Full opinion text
MEMORANDUM OF DECISION AND ORDER NEIL V. WAKE, District Judge. Before the Court is Petitioner Michael S. Gallegos’s amended petition for writ of habeas corpus. (Dkt.74.) Petitioner alleges, pursuant to 28 U.S.C. § 2254, that he was convicted and sentenced to death in violation of the United States Constitution. (Id.) The amended petition raised 33 claims for relief. (Id.) Respondents filed an answer to the petition and Petitioner filed a traverse. (Dkts.68, 86.) In an order denying Petitioner’s requests for evidentiary development, the Court dismissed Claim 30 based on a procedural bar, Claim 31 on the merits, Claim 32 for failure to state a cognizable ground for habeas relief, and Claim 33 as premature. (Dkt.106.) This Order addresses the procedural status and/or the merits of the remaining claims and concludes, for the reasons set forth below, that Petitioner is not entitled to habeas relief. BACKGROUND In 1991, Petitioner was tried and convicted for the first degree murder of, and sexual conduct with, eight-year-old Kendall Wishon. The victim lived with her mother, Cynthia Wishon, and Petitioner’s brother Jerry Gallegos (Gallegos) in Phoenix. In November 1989, the victim’s half-brother, George Smallwood, moved to Flagstaff to live with Petitioner and Petitioner’s family. Petitioner’s parents became Smallwood’s legal guardians. Petitioner and Small-wood were friends and attended high school together. Smallwood visited his mother, Mrs. Wi-shon, and his half-sister, the victim, in Phoenix during holidays, and Petitioner sometimes accompanied him. Petitioner and Smallwood were on spring break in March 1990 and spent the week in the victim’s home in Phoenix. They worked on their respective vehicles most of that week. In the afternoons, they were responsible for supervising the victim when she came home from school because both Mrs. Wishon and Gallegos worked during the day. Gallegos worked at a truck and trailer repair shop in Phoenix. On Thursday, March 15, 1990, at about 4:30 p.m., Petitioner and Smallwood went to Gallegos’s repair shop to work on their vehicles. After the other employees left for the day, Gallegos supervised both Petitioner’s and Smallwood’s repair work. They drank some beer and worked on their vehicles until about 9:30 p.m. On their way home, Gallegos purchased a case of beer. They arrived home about 10:00 p.m. and continued working on the vehicles until about 10:30. During this time, Gallegos shared a couple of beers from his case with them. When Petitioner and Smallwood came into the house at about 10:30 p.m., the victim was bathing; she went to bed shortly thereafter. Mrs. Wishon stopped by the victim’s room to kiss her goodnight on her way to bed. Gallegos took a shower and then played a video game with Petitioner and Smallwood before he retired at about 11:30 p.m. On his way to bed, Gallegos checked the case of beer and found that the case was all “basically there.” As to the events that transpired later that night, Petitioner confessed on two occasions and testified at trial as follows. After Gallegos retired, Petitioner and Smallwood continued playing video games and drank more beer. Petitioner suggested that they go into the victim’s room to fondle her; Smallwood agreed. Once they were inside the victim’s room, Petitioner lifted her nightgown and rubbed baby oil on the small of her back. According to Petitioner, when the girl began to awaken, Smallwood put his hand over her mouth and Petitioner put his hand over Small-wood’s hand and over the victim’s nose. She gasped for air, struggled, and made sounds “like a little pig” before eventually going limp. Believing that the victim was dead, Petitioner and Smallwood decided to “finish her off.” They pulled her body off the bed and placed her on the floor. According to Petitioner, Smallwood attempted to insert his penis into the victim’s vagina. Petitioner then had anal intercourse with her for 15 to 20 minutes. During this time, Petitioner testified, Smallwood stuck his penis inside the victim’s mouth. After Petitioner completed the sex act, the two carried the victim’s naked body out of the house and down the street where they dropped it under a tree. They returned to the house and went to bed. Early the next morning, Mrs. Wishon and Gallegos got up to go to work. The couple did not attempt to awaken the victim, who did not have school that day. Mrs. Wishon went into Petitioner and Smallwood’s room to give them money to buy milk. Smallwood took the money and went to the store. When he returned, Petitioner went outside to work on his vehicle. After talking with Petitioner, Smallwood called Mrs. Wishon at work and told her the victim was missing. Mrs. Wishon left work and arrived back at the house at about 10:00 a.m. Smallwood also contacted Gallegos and the police. When Gallegos and the police arrived, they began an extensive search of the neighborhood. Petitioner and Smallwood participated in the search but deliberately avoided the area where they had dropped the victim’s body. At around 1:00 p.m., an unidentified boy alerted the police as to the body’s location. The police found the victim’s naked body under the tree where it had been left the night before. Petitioner’s confessions and testimony in his own defense are the only evidence implicating Smallwood. The victim’s body was located 250 feet from the house. The victim was lying supine with her legs spread apart. The body was dirty and covered with grass. There was obvious trauma to the vaginal area and some type of oil located on one leg and in the vaginal area. The victim had sustained contusions to the left side of her face, her forehead, her right eye, and the right side of her nose. The medical examiner determined that the victim died of asphyxiation due to suffocation. He testified at trial that the victim’s rectum was “marketedly dilated” and that the anal trauma occurred while the victim was alive. He noted that the victim had various bruises and abrasions on her face and body, some of which were red, indicating that they occurred while the victim was still alive. She had also suffered a blunt force injury to her head. Mrs. Wishon testified that, before the night of the murder, the victim had no noticeable bruises or marks. The police searched the victim’s house and seized numerous articles of evidence, including her underwear, nightshirt, and bed sheet. In the kitchen, the police found an empty beer bottle and two empty cardboard beer cartons in a plastic trash container. They also found two empty beer cans on the dishwasher and noted several hard liquor bottles on the kitchen shelves. In the carport, the police found another empty beer can and a large cardboard box filled with empty beer and soda cans. The police photographed the victim’s room and dusted it for fingerprints. Because the house showed no signs of forced entry, the investigation focused on Petitioner and Smallwood. The police transported them to the police station for questioning. Detectives Armando Saldate, Jr., and Michael Chambers escorted them into separate interview rooms. Detective Saldate advised Petitioner of his Miranda rights and then questioned him while Detective Chambers questioned Smallwood. After initially denying any involvement in the victim’s death, Petitioner confessed to Detective Saldate. He later confessed a second time in the presence of both Detective Saldate and Detective Chambers. The trial court determined that these confessions were voluntary. When Smallwood was confronted with Petitioner’s confessions, he denied any involvement in the victim’s death. He stated that if Petitioner had implicated him, it was only because he did not want to take the blame alone. The two were subsequently indicted for the murder and sexual molestation of the victim. The State submitted blood samples taken from Petitioner and Smallwood, along with the evidence obtained at the crime scene, to a forensic laboratory for DNA testing. The lab later notified the State that Smallwood could not be included as a contributor to the evidence. The State dismissed the case against Smallwood based on insufficient evidence. During Petitioner’s trial, the parties stipulated that a fingerprint removed from the victim’s bedroom matched Petitioner’s right middle finger; that semen was detected on the victim’s panties, nightshirt, and bed sheet; that DNA testing showed that the stain on the victim’s panties contained a banding pattern that matched the pattern obtained from Petitioner’s blood; and that the probability that an individual other than Petitioner was the source of the stain on the victim’s panties was one in 10 million for Caucasians and one in 67 million for Hispanics. Petitioner took the stand in his own defense and testified that he participated in the victim’s death. He maintained that he was drunk and did not intend to kill her. He also testified that he believed the victim was dead at the time of the sexual penetration. On cross-examination, he was unable to explain the various bruises and abrasions on the victim’s body. Petitioner was prepared to call Smallwood as a witness, but on the advice of counsel Smallwood invoked his Fifth Amendment right not to testify. The jury unanimously found Petitioner guilty of first degree murder and sexual conduct with a minor. The jury was divided, however, on whether the murder was premeditated or felony murder. In sentencing Petitioner, the trial judge found two aggravating circumstances, that Petitioner committed the murder in an especially heinous, cruel, or depraved manner, and that he was an adult at the time of the offense and the victim was under 15 years of age. The judge found one statutory mitigating factor, Petitioner’s age of 18, and two non-statutory mitigating factors, Petitioner’s remorse and the recommendations of leniency from Detectives Saldate and Chambers. After considering each of the mitigating circumstances, the trial judge found that they were not sufficiently substantial to outweigh the aggravating factors and call for leniency. The judge, noting that “[ejach aggravating circumstance standing alone outweighs the total mitigation,” sentenced Petitioner to death for the murder. The Arizona Supreme Court affirmed the conviction on direct appeal but reversed and remanded for resentencing, holding that the trial court had failed to consider whether Petitioner’s impairment at the time of the crime, coupled with his history of drug and alcohol abuse, constituted a non-statutory mitigating circumstance. State v. Gallegos, 178 Ariz. 1, 5, 21, 870 P.2d 1097, 1101, 1117 (1994) (Gallegos I). A resentencing hearing was held by the trial court on October 24, 1994. The court found that Petitioner’s impairment and history of alcohol and drug abuse constituted additional non-statutory mitigation. However, it concluded that the mitigating circumstances were not sufficiently substantial to call for leniency and re-sentenced Petitioner to death. The Arizona Supreme Court affirmed. See State v. Gallegos, 185 Ariz. 340, 343, 916 P.2d 1056, 1059 (1996) (Gallegos II). Petitioner thereafter filed a petition for state post-conviction relief (PCR) and a supplemental petition in the trial court. (PCR docs. 188, 204.) The court denied relief on most of the claims, but set an evidentiary hearing regarding Petitioner’s claims of ineffective assistance of counsel. (ME 9/28/00.) Following the evidentiary hearing, the court denied those claims on the merits. (PCR doc. 227; see PR doc. 10.) Petitioner filed a petition for review in the Arizona Supreme Court, which summarily denied relief. (PR docs. 1, 12). Thereafter, Petitioner initiated the instant habeas proceedings. EXHAUSTION AND PROCEDURAL DEFAULT A writ of habeas corpus may not be granted unless it appears that a petitioner has exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1); see also Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). To exhaust state remedies, a petitioner must “fairly present” the operative facts and the federal legal theory of his claims to the state’s highest court in a procedurally appropriate manner. O’Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982); Picard v. Connor, 404 U.S. 270, 277-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). The principle of exhaustion requires that a petitioner clearly alert the state court that he is alleging a specific federal constitutional violation. See Casey v. Moore, 386 F.3d 896, 913 (9th Cir.2004); see also Gray v. Netherland, 518 U.S. 152, 163, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996) (general appeal to due process not sufficient to present substance of federal claim); Lyons v. Crawford, 232 F.3d 666, 669-70 (2000), as amended by 247 F.3d 904 (9th Cir.2001) (general reference to insufficiency of evidence, right to be tried by impartial jury, and ineffective assistance of counsel lacked specificity and explicitness required); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.1999) (“The mere similarity between a claim of state and federal error is insufficient to establish exhaustion.”). A petitioner must make the federal basis of a claim explicit either by citing specific provisions of federal law or case law, Lyons, 232 F.3d at 670, or by citing state cases that plainly analyze the federal constitutional claim, Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir.2003) (en banc); cf. Fields v. Waddington, 401 F.3d 1018, 1022 (9th Cir.2005) (mere citation to a state case that conducts both a state and federal law analysis does not, by itself, satisfy exhaustion). In Arizona, there are two procedurally appropriate avenues for petitioners to exhaust federal constitutional claims: direct appeal and post-conviction relief proceedings. Rule 32 of the Arizona Rules of Criminal Procedure governs PCR proceedings and provides that a petitioner is precluded from relief on any claim that could have been raised on appeal or in a prior PCR petition. Ariz. R.Crim. P. 32.2(a)(3). The preclusive effect of Rule 32.2(a) may be avoided only if a claim falls within certain exceptions and the petitioner can justify why the claim was omitted from a prior petition or not presented in a timely manner. See Ariz. R.Crim. P. 32.1(d)-(h), 32.2(b), 32.4(a). A habeas petitioner’s claims may be precluded from federal review in two ways. First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30, 111 S.Ct. 2546. The procedural bar relied on by the state court must be independent of federal law and adequate to warrant preclusion of federal review. See Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). Arizona’s preclusion rule is independent of federal law, see Stewart v. Smith, 536 U.S. 856, 860, 122 S.Ct. 2578, 153 L.Ed.2d 762 (2002) (per curiam), and the Ninth Circuit has repeatedly determined that Arizona regularly and consistently applies its preclusion rules such that they are an adequate bar to federal review of a claim. See Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir.1998) (finding Rule 32.2(a)(3) regularly followed and adequate); Poland v. Stewart, 117 F.3d 1094, 1106 (9th Cir.1997) (same). Second, a claim may be procedurally defaulted if the petitioner failed to present it in state court and “the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Coleman, 501 U.S. at 735 n. 1, 111 S.Ct. 2546; see also Ortiz, 149 F.3d at 931 (district court must consider whether the claim could be pursued by any presently available state remedy). If no remedies are currently available pursuant to Rule 32, the claim is “technically” exhausted but procedurally defaulted. Coleman, 501 U.S. at 732, 735 n. 1, 111 S.Ct. 2546; see also Gray, 518 U.S. at 161-62, 116 S.Ct. 2074. Because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. Reed v. Ross, 468 U.S. 1, 9, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). As a general matter, the Court will not review the merits of a procedurally defaulted claim unless a petitioner demonstrates legitimate cause for the failure to properly exhaust the claim in state court and prejudice from the alleged constitutional violation, or shows that a fundamental miscarriage of justice would result if the claim were not heard on the merits in federal court. Coleman, 501 U.S. at 750, 111 S.Ct. 2546. Finally, pursuant to 28 U.S.C. § 2254(b)(2), the Court may dismiss plainly meritless claims regardless of whether the claim was properly exhausted in state court. See Rhines v. Weber, 544 U.S. 269, 277, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005) (holding that a stay is inappropriate in federal court to allow claims to be raised in state court if they are subject to dismissal under § 2254(b)(2) as “plainly meritless”). Therefore, the Court will undertake an analysis of the procedural status of Petitioner’s claims only where necessary. AEDPA STANDARD FOR RELIEF Petitioner’s habeas claims are governed by the applicable provisions of the Antiter-rorism and Effective Death Penalty Act (AEDPA). See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The AEDPA established a “substantially higher threshold for habeas relief’ with the “acknowledged purpose of ‘reducing delays in the execution of state and federal criminal sentences.’ ” Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1939-40, 167 L.Ed.2d 836 (2007) (quoting Woodford v. Garceau, 538 U.S. 202, 206, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003)). The AEDPA’s “ ‘highly deferential standard for evaluating state-court rulings’ ... demands that state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam) (quoting Lindh, 521 U.S. at 333 n. 7, 117 S.Ct. 2059). Under the AEDPA, a petitioner is not entitled to habeas relief on any claim “adjudicated on the merits” by the 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 facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). The phrase “adjudicated on the merits” refers to a decision resolving a party’s claim which is based on the substance of the claim rather than on a procedural or other non-substantive ground. Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir.2004). The relevant state court decision is the last reasoned state decision regarding a claim. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir.2005) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)); Insyxiengmay v. Morgan, 403 F.3d 657, 664 (9th Cir.2005). “The threshold question under AEDPA is whether [the petitioner] seeks to apply a rule of law that was clearly established at the time his state-court conviction became final.” Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Therefore, to assess a claim under subsection (d)(1), the Court must first identify the “clearly established Federal law,” if any, that governs the sufficiency of the claims on habeas review. “Clearly established” federal law consists of the holdings of the Supreme Court at the time the petitioner’s state court conviction became final. Williams, 529 U.S. at 365, 120 S.Ct. 1495; see Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 653, 166 L.Ed.2d 482 (2006); Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.2003). Habeas relief cannot be granted if the Supreme Court has not “broken sufficient legal ground” on a constitutional principle advanced by a petitioner, even if lower federal courts have decided the issue. Williams, 529 U.S. at 381, 120 S.Ct. 1495; see Musladin, 127 S.Ct. at 654; Casey v. Moore, 386 F.3d 896, 907 (9th Cir.2004). Nevertheless, while only Supreme Court authority is binding, circuit court precedent may be “persuasive” in determining what law is clearly established and whether a state court applied that law unreasonably. Clark, 331 F.3d at 1069. The Supreme Court has provided guidance in applying each prong of § 2254(d)(1). The Court has explained that a state court decision is “contrary to” the Supreme Court’s clearly established precedents if the decision applies a rule that contradicts the governing law set forth in those precedents, thereby reaching a conclusion opposite to that reached by the Supreme Court on a matter of law, or if it confronts a set of facts that is materially indistinguishable from a decision of the Supreme Court but reaches a different result. Williams, 529 U.S. at 405-06, 120 S.Ct. 1495; see Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam). In characterizing the claims subject to analysis under the “contrary to” prong, the Court has observed that “a run-of-the-mill state-court decision applying the correct legal rule to the facts of the prisoner’s case would not fit comfortably within § 2254(d)(l)’s ‘contrary to’ clause.” Williams, 529 U.S. at 406, 120 S.Ct. 1495; see Lambert, 393 F.3d at 974. Under the “unreasonable application” prong of § 2254(d)(1), a federal habe-as court may grant relief where a state court “identifies the correct governing legal rule from [the Supreme] Court’s cases but unreasonably applies it to the facts of the particular ... case” or “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407, 120 S.Ct. 1495. For a federal court to find a state court’s application of Supreme Court precedent “unreasonable” under § 2254(d)(1), the petitioner must show that the state court’s decision was not merely incorrect or erroneous, but “objectively unreasonable.” Id. at 409, 120 S.Ct. 1495; Landrigan, 127 S.Ct. at 1939; Visciotti, 537 U.S. at 25, 123 S.Ct. 357. Under the standard set forth in § 2254(d)(2), habeas relief is available only if the state court decision was based on an unreasonable determination of the facts. Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (Miller-El II). A state court decision “based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (Miller-El I); see Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir.2004). In considering a challenge under § 2254(d)(2), state court factual determinations are presumed to be correct, and a petitioner bears the “burden of rebutting this presumption by clear and convincing evidence.” 28 U.S.C. § 2254(e) (1); Landrigan, 127 S.Ct. at 1939-40; Miller-El II, 545 U.S. at 240, 125 S.Ct. 2317. But it is only the state court’s factual findings, not its ultimate decision, that are subject to 2254(e)(l)’s presumption of correctness. Miller-El I, 537 U.S. at 341-42, 123 S.Ct. 1029 (“The clear and convincing evidence standard is found in § 2254(e)(1), but that subsection pertains only to state-court determinations of factual issues, rather than decisions.”). As the Ninth Circuit has noted, application of the foregoing standards presents difficulties when the state court decided the merits of a claim without providing its rationale. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.2002); Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir.2000). In those circumstances, a federal court independently reviews the record to assess whether the state court decision was objectively unreasonable under controlling federal law. Himes, 336 F.3d at 853; Pirtle, 313 F.3d at 1167. Although the record is reviewed independently, a federal court nevertheless defers to the state court’s ultimate decision. Pirtle, 313 F.3d at 1167 (citing Delgado, 223 F.3d at 981-82); see also Himes, 336 F.3d at 853. Only when a state court did not decide the merits of a properly raised claim will the claim be reviewed de novo, because in that circumstance “there is no state court decision on [the] issue to which to accord deference.” Pirtle, 313 F.3d at 1167; see also Menendez v. Terhune, 422 F.3d 1012, 1025-26 (9th Cir.2005); Nulph v. Cook, 333 F.3d 1052, 1056-57 (9th Cir.2003). DISCUSSION Claim 1 Violation of Ring v. Arizona Petitioner contends that he was entitled to be sentenced by a jury under Ring v. Arizona, 536 U.S. 584, 609, 122 5.Ct. 2428, 153 L.Ed.2d 556 (2002). (Dkt. 74 at 33-35.) In Ring, the Supreme Court held that Arizona’s aggravating factors, as elements of the offense of capital murder, must be found by a jury. In Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), however, the Court held that Ring does not apply retroactively to cases already final on direct review. Because direct review of Petitioner’s case was final prior to Ring, he is not entitled to federal habeas relief premised on that ruling. Therefore, Claim 1 is without merit and will be denied. Claim 2 Judicial bias on resentencing Petitioner alleges that his due process right to a fair and impartial tribunal was violated because the trial judge was biased against him when he heard the case on remand. (Dkt. 74 at 35-41.) For this proposition, Petitioner cites comments made by the judge indicating “antagonism” toward Petitioner and “contempt” for the resentencing proceedings. (Id. at 35-36.) He further contends that judicial bias was manifest in the “procedural irregularities” that occurred on resentencing — namely, the judge’s failure to hold a “separate” sentencing hearing after receiving the new mitigation evidence. (Id. at 36.) Respondents counter that the claim is unexhaust-ed and meritless. Background At the end of the resentencing hearing, the victim’s mother made a statement to the court in which she described the emotional trauma caused by the ongoing legal process, stating that “every time something like this comes up, it’s just one more knife that gets jabbed into me and my family and friends ... and it’s a constant never ending hell.” (RT 10/24/94 at 171-72.) She concluded, “I beg of you not to change anything that has been handed down already, because with all this going on, there seems like there’s no end, that there’s just no end.” (Id. at 172.) The trial judge responded with the following comments, which included a reference to the dissenting opinion in Gallegos I: Let me apologize to everyone involved here for the obvious emotional trauma. Here we are these many years later and the matter has to be dragged up again. Justice Martone has referred to this— coming back to this court for resentenc-ing as a triumph of form over substance. This is simply a legal exercise, technicality type of situation, and again I wanted to apologize to everyone for my part in the fact that the supreme court determined that a remand hearing was necessary. (Id. at 172.) After the parties’ closing arguments, the judge proceeded to pronounce sentence. Prior to reading the portion of his special verdict dealing with nonstatutory mitigating factors, the judge remarked, “I honestly can say that I don’t understand the Supreme Court’s ruling, but I will abide by their ruling and I will do exactly that.” (RT 10/24/94 at 188.) Citing testimony elicited at the resentencing hearing, the court found that Petitioner’s impairment at the time of the murder and his history of substance abuse constituted a nonstatutory mitigating circumstance in addition to the circumstances previously found but concluded that all of mitigating evidence considered cumulatively was not sufficiently substantial to outweigh the aggravating factors and call for leniency. (Id. at 182-89.) In a final comment noted by Petitioner, the judge stated that “even if the Arizona Supreme Court told this court to weigh the alcohol and drug history and impairment ten times, this court would still find that each aggravating circumstance standing alone would outweigh all collective mitigation.” (Id. at 189-90.) Analysis Petitioner asserts that he exhausted his claim of judicial bias by raising it in his initial and supplemental PCR petitions and in his petition for review (PR). (Dkts. 74 at 35, 86 at 35.) The Court disagrees and finds that the claim is procedurally barred. Petitioner’s initial PCR petition contained the allegation that Judge Hotham should have recused himself at resentenc-ing because he was unable or unwilling to “genuinely reweigh” the aggravating and mitigating circumstances and failed to do so. (PCR doc. 188 at 19.) The supplemental PCR petition raised the claim that “[t]here was no separate sentencing hearing, as required by law.” (PCR doc. 204 at 21.) The PR simply alleged that the trial court erred because it “failed to exercise its discretion in weighing aggravating and mitigating circumstances on remand.” (PR doc. 1 at 5.) The PR sought “review of all claims raised” in the PCR petitions (id. at 2) and included an appendix containing the petitions. In none of these filings did Petitioner allege a violation of his federal constitutional rights based upon the sentencing court’s bias. The claim is therefore not exhausted. See Casey v. Moore, 386 F.3d 896, 913 (9th Cir.2004); Gray v. Netherland, 518 U.S. 152, 163, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). In addition, the PCR court found Petitioner’s recusal claim “precluded pursuant to Rule 32.2(a)(3) (waived because not raised at trial or on appeal), and, alternatively was necessarily determined by Judge Reinstein in denying Defendant’s motion for change of judge filed at the beginning of the post-conviction relief proceeding.” (PR doc. 10 at 1.) This preclusion ruling rests on an independent and adequate state procedural bar. See Smith, 536 U.S. at 860, 122 S.Ct. 2578 (Arizona’s Rule 32.2(a) is independent of federal law); Ortiz, 149 F.3d at 931-32 (Rule 32.2(a)(3) is an adequate procedural bar). As cause to overcome the default, Petitioner asserts the ineffectiveness of appellate counsel. (Dkt. 86 at 38.) Before ineffectiveness of appellate counsel may be used to establish cause for a procedural default, it must have been presented to the state court as an independent claim. See Edwards v. Carpenter, 529 U.S. 446, 451-53, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000); Murray v. Carrier, 477 U.S. 478, 489-90, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir.1988). Petitioner contends (see Dkt. 86 at 38) that he exhausted a claim of ineffective assistance of appellate counsel by alleging, in his initial PCR petition, “The denial of the Constitutional Right of representations [sic] by a competent lawyer at every stage of the proceedings” (PCR doc. 188 at 2). The Court disagrees. The remainder of the initial PCR petition raises no claim of ineffectiveness of appellate counsel; nor does the supplemental PCR petition or the PR. (PCR doc’s 188, 204; PR doc. 1.) Because the Arizona Supreme Court has not had a fair opportunity to rule on Petitioner’s ineffectiveness claim alleged as cause, and Petitioner may not exhaust those claims now, such claims are technically exhausted but procedurally defaulted. See Gray, 518 U.S. at 161-62, 116 S.Ct. 2074; Coleman, 501 U.S. at 735 n. 1, 111 S.Ct. 2546. Therefore, Petitioner’s allegations of ineffective appellate counsel cannot constitute cause to excuse the default. See Carpenter, 529 U.S. at 453, 120 S.Ct. 1587 (ineffective counsel as cause can itself be procedurally defaulted). Even if Petitioner had properly exhausted a claim of ineffective assistance of appellate counsel, he would not be entitled to relief on this claim. Where ineffective assistance of appellate counsel is raised as cause for excusing a procedural default, application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), requires the Court to look to the merits of the omitted issue. Hain v. Gibson, 287 F.3d 1224, 1231 (10th Cir.2002); United States v. Cook, 45 F.3d 388, 392 (10th Cir.1995) (to determine if appellate counsel provided ineffective assistance by failing to raise an issue on appeal “we examine the merits of the omitted issue”). If the omitted issue is meritless, counsel’s failure to appeal does not constitute a Sixth Amendment deprivation. Cook, 45 F.3d at 392-93. Because the Court has determined that the claim is without merit, the Court need not determine whether ineffective assistance of appellate counsel caused the default. To succeed on a judicial bias claim, a petitioner must “overcome a presumption of honesty and integrity in those serving as adjudicators.” Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). “In the absence of any evidence of some extrajudicial source of bias or partiality, neither adverse rulings nor impatient remarks are generally sufficient to overcome the presumption of judicial integrity, even if those remarks are ‘critical or disapproving of, or even hostile to, counsel, the parties, or their cases.’ ” Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir.2008) (quoting Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994)). In addition, as the Supreme Court explained in Liteky, “It has long been regarded as normal and proper for a judge to sit in the same case upon its remand, and to sit in successive trials involving the same defendant.” 510 U.S. at 555, 114 S.Ct. 1147; cf. Withrow, 421 U.S. at 57, 95 S.Ct. 1456 (having the same judge retry a case after remand does not violate due process). On federal habeas review, the Court “must ask whether the state trial judge’s behavior rendered the trial so fundamentally unfair as to violate federal due process under the United States Constitution.” Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir.1995). “To sustain a claim of this kind, there must be an ‘extremely high level of interference’ by the trial judge which creates ‘a pervasive climate of partiality and unfairness.’ ” Id. (quoting United States v. DeLuca, 692 F.2d 1277, 1282 (9th Cir.1982)). Read in the context of the entire resentencing proceeding, the judge’s comments neither suggested that he had a personal grievance against Petitioner nor created a pervasive climate of partiality and bias. As Respondents note, in apologizing for the necessity of holding the re-sentencing proceedings, the judge quoted from Judge Martone’s dissent in Gallegos I. His comments were not directed against Petitioner but expressed frustration on behalf of the victim’s family and regret at his role in prolonging the proceedings. The judge’s other comments, while hyperbolic, simply reflect his conclusion regarding the weight to be ascribed to Petitioner’s impairment and substance abuse history as a nonstatutory mitigating circumstance. The remarks did not reveal opinions of “such a high degree of favoritism or antagonism as to make fair judgment impossible.” Liteky, 510 U.S. at 555, 114 S.Ct. 1147. Finally, even assuming that the judge was biased, there was no prejudice because the Arizona Supreme Court independently reviewed the sentence and determined that the death penalty was appropriate. Gallegos II, 185 Ariz. at 348, 916 P.2d at 1064. Conclusion Claim 2 is both procedurally barred and meritless. Petitioner is not entitled to ha-beas relief. Claims 3-9 Ineffective Assistance of Counsel Petitioner alleges that defense counsel performed in a constitutionally ineffective manner during the guilt and penalty stages of his trial. The PCR court denied these claims after holding an evidentiary hearing. (PCR doc. 227; see PR doc. 10 at 2.) Clearly established federal law For claims of ineffective assistance of counsel, the applicable law is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. To prevail under Strickland, a petitioner must show that counsel’s representation fell below an objective standard of reasonableness and that the deficiency prejudiced the defense. Id. at 687-88, 104 S.Ct. 2052. Review of counsel’s performance under Strickland is “extremely limited.” Coleman v. Calderon, 150 F.3d 1105, 1113 (9th Cir.1998), judgment rev’d on other grounds, 525 U.S. 141, 119 S.Ct. 500, 142 L.Ed.2d 521 (1998). “The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial.” Id. The inquiry under Strickland is highly deferential, and “every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” 466 U.S. at 689, 104 S.Ct. 2052. Thus, to satisfy Strickland’s first prong, deficient performance, a defendant must overcome “the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. For example, while trial counsel has “a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary, ... a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Id. at 691, 104 S.Ct. 2052. To determine whether the investigation was reasonable, the court “must conduct an objective review of [counsel’s] performance, measured for reasonableness under prevailing professional norms, which includes a context-dependent consideration of the challenged conduct as seen from counsel’s perspective at the time.” Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citation and quotation marks omitted). The Supreme Court has reiterated, “In judging the defense’s investigation, as in applying Strickland generally, hindsight is discounted by pegging adequacy to ‘counsel’s perspective at the time’ investigative decisions are made” and by applying deference to counsel’s judgments. Rompilla v. Beard, 545 U.S. 374, 381, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Because an ineffective assistance claim must satisfy both prongs of Strickland, the reviewing 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 (“if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed”). A petitioner must affirmatively prove prejudice. Id. at 693, 104 S.Ct. 2052. To demonstrate prejudice, he “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. In assessing prejudice, the court should presume “the judge or jury acted according to law,” and “should proceed on the assumption that the decision-maker is reasonably, conscientiously, and impartially applying the standards that govern the decision.” Id. at 694-95, 104 S.Ct. 2052. “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695, 104 S.Ct. 2052. In answering that question, a reviewing court necessarily considers the strength of the state’s case. See Allen v. Woodford, 395 F.3d 979, 999 (9th Cir.2005) (“even if counsel’s conduct was arguably deficient, in light of the overwhelming evidence of guilt, [the petitioner] cannot establish prejudice”); Johnson v. Baldwin, 114 F.3d 835, 839-40 (9th Cir.1997) (where state’s case is weak, there is a greater likelihood that the outcome of the trial would have been different in the absence of deficient performance). Also inherent in the prejudice analysis demanded by Strickland is the principle that in order to demonstrate that counsel failed to litigate an issue competently, a petitioner must prove that the issue was meritorious. See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). For example, with respect to allegations that counsel was ineffective for failing to file a motion, in order to demonstrate prejudice a petitioner “must show that (1) had his counsel filed the motion, it is reasonable that the trial court would have granted it as meritorious, and (2) had the motion been granted, it is reasonable that there would have been an outcome more favorable to him.” Wilson v. Henry, 185 F.3d 986, 990 (9th Cir.1999) (citing Morrison, 477 U.S. at 373-74, 106 S.Ct. 2574); see Boyde v. Brown, 404 F.3d at 1173-74. Finally, the Court notes that under the AEDPA its review of the state court’s decision is subject to another level of deference. Bell v. Cone, 535 U.S. 685, 698-99, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). In order to merit habeas relief, therefore, Petitioner must make the additional showing that the state court’s ruling that counsel was not ineffective constituted an unreasonable application of Strickland. 28 U.S.C. § 2254(d)(1). Claim 3 Counsel “abandoned” Petitioner at trial by conceding guilt Petitioner alleges that trial counsel’s strategy of conceding Petitioner’s role in the victim’s death, together with his negative comments to the jury about Petitioner and his actions, amounted to an abandonment of all defenses such that prejudice is presumed under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). (Dkt. 74 at 41-56.) He contends that the PCR court erred in applying the Strickland standard in rejecting this claim. Finally, he argues that even under Strickland counsel’s performance was ineffective. Background Trial In his opening statement, counsel spoke of the “uncomfortable position” he was in defending Petitioner, the difficulty of the jurors’ role, the horrific nature of the crime, and its tragic effects on the victim’s family. (RT 3/7/91 at 47-49.) He continued: “What my client has done is despicable. He’s absolutely responsible for the death of Kendall Wishon in this case, and at the end of this case I’m going to ask you to convict my client, but we’re not quite at that point yet.” (Id. at 47.) Counsel also indicated that Petitioner would testify, explaining that he “is the key in this case”: You will hear from Mr. Gallegos. He will tell you what I have told you. It will be difficult. It will be ugly. It will be horrible. But nonetheless, in order for me to paint my picture, in order for me to paint that picture of events as it truly happened, you have to hear from him ... You can’t make that decision in a case of this magnitude, I believe, unless you hear from him. And you will. He will get up and tell you what he told Detective Saldate. He will tell you of his responsibility in this case; that he is responsible. He will tell you of Mr. Smallwood. My client will get up there and he will literally bear his soul to you so that you can make a fair and adequate decision in this case. (Id. at 49-50.) Counsel concluded his opening statement by reiterating that the State had the burden of proving “beyond a reasonable doubt ... that what they say is true, what they have accused Michael Gallegos of doing is the truth, and that what they are asking you to convict him of is first degree murder and sexual conduct with a minor.” (Id. at 51.) Counsel then stated: I am asking you to be fair. I’m asking you to convict my client. I’m asking you to make a fair and realistic assessment of the facts as they will be represented to you. And I think that’s all I can ask. That’s all the court and the system can demand of you. It’s a very difficult duty, and I hope you do it well. m At trial, counsel vigorously cross-examined Dr. Bolduc, the medical examiner, attempting to cast doubt on his testimony that the victim’s injuries indicated she was sexually assaulted pre-mortem. (RT 3/11/91 at 51-65.) Counsel presented Petitioner’s testimony on the last day of trial. Petitioner testified that he was extremely intoxicated at the time of the crime, that Smallwood was an equal participant, that the victim’s death was accidental, that he believed the victim was dead when he penetrated her, and that he was sorry for what he had done. (RT 3/13/01 at 46-72.) The next day, during his closing argument, counsel explained to the jury: Yesterday, I put my client on the stand and I treated him with taming [sic] contempt. I don’t normally do that. But I though it was called for in this case. You needed to see Michael Gallegos. You needed to see that he is not the person that the State has portrayed to you. You needed to see that he’s a child. He’s a man-child. He’s pathetic, he’s despicable, but he’s a child. You needed to see what Detective Sal-date saw.... He told you he believed Michael Gallegos. Michael told him that he never intended for this to happen. And he told you that he believed him. (RT 3/14/91 at 28.) Counsel further informed the jury: I told you in my opening that I felt uncomfortable. I do. Several times throughout the course of this trial, that was willfully [sic] apparent. And Pm sorry for that. But I don’t think to characterize the situation in any other manner other than it’s very, very real. Stark reality is fair. I think I would insult you.... I didn’t want to get up here and on behalf of my client deny things that are not in dispute. The facts, as Mr. Stalzer [the prosecutor] related them to you are not in dispute. His theory is, though. (Id. at 25-26.) Counsel again acknowledged that Petitioner was “absolutely responsible for the taking of Kendall Wishon’s life,” adding: “That is extremely difficult for me to say. It’s probably extremely difficult for a lot of people to hear. But it’s true.” (Id. at 26.) However, counsel proceeded to attack the allegation that Petitioner “knew he would cause the death of Kendall and that he did so with premeditation.” (Id.) Counsel argued: The State’s theory in this case is that George Smallwood, Michael Gallegos were playing Nintendo, two 18-year-old high school boys, were playing Nintendo and that when they walked into the bedroom of Kendall Wishon, that they experienced those feelings. I think that that is absurd. I don’t believe that the evidence in any way, shape, or form showed you that that was the case. (Id. at 26-27.) Counsel urged the jury to set aside its passions and “make a fair and just assessment of the facts.” (Id. at 27.) He then continued his attack on the first degree murder charge and argued for conviction on a lesser count: One of the instructions that you are going to receive is an instruction that deals with the crime of reckless manslaughter, and what that says is if the defendant caused the death of another person by conduct showing a conscious disregard of a substantial and unjustifiable risk of death, then you can find him guilty of that. I submit to you that all of the facts that you have heard certainly show that that was the case. Mr. Stalzer has told you about premeditation. To me that’s just that somehow my client was cunning, he was cold, he was calculating when he did this. I would simply ask you to think of what he told you, think of what he told Detective Saldate, think of what Saldate said about him. He was telling the truth. (Id. at 29.) Next counsel discussed the medical examiner’s testimony: We’ve had some testimony from Dr. Bolduc about post-mortem injuries, about time of death, about the injuries that were present on the body of young Kendall. I think you have heard enough to make the decision in that regard for yourself. (Id. at 30-31.) Counsel concluded his closing argument by again apologizing to the jurors for the difficulty of their task and asking the jury to be fair. (Id. at 30.) PCR proceedings Testifying at the evidentiary hearing before the PCR court, counsel disputed the allegation that he had provided constitutionally ineffective assistance at trial. (RT 12/1/00 at 6.) He explained that his strategy in conceding Petitioner’s responsibility for the victim’s death was to ask the jury “to consider very seriously not finding him responsible for a first degree murder but something lesser.” (Id. at 10.) He described his theory of the case as follows: [T]hat given Michael’s age, given his alcohol consumption, given his ... prior history, his upbringing, that this was in no way shape or form a premeditated act. It was a lesser ... type of situation, and we couldn’t escape, given his statements, ... the fact that he beared [sic] some responsibility, but it was just an effort to characterize that. (Id. at 39.) Counsel defended his negative comments about Petitioner in his opening statement as an attempt to prepare the jury for the horrific facts they were going to hear and to maintain the defense’s credibility: [I]t was going to draw the string with some very horrible facts that were going to come in. We needed to set the stage for what was going to happen because his statements [to Detective Saldate were going to come in. We had already litigated those ... and I think you lose a lot of ground in a trial by simply by trying to say, you know, it’s red when it’s really black.... This was going to come down to the credibility of Michael and the believability of Michael. And to ... characterize what had happened in any type of a fashion less than what it was, I think would have been ... certainly ineffective. I mean, you can’t dance around the issues in every case. And I think this was one that called for us to simply step up to the plate and confront them and call them what they were because otherwise I think ... given the facts as they were about to unfold at that point, given the pretrial rulings, we knew we had a tough road. And I think to simply ignore things at that point would have been a disservice, and I think would have clearly been ... a less than adequate job.] (Id. at 25-26.) Counsel added that his comments during opening were “not an attempt to vilify or distance myself from Michael. I mean, I think quite the opposite. We needed to ... strongly characterize what had happened accurately and then ... explain the reasons for the conduct.” (Id. at 34.) Counsel also testified that he had discussed this approach with Petitioner. (Id. at 41-42.) Counsel acknowledged that in his opening statement, when he conceded Petitioner’s guilt and asked the jury to convict him, he did not qualify his statements by specifying a charge less than first degree murder. (Id. at 27.) He testified that he did so purposely. (Id. at 28.) He indicated that his strategy was “to present to the jury the facts and arguments from which they would find him guilty of a lesser offense.” (Id. at 41.) Counsel testified that his approach to the case was a “reasonable tactic based on [his] experience.” (Id. at 42.) The PCR court, in denying Petitioner’s claims of ineffective assistance, determined that the applicable standard was Strickland, not Cronic, because “trial counsel’s performance did not constitute abandonment.” (PCR doc. 227 at 2.) The court then set forth its application of Strickland’ s two-pronged standard: As to the first prong, the Court finds that Petitioner has not sufficiently shown that trial counsel’s performance was deficient. Because of the overwhelming evidence of Defendant’s guilt, it was reasonable for trial counsel to adopt a strategy that could result in a conviction for a lesser-ineluded offense such as second degree murder or manslaughter, thereby avoiding the death penalty.... To make a request for manslaughter, as trial counsel did in closing argument here, it was important for him to maintain credibility with the jurors, which might explain his tactics and choice of wording during his opening statement. His words about the “despicable conduct” of the Defendant were harsh, but probably added to counsel’s credibility with the jury when pleading for manslaughter; there simply is no way to sugar-coat the sodomization and murder of an eight year old female child. (Id.) The court then explained that even if counsel’s performance had been deficient, Petitioner would not be entitled to relief under Strickland because he failed to prove prejudice: [T]he State’s evidence was completely overwhelming: The Defendant confessed twice to two different police detectives, and the DNA evidence in Kendall’s rectum linked to the Defendant was devastating to the defense; all the other evidence corroborated the Defendant’s guilt. There is no reasonable probability that, but for any errors made by trial counsel, the result of the trial would have been any different. (Id. at 3.) Analysis In United States v. Cronic, the Supreme Court created an exception to the Strickland standard for egregious cases evidencing an actual breakdown in the adversarial process at trial. 466 U.S. at 656-58, 104 S.Ct. 2039. In such cases, the prejudicial impact of counsel’s performance is presumed and need not be proved. Id. at 659-60, 104 S.Ct. 2039; see United States v. Swanson, 943 F.2d 1070, 1072-74 (9th Cir.1991). Petitioner argues that Cronic, rather than Strickland, provides the appropriate analytical framework for evaluating defense counsel’s efforts. Controlling case law dictates otherwise. In Florida v. Nixon, 543 U.S. 175, 176, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004), the Court held that defense counsel’s failure to obtain the defendant’s express consent to a strategy of conceding guilt during a capital trial did not automatically render counsel’s performance deficient. The Court rejected the assertion that counsel’s effectiveness should be evaluated under the per se prejudice standard of Cronic, explaining that the Cronic standard is a “narrow exception to Strickland’s holding” and is “reserved for situations in which counsel has entirely failed to function as the client’s advocate.” Id. at 189-90, 125 S.Ct. 551. Instead, the Court applied the Strickland, standard and held that, under the circumstances of the case, counsel’s concession strategy was reasonable. Id. at 188-89, 125 S.Ct. 551. Similarly, in United States v. Thomas, 417 F.3d 1053, 1057 (9th Cir.2005), defense counsel, faced with overwhelming evidence, conceded his client’s guilt in an effort to enhance the defendant’s credibility while attempting to avoid conviction on other charges. The Ninth Circuit, citing Nixon, held that counsel’s performance did not descend to the level of a complete failure to subject the prosecution’s case to meaningful adversarial testing such that it was presumptively prejudicial. Id.; see Trice v. Ward, 196 F.3d 1151, 1162 (10th Cir.1999) (in light of overwhelming evidence of guilt “it was an entirely reasonable strategy for [defendant’s] trial counsel to concede [that defendant raped the victim] and focus his efforts on persuading the jury that [the defendant] did not have the intent to commit first-degree murder, and/or persuading the jury to spare [his] life”). In Petitioner’s case, counsel actively advocated on his client’s behalf throughout the trial, examining the State’s witnesses, including the medical examiner, and presenting Petitioner’s testimony in an attempt to advance the theory that Petitioner, while responsible for the victim’s death and therefore guilty of lesser-included offenses, should not be convicted of first degree murder. See Millender v. Adams, 376 F.3d 520, 523 (6th Cir.2004) (“Throughout the trial, petitioner’s attorney was an active participant: he cross-examined witnesses, made proper objections, and presented a closing argument. This level of representation does not fall below the low threshold required by Cronic.” ); Hooper v. Mullin, 314 F.3d 1162, 1175 (10th Cir.2002) (Cronic inapplicable where “[d]efense counsel cross-examined the State’s guilt-stage witnesses, made objections to the State’s evidence, presented some evidence in Petitioner’s defense, and made opening and closing arguments”). Moreover, counsel articulated a strategic purpose for his concession of Petitioner’s guilt and his acknowledgment of the egregious nature of the crime; namely, he was attempting to establish credibility with the jury. Courts have recognized this as a valid strategy rather than a form of abandonment that would trigger the Cronic presumption of prejudice. See Thomas, 417 F.3d at 1058 (counsel “had a sensible reason for not contesting Thomas’s participation in the ... robbery: it was, for all practical purposes, incontestable, and he believed that doing so would enhance his credibility on counts where the evidence was somewhat less clear and the penalties significantly greater”); Hovey v. Ayers, 458 F.3d 892, 906 (9th Cir.2006) (counsel conceded his client’s guilt to protect his own credibility and avoid conviction on other charges). Because counsel subjected the State’s case to meaningful adversarial testing and had a strategic basis for his concession of guilt, the Cronic presumption of prejudice does not apply, and the Court will evaluate Claim 3 using the Strickland standard. It is not necessary for the Court to assess the quality of counsel’s performance because it is clear that Petitioner cannot satisfy Strickland’s prejudice prong. Strickland, 466 U.S. at 697, 104 S.Ct. 2052. Uncontested evidence, including Petitioner’s confessions and corroborative DNA evidence, established that Petitioner killed the victim and sexually assaulted her. Given this evidence, there was not a reasonable probability that the jury would have returned a different verdict if counsel had adopted a different defense theory or used different tactics at trial. See Thomas, 417 F.3d at 1059; see also Haynes v. Cain, 298 F.3d 375, 382-83 (5th Cir.2002) (counsel’s failure to obtain defendant’s consent before conceding in opening argument that defendant was guilty of second-degree murder did not prejudice defendant where prosecution possessed nearly conclusive evidence that defendant committed offense.); Parker v. Head, 244 F.3d 831, 840 (11th Cir.2001) (counsel’s strategic decision to concede defendant’s guilt did not amount to ineffective assistance in light of overwhelming evidence of guilt, including defendant’s admissible confession). Conclusion The PCR court’s rejection of this claim did not constitute an unreasonable application of Cronic and Strickland. Therefore, Petitioner is not entitled to relief on Claim 3. Claim 4 Failure to introduce exculpatory photographic evidence Petitioner alleges that counsel performed ineffectively by failing to introduce photographic evidence showing George Smallwood’s fingernails and the scratches on the victim’s face. (Dkt. 74 at 56-59.) According to Petitioner, as a “chronic nail biter” his fingernails, in contrast to Small-wood’s, were too short to have caused the scratches, a fact which would have corroborated Petitioner’s testimony, supported a conviction on a lesser count, and established several mitigating factors. (Id.) At the evidentiary hearing, counsel testified that Petitioner had short nails as a result of his nail-biting habit and that photographs had been taken of his and Smallwood’s hands. (RT 12/1/00 at 14.) Counsel acknowled