct. at 2230. Accordingly, the Court grants respondent’s motion for summary judgment and denies Claim A of Gentry’s Amended Petition. (b) Investigation and expert testimony regarding crime scene evidence Respondent moves for summary judgment on Gentry’s IAC habeas claim that his trial counsel failed to investigate and present expert testimony regarding the crime scene forensic evidence. See Dkt. # 47 (“Claim B”) at ¶¶ 14.3; 44-60; Dkt. # 272. The Supreme Court’s two-part standard for analyzing ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), was clearly established law at the time the Washington Supreme Court issued its 1999 In re Gentry decision: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. In order to satisfy the first part of Strickland’s test, Gentry must “identify! ] the acts or omissions ‘that are alleged not to have been the result of reasonable professional judgment!.]’ ” Earp v. Ornoski, 431 F.3d 1158, 1173-74 (9th Cir.2005) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). In his Amended Petition, Gentry contends that his “!t]rial counsel were ineffective because they failed to investigate and present expert testimony regarding the forensic evidence at the crime scene.” Dkt. #47 at ¶ 14.3. There are two primary pieces of evidence that Gentry claims his trial counsel failed to adequately investigate and contest with expert testimony: (1) the slight depression in the soil beneath Cassie Holden’s head at her final resting place; and (2) the broken stick beneath her head. Gentry contends that the State depended on this evidence for its theory that Gentry delivered a fatal blow at Cassie Holden’s final resting place to show intent and premeditation in the guilt-phase and “also painted a picture of a particularly brutal killing which the State used in arguing that a death sentence was appropriate.” See Dkt. # 47 at ¶ 52; Dkt. # 275 at 7. Habeas relief is proper on this claim if the Washington Supreme Court’s decision was either “contrary to, or involved an unreasonable application of’ Strickland. 28 U.S.C. § 2254(d)(1). In adjudicating Gentry’s IAC claim on the crime scene evidence, the Washington Supreme Court correctly used Strickland’s two-part test as the controlling standard. Therefore, the decision was not “contrary to” Strickland, and Gentry is entitled to habeas relief only if In re Gentry involved an “unreasonable application” of Strickland or if it “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)(1); (2). The Washington Supreme Court rejected Gentry’s ineffective assistance of counsel claims regarding the crime scene evidence, stating: Gentry faults his attorneys for failing to consult with a forensics expert regarding the cause of Cassie’s two most serious head injuries!.] • • • Gentry contends trial counsel should have consulted with an appropriate head injury expert. Defense counsel have now located a witness who says he might, after examining the evidence, be able to testify that the wound on the back of Cassie’s head was not caused by a separate blow with the rock, but by her head being pushed back into a tree or branch when she was hit in the forehead. Gentry apparently wants to show Cassie was neither struck with the rock in the back of the head nor struck so hard in the front of the head that her head broke the branch under her head. His expert [James A. Newman] opines she may have been resting against a nearby tree when she was hit in the forehead, and the back of her head was injured by striking the tree. The expert [Kay M. Sweeney] also suggests that the branch was broken by the officer who moved it or in some other manner than the investigating officer concluded. It is inconceivable pursuing this line of investigation and introducing such testimony would have altered the outcome of trial. It is undisputed Cassie was struck between 8 and 15 times with a two-pound rock, including one blow in the forehead, through her sweatshirt, with sufficient force to cause a fatal injury. She also suffered an independently fatal injury to the back of her head. It hardly matters whether that injury was caused by a separate blow with the rock, or the blow to the front of her head was so hard as to cause two massive wounds. In re Gentry, 137 Wash.2d at 402, 972 P.2d 1250. The Court ultimately concluded “Gentry’s trial counsel were not deficient in failing to consult additional experts to a degree that deprived Gentry of a fair trial..” Id. at 404, 972 P.2d 1250 (emphasis added). Despite this conclusion’s recitation of both elements from Strickland, as the portion of the opinion set forth above discloses, the Washington State Supreme Court’s decision focused on Strickland’s “prejudice” inquiry. This application of Strickland is proper because “there is no reason for a court ... to address both components of the [Strickland ] inquiry if the defendant makes an insufficient showing of one[;] [i]n particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052. Assuming, without deciding, that trial counsel’s failure to investigate the crime scene evidence fell below the objective standard of reasonableness, as discussed below, the Court nevertheless concludes that the Washington Supreme Court’s decision that there was no resulting prejudice was not an “unreasonable application” of Strickland or “based on an unreasonable determination of the facts.” Pinholster v. Ayers, 525 F.3d 742, 757 (9th Cir.2008) (citing Strickland, 466 U.S. at 677, 104 S.Ct. 2052 (stating that a court may presume ineffective assistance to reject a claim on prejudice grounds)). The In re Gentry opinion expresses that there was no prejudice based on Gentry’s trial counsel’s failure to present expert testimony to rebut the State’s theory that a fatal blow was delivered at Cassie Holden’s final resting place because of the other evidence at trial. In reaching this conclusion, the Washington Supreme Court considered not only the trial court record, but also the additional material submitted with Gentry’s PRP, including a declaration from Kay Sweeney, a forensic scientist and former head of the Washington State Crime Lab. See 37 REC 19565-19578 (First Amended PRP); Ex. 56 (Sweeney Decl.) at 19979-19991. In the PRP proceeding, Mr. Sweeney was charged with opining on “whether certain evidence tended to either corroborate or disprove the State’s argument at trial that the victim was struck with a fatal blow to her right temple at the location where her body was recovered (‘final resting place.’).” 37 REC 19979. Mr. Sweeney opined that the soil and the stick’s brittleness could have been tested in order to estimate the force necessary to cause the observed compaction of the soil and the stick to break. 37 REC 19983-19985. Mr. Sweeney reached no conclusions regarding the soil indentation, but concluded that the stick could have been broken by one of the detectives or the assailant. The Washington Supreme Court reasonably concluded that even with this additional information, the outcome of the trial would not have been different. First, during Gentry’s case-in-chief, Dr. Donald Reay, the King County Medical Examiner, rebutted the State’s theory behind the cause of the soil indentation by testifying that it could have been caused either by a blow to the victim’s head, or the weight of her body given the amount of blood in the soil and the length of time that had elapsed before her discovery. 17 REC 9167; 9173-9176. Second, Dr. Reay’s testimony contested the State’s theory regarding the broken stick. In the face of this contested evidence, the Washington Supreme Court concluded that the outcome of the trial would not have been different based on its reasonable determination that the evidence at trial showed Cassie was struck between eight and fifteen times with a two-pound rock, including one blow in the forehead through her sweatshirt, with sufficient force to cause a fatal injury. This is not, however, the end of the inquiry in this federal habeas proceeding. As result of the Court’s order granting Gentry’s request for discovery of physical evidence taken from the crime scene, Mr. Sweeney performed a forensic evaluation of the evidence, and Gentry subsequently supplemented the record with Mr. Sweeney’s March 10, 2006 forensic report. See Dkt. # 156 (Order Regarding Discovery and Evidentiary Hearing); #251 (Sweeney Report). In the August 3, 2005 order regarding discovery, the Court also granted Gentry’s request for leave to depose Dr. Stuart Myster, the pathologist who performed the victim’s autopsy and testified in the State’s case-in-chief. See 14 REC 7287. Gentry has now supplemented the record with the transcript from Dr. Myster’s December 2, 2005 deposition and the two accompanying exhibits. See Dkt. # 172 (Myster Dep.). Gentry claims in his opposition to respondent’s summary judgment motion that this additional material “would have established: (a) There is a reasonable probability that the victim’s fatal head injuries were caused by one blow rather than two; (b) The fracture to the victim’s forehead was likely not inflicted as she lay on the ground; (c) The indentation in the soil beneath the victim’s head was likely not the result of any blow to the head, but instead the result of the weight of the head, the bleeding, and the soft surface of the soil; (d) The unbroken stick under the victim’s head strengthens this conclusion; [and] (e) The assault lasted only seconds.” Dkt. # 275 at 6 (internal citations to the record omitted). As respondent correctly observed in his reply, however, the additional material does not support these assertions. See Dkt. # 277 at 4-6. First, contrary to petitioner, neither Dr. Myster nor Mr. Sweeney stated that the forehead fracture was likely not inflicted while Cassie Holden was on the ground. Second, although Gentry cites the March 2006 report, Mr. Sweeney did not opine on the likely cause of the soil indentation. See Dkt. #251. Third, Gentry cites Mr. Sweeney’s March 2006 report to support the contention that the “unbroken stick under the victim’s head strengthen’s this conclusion.” Dkt. #275 at 6. However, the only reference to the stick in the report is “Exhibit[3 #29 (“small stick”),” which Mr. Sweeney states “w[as] not examined at this time.” Dkt. # 251 (Sweeney Report) at 4. Even if, for the sake of argument, Mr. Sweeney had examined this “unbroken stick,” the Court finds based on Mr. Sweeney’s declaration submitted in the PRP proceeding that it would not likely produce any reliable information at this point. Finally, contrary to his response, Gentry has not submitted any additional evidence that the assault “lasted only seconds.” Accordingly, the Court finds that Gentry has not supplemented the state-court record with evidence under Strickland showing the result of Gentry’s trial was unreliable, and it is not reasonably probable that the outcome in the guilt or penalty phases of his death penalty case would have been different. Gentry has not shown that the Washington Supreme Court’s decision on habeas Claim B — that his trial counsel failed to investigate and present expert testimony regarding the forensic evidence at the crime scene — was contrary to or an unreasonable application of clearly established federal law, or based on an unreasonable determination of the facts. Therefore, the Court grants respondent’s motion for summary judgment and denies Claim B of Gentry’s Amended Petition. (c) Investigation and expert testimony regarding the number of fatal blows Respondent moves for summary judgment on Gentry’s IAC habeas claim that his trial counsel were ineffective because they failed to investigate and rebut the State’s contention that the assailant struck the victim with more than one fatal blow. See Dkt. # 47 (“Claim C”) at ¶¶ 14.4; 61-79; Dkt. # 272. In Claim C, Gentry contends that “[ejffective counsel would have presented the testimony of a qualified expert such as Dr. James A. Newman” who “would have testified that the victim’s two major head injuries are located on opposite sides of the skull, and that these injuries are consistent with both being caused at the same time by one blow to the victim’s temple while the back of the victim’s head was against a hard object like a tree — such as the maple tree at the crime scene, which tested positive for blood when subjected to luminol testing.” Dkt. #47 at ¶¶ 74; 77. The Washington Supreme Court considered this claim, Claim C, along with Gentry’s other IAC claim, including Claim B regarding the crime scene evidence. As with Claim B, the Washington Supreme Court correctly used Strickland’s two-part test as the controlling standard, and as a result the decision was not “contrary to” Strickland, and Gentry is entitled to habe-as relief only if In re Gentry involved an “unreasonable application” of Strickland or if it “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)(1); (2). The Washington Supreme Court also dismissed Claim C for the same reason it dismissed Claim B — in the face of other evidence at trial, Gentry’s counsel’s failure to present the testimony of a biokinetics expert like Mr. Newman did not deprive Gentry of a fair trial. In making this determination, the Court considered additional material submitted with Gentry’s Amended PRP, including a declaration from Mr. Newman. In his declaration, Mr. Newman states that “[h]ad I been retained by trial counsel in this case, I would have visited the crime scene, inspected the rock, analyzed all photographs showing the victim’s injuries, analyzed the x-rays taken at the autopsy, and interviewed Dr. Myster or instructed counsel regarding the questions to ask him.” 37 REC 19961 at ¶ 13 (Newman Deck). As previously discussed, Gentry’s trial counsel retained the assistance of Dr. Reay as an expert to support Gentry’s theory of the case, and Dr. Reay performed the functions Mr. Newman stated that he would provide the defense. However, unlike Mr. Newman who prolifically testifies primarily as a helmet expert, Dr. Reay is not only a doctor but an esteemed medical examiner, who at the time of trial, had personally performed over 4,500 autopsies and was responsible for about 1,000 autopsies per year in King County. See 17 REC 9168. Significantly for the circumstances of Gentry’s case, Dr. Reay testified that he had performed approximately 200 autopsies on victims who had died as a result of blunt head drama, and on-site investigation of at least 100 wooded-area crime scenes. Id. at 9168-69; 9174. In preparation for trial, Gentry’s counsel met with Dr. Reay to discuss the autopsy four months before Dr. Myster testified for the State. See 39 REC 20833 (Fee request log). As respondent notes in his answer, Gentry’s retention of Dr. Reay presumptively assisted with Gentry’s counsel’s cross-examination of Dr. Myster, which established, among other things, that: Dr. Reay is a competent and professional medical examiner; Dr. Myster could not establish that Cassie Holden was killed at her final resting place; Dr. Myster could not testify about the position of Cassie Holden’s body when she was struck in the head; and subarachnoid hemorrhaging can be caused by a contre-coup injury. Furthermore, in support of Gentry’s one-fatal-blow theory, on direct, Dr. Reay also testified that the victim’s pattern of lividity did not eliminate the potential that she was killed twenty-five yards from her final resting place, and that the “raccooning” of her eyes could have been caused by one blow, not two. In light of all the evidence presented at trial regarding when and where the fatal blow was struck, the Washington Supreme Court concluded that the outcome of the trial would not have been different even with the testimony of Mr. Newman based on a reasonable determination that the evidence at trial showed Cassie was struck between eight and fifteen times with a two-pound rock, including one blow to the forehead through her sweatshirt, with sufficient force to cause a fatal injury. Beyond the state-court record, the only additional evidence that Gentry submits in support of this IAC claim is Dr. Myster’s December 2005 deposition testimony. See Dkt. # 275 at 6 (citing Myster Dep. at 19; 21-22). The Court finds, however, that in his deposition Dr. Myster did not testify that there was a reasonable probability that the fatal head injuries were caused by one blow, he simply agreed in response to a leading question that it was possible. And, significantly, this testimony must be considered with Dr. Myster’s confirmation of the autopsy report when it said “there were ten major blunt trauma blows to the head.” Id. at 10:3-6. As with Gentry’s previous IAC claim, the Court finds that Gentry has not supplemented the state-court record with evidence under Strickland showing the result of Gentry’s trial was unreliable, and it is not reasonably probable that the outcome of the trial would have been different. Gentry has not shown that the Washington Supreme Court’s decision on his habeas Claim C — that his trial counsel failed to present testimony from a biokineticist expert like Mr. Newman regarding the number and location of fatal blows- — was contrary to or an unreasonable application of clearly established federal law, or based on an unreasonable determination of the facts. Therefore, the Court grants respondent’s motion for summary judgment and denies Claim C of Gentry’s Amended Petition. (d) DNA and serological test results Respondent moves for summary judgment on Gentry’s IAC habeas claim (“Claim D”) that his trial counsel failed to investigate and present expert testimony to rebut the State’s evidence that there was a statistical valid probability that the DNA analysis and serological results linked Gentry to the crime. See Dkt. # 47 (“Claim D”) at ¶¶14.5; 80-111; Dkt. # 272. Gentry opposes summary judgment. Gentry’s response, however, highlights the challenge of applying the procedural vehicle of summary judgment to this habeas proceeding. On the one hand, Gentry contends that summary judgment is inappropriate given his assertion that there are disputed material factual issues on Claim D. Gentry, however, simply references his Amended PRP and accompanying exhibits as the basis for the alleged factual disputes. See Dkt. # 275 at 9 (citing 37 RP 19675-6; 19993-9 (Zabell Decl.)). On the other hand, Gentry has previously conceded that an evidentiary hearing is not needed under Habeas Corpus Rule 8 and has submitted no additional evidence, by way of declaration or otherwise, with his opposition to respondent’s summary judgment motion. By failing to include any additional evidence or to move for a hearing, Gentry implicitly concedes that the evidence in the record is sufficient for the Court to decide this claim, and the Court concludes based on its independent review of the record that no supplementation is necessary. Accordingly, respondent’s summary judgment motion is properly before the Court for consideration. See 1 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 17.3, at 827 (5th ed. 2005) (“Summary judgment motions also may be premised on the factual record made by the parties in prior state-court proceedings (whether or not there are favorable state-court factfindings) or on facts developed in the habeas corpus proceeding itself through discovery, expansion of the record, or the petitioner’s investigation as reflected in affidavits appended to the motion.”). In adjudicating Gentry’s Claim D, the Washington Supreme Court correctly used Strickland’s two-part test as the controlling standard. Therefore, the decision was not “contrary to” Strickland, and Gentry is entitled to habeas relief only if In re Gentry involved an “unreasonable application” of Strickland or if it “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)(1); (2). The Washington Supreme Court rejected Claim D, stating: Gentry’s trial counsel retained several experts who testified the type of tests the State performed are not accepted in the scientific community, and the State’s witnesses’ conclusions were flawed. Gentry is now claiming they should also have presented expert testimony disputing the State’s expert’s calculations of the numerical “match” between Cassie’s blood and the blood on Gentry’s shoe, and between the “Negroid” hair on her body and Edward Gentry’s hair. The State’s experts testified the blood type on the shoe matched that of about .25 percent of the Caucasian population (including Cassie), and the DNA on the hair matched 6 percent of the black population (including Edward Gentry). According to Sandy Zabel [sic], the expert located by Gentry’s current attorneys, the proper comparison for the blood is with the entire population, not just Caucasians. By her calculations, the DNA on the shoe matched about 1.8 percent of the entire population (1 in 55). That is still a closer match than the hair to Edward Gentry, and very damaging to Gentry. With respect to the hair, Zabel [sic] says the jury should have been told there was about a 45 percent chance either Edward or Jonathan Gentry would match at least one of the two hairs found on Cassie’s body. That conclusion seems to be premised on a theoretical comparison of two random persons to two unknown hairs, rather than to the facts of this case. One of the hairs on Cassie’s body was from a Caucasian person. Thus, as the jury was told, it could not have come from either Gentry brother. The DNA testing also excluded Jonathan Gentry as the source of the Negroid hair, again as the jury was told. Thus, whatever the theoretical odds of either Gentry brother matching two unidentified hairs, there was in fact zero percent chance that either man was the source of the Caucasian hair or Jonathan Gentry was a source of the Negroid hair. The only relevant remaining question was whether Edward Gentry could have been the source of the Negroid hair. It was not misleading to tell the jury that the DNA in that hair matched that of Edward and 6 percent of the black population. Gentry’s trial counsel made no errors here. In re Gentry, 137 Wash.2d at 402-403, 972 P.2d 1250. As this quoted passage above explains, the focus of the Washington Supreme Court’s analysis was Strickland’s, “prejudice” inquiry. However, as with Gentry’s other IAC claims, the Washington Supreme Court ultimately concluded that Gentry’s claim failed both parts of Strickland’s two-part test. This ruling on both parts of the Strickland inquiry is entitled to deference under the AEDPA because it constitutes a decision on the merits of the federal claim. See Pinholster, 525 F.3d at 756 (“Deference to state court decisions applies only to claims the state court adjudicated on the merits”); 756 n. 11 (“The California Supreme Court’s denial of a habeas petition without comment or citation constitutes a decision on the merits of the federal claims.”); Greene v. Lambert, 288 F.3d 1081, 1088 (9th Cir.2002) (“When the Washington Supreme Court here actually passed on the merits, it took its opportunity to address the federal claim.”). As discussed below, the first part of Strickland’s test, the “deficient performance inquiry,” is dispositive here and therefore the Court does not need to reach the question of whether the Washington Supreme Court’s ruling that there was no prejudice involved an unreasonable application of clearly established law under § 2254. Strickland, 466 U.S. at 697, 104 S.Ct. 2052. Pursuant to Strickland’s first element, Gentry specifically identified the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment as: the “fail[ure] to consult with or retain an expert statistician to rebut an essential aspect of the State’s DNA and serological evidence” given that the State’s statistical “figures were prejudicial because they essentially overestimated the likelihood that Cassie Holden’s blood was on Jonathan Gentry’s shoes and the likelihood that his brother’s hah’ was on her body.” Dkt. # 47 at ¶¶ 105; 109. Gentry contends that his counsel was ineffective because they failed to contest the statistical results of the DNA and serological tests, specifically the testimony of Dr. Edward Blake that the bloodstains on Gentry’s shoelaces match only 0.18% of the Caucasian population and the hair matches only 6% of the African American population. See Dkt. #47 at ¶¶103, 108; 17 REC 9311-9315 (Dr. Blake testimony). Gentry concedes that his lawyers “confronted the substantive reliability of the State’s DNA and serological testing” but nevertheless contends that “they had no strategy or evidence to confront the implications of this evidence if the jury found the State’s testing was reliable.” Dkt. #47 at ¶ 110. Gentry essentially asserts that his counsel was deficient for failing to adopt the following two-tiered defense: first, present evidence to the jury that the science and testing of the State’s DNA and serological evidence was unreliable; and second, present expert testimony contending that even if the scientific testing was reliable, the statistical results were erroneous. The Court, however, concludes that Gentry’s counsel reasonably chose the strategy of attacking the reliability of the State’s science and testing evidence without disputing the results, given the substantial gamble of arguing alternative and incongruent theories to a jury in a capital case and risking that the jury might reject the merit of both theories. Under Strickland, the Court must presume that counsel was competent and Gentry “must rebut this presumption by showing that his [counsel’s] performance was objectively unreasonable under prevailing professional norms and was not the product of sound strategy.” Duncan v. Ornoski, 528 F.3d 1222, 1234 (9th Cir.2008) (citing Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052). The Court’s scrutiny of Gentry’s counsel “must be highly deferential” and should make every effort “to eliminate the distorting effects of hindsight.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052; see Rompilla v. Beard, 545 U.S. 374, 381, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (“[I]n applying Strickland generally, hindsight is discounted by pegging adequacy to counsel’s perspective at the time investigative decisions are made and by giving a heavy measure of deference to counsel’s judgments.”) (internal quotation marks and citation omitted). Although the Supreme Court has “declined to articulate specific guidelines for appropriate attorney conduct and instead [has] emphasized that ‘[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms,’ ” the Ninth Circuit has established “general principles” that guide the determination of what constitutes objectively reasonable attorney performance, including the duty to investigate. Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052); Duncan, 528 F.3d at 1234. The Ninth Circuit “allow[s] lawyers considerable discretion to make strategic decisions about what to investigate, but only after those lawyers ‘have gathered sufficient evidence upon which to base their tactical choices.’ ” Duncan, 528 F.3d at 1235 (quoting Jennings v. Woodford, 290 F.3d 1006, 1014 (9th Cir.2002)) (emphasis omitted). “[O]nce counsel reasonably elects to pursue one defense theory, ‘the need for further investigation [of the other theory] may be considerably diminished or eliminated altogether.’ ” Turk v. White, 116 F.3d 1264, 1267 (9th Cir.1997) (alteration in original) (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052). “When the selected defense is incompatible with the defense that defense counsel chose not to investigate or pursue, this principle is quite compelling.” Franklin v. Johnson, 290 F.3d 1223, 1236 (9th Cir.2002). These principles from the Ninth Circuit are consistent with the Supreme Court’s pronouncement in Strickland that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” 466 U.S. at 690, 104 S.Ct. 2052. In Gentry’s case, counsel’s decision at trial to contest the reliability of the scientific testing, rather than statistical results, was based on extensive evidence developed before trial. The pretrial proceedings in this case included a Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), hearing on the admissibility of the DNA and sero-logic evidence that spanned six weeks, and included testimony from eight witnesses for the State, six defense expert witnesses, and 101 exhibits. See 2 REC 648-656. The theme counsel advanced during trial was the theme developed from the Friye-proceeding: The approach that is being advocated by the defense, Your Honor, is simply stated as follows: If we are getting to the point in the criminal law where science is going to determine the guilt or innocence of the accused, then we damn well better make sure that we practice science and not pseudo-science. In other words, we’d better make sure that the rigors of the scientific tradition are applied to the analysis of crime scene evidence. 7 REC 3662:9-17 (Frye-hearing defense closing). At trial, Gentry’s counsel consistently presented the theme through expert testimony that none of the DNA or sero-logical analyses was reliable enough to do any calculations. For example, during the concluding direct-examination questions of defense expert Dr. Benjamin Grunbaum, counsel elicited the following: Q. Doctor, I’d like to now show you what has been admitted into evidence as State’s Exhibit 82.... There has been previous testimony, Doctor, that— which is summarized by this chart with respect to conclusions that were drawn by other witnesses with respect to the analysis of the types of the left shoelace, and the right shoelace, Cassie Holden, and the percentage of the population that has those particular types. And then on the far right there’s a column that is said to pertain to Jonathan Gentry. If the ABO type on the left and right shoelaces is a type A, would that exclude Cassie Holden as the donor of the blood on the shoelaces? A. Correct, Yes, it would. Q. And so I take it we could then eliminate Ü.5 percent as is shown up here; is that right? A. That’s correct. It wouldn’t belong there. Q. I want you to assume that there’s evidence that this gamma marker test is scientifically unreliable. Would you then disregard the II percent? A. Definitely. Q. I want you to look now at the haptoglobin. And if no call can be made on the left shoelace and the right shoelace, would that essentially throw out the 36.1 percent figure? A. It would. Q. And I want you to assume hypothetically that the results that are reported here zvith respect to the PCR examination are also not valid. Would that remove the 8 percent figure? A. It would. Q. One final question, Doctor. What is zero times zero times zero times zero times zero in a PGM? [Objection sustained]. 17 REC 9681:8-9683:3 (emphasis added). This theme continued during counsel’s final direct-examination questions of Gentry’s expert David Adler: Q. I’d like you to assume that there has been testimony that the gamma marker test in this case was done with an unreliable method. I’d also like you to assume that there has been testimony in this case that the haptoglobin test does not indicate a type two on the left shoelace, which could be consistent with Cassie Holden, but is either uninterpretable, or indicative of another haptoglobin variant, having all that in mind in a hypothetical, can you indicate whether or not you would feel that it would be appropriate to use haptoglobin results, gamma marker results, an ABO result in the use of a product rule to try to determine what percentage of the population might have all of those genetic markers in common? A. I would not do that. Q. Can you tell the jury why? A. Well, I think it speaks to the reliability of each particular technique. If you’re multiplying numbers together and your multiplying numbers that are the results of unreliable tests, then what you’re doing really is multiplying your enror and that’s a problem. 18 REC 9860:5-24 (emphasis added). Finally, defense counsel’s theme that the science was not reliable, and therefore the jury should not consider the results, was the focus of Gentry’s guilt-phase closing argument conclusion: The last area I want to talk to you about is the science. And it is in this area that the presentation of this case is the most frightening, because the state has basically asked you to abandon your duty as jurors in the critical examination of this evidence. Just take it on the word of our experts. They came in and told you that this is what the types were, this is what the results were. Don’t worry about it any further than that. Folks, you go back there please, and have this discussion. Ask yourselves, who took the time to try and explain the scientific evidence to you? Who took the time to go beyond the conclusions and to get into the scientific basis for those examinations? And I suggest to you, it was the defense, it was ios. Because the state is not interested in you understanding this science. They just want you to accept the results. 18 REC 10196:16-10197:7 (emphasis added); see also 18 REC 10200:4-7 (“What they [the State] want to do is transfer the technology and forget everything about the scientific rigor that insures that these test results are reliable.”); 17 REC 10217:6-9 (“The state tries to pick and choose about what rules of scientific method are going to be followed in what given test, depending on the test results, and that’s just not fair.”). As these specific examples show, throughout the trial, Gentry’s counsel drummed the theme that the State’s scientific theory and testing were unreliable. Based on a review of the entire trial court record, the Court has no doubt that the decision to contest the reliability of the DNA and serologic science and tests was a strategic choice made after a thorough investigation of law and facts, and not the product of counsel’s oversight. Counsel cannot be faulted for not flipping 180-degrees and softening this theme by asking an expert like Dr. Zabell to assume the science was reliable and simply contest the statistical accuracy of the results. For all the foregoing reasons, Gentry has not shown that the Washington Supreme Court’s decision that Gentry’s trial counsel were not deficient in failing to consult additional experts under Strickland, was contrary to, or an unreasonable application of, clearly established federal law, or based on an unreasonable determination of the facts. Therefore, the Court grants respondent’s motion for summary-judgment and denies Claim D of Gentry’s Amended Petition. (e) Brady violations Respondent moves for summary judgment on Gentry’s claim that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose impeachment evidence about the three jailhouse witnesses and two detectives. See Dkt. # 47 (“Claim E”) at ¶¶ 12; 112-222; Dkt. #272. In the Court’s “Order on Petition for Habeas Relief Based on Brady and Napue Violations” (Dkt. # 283) and the “Order on Brady/Napue Claims Regarding Leonard Smith” (Dkt. #284), the Court denied Gentry’s Claim E with respect to all of his Brady violation claims for jailhouse witnesses Brian Dyste, Timothy Hicks, Leonard Smith, and Detectives Doug Wright and Smed Wagner. Based on these orders, respondent has already prevailed on this claim. Therefore, the Court grants respondent’s motion for summary judgment and denies Claim E of Gentry’s Amended Petition. (f) Napue violations Respondent moves for summary judgment on Gentry’s claim that the State violated Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), by presenting false testimony from the three jailhouse witnesses. See Dkt. #47 (“Claim F”) at ¶¶ 13; 223-225; Dkt. # 272. In the Court’s “Order on Petition for Habeas Relief Based on Brady and Napue Violations” (Dkt. # 283) and the “Order on Brady/Napue Claims Regarding Leonard Smith” (Dkt. # 284), the Court denied Gentry’s Claim F with respect to all of his Napue violation claims for jailhouse witnesses Brian Dyste, Timothy Hicks, Leonard Smith. Therefore, based on these orders, respondent has already prevailed on this claim. Therefore, the Court grants respondent’s motion for summary judgment and denies Claim F of Gentry’s Amended Petition. (g)Investigation of impeachment evidence Next, respondent moves for summary judgment on Gentry’s claim that his counsel was ineffective under the Sixth Amendment for failing to fully investigate the State’s three jailhouse witnesses. See Dkt. # 47 (“Claim G”) at ¶¶ 14.1; 226-232; Dkt. # 272. In considering this ineffective assistance of counsel claim, the Washington Supreme Court decided under the second part of the Strickland’s test that “[e]ven if a more thorough investigation [of the jailhouse witnesses Dyste, Hicks, and Smith] were constitutionally required, the representation Gentry received did not deprive him of ‘a fair trial, a trial whose result is reliable.’ Strickland, 466 U.S. at 687, 104 S.Ct. 2052.” In re Gentry, 137 Wash.2d at 401, 972 P.2d 1250. In two prior orders, the Court denied Gentry’s Amended Petition with respect to all of his Brady and Napue violation claims for jailhouse witnesses Dyste, Hicks, and Smith, and Detectives Wright and Wagner because the Court concluded there was no violation of Brady/Napue because the evidence was not “material,” and there was no reasonable probability that the outcome of the trial would have been different if the impeachment evidence had been disclosed to the jury. See Dkt. # 283 at 16-25. Gentry’s failure to establish that the Brady evidence was material necessarily means that his ineffective assistance of counsel claim also fails because “[t]he materiality standard under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), is the same as the prejudice standard under Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) — whether ‘there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” Clay v. Bowersox, 367 F.3d 993, 1000 (8th Cir.2004) (citing United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)), cert. denied sub nom. Clay v. Roper, 544 U.S. 1035, 125 S.Ct. 2246, 161 L.Ed.2d 1063 (2005); see also Benn v. Lambert, 283 F.3d 1040, 1053 (9th Cir.2002) (“[W]e analyze all of the suppressed evidence together [under Brady ], using the same type of analysis that we employ to determine prejudice in ineffective assistance of counsel cases.”); Jennings v. Crosby, 392 F.Supp.2d 1312, 1324 (N.D.Fla.2005) (“Mr. Jennings’ failure to demonstrate Brady materiality is fatal to any potential ineffective assistance claim based on failure to discover the evidence.”), a