Woods v. Adams (631 F. Supp. 2d 1261, 2009)

ORDER ADOPTING FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ANDREW J. GUILFORD, District Judge.

Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court has reviewed the instant Petition for Writ of Habeas Corpus and other papers along with the attached Final Report and Recommendation of the United States Magistrate Judge, and has made a de novo determination of the Final Report and Recommendation. Further, the Court has engaged in a de novo review of those portions of the Report to which Petitioner has objected. The Court concurs with and adopts the conclusions of the Magistrate Judge.

IT IS ORDERED that a Judgment be entered dismissing the instant Petition for Writ of Habeas Corpus with prejudice.

IT IS FURTHER ORDERED that the Clerk shall serve forthwith a copy of this Order and the Judgment of this date on Petitioner.

JUDGMENT

Pursuant to the Order of the Court approving the recommendations of the United States Magistrate Judge, and adopting the same as the facts and conclusions of law herein,

IT IS ADJUDGED that Judgment be entered dismissing the instant Petition for Writ of Habeas Corpus with prejudice.

FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

JEFFREY W. JOHNSON, United States Magistrate Judge.

This Final Report and Recommendation is submitted to the Honorable Andrew J. Guilford, United States District Judge, by United States Magistrate Judge Jeffrey W. Johnson, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California. For the reasons discussed below, it is recommended that the instant Petition for Writ of Habeas Corpus be dismissed with prejudice.

I. INTRODUCTION

On January 24, 2006, Petitioner Michael Woods (“Petitioner”), a California state prisoner represented by counsel in this action, filed a “Verified Petition for Writ of Habeas Corpus.” On May 31, 2006, Petitioner filed a “First Amended Verified Petition for a Writ of Habeas Corpus” (hereinafter simply “Petition” or “FAP”), together with a “Memorandum in Support of First Amended Verified Petition [etc.]” (“FAP Mem”). Petitioner seeks relief from a conviction on September 7, 2001 in the Orange County Superior Court for the murder in March 1989 of his former strip club business partner, Horace McKenna (“McKenna”), in violation of California Penal Code § 187(a). Evidence was presented at trial that Petitioner arranged for David Amos (“Amos”), one of Petitioner’s employees, to kill McKenna, and that Amos in turn hired John Sheridan (“Sheridan”) to carry out the murder, and that it was Sheridan who ultimately shot McKenna. In his defense, Petitioner argues that Amos had his own reasons for wanting to kill McKenna, and that Amos was solely responsible for hiring Sheridan to kill McKenna, and that Amos falsely implicated Petitioner so that Amos could obtain a favorable plea agreement. (See FAP Mem 5-6.) A jury found Petitioner guilty, and the trial court sentenced Petitioner to 25-years-to-life in prison. (Clerk’s Transcript on Appeal [“CT”] 809-811.)

Petitioner appealed the conviction to the California Court of Appeal, and that appeal was denied in a reasoned, published opinion, People v. Woods, 120 Cal.App.4th 929, 16 Cal.Rptr.3d 174 (2004) (hereinafter “Woods”). Petitioner filed a petition for review with the California Supreme Court, and that petition was denied without comment on October 27, 2004. (See Lodgment Items Nos. 2, 3.) Petitioner did not file any petitions for a writ of habeas corpus with the state courts. (See FAP 3:19-23.)

On July 14, 2006, Respondent Warden Deral Adams (“Respondent”) filed an Answer to the Petition (“Answer”), together with a “Memorandum of Points and Authorities in Support of Answer to Petition [etc.]” (“Answer Mem”). On September 8, 2006, Petitioner filed a “Verified Traverse in Support of First Amended Petition [etc.]” (“Traverse”), together with a “Memorandum in Support of Petitioner’s Verified Traverse” (“Trav Mem”).

The Petition presents two grounds for relief: (1) the prosecutor committed misconduct when he offered a plea agreement to Sheridan and then refused to call Sheridan as a prosecution witness or to immunize Sheridan, thereby improperly influencing Sheridan to claim the Fifth Amendment privilege against self-incrimination and refuse to testify if called for direct examination by Petitioner; and (2) the trial judge improperly allowed Sheridan to claim the Fifth Amendment privilege and refuse to testify in Petitioner’s defense under the circumstances.

II. FACTUAL BACKGROUND

The following statement of facts is excerpted from the California Court of Appeal’s opinion in Woods:

Shortly after midnight on March 9, 1989, McKenna was gunned downed by machine gun fire as he returned to his Carbon Canyon home in the back of a limousine. It is undisputed Sheridan was the shooter. The only question for the jury was whether Petitioner instigated the hit.

Petitioner and McKenna met while working as California Highway Patrol officers. Upon leaving the highway patrol, they went into the strip club business. That was 1977. By 1980, they had three clubs and business was good. However, not all was well between them. McKenna was a huge, intimidating man who witnesses said liked to “live large” and “throw his weight around.” And according to people in the clubs, he often imposed himself on Petitioner and made life difficult for him. At one point, Petitioner asked a bouncer [ie., witness David Smith (“Smith”); see Reporter’s Transcript on Appeal (“RT”) 1141 et seg.] if he would kill McKenna for $30,000. When [Smith] declined — and then revealed the offer to others — Petitioner gave [Smith] his walking papers. [RT 1144-1147,1207-1208.]

In the early 1980’s, Petitioner hired David Amos to work in the clubs. Over time, it became apparent to Amos that Petitioner and McKenna did not get along. And because Amos was friendly with Petitioner, he was persona non grata with McKenna. This worried Amos because he considered McKenna to be very dangerous.

So did Petitioner. And in 1988, his fear of McKenna gathered more gravitas when McKenna threatened to have [Petitioner’s] daughters raped. [RT 1239.] Petitioner told Amos about the threat and asked him if he would help him kill McKenna. Amos said he would. [RT 1239-1241.] Sometime later, Petitioner was overheard to say he was going to kill McKenna. [RT 1393.]

Actually, though, Amos ended up hiring Sheridan for the job. Petitioner had allotted $50,000 for the hit, but Amos only gave Sheridan about half of that. According to Amos, Petitioner had no contact with Sheridan, and Sheridan did not know Petitioner was behind the scheme. In fact, Amos told Sheridan he wanted McKenna killed for his own protection. [RT 1334-1336, 1360-1361, 1366.] Following the murder, Amos became Petitioner’s new partner. However, their relationship soured when Amos came to suspect Petitioner was embezzling money from the clubs. Amos threatened legal action and tried to obtain greater control over the clubs by making business deals without Petitioner’s knowledge.

It took the police nearly a decade to piece the case together. Eventually, Sheridan confessed to the shooting and worked with authorities to implicate Amos. Investigators then used Amos to get Petitioner. In exchange for leniency, Amos agreed to meet with Petitioner and wear a wire so the police could listen to their conversation.

The meeting was held at a Los Angeles deli [ie., “Jerry’s Famous Deli” in Woodland Hills, California; see CT 457-482.] To get Petitioner talking about the murder, Amos told him Sheridan was pestering him for money. Petitioner advised Amos not to give [Sheridan] any, because it would look like an admission. Amos then told Petitioner that Sheridan suspected [Petitioner] was behind the murder. This took Petitioner by surprise, but he was confident the police would not be able to prove his involvement, He was confident the police were only on to him for tax evasion and did not “have shit on the other thing.” Toward the end of the conversation, [Petitioner] asked Amos what ever happened to the murder weapon, and Amos assured him Sheridan had thrown it away.

As Petitioner was leaving the deli, the police placed him under arrest.

Woods, 120 Cal.App.4th at 932-934, 16 Cal.Rptr.3d 174 (bracketed material added).

This Court also notes the following pertinent facts, based on its own review of the record: Voir dire was complete and the jury and alternates had been sworn in when the prosecutor announced that he would not be calling Sheridan, and the parties then discussed with the trial judge the impact that Sheridan’s unavailability, due to his invocation of the Fifth Amendment, was going to have on the trial. (See RT 599 et seq.) At that time, the trial judge stated “here is my situation. A continuance is basically tantamount to a mistrial. We can’t ask this jury to just have a seat for 60 days and wait [for Sheridan to be sentenced]. So the preference is to avoid that, if possible.” (RT 604:16-19.)

II. STANDARD OF REVIEW

The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), was enacted on April 24, 1996 and applies to all federal petitions for writs of habeas corpus filed after that date. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir.1997). Since the instant Petition was filed after April 24, 1996, AEDPA applies.

Under AEDPA, a petition for writ of habeas corpus by a prisoner in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2).

The Supreme Court has explained the standard of review under AEDPA as follows:

Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the United States Supreme Court] on a question of law or if the state court decides a case differently than [the Unites States Supreme Court] has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the United States Supreme Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s case.

Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Even if the state court fails to cite or acknowledge United States Supreme Court authority, a Federal court may not grant habeas relief unless the state court’s reasoning or result contradict clearly established United States Supreme Court precedent. See Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002).

The phrase “clearly established Federal law, as determined by the Supreme Court of the United States,” as set forth in 28 U.S.C. § 2254(d)(1), “refers to the holdings, as opposed to the dicta, of this Court’s decisions as of the time of the relevant state court decision.” Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. 1495; see also Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Only after the clearly established federal law is identified can a federal habeas court determine whether a state court’s disposition of a claim “resulted in a decision that was contrary to, or involved an unreasonable application of’ such law. Cooper v. Brown, 510 F.3d 870, 920 (9th Cir.2007), (citing Lockyer v. Andrade, 538 U.S. at 71-72, 123 S.Ct. 1166). A federal habeas court must identify the relevant United States Supreme Court authority and then apply that law to the record in the light most favorable to the state court decision. Cooper v. Brown, 510 F.3d at 919-924.

Ninth Circuit case law and the decisions of other federal courts may be “persuasive authority for purposes of determining whether a particular state court decision is an ‘unreasonable application’ of Supreme Court law, and also may help ... determine what law is ‘clearly established.’” Cooper v. Brown, 510 F.3d at 920 (quoting Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir.2000).) See also Robinson v. Ignacio, 360 F.3d 1044, 1057 (9th Cir.2004). However, the Ninth Circuit has recognized that because of the 1996 AEDPA amendments, a federal habeas court can no longer reverse a state court decision merely because that decision conflicts with Ninth Circuit precedent or precedent from other circuits on a federal Constitutional issue. See Duhaime v. Ducharme, 200 F.3d at 600; Robinson v. Ignacio, 360 F.3d at 1057.

Furthermore, in a federal habeas proceeding, “a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C § 2254(e)(1). “Clear and convincing evidence” within the meaning of § 2254(e) requires greater proof than preponderance of the evidence; the evidence must produce “an abiding conviction” that the factual contentions advanced by the applicant are “highly probable.” Cooper v. Brown, 510 F.3d at 919. Furthermore, unarticulated findings that are necessary to the state court’s conclusions of mixed questions of fact and law are presumed correct. Id (citations omitted). When there are two permissible views of the evidence, a factfinder’s choice between them cannot be clearly erroneous. Id

In applying these standards, a federal habeas court looks to the last reasoned state court decision. See Davis v. Grigas, 443 F.3d 1155, 1158 (9th Cir.2006). “Where there has been one reasoned state court judgment rejecting a Federal claim, [Federal habeas courts should presume that] later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). With respect to those claims for which there is no reasoned state court decision, e.g., when the state court does not supply reasoning for its decision, a Federal habeas court will conduct an independent review of the record to determine whether the state court decision was contrary to, or an unreasonable application of, controlling United States Supreme Court precedent. See Allen v. Ornoski, 435 F.3d 946, 954-955 (9th Cir.2006) (citing, inter alia, Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.2000)).

Whether a state court’s application of a clearly established rule of Federal law, as determined by the Supreme Court, is reasonable may depend on the “specificity” or “generality” of the rule. See Yarborough v. Alvarado, 541 U.S. 652, 663, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). Where a legal rule is specific, the range of “reasonable” judgment may be narrow. See id at 664, 124 S.Ct. 2140. However, applying a general rule to a specific case can demand a substantial element of judgment, in which case a state court would have more leeway in reaching a “reasonable” outcome in a case-by-case determination. Id

Where the Supreme Court has not issued a holding regarding a claimed constitutional right, a state court adjudication on the issue of such a claimed right generally cannot be contrary to, or an unreasonable application of, clearly established federal law. See Kane v. Espitia, 546 U.S. 9, 9, 126 S.Ct. 407, 163 L.Ed.2d 10 (2005) (no federal habeas relief where circuit courts split and no Supreme Court holding on claimed right); Stenson v. Lambert, 504 F.3d 873, 881 (9th Cir.2007) (iciting Kane). See also Wright v. Van Patten, 552 U.S. 120, —, 128 S.Ct. 743, 747, 169 L.Ed.2d 583 (2008) (where Supreme Court cases give no clear answer to question presented, habeas relief under -§ 2254(d)(1) is not warranted). Furthermore, “[a] federal court may not overrule a state court for simply holding a view different from its own,, when the precedent from [the Supreme] Court is, at best, ambiguous.” Mitchell v. Esparza, 540 U.S. 12, 17, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003). Where an issue of a claimed constitutional right is an “open question” in Supreme Court jurisprudence, a petitioner is not entitled to federal habeas relief for a state court’s alleged violation of that right. See also Carey v. Musladin, 549 U.S. 70, 76-77, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006). Stated another way, when a Supreme Court decision does not “squarely address” an issue in a case or establish a legal principle that “clearly extends” to a new context, it cannot be said that there is “clearly established” Supreme Court precedent, and therefore the federal habeas court must defer to the state court’s decision. Moses v. Payne, 555 F.3d 742, 754 (9th Cir.2009) (citing, inter alia, Carey v. Musladin and Wright v. Van Patten). In such situations, the Ninth Circuit has noted that “Musladin underscores that § 2254(d)(1) tightly circumscribes the granting of habeas relief.” Crater v. Galaza, 491 F.3d 1119, 1123 (9th Cir.2007).

III. DISCUSSION

A. Ground One: Prosecutorial Misconduct

Petitioner contends that the prosecutor committed misconduct when he offered Sheridan a plea bargain and then refused to call Sheridan as a prosecution witness, effectively inducing Sheridan to invoke the Fifth Amendment and refuse to testify, in order to preserve his plea bargain, when Petitioner proposed to call him to testify on direct examination in Petitioner’s defense. Petitioner argues that, under the circumstances, the prosecutor’s refusal to grant use immunity to Sheridan was misconduct. Petitioner also argues that the prosecutor’s refusal to consummate Sheridan’s plea bargain, so that Sheridan could be sentenced before trial — which would have arguably allowed Sheridan to be immunized after sentencing and then testify when called directly by Petitioner — constituted misconduct as well. Petitioner also argues that the prosecutor’s refusal to consent to a stipulation limiting the scope of Shéridan’s testimony, in order to obviate any self-incriminating areas of examination if Sheridan was called to testify by Petitioner, was also misconduct.

1. State opinion regarding prosecutorial misconduct

The California Court of Appeal’s opinion in Woods is the last reasoned state court decision on this claim, and so this Court analyzes the Woods opinion to determine if the state courts’ denial of this claim was contrary to, or involved an unreasonable application of, clearly established Federal law. See 28 U.S.C. § 2254(a)(1); Davis v. Grigas, 443 F.3d at 1158.

The Court of Appeal set forth a detailed procedural and factual history regarding this claim as follows:

The prosecutor originally designated Sheridan as a witness. However, after the jury was sworn, the prosecutor announced he did not intend to call Sheridan after all. This caused the defense great consternation. Claiming Sheridan was the “linchpin” to its case, the defense sought to call Sheridan as its own witness. However, Sheridan’s attorney said he would advise Sheridan to invoke his Fifth Amendment right against self-incrimination because his plea agreement with the prosecution had yet to be consummated. [RT 602 et seq.]

Under [Sheridan’s plea] agreement, the prosecution would dismiss the charge of capital murder in exchange for Sheridan’s guilty plea to manslaughter and other allegations carrying a 20-year sentence. The prosecutor informed the court the agreement was brought about by Sheridan’s willingness to work with authorities and was contingent on his continued cooperation, meaning he would have to testify truthfully if called by the prosecution. The prosecutor made no bones about the fact he was not going to execute the agreement until Petitioner’s trial was over. Sheridan’s attorney made it equally clear Sheridan would not testify for Petitioner until Sheridan was sentenced. Believing this presented a potential due process problem, the court invited briefing from the parties and set the matter for a hearing. [RT 608.]

The defense papers did not mince words: “In its strategic effort to make Sheridan unavailable as a witness, the prosecutor provided Sheridan and his counsel with a written proposed plea agreement, but has delayed execution of that agreement until after Petitioner’s trial ... [t]hereby technically allowing for the assertion of the Fifth Amendment under just the circumstances that have arisen here. What is implicit in this arrangement is that the prosecution has made Sheridan’s deal contingent upon his not being available to the defense. This is nothing short of misconduct on the part of the prosecution.” [CT 551.]

The defense proposed an assortment of remedies to address the situation. First, it asked the court to dismiss the case, declare a mistrial, or exclude Amos’ testimony. Then it suggested various means to secure Sheridan’s testimony, such as granting him judicial immunity or continuing Petitioner’s trial until Sheridan was sentenced. The defense also argued Sheridan had waived his Fifth Amendment rights by accepting the plea bargain and agreeing to testify for the prosecution.

The court held a lengthy hearing on the matter. [See RT 602-614; 615-699.] Although it did not expressly impugn the prosecutor’s motives, it did recognize Sheridan’s availability “is, to a certain extent, controlled by the People because the People have pending a deal” with [Sheridan]. The court said it would take “an idiot” not to see that “in order for [Sheridan] to protect himself, he’s got to do what will maintain this deal with the prosecution. Which is, if the prosecution is not calling [him], just sit there and shut up.” [RT 671.]

While the court believed the prosecution was at least partly responsible for Sheridan’s decision to take the Fifth, it did not believe this warranted dismissing the case, declaring a mistrial, or excluding Amos’ testimony. Nor did it believe a continuance would solve anything, given the prosecutor’s refusal go forward [sic] with Sheridan’s plea agreement prior to the completion of Petitioner’s trial. The court did believe there was a “pretty good case” for granting Sheridan judicial immunity, but in the end it rejected this option as unprecedented.

The court then discussed the prospect of allowing the defense to introduce Sheridan’s statements through other witnesses. To accommodate Petitioner’s due process rights, the court said it would be willing to relax the hearsay rule and afford the defense wide latitude as far as admitting Sheridan’s statements into evidence. It also promised to instruct the jury Sheridan’s out-of-court statements could be considered for their substantive truth. [See, e.g., RT 678-683.]

When asked about this approach, the defense admitted it would be able to get all of Sheridan’s statements into evidence through other witnesses. [RT 626.] However, it insisted this would not be a suitable substitute for examining Sheridan on the witness stand. The court rejected this position, saying, “It is not necessarily a constitutional violation for a defendant not to be able to present their case in the way that they would like to present it, as opposed to getting the substance of the evidence in.” Believing the defense could get the substance of Sheridan’s statements into evidence through other witnesses, the court ruled Sheridan’s unavailability did not amount to a violation of Petitioner’s constitutional rights.

At trial, the defense was given free reign in terms of admitting Sheridan’s statements into evidence. It used his statements to impeach Amos’ version of events and show Amos and Sheridan had the most to gain from McKenna’s demise. It also used [Sheridan’s] statements to prove Sheridan and Amos hated Petitioner so much they would be willing to falsely implicate him in McKenna’s murder. And, as promised, the court instructed the jury it could consider Sheridan’s statements for their substantive truth. [RT 2036.]

Woods at 934-936, 16 Cal.Rptr.3d 174 (bracketed material added).

The Court of Appeal then began its analysis of this claim by discussing a California Supreme Court case, People v. Lucas, 12 Cal.4th 415, 48 Cal.Rptr.2d 525, 907 P.2d 373 (1995), cert. denied, 519 U.S. 838, 117 S.Ct. 114, 136 L.Ed.2d 66 (1996) (“Lucas ”), which sets forth a three-part test to establish what the Court of Appeal described as “a violation of ... compulsory process rights.” See Woods at 936, 16 Cal.Rptr.3d 174. The Court of Appeal stated that under Lucas a defendant must demonstrate: (1) prosecutorial misconduct, ie., “conduct that was entirely unnecessary to the proper performance of the prosecutor’s duties and was of such a nature as to transform a defense witness willing to testify into one unwilling to testify”; (2) the prosecutor’s misconduct was a “substantial cause” in depriving the defendant of the witness’s testimony; and (3) the unavailable testimony was “material” to the defense. Woods at 936, 16 Cal.Rptr.3d 174 (internal quotation marks and citations omitted).

The Court of Appeal then considered the second element first, noting that, although Sheridan’s counsel did advise him to take the Fifth, “this advice was precipitated by the prosecutor’s decision not to call Sheridan.” Woods at 936-937, 16 Cal.Rptr.3d 174. Consequently, the Court of Appeal found that “it is clear the prosecutor’s actions were a substantial cause in keeping Sheridan off the stand.” Woods at 936, 16 Cal.Rptr.3d 174. The Court of Appeal stated that “the prosecutor had the prerogative [not to call Sheridan], of course.” Woods at 937, 16 Cal.Rptr.3d 174. But the Court of Appeal went on to note that the prosecutor “said he was going to put off Sheridan’s sentencing until [Petitioner’s] trial was over,” and the Court of Appeal said that “this left Sheridan with little choice” other than to take the Fifth “rather than testify for the defense and risk losing his plea agreement, which enabled [Sheridan] to avoid prosecution for capital murder.” Id. The Court of Appeal then stated that, under the second prong of the Lucas test, “the requisite link between the prosecutor’s conduct and Sheridan’s refusal was sufficiently established.” Id.

The Court of Appeal next went on to analyze the first prong of the Lucas test, whether the prosecutor’s actions amounted to misconduct under the state law standard. Id. The Court of Appeal stated:

Less clear is whether the prosecutor’s actions were wholly unnecessary to the proper performance of his duties. At first blush, it appears the only reason the prosecutor refused to go forward with Sheridan’s sentencing was to render him unavailable for the defense. But the record reveals another possible motivation. When pressed for an explanation of his actions, the prosecutor told the court, “I can’t let Sheridan plead before Mr. Amos testifies.” This suggests the prosecutor intended to call Sheridan to impeach Amos if Amos lied on the stand. But this would be difficult to do if Sheridan was already sentenced and then, having acquired the benefit of his plea bargain, decided not to cooperate with the prosecution. By keeping Sheridan’s plea bargain on the table until after Woods’ trial, the prosecutor avoided this potentiality. This was a legitimate tactical decision that was reasonably related to the prosecutor’s interest in ensuring that his key witness — Amos—testified truthfully.

Woods at 937, 16 Cal.Rptr.3d 174 (emphasis added).

Lastly, the Court of Appeal stated that regardless of whether the first two prongs in the Lucas test were met, Petitioner could not satisfy the third prong: the requirement that Sheridan’s testimony was a “material” component of Petitioner’s defense. Id. In discussing this prong, the Court of Appeal cited several federal cases, including, inter alia, United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982), and stated that “the materiality requirement is inextricably related to the notion of prejudice.” Woods at 937, 16 Cal.Rptr.3d 174. In analyzing this “materiality/prejudice” prong, the Court of Appeal stated that not only must the defendant provide some explanation of how the unavailable witness’s testimony would have been “favorable and material,” but the court also stated that “no due process violation will be found unless the absence of [the desired] testimony ‘fatally infected the trial’ and ‘necessarily prevented] a fair trial.’ ” Woods at 937, 16 Cal.Rptr.3d 174 (bracketed material added; internal quotations omitted). The Court of Appeal noted that “[t]he right to present a defense, and its concomitant right to compulsory process, are not unqualified.” Id. (citing Buie v. Sullivan, 923 F.2d 10, 11 (2d Cir.1990)). The Court of Appeal then stated that “[t]hese rights do not entitle [Petitioner] to compel a witness to waive his Fifth Amendment privilege.” Woods at 937, 16 Cal.Rptr.3d 174 (citing United States v. Moore, 682 F.2d 853, 856 (9th Cir.1982)).

The Court of Appeal then found, in considering the “materiality/prejudice” prong of the Lucas test, that “the defense was given every opportunity to present Sheridan’s statements to the jury, and it took full advantage of that opportunity.” Woods at 938, 16 Cal.Rptr.3d 174. The Court of Appeal noted that the defense made “a detailed offer of proof regarding Sheridan’s proposed testimony” (see CT 569-573; see also RT 615, 650 et seq.). and found that ultimately “nearly every statement in that four-page [offer of proof] was either introduced into evidence or used by [Petitioner’s] attorneys in their examination of witnesses.” Woods at 938, 16 Cal.Rptr.3d 174. The Court of Appeal stated that “[fjrom this, we may logically conclude [Petitioner] was allowed to present his version of the facts to the jury, and that is all the constitution [sic] requires.” Id.

2. Legal standards on habeas review regarding Fifth and Sixth Amendment rights and prosecutorial misconduct.

This Court’s first task in analyzing the Court of Appeal’s denial of this claim is to identify the relevant clearly established Federal law, as determined by the holdings of the United States Supreme Court, in order to determine whether the Court of Appeal’s denial was “contrary to, or an unreasonable application of’ that Federal law. See Lockyer, 538 U.S. at 71, 123 S.Ct. 1166 (quoting 28 U.S.C. § 2254(d)(1)); Cooper v. Brown, 510 F.3d at 920. This Court surveys the relevant clearly established Federal law on the issues of prosecutorial misconduct and the interplay between a witness’s Fifth Amendment rights and the privilege against self-incrimination, a defendant’s Sixth Amendment rights to present a defense and compel testimony, and a prosecutor’s legal and ethical obligations in a criminal trial. After identifying the relevant Supreme Court authority, this Court will apply that law to the record in the light most favorable to the state court decision. See Cooper v. Brown, 510 F.3d at 919-924.

a. The Fifth Amendment

The Fifth Amendment to the United States Constitution provides, in pertinent part, that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. The Fifth Amendment privilege against self-incrimination applies to evidence which may directly support a criminal conviction, information which would furnish a link in the chain of evidence that could lead to a prosecution, and evidence which an individual reasonably believes could be used against him in a criminal prosecution. Maness v. Meyers, 419 U.S. 449, 461, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975) (citing Hoffman v. United States, 341 U.S. 479, 485-486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951)). The Supreme Court has stated that the Fifth Amendment’s provision against self-incrimination “must be accorded liberal construction in favor of the right it was intended to secure.” Hoffman v. United States, 341 U.S. at 486, 71 S.Ct. 814 (citations omitted). In particular, a convicted but unsentenced defendant retains his Fifth Amendment rights. United States v. Paris, 827 F.2d 395, 399 (9th Cir.1987).

b. The Sixth Amendment

The Sixth Amendment provides, in pertinent part, that “[i]n all criminal proceedings, the accused shall enjoy the right ... to be confronted with the witnesses against him [and] to have compulsory process for obtaining witnesses in his favor----” U.S. Const. amend. VI.

In discussing the Sixth Amendment, the Supreme Court has stated that “[flew rights are more fundamental than that of an accused to present witnesses in his own defense.” Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973). “The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the [factfinder] so it may decide where the truth lies.... This right is a fundamental element of due process of law.” Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). See also Ponte v. Real, 471 U.S. 491, 510, 105 S.Ct. 2192, 2203, 85 L.Ed.2d 553 (1985) (quoting Washington v. Texas, 388 U.S. at 19, 87 S.Ct. 1920).

However, the Supreme Court has stated that the Sixth Amendment right to confront and to cross-examine witnesses is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. See Chambers v. Mississippi, 410 U.S. at 295, 93 S.Ct. 1038. More than the mere absence of testimony is necessary to establish a violation of the Sixth Amendment right to compulsory process. United States v. Valenzuela-Bernal, 458 U.S. at 867, 102 S.Ct. 3440 (citing Washington v. Texas, 388 U.S. at 16, 87 S.Ct. 1920). Furthermore, a criminal defendant’s Sixth Amendment rights, such as the rights to confrontation and to compulsory process to secure the attendance of a witness, do not necessarily include the right to compel a witness to waive the Fifth Amendment privilege against self-incrimination. See Kastigar v. United States, 406 U.S. 441, 444-445, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). See also United States v. Vavages, 151 F.3d 1185, 1191-1192 (9th Cir.1998) (citing United States v. Moore, 682 F.2d at 856); United States v. Straub, 538 F.3d 1147, 1166 (9th Cir.2008) (no Fifth Amendment right for defendant to demand use immunity for a co-defendant; courts must be “extremely hesitant” to intrude on the Executive’s discretion to decide whom to prosecute). An accused is generally not entitled to compel a prosecutor to grant immunity to a potential defense witness to get the witness to testify. See United States v. Paris, 827 F.2d at 399; United States v. Trejo-Zambrano, 582 F.2d 460, 464 (9th Cir.1978) (citing United States v. Alessio, 528 F.2d 1079, 1081 (9th Cir.1976)).

c. Prosecutorial misconduct

In considering “prosecutorial misconduct,” the United States Supreme Court has stated that prosecutors must “refrain from improper methods calculated to produce a wrongful conviction.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). The appropriate standard of review for prosecutorial misconduct is the narrow one of due process and not the broad exercise of supervisory power. See Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). See also Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974) (not every trial error which might call for supervisory power violates fundamental fairness). The Supreme Court has recognized that prosecutorial misconduct may “so infec[t] the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. at 643, 94 S.Ct. 1868. A defendant’s due process rights are violated when a prosecutor’s misconduct renders a trial “fundamentally unfair.” Darden v. Wainwright, 477 U.S. at 181, 106 S.Ct. 2464. See also Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987); Williams v. Stewart, 441 F.3d 1030, 1042 (9th Cir.2006) (citing Donnelly v. DeChristoforo, 416 U.S. at 643, 94 S.Ct. 1868 as articulating standard for prosecutorial misconduct).

The Supreme Court has found that prosecutorial misconduct may occur in a variety of unique factual settings. See United States v. Williams, 504 U.S. 36, 60, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992) (Stevens, J., concurring) (“[l]ike the Hydra slain by Hercules, prosecutorial misconduct has many heads”). Each of these settings may have its own peculiar standards for finding prosecutorial misconduct and for determining whether a constitutional violation occurred as a result of such misconduct. Compare Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935) (prosecutor’s improper comments during trial and closing argument constituted misconduct and prejudice was probable); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935) (knowing use of perjured testimony was misconduct); Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967) (prosecutor’s knowing use of false evidence likely to have important effect on jury’s determination and warrants habeas relief); Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (prosecutor’s misstatements of law in argument to jury was misconduct); and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (prosecutor’s withholding of relevant exculpatory evidence violates constitutional due process) with United States v. Valenzuela-Bernal, 458 U.S. at 860, 867, 102 S.Ct. 3440 (deportation of defense witness by government did not violate Fifth or Sixth Amendment where respondent made no showing that witness’s testimony was material and favorable to defense); Darden v. Wainwright, 477 U.S. at 181-182 and n. 14, 106 S.Ct. 2464 (prosecutor’s comments in closing argument did not so infect trial with unfairness as to violate due process, and therefore no issue of whether misconduct was harmless error).

The Supreme Court has also recognized that government interference with a defense witness’s free and unhampered choice to testify may amount to a violation of due process. See Webb v. Texas, 409 U.S. 95, 97-98, 93 S.Ct. 351, 353-354, 34 L.Ed.2d 330 (1972) (defense witness intimidated into not testifying by remarks of trial judge); Washington v. Texas, 388 U.S. at 19, 87 S.Ct. 1920 (right to present witness to establish defense is fundamental to due process; and right denied by Texas state statute prohibiting co-participants in same crime from testifying for each other when testimony was relevant and material to defense). The Ninth Circuit has extended this rule to bar undue prosecutorial interference in a defense witness’s decision to testify. See Earp v. Ornoski, 431 F.3d 1158, 1167-1168 (9th Cir.2005) (prosecutor’s intimidating threats to witness to prevent witness from testifying may amount to misconduct; case remanded for evidentiary hearing) (citing Webb v. Texas, 409 U.S. at 98, 93 S.Ct. 351), cert. denied, 547 U.S. 1159, 126 S.Ct. 2295, 164 L.Ed.2d 834 (2006). See also United States v. Vavages, 151 F.3d at 1189 (prosecutor’s conduct is governed by Webb).

Where prosecutorial misconduct has occurred, the relevant question then is whether the misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. See Darden, 477 U.S. at 181, 106 S.Ct. 2464; Earp, 431 F.3d at 1171. See also Karis v. Calderon, 283 F.3d 1117, 1128 (9th Cir.2002) (claim of prosecutorial misconduct is analyzed under prejudice standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 638 n. 9, 113 S.Ct. 1710, 123 L.Ed.2d 353 [1993] regardless of type of harmless error review conducted by the state courts).

3. Discussion

As the foregoing authorities illustrate, the analytical steps in a consideration of prosecutorial misconduct can vary based on the unique factual settings and the various rights in tension in an individual case. This Court finds that in this case, a two-part inquiry is required. First, this Court must determine if the prosecutor’s actions amounted to “misconduct.” Second, if the prosecutor committed “misconduct,” this Court must determine if such misconduct resulted in actual prejudice to Petitioner, such that his trial was rendered “fundamentally unfair.” See, e.g., Donnelly, 416 U.S. at 637-648, 94 S.Ct. 1868 (ordinary trial error of a prosecutor does not warrant habeas relief); United States v. Whitehead, 200 F.3d 634, 640 (9th Cir.) (two-step inquiry: did prosecutor’s misconduct prevent witness from giving relevant testimony and, if so, was fact finding process intentionally distorted by government), cert. denied, 531 U.S. 885, 121 S.Ct. 202, 148 L.Ed.2d 141 (2000); Jeffers v. Ricketts, 832 F.2d 476, 479-480 (9th Cir.1987) (where no evidence of prosecutorial misconduct in refusing to grant immunity to defense witness, no denial of fair trial), overruled on other grounds in Lewis v. Jeffers, 497 U.S. 764, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990); United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (where no prosecutorial misconduct, test for “materiality” of unavailable testimony is not applicable). See also Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir.1995) (habeas relief on claim of prosecutorial misconduct limited to cases in which petitioner can establish that misconduct resulted in actual prejudice).

a. Facts of this case do not amount to misconduct.

Based upon the foregoing authorities and a survey of the relevant law, this Court finds that there is no “clearly established Federal law” that would command a finding that under the particular facts of this case, the prosecutor committed “misconduct” warranting habeas relief.

Unlike cases where a prosecutor has directly coerced, threatened, or intimidated a witness into not testifying, or into invoking the witness’s Fifth Amendment privilege against testifying, no such coercion, threats, or intimidation appear in this record. The prosecutor here had no apparent objection to Sheridan testifying for the defense, and Petitioner points to no clear and convincing evidence to prove otherwise. The prosecutor did not threaten Sheridan with a perjury prosecution if Sheridan testified for the defense. The prosecutor did not grant immunity to prosecution witnesses while withholding immunity from Sheridan. While Sheridan’s plea agreement did apparently state that he would testify truthfully if called by the prosecution — assumedly in conformity with prior statements Sheridan had made to police and authorities, as a result of which the prosecutor proffered the plea bargain in the first place — such a “condition” does not represent undue coercion, threat, or intimidation. See, e.g., United States v. Moody, 778 F.2d 1380, 1384-1385 (9th Cir.1985) (witness testimony provided pursuant to a plea agreement not involuntary or coerced); Williams v. Woodford, 384 F.3d 567, 594 (9th Cir.2004) (interrogating agent’s suggestion that suspect’s cooperation with government will have positive effect on suspect’s possible sentence is not improper inducement causing testimony to be involuntary), cert. denied, 546 U.S. 934, 126 S.Ct. 419, 163 L.Ed.2d 319 (2005); id. at 602-603 (mere warning that witness could be prosecuted for perjury if witness testified falsely does not evidence threat or intimidation); Jeffers v. Ricketts, 832 F.2d at 479-480 (9th Cir.1987)(where prosecutor made no threats to witness, no prosecutorial misconduct). Cf. United States v. Henricksen, 564 F.2d 197, 198 (5th Cir.1977) (plea bargain that required that if witness testified in any manner regarding defendant plea bargain would be void and witness would be tried constituted prosecutorial misconduct; “substantial” government interference with witness’s choice to testify violates due process).

Likewise, this Court is aware of no Supreme Court authority that holds that a prosecutor’s refusal to immunize a potential defense witness, in spite of the witness’s assertion of the Fifth Amendment privilege, so that the defense can then call and directly examine the witness, constitutes prosecutorial misconduct. As the California Court of Appeal noted in Woods, the Sixth Amendment right to compulsory process is not absolute, and more than the mere absence of testimony is necessary to establish a violation of the right. See United States v. Valenzuela-Bernal, 458 U.S. at 867. See also United States v. Brutzman, 731 F.2d 1449, 1451-52 (9th Cir.1984) (“[i]t is well-settled that the Sixth Amendment does not provide[ ] a defendant with a right to demand use immunity for defense witnesses who invoke their privilege against self-incrimination”), overruling on other grounds recognized by United States v. Booth, 309 F.3d 566 (9th Cir.2002), Where a potential defense witness has asserted the Fifth Amendment privilege against self-incrimination, an accused is not entitled to compel a prosecutor to grant immunity to the potential defense witness to force him to testify. United States v. Paris, 827 F.2d at 399; United States v. Alessio, 528 F.2d at 1081-1082 (Fifth and Sixth Amendments do not confer on defendant power to demand immunity for co-defendants or other witnesses). The decision whether or not to grant immunity to a witness is peculiarly an executive decision, and no court has authority to immunize a witness. See Pillsbury Co. v. Conboy, 459 U.S. 248, 261, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983) (case involving federal use immunity statute).

This Court is also aware of no Supreme Court case that holds that a prosecutor’s refusal to consummate a plea bargain and agree to the sentencing of a defense witness, so that the witness can no longer invoke the Fifth Amendment, and can then be called to testify and directly examined by the defense, constitutes prosecutorial misconduct.

A recent, similar case from the Sixth Circuit on prosecutorial misconduct is instructive. The case of Davis v. Straub, 430 F.3d 281 (6th Cir.2006), cert. denied, 549 U.S. 1110, 127 S.Ct. 929, 166 L.Ed.2d 701 (2007), concerned two defendants, Davis and Bell, who were tried in a joint trial before separate juries in Michigan state courts for their involvement in the murders of a mother and her two children. Bell confessed, but Davis maintained his innocence. Davis attempted to call a witness, Jourdan, who Davis claimed was present during the mother’s murder and who Davis expected would exculpate him. However, after Jourdan was called by the defense, a sidebar was held where the prosecutor and the judge, within earshot of the witness Jourdan, discussed the fact that Jourdan was also a suspect in the case, and that Jourdan should be informed of his Fifth Amendment rights before he testified. The judge then appointed counsel for Jourdan, and Jourdan eventually invoked the Fifth Amendment privilege against self-incrimination and refused to testify. The judge approved a “blanket” invocation of the privilege, without putting Jourdan on the stand to answer any individual questions. The trial continued without Jourdan’s testimony, and both defendants Bell and Davis were convicted See Davis v. Straub, 430 F.3d at 284-285.

Davis filed a federal habeas petition which was denied; he appealed. A panel of Sixth Circuit judges found that the prosecutor in the case did not commit misconduct by ensuring that Jourdan was aware of his Fifth Amendment rights. Davis, 430 F.3d at 287. Quoting Webb v. Texas, 409 U.S. at 98, 93 S.Ct. 351, the court in Davis found that the standard for undue prosecutorial intimidation was whether the prosecutor “exerted such duress on the witness’ mind as to preclude him from making a free and voluntary choice whether or not to testify.” Davis, 430 F.3d at 287. The Sixth Circuit then found that under Webb the prosecutor’s conduct did not rise to an impermissible level of intimidation. Id. The Sixth Circuit stated that “[rjegardless of the prosecutor’s motives or the propriety of waiting until the witness was called to the stand to inform the court of his concerns, we cannot say that the Michigan Court of Appeals unreasonably applied Supreme Court precedent in its holding that the prosecutor did not intimidate Jourdan into invoking the privilege.” Id.

The Ninth Circuit case of United States v. Whitehead, 200 F.3d 634 (9th Cir.) cert. denied, 531 U.S. 885, 121 S.Ct. 202, 148 L.Ed.2d 141 (2000), concerning a drug conviction in federal court, is also instructive. There, defendant Whitehead and his brother Jason attempted to enter the United States from Mexico with marijuana in their car. Whitehead, 200 F.3d at 636. During trial, Whitehead subpoenaed his brother to testify, but Jason invoked the Fifth Amendment. Id. at 637. Whitehead requested that the court order the government to grant use immunity to Jason. Id. The court refused to do so and eventually allowed Jason to claim the Fifth Amendment privilege. Id. The Ninth Circuit noted that “ ‘[a] criminal defendant is not entitled to compel the government to grant immunity to a witness.’ ” Id. at 640 (quoting United States v. Westerdahl, 945 F.2d 1083, 1086 (9th Cir.1991)). The court then went on to state that a two-part inquiry was appropriate to determine if defendant Whitehead’s Sixth Amendment rights had been violated: one, did the prosecutor commit misconduct that prevented Jason from giving relevant testimony by denying immunity to Jason, and two, if so, did such misconduct distort the judicial fact-finding process? Whitehead, 200 F.3d at 640. Ultimately, the Court found there was no misconduct because the prosecution did not take “affirmative steps” to prevent Jason from testifying, and the prosecution did not grant immunity to other witnesses while denying immunity to Jason. Id. The Ninth Circuit then stated that since there was no misconduct, an evidentiary hearing on the second step— that is, whether the government intentionally distorted the fact-finding process— was not warranted. Id. Accordingly, Whitehead can be read to affirm the proposition that a court must first determine if the prosecutor’s actions amounted to misconduct, and thereafter analyze whether such misconduct “distorted” the fact-finding process.

Based on the foregoing authorities, this Court finds that the prosecutor’s actions in this case did not amount to the affirmative or coercive behavior that constitutes “misconduct.”

Petitioner cites to several cases in an attempt to cobble together authority that would control in this habeas context, such as: Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972); United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982); Williams v. Woodford, 384 F.3d 567 (9th Cir.2004); United States v. Whitehead, 200 F.3d 634 (9th Cir.2000): United States v. Vavages, 151 F.3d 1185 (9th Cir.1998); United States v. Lord, 711 F.2d 887 (9th Cir.1983); and United States v. Morrison, 535 F.2d 223 (3d Cir.1976). However, none of these cases, either individually or collectively, command a finding that habeas relief is warranted based on the prosecutor’s actions in this case.

The Ninth Circuit has cited Webb for the proposition that “[ujnecessarily strong admonitions against perjury aimed at discouraging defense witnesses from testifying have been held to deprive a criminal defendant of his Sixth Amendment right to compulsory process for obtaining witnesses in his favor.” United States v. Vavages, 151 F.3d at 1188-1189. In Vavages, the Ninth Circuit further found that prosecutors are also bound by the holding in Webb regarding coercive or intimidating perjury admonitions. See United States v. Vavages, 151 F.3d at 1189-1190 (perjury warnings are not improper per se; defendant’s rights violated by “deliberate and badgering threats designed to quash significant testimony”) (citations omitted). However, the facts of this case are not controlled by either Webb or Vavages, since there is no evidence of any perjury admonitions, much less “deliberate and badgering” threats to Sheridan by the prosecutor.

Petitioner’s reliance on United States v. Valenzuela-Bernal is also unavailing, Valenzuela-Bernal is factually distinguishable because it is a federal court drug case and concerned illegal aliens who were arrested by Border Patrol agents. See Valenzuela-Bernal, 458 U.S. at 860-861, 102 S.Ct. 3440. There, the defendant claimed that his Fifth Amendment due process rights and his Sixth Amendment right to compulsory process were violated when an Assistant United States Attorney concluded that two potential witnesses had no material evidence and the two witnesses were deported to Mexico before the defendant’s trial. Id. at 861, 102 S.Ct. 3440. The Supreme Court found no violation of the Fifth or Sixth Amendment because the defendant made no showing that the deported witnesses’ testimony was relevant and material and vital to the defense. Id. at 867, 102 S.Ct. 3440. The Supreme Court also noted that in that case the government was charged with the “dual responsibility” of apprehending persons who violate the law and of promptly deporting illegal aliens. Id. at 864, 102 S.Ct. 3440. The Supreme Court then went on to state that “[sanctions may be imposed on the Government for deporting witnesses only if the criminal defendant makes a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses.” Id. at 873, 102 S.Ct. 3440. Finally, the Supreme Court noted that “[i]n adopting this standard, we express no opinion on the showing which a criminal defendant must make in order to obtain compulsory process for securing the attendance at his criminal trial of witnesses within the United States.” Id. at 873, fn. 9, 102 S.Ct. 3440 (emphasis added).

Thus, Valenzuela-Bernal is not controlling in this case. Valenzuela-Bernal concerns deported aliens who were completely unavailable, not a witness whose unavailability was due to invocation of the Fifth Amendment privilege; further, the government arguably had control over the availability of the witnesses in Valenzuela-Bernal if it had decided not to deport them, contrasting with this case, where the prosecutor did not improperly influence Sheridan’s decision to take the Fifth. Importantly, the Supreme Court in Valenzuela-Bernal explicitly stated that the case does not necessarily apply where a defendant is seeking the testimony of a witness within the United States. Id. at 873, fn. 9, 102 S.Ct. 3440. For all of these reasons, Valenzuela-Bernal does not supply a holding which commands this court to find that the California state courts’ denial of this claim was contrary to, or an unreasonable application of, controlling Supreme Court precedent. See Kane v. Espitia, 546 U.S. at 9, 126 S.Ct. 407 (no federal habeas relief where no Supreme Court holding on claimed right); Mitchell v. Esparza, 540 U.S. at 17, 124 S.Ct. 7 (no habeas relief based on ambiguous Supreme Court authority); Carey v. Musladin, 549 U.S. at 76-77, 127 S.Ct. 649 (no habeas relief where issue is “open question” in Supreme Court jurisprudence).

In Williams v. Woodford, a § 2254 habeas case, petitioner Williams sought relief from a capital murder conviction and claimed, among other things, that four witnesses who Williams claimed would have testified favorably in his defense refused to do so because the prosecution refused to grant the witnesses use immunity. Williams, 384 F.3d at 599. The Ninth Circuit, citing Ninth Circuit cases only, stated that “the prosecution’s refusal to grant use immunity to a defense witness denies the defendant a fair trial only when (1) the witness’á testimony would have been relevant, and (2) the prosecution refused to grant the witness use immunity with the deliberate intention of distorting the fact-finding process.” Williams, 384 F.3d at 600 (citing United States v. Westerdahl, 945 F.2d at 1086 and United States v. Lord, 711 F.2d at 891). Assuming that defendant Williams satisfied the “minimal requirement” that his unavailable witnesses’ testimony would have been relevant to his Sixth Amendment claim, the Court then turned to the “second prong” of its inquiry, and asked “whether the prosecution took affirmative steps to prevent Williams’s witnesses from testifying,” and stated that it would rely upon the California Supreme Court’s factual findings on the matter. Id. at 601. The California Supreme Court had found that, of the four witnesses Williams wanted to call, one was himself indicted a week before he was called to testify for Williams, another feared he was soon to be indicted himself and two of them refused to testify because they feared Williams and felt intimidated by Williams and his counsel. Id. at 601, The Court then found there was no prosecutorial misconduct, stating that “the prosecution does not abuse its discretion when it refuses to grant use immunity to a defense witness who has been indicted or is the subject of a criminal investigation,” and also stating that the prosecution did not threaten any perjury prosecutions for any of the witnesses, Id. at 602. Thus, Williams supports the finding in this case that, based on the trial record, the prosecutor did not unduly threaten or intimidate Sheridan and thus there was no misconduct. See United States v. Straub, 538 F.3d at 1157-1158 (citing Williams for the proposition that a prosecutor must take “affirmative steps” amounting to “prosecutorial misconduct” to justify grant of use immunity under federal statutes).

Likewise, in United States v. Lord, a direct appeal from federal convictions in United States District Court on cocaine and weapons charges, the Ninth Circuit stated that the issue was whether the prosecutor had “deliberately caused” a witness to invoke the Fifth Amendment and refuse to testify, and whether the prosecutor had improperly refused to grant defense witnesses use immunity under 18 U.S.C. §§ 6002-6003. See United States v. Lord, 711 F.2d at 889-892. The Ninth Circuit remanded to the district court for an evidentiary hearing on whether there was prosecutorial misconduct. Id. at 892-893. Lord is unavailing in this habeas context since it did not cite or discuss any United States Supreme Court cases or authority. Accordingly, based on the lack of Supreme Court precedent that would control in this habeas context, Lord cannot establish that the California courts’ denial of this claim was contrary to, or an unreasonable application of, relevant Supreme Court precedent.

Petitioner’s citation to United States v. Morrison, 535 F.2d at 229 (3d Cir.1976) is also unavailing, since Morrison concerned a prosecutor’s repeated statements to a defense witness about the dangers of perjury and self-incrimination, and about the witness’s right not to testify, culminating in a highly intimidating personal interview. Morrison, 535 F.2d at 229. Thus, Morrison is factually distinguishable; and Morrison, and the other out-of-circuit, non-Supreme Court cases cited by Petitioner, are not controlling in this habeas context. See 28 U.S.C. § 2254(d)(1).

The facts of this claim concern the complicated interplay between a prosecutor’s legal and ethical duties, a witness’s right to invoke the Fifth Amendment, and a defendant’s rights to present a defense and compel testimony. However, the lack of Supreme Court holdings commanding a definite outcome in this case militates against finding that the grant of the writ is warranted by any alleged prosecutorial “misconduct” based on the facts at issue here. See, e.g., Davis v. Straub, 430 F.3d at 287-28