Moore v. Chrones (687 F. Supp. 2d 1005, 2010)

ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

PHILIP S. GUTIERREZ, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Petition and related documents filed by Petitioner, all of the records herein, the Report and Recommendation of United States Magistrate Judge (“Report”), and the following documents filed by Petitioner on December 10, 2009: Objections to the Report and related Request to “Take Judicial” Notice of Lodging of Memorandum of Points and Authorities (collectively, the “Objections”); Motion Asking the Benefit of Liberal Construction; Application for Leave to Exceed the 25 Page Limitment [sic ] ... ; Notice of Hearing on Motion for Summary Judgment by Petitioner, Motion for Summary Judgment by Petitioner, and Affidavit of Petitioner Larry B. Moore in Support of Motion for Summary Judgment (collectively, the “Summary Judgment Motion”); and Notice to “Take Judicial” Notice of Lodging of Documents in Support of Petitioner’s Objection to United States Magistrate Judge[’]s Report and Recommendation[] and to His Motion for Summary Judgment (“Notice”). The Court has conducted a de novo review of those matters to which objections to the Report have been made.

The Court has reviewed the Summary Judgment Motion and related Notice. By the Summary Judgment Motion, Petitioner seeks summary judgment on several claims alleged in the First Amended Petition, as well as with respect to a host of additional claims that are not alleged in the First Amended Petition. The Summary Judgment Motion does not comply with Local Rule 56-1 and, thus, is procedurally improper. Moreover, Petitioner’s attempt to raise numerous, and apparently unexhausted new claims, long after briefing has been completed, and through a summary judgment motion rather than through a 28 U.S.C. § 2254 habeas petition, is improper.

A district court has discretion, but is not required, to consider evidence or claims presented for the first time in Objections to a Magistrate Judge’s Report and Recommendation. See Brown v. Roe, 279 F.3d 742, 744-45 (9th Cir.2002); United States v. Howell, 231 F.3d 615, 621-22 (9th Cir.2000). To the extent the Summary Judgment Motion raises additional claims that are not alleged in the First Amended Petition, the Court exei’dses its discretion to decline to consider Petitioner’s belatedly-raised claims. However, to the extent the Summary Judgment Motion raises arguments pertinent to the habeas claims alleged in the First Amended Petition and considered in the Report, the Court deems such arguments to constitute objections to the Report and has considered such arguments in conjunction with its consideration of Petitioner’s Objections to the Report. Accordingly, the Summary Judgment Motion is deemed to be DENIED as to both the claims alleged in the First Amended Petition and the newly-raised claims.

Having completed its review of the filings and records in this case, the Court accepts and adopts the Report and the findings of fact, conclusions of law, and recommendations therein. Accordingly, IT IS ORDERED that: (1) the First Amended Petition is DENIED; and (2) Judgment shall be entered dismissing this action with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on the parties.

LET JUDGMENT BE ENTERED ACCORDINGLY.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

MARGARET A. NAGLE, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Philip S. Gutierrez, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order No. 05-07 of the United States District Court for the Central District of California.

INTRODUCTION

Petitioner, a California state prisoner, filed a habeas petition, pursuant to 28 U.S.C. § 2254, on December 30, 2003. On January 7, 2004, the Court dismissed the petition with leave to amend, because it failed to allege any grounds for relief. Petitioner thereafter filed a First Amended Petition (“Petition”), which set forth 30 claims. During the course of this action, Petitioner also filed four volumes of exhibits entitled “Notice to Take ‘Judicial’ Notice of Lodging of Documents” (hereafter, “Pet. Lodg.”).

Respondent moved to dismiss the Petition on the grounds that one claim was not cognizable and several other claims were unexhausted (“MTD”); Respondent also lodged pertinent portions of the state record (“Lodg.”). On February 24, 2005, the United States District Judge to whom this case formerly was assigned granted the MTD, in part, and denied the MTD, in part, and amended the Petition by dismissing Grounds Twenty-Four, Twenty-Five, Twenty-Seven through Twenty-Nine, four unexhausted subclaims of Ground Fifteen, and six unexhausted subclaims of Ground Twenty-Two. (See Order of February 24, 2005, and underlying Report and Recommendation of October 25, 2004, at 15-16 and 18-19.)

Subsequently, Respondent filed a Return to the Petition and lodged additional portions of the state record (“Supp. Lodg.”). Petitioner thereafter filed a two-volume Traverse.

Briefing is complete, and the matter is submitted and ready for decision. For the reasons set forth below, the Court recommends that the Petition be denied on the merits and dismissed with prejudice.

PRIOR PROCEEDINGS

On September 1, 2000, a Los Angeles Superior Court jury convicted Petitioner of one felony count of petty theft with a prior theft-related conviction (CaLPenal Code § 666) and one felony count of possession of a controlled substance, ie., heroin (Cal. Health & Safety Code § 11350(a)). (Supp. Lodg. No. 1, Clerk’s Transcript (“CT”) 156A-66.) In bifurcated proceedings, the trial court found “true” sentencing allegations that Petitioner had sustained two prior “strike” convictions within the meaning of California’s Three Strikes Law (CaLPenal Code §§ 667(b)-®) and 1170.12(a)-(d), and had served seven prior prison terms (CaLPenal Code § 667.5). (CT 296-99; Supp. Lodg. No. 4, Reporter’s Transcript (“2RT”) 54-55, 71-74.) After reducing the “wobbler” petty theft count to a misdemeanor and striking the seven prior prison term one-year sentence enhancements, the trial court sentenced Petitioner for a total term of 25 years to life on the principal count of possession of heroin, concurrent to a six-month term for the petty theft count. (CT 300-02; 2RT 101-05.)

Petitioner appealed. (Lodg. Nos. 2-4.) The California Court of Appeal affirmed Petitioner’s conviction and sentence by a reasoned opinion issued on September 12, 2002, 2002 WL 31029143. (Lodg. No. 5.) On November 20, 2002, the California Supreme Court summarily denied Petitioner’s petition for review. (Lodg. Nos. 6-7.)

While his appeal was pending, Petitioner filed numerous requests for post-conviction relief in the trial court and the California Court of Appeal, including motions to vacate judgment, for resentencing, and to stay his sentence, as well as petitions for writs of habeas corpus, qua warranta, prohibition, and mandate. All were denied. (Lodg. Nos. 8-13, 15-25.) He also filed three habeas petitions in the California Supreme Court during the pendency of his appeal, and all were denied on procedural grounds. (See Lodg. Nos. 28-33.)

Following the conclusion of his appeal, Petitioner filed two further habeas petitions in the California Supreme Court. Both petitions were denied on a procedural ground. (Lodg. Nos. 34-38; Supp. Lodg. Nos. 6-8.)

SUMMARY OF THE EVIDENCE AT TRIAL

The Court has reviewed the record in this case, as well as the California Court of Appeal’s summary of the evidence in its opinion on direct appeal. The state court’s summary is consistent with the Court’s own review of the record. Thus, the Court has quoted it below to provide an initial factual overview, and additional relevant portions of the trial record will be discussed as needed in connection with the Court’s analysis of Petitioner’s claims.

Ronnie Chong is a general contractor. He collects scrap brass from Ms jobs and saves it in a box in his backyard for future recycling. He keeps a pair of old gloves on top of the box for handling the brass. At 11:20 a.m. on February 26, 1999, Chong heard someone in his backyard. When he came out of Ms house to investigate, he saw [Petitioner] pushing a shopping cart into his front yard; all of Chong’s brass was in [Petitioner’s] shopping cart. [Petitioner] also had the gloves. Chong confronted [Petitioner], asking, ‘Where are you going with my stuff?” [Petitioner] replied, “This is mine,” and kept moving. Chong grabbed the shopping cart with both hands to prevent [Petitioner] from taking the brass. [Petitioner] took a brass faucet spout from the shopping cart and swung it at Chong’s wrist, barely missing him. Chong released the shopping cart, but kicked it over, spilling some of the brass onto the ground. [Petitioner] righted the shopping cart, which still contained some of Chong’s brass, and ran away. Chong gave chase. [Petitioner] threw some pieces of brass at Chong as he ran; they did not hit Chong. [Petitioner] eventually escaped by jumping over a gate. [Petitioner] was forced to abandon the shopping cart, and Chong recovered his brass from it. However, [Petitioner] retained the gloves.

Three days later, [Petitioner] crossed the street in front of Chong’s car. Chong recognized [Petitioner] and telephoned the police. [Petitioner] was pushing another shopping cart containing brass. Chong recognized his gloves in the shopping cart.

Police arrested [Petitioner], Before he was advised of the charges, [Petitioner] spontaneously told police, “I wasn’t in nobody’s backyard.” [Petitioner] was searched. In the pocket of a jacket found in the shopping cart, police discovered eight balloons holding .66 grams of a substance containing heroin, as well as a small bindle holding .15 grams of a substance containing heroin.

The sole defense witness was [Petitioner’s] mother, who testified that she gave [Petitioner] the gloves found in his possession. In argument to the jury, [Petitioner’s] attorney asserted [Petitioner] was in the business of collecting useful items from other people’s trash, and [Petitioner] may have found the jacket unaware of the heroin hidden in the pocket.

(Lodg. No. 5 at 3-4.)

PETITIONER’S HABEAS CLAIMS

Ground One: Trial counsel provided ineffective assistance by failing to move to sever the theft and drug counts, in violation of the Sixth Amendment. (Petition at 5.)

Ground Two: The trial court erred by instructing the jury pursuant to California Jury Instruction, Criminal (“CALJIC”) No. 17.41.1, because the instruction “nullified” juror deliberations, in violation of Petitioner’s rights to due process and a fair trial, as well as unspecified “rights” of the jurors. (Petition at 5.)

Ground Three: The trial court erred by failing to exercise its discretion to strike one of Petitioner’s two prior “strike” convictions, in violation of the Fourth Amendment. (Petition at 6.)

Ground Four: Petitioner’s Three Strikes sentence constitutes cruel and unusual punishment, in violation of the Eighth Amendment. (Petition at 6.)

Ground Five: Petitioner’s trial counsel was ineffective for advising Petitioner to admit the prior conviction allegations, in violation of the Sixth Amendment. (Attachment to Petition (“Petition Att.”) at 4.)

Ground Six: The prosecutor was es-topped from alleging that Petitioner’s prior convictions were “strikes” under the Three Strikes Law, because by doing so, the prosecutor relitigated the validity of those prior convictions. (Petition Att. at 4-5.)

Ground Seven: As shown by newly discovered evidence, Petitioner was denied a fair trial, because the prosecutor suppressed certain evidence (including police reports, logs, and similar documents), in violation of the Fourth, Fifth, and Sixth Amendments. (Petition Att. at 5.)

Ground Eight: Because, at the probable cause hearing conducted within 48 hours of Petitioner’s arrest, a “neutral magistrate” found that probable cause did not exist to support detaining Petitioner on Counts 2 and 3 (petty theft with a prior theft conviction, and possession of heroin for sale), the prosecutor’s amendment of those counts and their assertion against Petitioner at trial violated due process and the Fourth Amendment. (Petition Att. at 5.)

Ground Nine: Petitioner was entitled to be sentenced pursuant to the prosecution’s first plea offer — notwithstanding Petitioner’s rejection of all plea offers made and his decision to proceed to both a court and then a jury trial on the charges against him — and the failure to sentence him pursuant to the terms of that initial plea offer violated the Fourth and Sixth Amendments. (Petition Att. at 5.)

Ground Ten: There was insufficient evidence to support the trial court’s “true” finding with respect to the prior convictions allegations, in violation of the Fifth and Eighth Amendments. (Petition Att. at 5-6.)

Ground Eleven: California’s Three Strikes Law is unconstitutional, because the law is set forth in two separate statutes, one derived from enactment by the state legislature and one derived from enactment by a later voter initiative, in violation of the Fourteenth Amendment. (Petition Att. at 6.)

Ground Twelve: California’s Three Strikes Law violates the Ex Post Facto Clause. (Petition Att. at 6.)

Ground Thirteen: Petitioner could not be sentenced pursuant to the Three Strikes Law, because he was serving an unconstitutional parole term at the time he was arrested for the instant offenses. Thus, his prior conviction could not serve as a “strike.” (Petition Att. at 6-7; see also Traverse at 80-83.)

Ground Fourteen: Petitioner is not procedurally barred from directly challenging the legality of his prior “strike” convictions. (Petition Att. at 7.)

Ground Fifteen: The prosecutor committed misconduct, in violation of the Fourth, Fifth, and Sixth Amendment, by: (1) amending Counts 2 and 3 (the petty theft with a prior theft conviction and possession of heroin for sale counts) in the Information and Amended Information despite the “neutral magistrate’s” determination that probable cause did not support detaining Petitioner for further proceedings on those counts (as set forth in present Ground Eight); (2) suppressing discovery of complete and/or additional police reports; (3) failing to provide timely discovery of the tape of a 911 call; (4) amending the prior conviction allegations to add a second “strike” conviction, in retaliation for Petitioner’s refusal of a plea offer; and (5) falsifying a document regarding the transcript of the 911 call to imply to the jury that it was an “official document.” (Petition Att. at 7-8.)

Ground Sixteen: The arbitrary and inconsistent manner in which the Three Strikes Law is applied violates due process. (Petition Att. at 8.)

Ground Seventeen: The prosecution failed to allege properly the statutory provisions underlying the Three Strikes Law in the Amended Information, therefore precluding application of the Three Strikes Law to Petitioner. His sentence, thus, violates the Fourth, Fifth, Sixth, and Eighth Amendments. (Petition Att. at 8.)

Ground Eighteen: Because Petitioner’s 1995 prior “strike” conviction was itself a “void” judgment, the trial court could not utilize it to impose a Three Strikes sentence. (Petition Att. at 8.) In addition, at the sentencing hearing, the trial court erred when imposing sentence on the principal count (Count 3) by referring to the statute for the originally-charged offense of possession for sale of which Petitioner was acquitted (Cal. Health & Safety Code § 11351), instead of the lesser included offense of possession of which the jury found him guilty (Cal. Health & Safety Code § 11350(a)). (Id.)

Ground Nineteen: Petitioner’s custodian, the California Department of Corrections and Rehabilitation (“CDCR”), has failed to accord to Petitioner “credits of 50%” in connection with his Three Strikes sentence, in conflict with the term of custody credits actually prescribed by the trial court’s sentencing order and/or state law requirements governing the CDCR’s calculation of goodtime/worktime credits and in violation of the Fourth and Sixth Amendments. (Petition Att. at 9; see also Traverse at 103-06.)

Ground Twenty: Petitioner’s appellate counsel provided ineffective assistance in several respects, in violation of the Sixth Amendment. (Petition Att. at 9.)

Ground Twenty-One: Petitioner’s trial judge acted in excess of his jurisdiction by ruling on a number of Petitioner’s post-conviction applications for relief, and engaged in an unauthorized ex parte communication with the California Court of Appeal. (Petition Att. at 9.)

Ground Twenty-Two: Petitioner’s trial counsel provided ineffective assistance by failing to obtain all discovery, prepare more, and adequately research caselaw and procedure, in violation of the Fourth and Sixth Amendments. (Petition Att. at 10.)

Ground Twenty-Three: Petitioner had a Fourteenth Amendment right to be sentenced to a probationary term and drug treatment, as called for by state law set forth in “Proposition 36,” rather than pursuant to the Three Strikes Law. (Petition Att. at 10.)

Ground Twenty-Six: In violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the prosecution suppressed discovery of the gloves found in Petitioner’s possession at the time of his arrest, which the victim had identified as his own, as well as police photographs of those gloves and “contraband.” (Petition Att. at 11.)

Ground Thirty: The trial judge violated the Fourth, Fifth, and Sixth Amendments when he: (1) “impeached” the jury’s verdict by imposing a six-month (and concurrent) term on the petty theft with a prior count; (2) acted vindictively in sentencing Petitioner due to Petitioner’s rejection of a plea offer; and (3) improperly sentenced Petitioner based on his Count 3 conviction, because the charged crime had not been presented to the jury. (Petition Att. at 12; see also Traverse at 126-28.)

STANDARD OF REVIEW

The Petition is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under Section 2254(d), a federal court may not grant a writ of habeas corpus on behalf of a person in state custody “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).

Grounds One Through Four:

Petitioner raised Grounds One through Four on direct appeal, and the California Court of Appeal denied them, on their respective merits, in a written, reasoned decision. (Lodg. No. 5.) When the claims were then raised in a petition for review, the California Supreme Court denied relief summarily. (Lodg. No. 7.) The state high court’s “silent” denial is considered to be “on the merits.” See Hunter v. Aispuro, 982 F.2d 344, 347-48 (9th Cir.1992). In addition, that “silent” denial is deemed to rest on the last reasoned decision on this claim, namely, the grounds articulated by the California Court of Appeal in its decision on the merits. See Ylst v. Nunnemaker, 501 U.S. 797, 803-06, 111 S.Ct. 2590, 2594-96, 115 L.Ed.2d 706 (1991); see also, e.g., Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir.2008); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir.2007) (en banc), cert. denied, — U.S. -, 128 S.Ct. 1878, 170 L.Ed.2d 754 (2008). Accordingly, to the extent that Grounds One through Four present cognizable claims (as discussed further below), they are governed by the Section 2254(d) standard of review, specifically, Section 2254(d)(1). See Lambert v. Blodgett, 393 F.3d 943, 966-69 (9th Cir.2004) (Section 2254(d) applies when the state court has denied a claim based on its substance, rather than on the basis of a procedural or other rule precluding state court review of the merits).

“Clearly established Federal law,” for purposes of Section 2254(d)(1) review, “refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000); see also Carey v. Musladin, 549 U.S. 70, 74, 127 S.Ct. 649, 653, 166 L.Ed.2d 482 (2006); Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003); Stokes v. Schriro, 465 F.3d 397, 401-02 (9th Cir. 2006) (this statutory language “refers to Supreme Court precedent at the time of the last-reasoned state court decision”). Section 2254(d)(1) “plainly restricts the source of clearly established law to the Supreme Court’s jurisprudence.” Lambert, 393 F.3d at 974; see also Plumlee v. Masto, 512 F.3d 1204, 1210 (9th Cir.2008) (ien banc) (“What matters are the holdings of the Supreme Court, not the holdings of lower federal courts.”), cert. denied, — U.S. --, 128 S.Ct. 2885, 171 L.Ed.2d 822 (2008). However, although “[o]nly Supreme Court precedents are binding on state courts under AEDPA,” Ninth Circuit “precedents may be pertinent to the extent that they illuminate the meaning and application of Supreme Court precedents.” Campbell v. Rice, 408 F.3d 1166, 1170 (9th Cir.2005) (en banc)-, see also Mendez v. Knowles, 556 F.3d 757, 767 (9th Cir.2009).

Under the first prong of Section 2254(d)(1), a state court decision is “contrary to” federal law if the state court applies a rule that contradicts the governing law as stated by the Supreme Court or reaches a different conclusion than that reached by the high court on materially indistinguishable facts. Price v. Vincent, 538 U.S. 634, 640, 123 S.Ct. 1848, 1853, 155 L.Ed.2d 877 (2003). This includes “use of the wrong legal rule or framework.” Frantz v. Hazey, 533 F.3d 724, 734 (9th Cir.2008) (en banc).

The second prong of Section 2254(d)(1) is met when a state court identifies the correct governing legal principle from the Supreme Court’s decisions but unreasonably applies it to the facts of the petitioner’s case. Williams, 529 U.S. at 412-13, 120 S.Ct. at 1523. The “unreasonable application” inquiry is an objective one, and the standard is not satisfied simply by showing error or incorrect application of the governing federal law. Andrade, 538 U.S. at 75, 123 S.Ct. at 1174; Woodford v. Visciotti 537 U.S. 19, 25, 123 S.Ct. 357, 360, 154 L.Ed.2d 279 (2002) (per curiam); Williams, 529 U.S. at 409, 120 S.Ct. at 1521. “The question under AED-PA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable — a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007).

“[I]n the absence of a Supreme Court decision that ‘squarely addresses the issue’ in the case before the state court ..., or establishes a general principle that ‘clearly extends’ to the case,” it cannot be said that clearly established federal law exists for purposes of Section 2254(d), and a federal court must defer to the state court decision. Moses, 555 F.3d at 760 (citing Wright v. Van Patten, 552 U.S. 120, 128 S.Ct. 743, 746, 169 L.Ed.2d 583 (2008) (per curiam)-, Musladin, 549 U.S. at 76, 127 S.Ct. at 654; and Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 2858, 168 L.Ed.2d 662 (2007)); see also Knowles v. Mirzayance, — U.S. -, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251 (2009) (noting that under ample Supreme Court precedent, it is not an unreasonable application of clearly established federal law “for a state court to decline to apply a specific legal rule that has not been squarely established by” the Supreme Court); Holley v. Yarborough, 568 F.3d 1091, 1097-98 (9th Cir.2009) (“[circuit precedent may not serve to create established federal law on an issue the Supreme Court has not yet addressed,” and “[w]hen there is no clearly established federal law on an issue, a state court cannot be said to have unreasonably applied the law as to that issue”). If, however, the Supreme Court’s decisions “do provide a ‘controlling legal standard’ ... that is applicable to the claims raised by a habeas petitioner without ‘tailoring or modification’ of the standard ..., the question is then whether the application of that standard was objectively unreasonable, even if the facts of the case at issue are not identical to the Supreme Court precedent.” Moses, 555 F.3d at 754 (citations omitted).

Accordingly, the Court will look to the California Court of Appeal’s decision on direct appeal as a starting point in its analysis of Grounds One through Four.

Grounds Five Through Twenty-Three, Twenty-Six, And Thirty:

The AEDPA’s deferential standard of review set forth in Section 2254(d) applies only to a “claim that was adjudicated on the merits in state court proceedings.” Petitioner raised the claims alleged in Grounds Five through Twenty-Three, Twenty-Six, and Thirty in habeas petitions filed at various state court levels. When raised in habeas petitions filed with the California Supreme Court, the state high court denied relief, citing California cases that reflect procedural bases for the denial of the claims. {See Lodg. Nos. 28-36.)

The state high court’s denial of these 21 claims was not a decision on the merits of these claims. Accordingly, because Grounds Five through Twenty-Three, Twenty-Six, and Thirty were not denied on their merits, the Section 2254(d) standard of review does not apply to them. See Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir.2003); Pirtle v. Morgan, 313 F.3d 1160, 1167-68 (9th Cir.2002). When “there is no state court decision on [the merits of the constitutional violation alleged] to which to accord deference,” “we must review it de novo.” Id. at 1167; see also Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir.2004); Nulph, 333 F.3d at 1057.

DISCUSSION

I. Petitioner’s Ineffective Assistance of Trial and Appellate Counsel Claims Do Not Warrant Federal Habeas Relief.

Grounds One, Five, Twenty, and Twenty-Two (as amended) rest on allegations that both Petitioner’s trial and appellate counsel provided ineffective assistance. (Petition at 5 and Petition Attachment at 4, 9-10.) The Sixth Amendment guarantees the effective assistance of counsel, both at trial and on appeal. See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984); see also Smith v. Robbins, 528 U.S. 259, 285-86, 120 S.Ct. 746, 764-65, 145 L.Ed.2d 756 (2000). To establish ineffective assistance by his trial counsel, Petitioner must demonstrate both that: (1) counsel’s performance was deficient; and (2) the deficient performance prejudiced his defense. Strickland, 466 U.S. at 688-93, 104 S.Ct. at 2064-68; see also Mirzayance, 129 S.Ct. at 1420 (“Strickland requires a defendant to establish deficient performance and prejudice”); Yarborough v. Gentry, 540 U.S. 1, 5, 124 S.Ct. 1, 4, 157 L.Ed.2d 1 (2003) (per curiam) (the Sixth Amendment right “is denied when a defense attorney’s performance falls below an objective standard of reasonableness and thereby prejudices the defense”). As both prongs of the Strickland test must be satisfied to establish a constitutional violation, failure to satisfy either prong requires that an ineffective assistance claim be denied. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069 (no need to address deficiency of performance if prejudice is examined first and found lacking); Rios v. Rocha, 299 F.3d 796, 805 (9th Cir.2002) (“[fjailure to satisfy either prong of the Strickland test obviates the need to consider the other”); Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir.1998) (no need to address prejudice when petitioner cannot establish deficient performance).

The first prong of the Strickland test— deficient performance — requires a showing that, in the light of all the circumstances, counsel’s performance was “outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. Judicial scrutiny of counsel’s performance “must be highly deferential,” and this Court must guard against the distorting effects of hindsight and evaluate the challenged conduct from counsel’s perspective at the time in issue. Id. at 689, 104 S.Ct. at 2065; see also Mirzayance, 129 S.Ct. at 1420 (“ ‘The proper measure of attorney performance remains simply reasonableness under prevailing professional norms’ ”; quoting Strickland ); Gentry, 540 U.S. at 8, 124 S.Ct. at 6 (noting that even inadvertent, as opposed to tactical, attorney omissions do not automatically guarantee habeas relief, because “[t]he Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight”); Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527, 2536, 156 L.Ed.2d 471 (2003) (the first Strickland prong is a “context-dependent consideration of the challenged conduct as seen ‘from counsel’s perspective at the time’ ”). A habeas reviewing court can “ ‘neither second-guess counsel’s decisions, nor apply the fabled twenty-twenty vision of hindsight’ ... but rather, will defer to counsel’s sound trial strategy.” Murtishaw v. Woodford, 255 F.3d 926, 939 (9th Cir.2001) (citing Strickland).

Due to the difficulties inherent in making this evaluation, there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. A habeas petitioner “must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (internal quotation and citation omitted); see also Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir.2009) (the petitioner “bears the burden of proving that [counsel’s] trial strategy was deficient”); Murtishaw, 255 F.3d at 939 (the petitioner “bears the heavy burden of proving that counsel’s assistance was neither reasonable nor the result of sound trial strategy”).

The second prong of the Strickland test — prejudice—requires a showing of a “reasonable probability that, but for counsel’s unprofessional errors, the result of the [trial] would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. A reasonable probability is a probability “sufficient to undermine confidence in the outcome.” Id.; see also Visciotti, 537 U.S. at 22, 123 S.Ct. at 359.

With respect to Petitioner’s claim that appellate counsel provided ineffective assistance, the analytical framework of Strickland also governs. Pollard v. White, 119 F.3d 1430, 1435 (9th Cir.1997); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). As the Ninth Circuit has explained, the two Strickland prongs often will overlap in the appellate context:

In many instances, appellate counsel will fail to raise an issue because she foresees little or no likelihood of success on that issue; indeed, the weeding out of weaker issues is widely recognized as one of the .hallmarks of effective appellate advocacy.... For these reasons, a lawyer who throws in every arguable point — “just in case” — is likely to serve her client less effectively than one who concentrates solely on the strong arguments. Appellate counsel will therefore frequently remain above an objective standard of competence (prong one) and have caused her client no prejudice (prong two) for the same reason — because she declined to raise a weak issue.

Miller, 882 F.2d at 1434.

In making the Sixth Amendment assessment in the context of an omitted claim on appeal, the Court must decide whether the claim would have resulted in a “reasonable probability of reversal.” Miller, 882 F.2d at 1434; see also Wildman v. Johnson, 261 F.3d 832, 840-42 (9th Cir. 2001) (appellate counsel’s failure to raise issues on direct appeal does not constitute ineffective assistance when appeal would not have provided grounds for reversal); Jones v. Smith, 231 F.3d 1227, 1239 n. 8 (9th Cir.2000) (same).

A. Trial Counsel

1. Ground One: Failure To Seek Severance Of Theft-Related And Drug-Related Counts

The Amended Information in this case charged Petitioner with two theft-related counts (second degree robbery and petty theft with a prior theft-related conviction), both of which arose from events that took place on February 26, 1999, and one drug-related count (possession of heroin for sale), which stemmed from narcotics found on March 1, 1999, when Petitioner was taken into custody based on the theft offenses. (CT 13-17; see also Lodg. No. 5 at 3-4.) The jury found Petitioner: not guilty of the robbery count; guilty of the petty theft with a prior count; and, with respect to the drug count, not guilty of the charge of possession for sale of a controlled substance (heroin) but guilty of the lesser included offense of possession of heroin. (CT 156A-66.)

In Ground One, Petitioner contends that trial counsel should have moved to sever the drug count from the theft counts pursuant to California Penal Code § 954. Petitioner argues that severance was appropriate under Section 954, and a motion to sever would have been granted, because the drug and theft counts were not sufficiently factually and legally related to support joinder. Petitioner asserts that it is reasonably probable a different result would have occurred at trial had the counts been so severed, because, inter alia: the evidence connected to each count was highly prejudicial to the other; it was prejudicial for the jury to learn that Petitioner had been charged with committing a theft crime only a few days before his drug arrest; and by its nature, the petty theft with a prior theft conviction charge necessarily required the jury to learn that Petitioner had suffered a prior theft conviction, a fact that could have been kept from a jury determining the drug count alone in a separate trial. (See Lodg. No. 2 at 15-20 — Petitioner’s arguments on state appeal.)

a. The State Court Decision

The California Court of Appeal rejected Petitioner’s claim based on Strickland and state law, as well as the relevant state standards governing severance motions under California Penal Code § 954. (Lodg. No. 5 at 4-8.) At the start of its analysis, the state appellate court observed that Petitioner’s “argument that a motion to sever would have been granted appears to be well taken,” noting:

Possession for sale of heroin is not a different statement of robbery or petty theft with a prior, nor is a drug offense of the same class as a theft offense. The possession offense occurred three days after the theft offenses, and the only connection between the two was discovery of the heroin at the time of [Petitioner’s] arrest for robbery. This is insufficient to support joinder.

(Id. at 5-6).

The California Court of Appeal observed, however, that “the fact that a severance motion would have been granted does not establish ineffective assistance of counsel” (Lodg. No. 5 at 6), given the requirements that both Strickland prongs be established. With respect to the deficient performance prong, the state appellate court noted:

Counsel’s sole argument as to the unknowing possession of the heroin was that [Petitioner] obtained the jacket by rooting through someone’s trash and was unaware of the drugs in the jacket pocket. This argument depended upon the evidence relating to the theft offenses, that is, [the victim’s] testimony that [Petitioner] took the brass from his backyard recyclable box. Without this testimony, counsel would have had no basis for suggesting [Petitioner’s] possession of the heroin was unknowing.

(Id. at 6-7.) The state appellate court acknowledged that Petitioner “could have testified, but not without his substantial criminal record being disclosed to the jury.” (Id. at 7 n. 1.) “Therefore, there could have been a rational tactical purpose for counsel’s decision to try the counts together.” (Id. at 7.)

With respect to the prejudice prong, the California Court of Appeal concluded that Petitioner had “failed to meet his burden of showing that, but for counsel’s failure to sever the counts, he would have received a more favorable result,” finding that:

[Petitioner] was acquitted on the two more serious counts of robbery and possession for sale of heroin, and convicted only of petty theft with a prior and possession of heroin. Had these counts been tried separately, it is not reasonably probable he would have obtained an even more favorable verdict. Considered independently, the evidence of petty theft was overwhelming. [The victim] positively identified [Petitioner] as the man who had taken his scrap brass, [Petitioner] was arrested with [the victim’s] gloves in his possession, and [Petitioner’s] volunteered statement to police that he was not in anyone’s backyard reflected his consciousness of guilt. Had the jury not been aware that [Petitioner] possessed heroin at the time of his arrest, the evidence of petty theft would have remained just as overwhelming, and the result would have been the same. (See People v. Breault (1990) 223 Cal.App.3d 125, 134 [273 Cal.Rptr. 110] [charges of possession of drugs are not inherently inflammatory].) Similarly, the evidence of possession of heroin, considered separately, was likewise overwhelming. The heroin was indisputably discovered in the pocket of a jacket in [Petitioner’s] sole possession. Had the jury not known of [Petitioner’s] theft of [the victim’s] brass, the evidence of [Petitioner’s] possession of the heroin would have been just as strong. Indeed, in the absence of the evidence relating to [Petitioner’s] collection of items from other people’s trash, [Petitioner] would have lacked the basis for his argument that his possession of the heroin was unknowing. While it is true the jury would not have been aware of [Petitioner’s] prior theft-related felony conviction had the counts been severed, the jury was instructed at great length not to consider that offense with respect to any charge other than petty theft with a prior. Such an admonition is sufficient to allay any prejudice which may have arisen from the fact of the prior conviction. (People v. Garcia (1986) 183 Cal. App.3d 335, 346-347 [228 Cal.Rptr. 87].) Indeed, the jury’s verdict establishes the lack of any prejudice.

(Lodg. No. 5 at 7-8.)

The California Court of Appeal concluded that, because Petitioner had failed to establish either Strickland prong, he had not shown ineffective assistance of counsel in violation of the Sixth Amendment. (Lodg. No. 5 at 8.)

b. The State Court Decision Is Entitled To Deference.

Under Section 2254(d)(1), which governs Ground One:

The question “is not whether a federal court believes the state court’s determination” under the Strickland standard “was incorrect but whether that determination was unreasonable — -a substantially higher threshold.” ... And, because the Strickland standard is. a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard. See Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) (“[E]valuating whether a rule application was unreasonable requires considering the rule’s specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations”).

Mirzayance, 129 S.Ct. at 1420 (citation omitted). In this case, “[ujnder the doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard” (id.), Petitioner is not entitled to federal habeas relief, because the state court’s finding that Petitioner was not prejudiced within the meaning of Strickland was not objectively unreasonable.

In the first instance here, there was minimal risk of confusing the jury or causing the jury to consider the commission of either theft crime as evidence of Petitioner’s guilt of the separate drug offense, given that the theft and drug crimes themselves were distinct and committed on different occasions. In addition, the jury was instructed: separately regarding each count and allegation; that each count constituted a distinct crime and required a separate verdict; and as the state appellate court noted, that evidence Petitioner had a prior theft conviction was admitted for a limited purpose only. (CT 106, 126-36, 139-40, 143.) Moreover, Petitioner’s defenses to each charge were consistent with and tended to support each other. As to both charges, his trial counsel argued that: Petitioner was in the business of collecting useful items from other people’s trash; the manner in which the victim’s recyclable metal was stored on the property (partially in a large trash can in the backyard of a multi-unit apartment building) reasonably indicated that the metal had been discarded and was available for Petitioner’s collection, and thus, Petitioner was not guilty of theft; and because Petitioner was in the business of collecting discarded items, he found the jacket in issue and was unaware of the heroin hidden in its pocket. (See, e.g., Supp. Lodg. No. 3, Reporter’s Transcript (“1RT”) 246-56.)

In addition, and as the state court observed, the fact that the jury acquitted Petitioner of the more serious robbery and possession of heroin for sale counts dispels any suggestion that joinder of the theft and drug counts “inflamed” or confused the jury, or otherwise prejudiced Petitioner. Significantly, Petitioner was convicted on lesser offenses as to both the theft and drug charges. “[T]he failure of the jury to convict on all counts is the best evidence of the jury’s ability to compartmentalize the evidence.” Park v. California, 202 F.3d 1146, 1150 (9th Cir.2000) (finding that, “because the jury did not convict on all counts it presumably was able to compartmentalize the evidence”; and further observing that to demonstrate prejudice based on the consolidation of counts at trial, a petitioner “must show that the jury was actually inflamed”). Significantly, in the initial court trial, the trial court found Petitioner guilty on all counts, including the more serious robbery count. (Supp. Lodg. No. 2, Reporter’s Transcript (“RT”) 910-11.) By marked contrast, Petitioner’s jury did not, an indication that the jury was not inflamed or confused by the consolidation of the charges.

In addition, as to the guilty verdicts reached on the lesser charges, the state appellate court determined that “overwhelming” evidence established Petitioner’s guilt of the crimes of both petty theft with a prior and possession of heroin, a factual finding and determination of state law to which this Court defers. See 28 U.S.C. § 2254(e)(1); Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 604, 163 L.Ed.2d 407 (2005) (per curiam); Hicks v. Feiock, 485 U.S. 624, 630 & n. 3, 108 S.Ct. 1423, 1428 & n. 3, 99 L.Ed.2d 721 (1988); Wainwright v. Goode, 464 U.S. 78, 84, 104 S.Ct. 378, 382, 78 L.Ed.2d 187 (1983). Against this “overwhelming” evidence, which established that Petitioner had committed each crime of which he was convicted, Petitioner does not establish that a different result would have obtained had the charges been considered in separate trials.

Thus, even if the charges should have been severed under state law, as the California Court of Appeal found, it was reasonable for the state appellate court to conclude further that it was not reasonably probable that a different outcome would have ensued had counsel sought severance. As a result, no Sixth Amendment violation has been shown, and the state court’s rejection of Ground One was not objectively -unreasonable. Accordingly, Ground One cannot warrant habeas relief. 28 U.S.C. § 2254(d)(1).

2. Ground Five: Advising Petitioner To Admit A Prior Theft Conviction In Connection With Petty Theft With A Prior Count

Petitioner contends that his trial counsel was ineffective for advising Petitioner to admit that he had suffered a prior theft conviction for the purpose of the pending Count 2/petty theft with a prior theft conviction charge. (Petition Att. at 4.) Petitioner asserts that each of the seven prior theft convictions alleged in the Amended Information for purposes of Count 2 was “untrue,” notwithstanding the fact that, during trial, he admitted the truth of these prior conviction allegations. (See 1RT 7-12.) He contends that the trial court later found four of these prior conviction allegations to be “untrue,” and the prosecutor later dismissed the seven prior conviction allegations. (Petition Att. at 4.)

The Amended Information alleged that, for purposes of Count 2 (petty theft with a prior), Petitioner had suffered seven prior theft-related convictions, which were listed as Case Nos. C35640, A586109, A765138, A095522, A371625, A960737, and A979309 (the “Count 2 Priors”). (CT 14.) The Amended Information also alleged that Petitioner had sustained two different prior convictions that constituted serious or violent felony “strikes,” which were listed as Case Nos. BA104285 and BA127836 (the “Prior Strikes”). (CT 15.) In addition, the Amended Information alleged that Petitioner had sustained 11 prior convictions that resulted in the service of a prison term pursuant to California Penal Code § 667.5(b), which provides for sentence enhancement based on prior prison terms and the commission of additional crimes within five years of release; those 11 convictions consisted of the Count 2 Priors, one of the Prior Strikes, and three additional prior convictions. (Id.)

Before jury selection commenced, the trial court explained to Petitioner that, with respect to the Count 2 petty theft with a prior charge: the jury would hear evidence about the “the facts concerning the petty theft, and then they would hear about all the various prior convictions”; or alternatively, Petitioner could “shield the jury from hearing about each individual prior conviction involving theft by stipulating that it is a theft-related felony for the purpose of that count.” (1RT 8-9.) After conferring with his counsel and receiving counsel’s advice to enter into such a stipulation, Petitioner agreed to do so. (1RT 8-10.) Petitioner was then advised of his rights by the trial court, Petitioner waived those rights, and he then admitted the truth of the allegations regarding the Count 2 Priors “for the purpose of Count 2 only.” (1RT 8-12.) The trial court expressly noted that none of the Count 2 Priors to which Petitioner admitted were alleged to be “strikes.” (1RT 12.)

When the jury panel was called, the trial court generally described the allegations of the Amended Information to the prospective jurors and stated that, with respect to the Count 2 petty theft with a prior charge, “it’s been stipulated and agreed that there is a prior theft-related conviction involved.” (1RT 18-19.) After the close of the prosecution’s case, in front of the jury, the parties stipulated that prior to the date of the charged petty theft, Petitioner had suffered a theft-related conviction at the felony level and for which he served a prison term. (1RT 156.) The trial court then instructed the jurors orally that: the stipulation did not constitute any admission of guilt as to the three counts charged; the jurors should not consider the stipulation as bearing on Petitioner’s guilt; the stipulation was entered into by the parties simply as a matter of evidentiary convenience; and Petitioner was only “stipulating and agreeing that he suffered this prior conviction.” (1RT 156-58.) During the subsequent jury instruction, the trial court instructed the jurors with CALJIC No. 2.09, which reiterated the limited purpose of the stipulation, including that the jurors could not consider it as bearing on the issue of Petitioner’s guilt or innocence of the charges before them. (CT 106; 1RT 193-94.)

At the outset, Petitioner’s assertions about the supposedly “untrue” nature of the Count 2 Priors are unavailing. Even if his sworn admission of the truth of the Count 2 Priors could be overlooked, which is unlikely, Petitioner has provided no reason to believe that the allegations would not have been found true had this element been submitted to the jury for its determination. Petitioner’s assertion that the trial court found four of the Count 2 Priors “to be untrue” and the prosecution dismissed them as “untrue,” which is notably lacking in citation to the record (Petition Att. at 4), is itself false, as the record reflects no such finding and dismissal. Petitioner may be relying on, but mischaracterizing, the bifurcated proceeding regarding the Section 667.5(b) sentence enhancement allegations, in which the trial judge found that the Section 667.5(b) allegations regarding 11 prior convictions supported a finding that Petitioner had sustained seven separate prior prison terms within the meaning of Section 667.5(b). The trial court not only did not find any of the Count 2 Priors to be factually untrue, but also expressly noted the truth of many of the prior conviction allegations. (2RT 71-73; see also 2RT 57.) Significantly, in the prior court trial, the trial court determined that the evidence, including as to prior convictions, was sufficient to show that Petitioner was guilty beyond a reasonable doubt of petty theft with a prior conviction.

Second, as the trial court took pains to advise Petitioner, the stipulation that Petitioner had sustained “a prior theft-related conviction” prevented the jury from hearing about the details of each of Petitioner’s seven prior theft convictions, and the trial court both admonished and instructed the jury regarding the limited effect of the stipulation. As the California Court of Appeal concluded in its review of whether Petitioner was prejudiced by a joint trial of the theft and drug counts, the jury’s acquittal of Petitioner on the robbery and possession of heroin for sale, the court’s limiting instruction, and the “overwhelming evidence” on the counts of which Petitioner was convicted, together, show that Petitioner did not suffer prejudice from the jury learning that he had suffered a prior theft conviction. Indeed, as the state appellate court noted, despite knowing that Petitioner had suffered a prior theft conviction, Petitioner’s jury acquitted Petitioner of second degree robbery.

Petitioner has not established either deficient performance or prejudice in connection with Petitioner’s stipulation to the truth of the Count 2 Priors allegations. Accordingly, no ineffective assistance of counsel has been shown, and Ground Five fails and must be denied.

3. Ground Twenty-Two: Failure To Obtain “All” Discovery, Prepare More, And Adequately Research Caselaw And Procedure.

Petitioner contends that trial counsel provided ineffective assistance by failing to obtain “all” discovery, prepare more, and adequately research caselaw and procedure. (Petition Att. at 10.) Although not so stated in the Petition, it appears that Petitioner contends that both the attorney who represented him at the initial court trial (Mark Bledstein) and his subsequent counsel retained to represent him at the jury trial in issue (Ms. Vargas) failed him in these respects. (See Traverse at 109-12.)

Petitioner’s allegations are wholly conclusory and lacking in factual support. Indeed, Ground Twenty-Two of the Petition is bereft of a single factual allegation. The Traverse makes three vague factual references; however, they are inadequate to establish either deficient performance or prejudice.

The record shows that both defense counsel believed that “all” discovery had been provided. {See 1RT 4; RT A6.) The only “discovery” Petitioner identifies as allegedly omitted is the “newly discovered evidence” that is the subject of Ground Twenty-Six. As discussed infra, however, the Court has concluded that such “newly discovered evidence” was not material, and its omission from Petitioner’s trial was of no effect. Hence, Petitioner cannot have suffered prejudice, within the meaning of Strickland, by reason of either or both of his attorney’s alleged failure to obtain such items through the criminal discovery process.

Petitioner also fails to identify any further preparation or research that counsel should have conducted, other than to complain, as he does in other Grounds of the Petition, that the prosecutor acted wrongfully in amending the Information to include the petty theft with a prior and possession for sale counts. However, as discussed infra, that contention is without merit, and thus, neither deficient performance nor prejudice can be found based on the failure of either attorney to raise it, whether due to lack of preparation/research or any other reason. Although Petitioner further complains in his Traverse that his attorneys allegedly failed to interview and subpoena potential alibi and exonerating witnesses, that subclaim of Ground Twenty-Two was dismissed by the District Judge as unexhausted and, thus, cannot serve as a basis for relief. Given Petitioner’s failure to identify any such alleged witnesses, his allegation would fail even if it actually were an extant claim in this case. See, e.g., Alcala v. Woodford, 334 F.3d 862, 872-73 & n. 3 (9th Cir.2003) (indicating that, in order to succeed on a claim of ineffective assistance of counsel based upon a failure to call witnesses, a habeas petitioner must not only identify the witnesses in question but also must describe specifically the testimony those witnesses would have given, as well as explain how that testimony might have altered the outcome of the trial).

Petitioner, in his twenty-second claim, simply does not identify any area of alleged deficient performance by either of his trial attorneys. Significantly, Petitioner does not address the critical question of why any purported failing by Mr. Bled-stein (his attorney in the initial court trial) matters, given that the court trial verdict was set aside for reasons other than ineffective assistance of counsel, and Petitioner received a second trial by jury. In any event, because Petitioner’s allegations are too vague, eonclusory, and lacking in factual support to establish ineffectiveness by either of his trial counsel, Ground Twenty-Two must be denied. See, e.g., Dows v. Wood, 211 F.3d 480, 486-87 (9th Cir.2000) (factually unfounded claim alleging ineffective assistance of counsel presents no basis for federal habeas relief); Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir.1995) (vague speculation or mere conclusions unsupported by record not sufficient to state claim; “eonclusory suggestions that ... trial and appellate counsel provided ineffective assistance fall far short of stating a valid claim of constitutional violation”).

B. Appellate Counsel

In Ground Twenty, Petitioner contends that his appellate counsel provided ineffective assistance. Although Petitioner asserts that he “presented many colorable issue to appeals counsel” that counsel failed to raise on direct review, Petitioner identifies only two such issues in the Petition. (Petition Att. at 9.) First, Petitioner asserts that his appellate counsel should have raised a claim that one of Petitioner’s “strike” convictions (the 1995 conviction for residential burglary under California Penal Code § 459) was a “void” judgment. Second, Petitioner complains that his appellate counsel raised only one claim predicated on the asserted ineffective assistance of trial counsel (ie., the claim now alleged as Ground One), and he apparently contends that appellate counsel also should have raised the substance of Grounds Five and Twenty-Two on appeal.

Petitioner’s unexplicated assertion that there were “many colorable issues” Petitioner presented to appellate counsel that should have been raised on appeal is too vague and eonclusory to warrant habeas relief. Jones v. Gomez, 66 F.3d at 204-05.

With respect to the assertion that appellate counsel should have raised a claim based on the “void” nature of Petitioner’s 1995 “strike” conviction, as discussed infra in connection with Petitioner’s Ground Eighteen attack on the validity of his 1995 “strike” conviction, Petitioner’s arguments about why his 1995 conviction is “void” and purportedly could not serve as a “strike” are merit-less. Neither deficient performance nor prejudice can be found when an appellate attorney fails to raise a claim on appeal that lacks merit. See, e.g., Wildman, 261 F.3d at 840-42; Miller, 882 F.2d at 1434.

With respect to Petitioner’s claim that appellate counsel should have raised on appeal the ineffective assistance of trial counsel claims alleged in the instant Petition as Grounds Five and Twenty Two, the Court has found, as set forth above, that there was no ineffective assistance of trial counsel in connection with these claims. The Court can find no Sixth Amendment violation arising from appellate counsel’s failure to raise these additional ineffective assistance of trial counsel claims, because it is plain that Petitioner has not established any constitutional error based on these claims, for the reasons discussed earlier.

Accordingly, Petitioner cannot establish that his appellate counsel’s failure to raise the above-noted additional issues on appeal constituted deficient performance or that he suffered prejudice as a result of counsel’s omissions. See Morrison v. Estelle, 981 F.2d 425, 429 (9th Cir.1992) (appellate counsel’s failure to raise an issue on appeal does not constitute ineffective assistance if no constitutional violation has been shown, and thus, counsel had no reasonable likelihood of success in arguing the issue); see also Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir.1985) (failure to raise meritless argument on appeal does not constitute ineffective assistance of counsel). Ground Twenty, therefore, must be denied.

II. Petitioner’s Claim Of Instructional Error Does Not Warrant Federal Habeas Relief.

In Ground Two, Petitioner contends that the trial court erred by instructing the jury with CALJIC No. 17.41.1, because the instruction “nullified the jury,” in violation of his rights to due process and a fair trial, as well as “jurors [sic ] rights.” (Petition at 5.) On direct review, the California Court of Appeal rejected Ground Two, finding both that the claim had “no merit,” and any error in giving CALJIC No. 17.41.1 “was not prejudicial under any standard of reversible error.” (Lodg. No. 5 at 8 (citations omitted).) The California Supreme Court rejected the claim summarily. (Lodg. No. 7.)

A claim of instructional error does not raise a cognizable federal claim unless the error “so infected the entire trial that the resulting conviction violates due process.” Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S.Ct. 475, 481-82, 116 L.Ed.2d 385 (1991); Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736-37, 52 L.Ed.2d 203 (1977); Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). In determining whether a constitutional violation has occurred, the claimed instructional error must be viewed in the light of all the instructions given and the trial record, taken as a whole. See Estelle, 502 U.S. at 72, 112 S.Ct. at 482; Cupp, 414 U.S. at 146-47, 94 S.Ct. at 400.

In Brewer v. Hall, 378 F.3d 952 (9th Cir.2004), the Ninth Circuit held that a habeas claim raising essentially the same contentions made by Petitioner in this case did not warrant relief under the standard of review set forth in 28 U.S.C. § 2254(d)(1). As the Ninth Circuit found, “no Supreme Court case establishes that an instruction such as CALJIC No. 17.41.1 violates an existing constitutional right.” Id. at 956. The Ninth Circuit concluded, moreover, that existing Supreme Court precedent compels the rejection of a claim based on CALJIC No. 17.41.1, given the Supreme Court’s statements that: the right to a representative jury does not i