Barco v. Tilton (694 F. Supp. 2d 1122, 2010)

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

ANDREW J. GUILFORD, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all the records and files herein, and the Report and Recommendation of the United States Magistrate Judge. Objections to the Report and Recommendation have been filed herein. Having made a de novo determination of those portions of the Report and Recommendation to which objections have been made, the Court concurs with and adopts the findings, conclusions and recommendations of the Magistrate Judge.

IT THEREFORE IS ORDERED that Judgment be entered granting a conditional writ of habeas corpus as follows:

Unless petitioner is brought to retrial within sixty (60) days of the date the Judgment herein becomes final (plus any additional delay authorized under State law), respondent shall discharge petitioner from all adverse consequences of his conviction in Los Angeles County Superior Court Case No. KA069089.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ROBERT N. BLOCK, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Andrew J. Guilford, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.

PROCEEDINGS

On November 1, 2007, petitioner (through counsel) filed a Petition for Writ of Habeas Corpus by a Person in State Custody herein, along with a supporting Memorandum of Points and Authorities (“Pet. Mem.”). In accordance with the Court’s Order Requiring Response to Petition and following two extensions of time, respondent filed an Answer to Petition, along with a supporting Memorandum of Points and Authorities on February 19, 2008. Due to the attachment of an incorrect document, respondent filed an Amended Answer (“Amd. Ans.”) along with a supporting Memorandum of Points and Authorities (“Amd. Ans. Mem.”) on February 22, 2008. Petitioner filed a Traverse (“Trav.”) thereto on March 10, 2008. The matter was set for a status conference on April 3, 2008 to address an exhaustion issue relating to that portion of Ground two challenging a jury instruction on ex post facto grounds, and to discuss development of the record as to Ground one, an ineffective assistance of counsel claim. At that status conference, petitioner elected to withdraw that portion of Ground two that the Court had found unexhausted, and the Court, after consultation with the parties, set dates for the parties to file a number of documents in preparation for an evidentiary hearing on petitioner’s ineffective assistance of counsel claim. The Court held a number of status conferences prior to the evidentiary hearing, and ruled on the admissibility of evidence that the parties proposed to present at the evidentiary hearing. The evidentiary hearing was held on May 28 and 29, 2009 and July 24, 2009. Each party called a number of witnesses. At the request of counsel, the Court issued a tentative ruling on the ineffective assistance of counsel claim on September 14, 2009 and heard argument from the parties regarding the tentative ruling on September 25, 2009.

Thus, this matter now is ready for decision. For the reasons discussed hereafter, the Court recommends that the Petition be granted with respect to petitioner’s ineffective assistance of counsel claim.

PROCEDURAL HISTORY

On September 2, 2005, a Los Angeles County Superior Court jury found petitioner guilty of first degree murder, two counts of shooting at an inhabited dwelling, conspiracy to commit the crimes of murder and shooting at an inhabited dwelling, and attempted murder. (See 2 Clerk’s Transcript on Appeal [“CT”] 424-29; 5 Reporter’s Transcript on Appeal [“RT”] 1833-36). The jury also found true the allegations that a principal in the murder, conspiracy to commit murder, and attempted murder was armed with a firearm within the meaning of Cal.Penal Code § 12022(a)(1), and that the attempted murder was willful, deliberate, and premeditated. (See 2 CT 424, 428-29; 5 RT 1833-36). On January 23, 2006, the trial court sentenced petitioner to state prison for an indeterminate term of 26 years-to-life plus a consecutive term of life with the possibility of parole plus four months. (See 3 CT 740-41; 5 RT 2129-30).

Petitioner appealed his conviction and sentence to the California Court of Appeal raising inter alia claims generally corresponding to Grounds one and three and partially corresponding to Ground two of the Petition herein, and joining in his co-defendant’s opening brief on appeal. Petitioner concurrently filed a petition for writ of habeas corpus in the Court of Appeal raising a claim generally corresponding to Ground one raised in the petition herein. (See Respondent’s Notice of Lodgment [“Lodgment”] Nos. A-l, B-l). In an unpublished decision filed on June 20, 2007^ 2007 WL 1765424, the California Court of Appeal reversed petitioner’s (and his co-defendant’s) conviction of conspiracy to shoot at an inhabited dwelling, but otherwise affirmed the judgment. (See Amd. Ans., Exhibit [“Exh.”] C). The Court of Appeal issued a separate order denying petitioner’s habeas petition on the basis that “the record fails to establish that petitioner was denied the effective assistance of counsel.” (See Amd. Ans., Exh. E). Petitioner’s ensuing Petition for Review to the California Supreme Court raising the same claims raised in the Court of Appeal was denied on September 25, 2007, without comment or citation of authority. (See Lodgment No. B-2; Amd. Ans., Exh. D).

On June 25, 2007, petitioner filed a habeas petition in the California Supreme Court raising a claim generally corresponding to Ground one raised in the Petition herein. (See Lodgment No. B-3). The California Supreme Court denied that petition without comment or citation of authority on September 25, 2007. (See Amd. Ans., Exh. E).

SUMMARY OF THE EVIDENCE PRESENTED AT TRIAL

Since petitioner is not contesting the sufficiency of the evidence to support his conviction, the following summary is taken from the “Factual Background” section of the California Court of Appeal opinion (see Amd. Ans., Exh. C at 29-35):

The prosecution’s evidence

Assault on Johnny Barco

In August 2001, Johnny, [petitioner’s] son, went with two friends to a party to which they were not invited, at the home of Rashaun (Rashaun) and Vicky (Vicky) Ware (collectively, the Wares), in West Covina. When a large number of uninvited people arrived, Rashaun told them to leave, and a fight ensued. Rashaun was struck by a bottle. Johnny was attacked by several people, left on the street, and hit by a car as partygoers hurriedly left the residence after hearing a gunshot.

As a result of the attack, Johnny suffered life threatening injuries, including a severed thumb, broken pelvis, three broken vertebrae, numerous cuts and bruises and a footprint embedded on his face by a kick. He was hospitalized for one and one-half or two months, remaining in a coma for some time.

The Barco Family

In November 2003, [Luis] Gutierrez began dating Inisha Barco (Inisha), [petitioner’s] daughter. Some time afterwards, [Alex] Guerrero, Inisha’s ex-boyfriend, and father of her three-year-old daughter, moved in with Inisha. He then moved out of Inisha’s residence and later into Bar-co’s residence. Gutierrez moved in with Inisha four or five months after they began dating and remained there until they broke up in February 2005. Gutierrez socialized at the Barco residence almost daily and got along well with the family. At the time of the assault on Johnny, [petitioner] and his wife, Manvel, Guerrero, Johnny, and Johnny’s siblings, Nathan and Vanessa resided at [petitioner’s] residence. While Johnny was hospitalized, his family worried he would die. His parents and siblings, and then live-in boyfriend, Gutierrez, visited him daily.

Investigation of Johnny’s beating

Detective Dario Aldecoa investigated the assault on Johnny for several weeks, but was unable to locate any witnesses who could, or would, identify Johnny’s assailants. Johnny could not be interviewed due to his injuries. For two months after the assault, [petitioner] telephoned the detective daily, sometimes two to four times a day, to learn the case status. [Petitioner] had heard from Johnny’s friends that Rashaun was involved in the assault, which he told the detective more than once. Rashaun’s photograph was included in a lineup, but neither Johnny’s friends who attended the party with him nor any other party goers selected him as a suspect. [Petitioner] expressed frustration with the inability to make arrests.

In November 2001, [petitioner], Marivel, and Johnny went to the police station to view photographs of Rashaun and others. Johnny could not identify anyone. With no witness identifications, Detective Aldecoa told [petitioner] the investigation was being suspended, but that [petitioner] could sue Rashaun civilly and apply for monetary benefits through the victim rights office. This was Detective Aldecoa’s last contact with [petitioner].

The December 21,2004 shooting

On December 21, 2001, at approximately 10: 00 p.m., the Wares were preparing for bed when they heard gunshots. Rashaun went to his daughter, Larissa’s, room which faced the street, and carried her to his bedroom. There, the Wares noticed that she had been shot in the chest. Vicky called 911 and carried the telephone outside screaming hysterically. She dropped to the ground as additional shots were fired. Three or four feet from her, she saw a small white car drive away. She could not see the driver, and neither she nor Rashaun saw defendants during the shooting.

The shooting left the rear window of the Wares’s Ford Explorer shattered. A small tire iron that had broken the dining room window was found on the dining room table. Bullets also went through the dining room and kitchen windows. Larissa died at the hospital of the gunshot wound.

Neighbors and passers-by heard the shots at the Wares’ house and saw a white car, variously described by them as an older Nissan or Toyota, an older white, four-door car without hubcaps, a white economy car and a “90’s type model of a Toyota or Honda.” Antoinette Caro ran to her window and saw someone, wearing a dark, hooded sweatshirt and dark jeans run from the Wares’ house to a white car, drive away, and return and fire more shots. She could not identify the driver. Ernesto Diaz heard gunshots, went outside and saw flashes coming from inside a white car. Marc Day (Day) saw the driver of the car, whom he described as a male Hispanic, with a moustache, wearing a baseball cap. Judy Lopez heard shots and went outside where she heard a second volley of shots. Dean Vanderheyden (Vanderheyden), a reserve police officer, heard four or five gunshots and went outside, returned to his house and heard a second round of shots. He went outside again and saw a luhite car making a rapid exit. Only Vanderheyden reported seeing a second person in the car.

Guerrero’s arrest

On December 21, 200[, shortly after the shooting, Deputy Sheriff Henri Floris responded to a drive-by shooting call. He spotted a white, four-door Toyota Corolla, with a burned out taillight, speeding and making an illegal turn. He stopped the Toyota, two or three miles from the crime scene, approached it, and found Guerrero ivearing a hooded sweatshirt and black gloves. The tivo front windows of the car ivere open.

Deputy Floris conducted a patdown search of Guerrero and recovered a cell phone, small shards of glass from Guerrero’s front pocket, a plastic baggie containing six bullets and, on the passenger seat, a black gun, with one live round, four spent casings and one empty cylinder. There was a single bullet sitting on the driver’s seat and an empty baggie on the floorboard on the driver’s side and one in the driver’s door.

After the shooting, police transported the witnesses to look at the white car that Guerrero had been driving. Each indicated that the car looked like the car involved in the shooting. Vanderheyden identified Guerrero as the driver. Day did not identify Guerrero to police that night but did in court, although he was uncertain.

Investigation of the shooting

On December 22, 200k, at 5:f5 a.m., West Covina Police Department Sergeant, David Melnyk, went to the Barco residence to discuss the shooting. [Petitioner] said that he played pool and drank beer with Guerrero the prior evening, [Petitioner] went to sleep at approximately 9:00 p.m. He also told officers that he never heard Guerrero talk about retaliation for the attack on Johnny. He agreed to give the Sergeant the key to his daughter’s car, which had been parked in front of the house for three weeks, but the key could not be located.

Ballistics tests determined that the revolver recovered from the car Guerrero was driving fired the bullets that struck Larissa and were found at the scene. Telephone records indicated that the cell phone confiscated from Guerrero received a 2f-second call from the Barco residence at 9:09 p.m.

On March 3, 2005, Detective Steve Wheeless searched the Barco residence armed with arrest warrants for [petitioner], Inisha and Johnny. A 25-caliber handgun was recovered from a nightstand next to the bed in the master bedroom. In a bedroom closet, the detective found a newspaper with a second page article on the assault of Johnny. Johnny was released a day later and could not be located before trial.

Trial testimony regarding conspiracy

Gutierrez’s contradictory testimony

It was at the hospital that a plan to retaliate by shooting Rashaun was conceived, according to Gutierrez who provided the only evidence of such a plan, Gu tierrez testified that during hospital visits, [petitioner] often talked in front of his family and Guerrero about retaliating against whoever hurt his son. [Petitioner] blamed the owner of the house where the party occurred, whose name was mentioned several times.

After Johnny was released from the hospital, Gutierrez testified that [petitioner’s] talk of retaliation continued. He told household members that he wanted to kill Rashaun at Rashaun’s home, just before Christmas, so it would be a “big thing.” [Petitioner] drew a map of Rashaun’s neighborhood and said that he wanted multiple drive-by-shootings. The first would wake the family and rouse them out of bed. The second would strike the then standing Ware family members who would be easier targets. [Petitioner] wanted more than one shooter and two different cars. He would drive around looking for police in the area and advise the other car when the coast was clear. Gutierrez and Guerrero were to do the shooting, for which [petitioner] offered them money. [Petitioner] mentioned the plan to Gutierrez several times in the presence of family members and was encouraged by Johnny and Inisha. Guerrero and Inisha suggested using Inisha’s white Toyota Corolla.

Gutierrez testified that he told [petitioner] he would be the shooter, but claimed at trial that he was merely pretending he would do so. In contradiction, he also testified that he went along with [petitioner’s] planning, but never said he would participate. He testified that he lied to [petitioner] about doing the shooting because he feared him. He told Inisha that he was not going to participate. Until confronted with a copy of the police report, he did not recall telling police that he had agreed to participate in the drive-by shooting. He never made any suggestion and was merely present when others spoke about the plans.

Gutierrez testified that a few months before the shooting, [petitioner] told him to obtain guns. While Gutierrez testified that he did not respond yes or no, he said he shook his head up and down. He also testified both that he did not purchase any gun and that he did. He explained that he did not look for a gun, but told police that in November he mentioned to a neighbor, Ray Valentine (Valentine), a “Cholo” gang member, about the assault on Johnny. Valentine offered to sell him a gun to retaliate, and even offered to do the shooting. In Gutierrez’s presence, Inisha purchased an AK-I7 rifle from Valentine for $300 or $100] Gutierrez denied intending to revenge the assault on Johnny, buying the gun, being in the car, and having anything to do with the shooting.

At [petitioner’s] request, two or three months before the shooting, Gutierrez brought the rifle to [petitioner’s] garage and showed him how to load it. He did so because he feared [petitioner], who had threatened him in the past, had a temper, and indicated he was connected with the Mexican Mafia] Gutierrez left the rifle in the garage, retrieving it approximately a month later because [petitioner] wanted it kept at Gutierrez’s apartment. After the shooting, Gutierrez returned it to the Barco house.

Gutierrez testified that on the night of the shooting he was home with Inisha. He did not know the shooting was going to occur that night. After the shooting, he spoke with [petitioner] who was angry Guerrero had been arrested and upset that Gutierrez did not do the shooting. When Gutierrez mentioned that Rashaun’s daughter had died, [petitioner] said he was glad that Rashaun would see how it feels.

Juan Avalos’s testimony

A friend of Gutierrez, Juan Avalos, testified that in November 2004, Gutierrez told him he ivas having problems with Inisha. He also said that [petitioner] wanted him to retaliate, but he was not going to do so. Gutierrez told Avalos, his ex-girlfriend, Veronica Preciado, and his mother that he was frightened and that if anything happened to him, it was [petitioner].

Vanessa Barco’s testimony

Vanessa testified that she never heard her father say he was upset that someone injured Johnny or indicate that he was going to retaliate. She did hear [petitioner] become upset when Gutierrez brought a loaded rifle into their home. [Petitioner] was a high school teacher and taught inmates in state prison and at the California Youth Authority.

The defense evidence

[Petitioner] called no witnesses.

Guerrero called Detective Aldecoa. He testified that it appeared from the evidence that the shooter first broke the window of the Wares’ Ford Explorer and then went towards the house and threw the small tire iron into the dining room window. He then returned to the lawn and fired the first volley that struck the house as he was moving. The bullets entered the house on an upward trajectory. Vicky was standing just inside the yard when the second group of shots was fired. It appears that these were fired from inside the vehicle.

PETITIONER’S CLAIMS

1. Petitioner was denied his Sixth Amendment right to the effective assistance of counsel by his attorney’s failure to investigate and produce readily available evidence that refutes the claim that petitioner had conspired in any way in the crimes charged; that manifests petitioner’s character for non-violence; and that readily portrays a Luis Gutierrez not seen by the jury, one who has committed numerous crimes of moral turpitude, and manifested a readiness to violently retaliate and a motive to retaliate against the Barco family by falsely accusing petitioner of the crimes charged. (See Pet. Mem. at 25-78; Trav. at 2-7).

2. Petitioner was denied his federal constitutional right to due process by the denial of his state created right that the jury be instructed that an accomplice’s testimony must be viewed with caution and corroborated by sufficient evidence. (See Pet. Mem. at 78-84; Trav. at 7-12).

3. The motive instruction provided to the jury vitiated the reasonable doubt standard and thereby reduced the prosecution’s burden of proof in violation of petitioner’s right to due process. (See Pet. Mem. at 86-90; Trav. at 13).

STANDARD OF REVIEW

The standard of review applicable to petitioner’s claims that were not the subject of the evidentiary hearing is set forth in 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”):

“An application for a writ of habeas corpus on behalf of a person 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 proceedings.”

Under the AEDPA, the “clearly established Federal law” that controls federal habeas review of state court decisions consists of holdings (as opposed to dicta) of Supreme Court decisions “as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Carey v. Musladin, 549 U.S. 70, 74, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006); Smith v. Patrick, 508 F.3d 1256, 1260 (9th Cir.2007).

Although a particular state court decision may be both “contrary to” and “an unreasonable application of’ controlling Supreme Court law, the two phrases have distinct meanings. See Williams, 529 U.S. at 391, 413, 120 S.Ct. 1495. A state court decision is “contrary to” clearly established federal law if the decision either applies a rule that contradicts the governing Supreme Court law, or reaches a result that differs from the result the Supreme Court reached on “materially indistinguishable” facts. See Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam); Williams, 529 U.S. at 405-06, 120 S.Ct. 1495. When a state court decision adjudicating a claim is contrary to controlling Supreme Court law, the reviewing federal habeas court is “unconstrained by § 2254(d)(1).” Williams, 529 U.S. at 406, 120 S.Ct. 1495. However, the state court need not cite or even be aware of the controlling Supreme Court eases, “so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early, 537 U.S. at 8, 123 S.Ct. 362.

State court decisions that are not “contrary to” Supreme Court law may only be set aside on federal habeas review “if they are not merely erroneous, but ‘an unreasonable application’ of clearly established federal law, or are based on ‘an unreasonable determination of the facts.’ ” Early, 537 U.S. at 11, 123 S.Ct. 362 (citing 28 U.S.C. § 2254(d) and adding emphasis). A state court decision that correctly identified the governing legal rule may be rejected if it unreasonably applied the rule to the facts of a particular case. See Williams, 529 U.S. at 406-10, 413, 120 S.Ct. 1495 (e.g., the rejected decision may state Strickland rule correctly but apply it unreasonably); Woodford v. Visciotti, 537 U.S. 19, 24-27, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam). However, to obtain federal habeas relief for such an “unreasonable application,” a petitioner must show that the state court’s application of Supreme Court law was “objectively unreasonable.” Visciotti, 537 U.S. at 24-27, 123 S.Ct. 357; Williams, 529 U.S. at 413, 120 S.Ct. 1495. An “unreasonable application” is different from an erroneous or incorrect one. See Williams, 529 U.S. at 409-10, 120 S.Ct. 1495; see also Visciotti, 537 U.S. at 25, 123 S.Ct. 357; Bell v. Cone, 535 U.S. 685, 699, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002).

DISCUSSION

I. Habeas relief is not warranted with respect to petitioner’s due process claim based on the failure to instruct the jury regarding the need for corroboration of accomplice testimony.

A. The record below

At the conclusion of the prosecution’s case, petitioner’s counsel made a motion pursuant to Cal.Penal Code § 1118.1, arguing that there had been no corroboration of Luis Gutierrez’s account, or in the alternative, if there had been corroboration, it was not sufficient corroboration. {See 4 RT 1295). The trial court denied the motion, reasoning:

“I think there’s a substantial issue as to whether or not Mr. Gutierrez is, in fact, an accomplice; and the jury is going to be instructed as to the criteria that is required in order to make one an accomplice. His testimony suggests he was a feigned accomplice. Moreover, if the jury makes a determination that he is an accomplice, I think there are several items in evidence that may have a tendency to connect [petitioner].” {See 4 RT 1295).

During a conference regarding the jury instructions the following day, outside the presence of the jury, co-defendant’s counsel inquired whether the trial court intended to instruct the jury with CALJIC Nos. 3.15 and 3.16. The trial court responded:

“3.15 I made reference yesterday in addressing your 1118 motion something about feigned offers, and I was totally wrong on that as far as its application. And I do not intend to give that instruction. I think what I really meant in the ruling on the matter is that in order to make one an accomplice, there has to be the requisite intent and that’s a material issue of fact that this jury has to decide as to whether Mr. Gutierrez had the requisite intent to be an accomplice, and the jury will make an [sic] determination as to whether or not Mr. Gutierrez is an accomplice. And the court will not be giving the instruction as a matter of law that he is based on the testimony.” {See 5 RT 1521-22).

Ultimately, the jury was instructed regarding who is liable for a crime and the scope of the liability (CALJIC No. 3.00 and 3.01; 5 RT 1546-47; see also 2 CT 336-37); that an aider and abettor is liable for the natural and probable consequences of the crime committed by a principal (see CALJIC No.3.02; 5 RT 1547-48; see also 2 CT 338); and with the definition of an accomplice {see CALJIC No. 3.10 and 3.14; 3 RT 1578, 1580; see also 2 CT 371, 374). Further, the jury was instructed with CALJIC No. 2.27, addressing the treatment of the uncorroborated testimony of a single witness (see 5 RT 1541; see also 2 CT 325); and CALJIC Nos. 3.11, 3.12, 3.18, and 3.19 addressing the treatment of an accomplice’s testimony (see 5 RT 1578-81; see also 2 CT 372-73, 375-76).

B. The Court of Appeal decision

Petitioner argued on direct review that the trial court erroneously refused to instruct the jury that Luis Gutierrez was an accomplice as a matter of law and that his testimony required corroboration, and that the court’s failure to properly instruct the jury arbitrarily denied petitioner applieation of the state’s own domestic rules in violation of Fourteenth Amendment due process principles. Petitioner asserted, in effect, that under California law, an accomplice is a principal and a principal includes an aider and abettor, and because Gutierrez fell under the definition of an aider and abettor, the jury should have been instructed that he was an accomplice as a matter of law. (See Lodgment No. A-l at 16-34). In rejecting this part of petitioner’s claim, the California Court of Appeal reasoned, that, “[t]o be an accomplice as a matter of law, there can be no dispute that the witness was an accomplice, either with regard to the facts or the inferences to be drawn from them,” and here, Gutierrez’s testimony was “riddled with inconsistency” and “gave rise to two diametrically opposed inferences”- — one that would “clearly make him an accomplice while the other would not.” (See Amd. Ans., Exh. C at 47).

Citing People v. Beeman, 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318 (1984), petitioner further argued that an aider and abettor must act “with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense,” and that therefore, there was no dispute that Gutierrez was an accomplice. Petitioner contended that Gutierrez acted with knowledge of the criminal purpose and admitted being present during the planning. While Gutierrez’s intent may have been in dispute, his purpose was not, according to petitioner. Petitioner’s argument, then, was premised on the distinction between “intent” and “purpose.” In rejecting this argument and petitioner’s construction of Beeman, the Court of Appeal reasoned as follows:

“First, the Supreme Court in Beeman did not intimate that it intended the words ‘intent’ and ‘purpose’ to constitute separate and distinct requirements. Rather, those terms appear to have been used simply as alternative ways of describing a single requirement: that an aider and abettor must harbor a mental state aimed at achieving the charged offense. [¶] Second, Gutierrez’s statement that he purchased an AK-47 was contradicted by his statement that he did not. To the extent that [petitioner] contends that the ‘purpose’ element is undisputed because Gutierrez purchased an AK.-47, he is therefore wrong. [¶] Third, [petitioner’s] efforts to distinguish between ‘intent’ and ‘purpose’ parses that language too finely. The cases he cites using those terms do not suggest an analytical distinction between them. [Citations omitted]. Webster’s Third New World Dictionary defines ‘intent’ as the ‘the design or purpose to commit a wrongful act.’ (Italics added.) In Cal-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 173, footnote 5 [83 Cal.Rptr.2d 548, 973 P.2d 527], in discussing the meaning of the word ‘purpose’ in the Business and Professions Code section 17043, the Supreme Court stated that ‘[t]he Model Penal Code itself resolves the ambiguity by defining ‘intentionally’ or ‘with intent’ as meaning ‘purposely.’ Thus, intent and purpose can be used as synonyms.” (See Amd. Ans., Exh. C at 48).

The Court of Appeal proceeded to find that, even if the trial court should have instructed the jury that Gutierrez was an accomplice as a matter of law, the failure to do so was' harmless as there was sufficient evidence to corroborate his testimony. (See Amd. Ans., Exh. C at 49).

C. Analysis

Here, petitioner contends that he has been denied due process based on the trial court’s denial of his state-created right that the jury be instructed that an accomplice’s testimony must be viewed with caution and corroborated by sufficient evidence. (See Pet: Mem. at 78-84; Trav. at 7-12). Citing Beeman, petitioner again contends that under California law, an accomplice is a principal and a principal includes an aider and abettor. The latter, he again asserts, “has long been defined as who acts ‘with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.’ ” [Citations omitted]. He maintains that the California Supreme Court “intended that ‘intent and purpose’ constituted two separate and distinct alternative mental states that would make one an aider and abettor,” and that the words ‘intent’ and ‘purpose’ are not synonymous. (See Pet. Mem. at 79). Therefore, according to petitioner, the California Court of Appeal’s construction of the terms “intent” and “purpose” was contrary to long-standing authority and denied him due process.

Initially, the Court notes that the requirement under CaLPenal Code § 1111 that “a conviction cannot be had upon the testimony of an accomplice unless it be corroborated” is a matter of state law, which does not implicate a federal constitutional right. See Redding v. Minnesota, 881 F.2d 575, 578 (8th Cir.1989), cert. denied, 493 U.S. 1089, 110 S.Ct. 1158, 107 L.Ed.2d 1061 (1990); Garcia v. Powers, 973 F.2d 684 (8th Cir.1992). Indeed, the Court notes that no such corroboration requirement exists in a federal criminal prosecution. See United States v. Necoechea, 986 F.2d 1273, 1282 (9th Cir.1993); see also United States v. Lopez, 803 F.2d 969, 973 (9th Cir.1986) (“The uncorroborated testimony of an accomplice is enough to sustain a conviction unless the testimony is incredible or unsubstantial on its face.”), cert. denied, 481 U.S. 1030, 107 S.Ct. 1958, 95 L.Ed.2d 530 (1987); Sabari v. United States, 333 F.2d 1019, 1020 (9th Cir.1964) (“the uncorroborated testimony of an accomplice, if believed by the jury, is sufficient to support a jury verdict.”).

Petitioner attempts to circumvent this reality by alleging the claim as a due process violation based on the state’s failure to follow its own “domestic rules.” However, this claim fairs no better. It is true that a state may not arbitrarily deprive a defendant of a state law entitlement affecting his liberty interest. See, e.g., Hicks v. Oklahoma, 447 U.S. 343, 346, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980); Fetterly v. Paskett, 997 F.2d 1295, 1300 (9th Cir.1993) (“[T]he failure of a state to abide by its own statutory commands may implicate a liberty interest protected by the Fourteenth Amendment against arbitrary deprivation by a state.”), cert. denied, 513 U.S. 914, 115 S.Ct. 290, 130 L.Ed.2d 205 (1994). However, the denial of the application of the State’s “domestic rules” that petitioner claims he suffered stems directly from the State courts’ allegedly incorrect construction of the terms “intent” and “purpose,” in the context of aiders and abettors. Under Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005), this Court has no authority to revisit the State courts’ construction of its own State laws as it is bound by that construction. See also Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).

Accordingly, the Court has no basis for finding or concluding that the State courts’ rejection of this claim either was contrary to or involved an unreasonable application of clearly established Supreme Court law.

II. Habeas relief is not warranted with respect to petitioner’s instructional error claim directed to CALJIC No. 2.51.

At trial, petitioner’s jury was instructed pursuant to CALJIC No. 2.51 as follows:

“Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. ¶ Presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty.” (See 5 RT 1541; see also 2 CT 326).

Petitioner contends that this motive instruction vitiated the reasonable doubt standard and thereby reduced the prosecution’s burden of proof in violation of his right to due process. (See Pet. Mem. at 86-90; Trav. at 13). Specifically, petitioner maintains that CALJIC No. 2.51 “allowed the jury to determine guilt based on the presence of an alleged motive alone and shifted the burden of proof to [petitioner] to show absence of motive to establish innocence, thereby lessening the prosecution’s burden of proof.” (See Pet. Mem. at 87). He asserts that, effectively, the instruction placed the burden on him to “show an alternative motive to that advanced by the prosecutor.” (See id). Further, he maintains that “[instructing the jury that the People have introduced evidence tending to prove[] [petitioner’s] guilt improperly carries the inference that the People have, in fact, established guilt” and that this was the only instruction covering “an individual evidentiary circumstance” that did not include an admonition that that circumstance alone was “insufficient to establish guilt.” (See Pet. Mem. at 88).

In rejecting this claim on direct review, the California Court of Appeal reasoned, in pertinent part:

“The People contend that defendants have forfeited this contention by failing to object to, or request clarification or modification, of the instruction in the trial court. We agree. “ ‘A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’ ” [Citations omitted]. [¶] Even if this contention had been properly preserved for appeal, we would find it to be without merit. It has been explicitly rejected by our Supreme Court in People v. Snow [ ] 30 Cal.4th 43, 97-98 [132 Cal.Rptr.2d 271, 65 P.3d 749, cert. denied, 540 U.S. 1076, 124 S.Ct. 922, 157 L.Ed.2d 747 (2003) ] where the defendant argued that CALJIC No. 2.51 suggested to the jury that proof of motive alone could establish guilt because it did not caution the jury that motive alone was insufficient to do so. The Supreme Court stated: ‘If the challenged instruction somehow suggested that motive alone was sufficient to establish guilt, defendant’s point might have merit. But in fact the instruction tells the jury that motive is not an element of the crime charged (murder) and need not be shown, which leaves little conceptual room for the idea that motive could establish all the elements of the murder. When CALJIC No. 2.51 is taken together with the instruction on the concurrence of act and specific intent (CALJIC No. 3.31) and the instruction outlining the elements of murder and requiring each of them to be proved in order to prove the crime (CALJIC No. 8.10), there is no reasonable likelihood [citation] it would be read as suggesting that proof of motive alone may establish guilt of murder.’ ” (See Amd. Ans., Exh. C at 41).

A. This claim is not procedurally defaulted.

Respondent contends that this claim is procedurally barred based on petitioner’s failure to challenge the instruction in the trial court. (See Amd. Ans. at 15-16). The Court disagrees.

In order for a claim to be procedurally defaulted for federal habeas corpus purposes, “the application of the state procedural rule must provide ‘an adequate and independent state law basis’ on which the state court can deny relief.” Park v. California, 202 F.3d 1146, 1151 (9th Cir.), cert. denied, 531 U.S. 918, 121 S.Ct. 277, 148 L.Ed.2d 202 (2000). “For a state procedural rule to be ‘independent,’ the state law basis for the decision must not be interwoven with federal law.” La Crosse v. Kernan, 244 F.3d 702, 704 (9th Cir.2001); Morales v. Calderon, 85 F.3d 1387, 1393 (9th Cir.1996) (“Federal habeas review is not barred if the state decision ‘fairly appears to rest primarily on federal law, or to be interwoven with the federal law.’ ” “A state law ground is so interwoven if ‘the state has made application of the procedural bar depend on an antecedent ruling on federal law [such as] the determination of whether federal constitutional error has been committed.’ ”) Park, 202 F.3d at 1152. In order for a procedural bar to be adequate, state courts must employ a “firmly established and regularly followed state practice.” Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991).

In California, contemporaneous objection to jury instructions is not required if the “substantial rights” of the defendant were implicated by the instructions. See Cal.Penal Code § 1259; People v. Hannon, 19 Cal.3d 588, 600, 138 Cal.Rptr. 885, 564 P.2d 1203 (1977). Thus, for example, the California Supreme Court has held that the contemporaneous objection rule was not applicable where the defendant was claiming an instruction violated his right to due process. See People v. Smithey, 20 Cal.4th 936, 976 n. 7, 86 Cal.Rptr.2d 243, 978 P.2d 1171 (1999), cert. denied, 529 U.S. 1026, 120 S.Ct. 1435, 146 L.Ed.2d 324 (2000); People v. Flood, 18 Cal.4th 470, 482 n. 7, 76 Cal.Rptr.2d 180, 957 P.2d 869 (1998). The foregoing authorities belie respondent’s conclusory assertion that California’s contemporaneous objection rule is applied independent of federal law insofar as it relates to instructional errors claims. Since respondent has not even adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, petitioner is relieved of his burden of placing that defense in issue. See Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir.), cert. denied, 540 U.S. 938, 124 S.Ct. 105, 157 L.Ed.2d 251 (2003). The Court finds and concludes that petitioner’s instructional error claim directed to CALJIC No. 2.51 is not procedurally defaulted.

B. Analysis

The Due Process Clause of the Fourteenth Amendment protects the accused in a criminal case against conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

To merit relief when an allegedly erroneous jury instruction is given, petitioner must show that the “the ailing instruction by itself so infected the entire trial that the resulting conviction violated due process.” McGuire, 502 U.S. at 72, 112 S.Ct. 475; Henderson v. Kibbe, 431 U.S. 145, 154-55, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977); Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir.1988). Moreover, the allegedly erroneous instruction must be considered in the context of the instructions as a whole and the entire trial record. See McGuire, 502 U.S. at 72, 112 S.Ct. 475; United States v. Frady, 456 U.S. 152, 169, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973).

As noted, in rejecting this claim, the California Court of Appeal adopted the reasoning of the California Supreme Court in People v. Snow. In Snow, as the Court of Appeal set forth, the California Supreme Court rejected the challenge to CALJIC No. 2.51, reasoning that “the instruction tells the jury that motive is not an element of the crime charged (murder) and need not be shown, which leaves little conceptual room for the idea that motive could establish all the elements of the murder” and further, that “taken together with the instruction on the concurrence of act and specific intent [ ] and the instruction outlining the elements of murder and requiring each of them to be proved in order to prove the crime [], there is no reasonable likelihood [citation] it would be read as suggesting that proof of motive alone may establish guilt of murder.” Snow, 30 Cal.4th at 97-98, 132 Cal.Rptr.2d 271, 65 P.3d 749.

Petitioner has not even purported to refute the reasoning of the California Supreme Court in Snow. Here, as in that case, the record reflects that the trial court not only instructed the jury on the elements of the crimes charged (See 5 RT 1547-48, 1552-53, 1557-67; see also 2CT 339, 343, 351, 353-55, 357-60) and the need for the concurrence of act and specific intent (see 5 RT 1556; see also 3 CT 356), but also instructed the jury on the burden of proof (see 5 RT 1545; see also 3 CT 309) and to “[e]onsider all the instructions as a whole and each in light of all the others.” (See 5 RT 1527; see also 2 CT 334). The jurors are presumed to have followed the instructions given to them. See Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987); Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000); Francis v. Franklin, 471 U.S. 307, 324 n. 9, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Hovey v. Ayers, 458 F.3d 892, 913 (9th Cir.2006). Here, petitioner has failed to adduce any evidence showing that the jurors failed to follow the instructions they were given— instructions that clearly informed the jurors that in order to find petitioner guilty of the charged offenses, they must find that the prosecution had met its burden of proving each element of the crime(s) beyond a reasonable doubt.

On this record, the Court has no basis for finding that the instruction petitioner now is challenging, when considered in the context of the trial record and the instructions as a whole, “so infected the entire trial that the resulting conviction violated due process.” The Court therefore finds and concludes that the State courts’ rejection of this instructional error claim neither was contrary to nor involved an unreasonable application of clearly established Supreme Court law.

III. Habeas relief is warranted with respect to petitioner’s ineffective assistance of counsel claim.

In Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court held that there are two components to an ineffective assistance of counsel claim: “deficient performance” and “prejudice.”

“Deficient performance” in this context means unreasonable representation falling below professional norms prevailing at the time of trial. See Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052. To show “deficient performance,” petitioner must overcome a “strong presumption” that his lawyer “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690, 104 S.Ct. 2052. Further, petitioner “must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. The Court must then “determine whether, in light of all the circumstances, the identified acts or omissions were outside the range of professionally competent assistance.” Id. The Supreme Court in Strickland recognized that “it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Id. at 689, 104 S.Ct. 2052. Accordingly, to overturn the strong presumption of adequate assistance, petitioner must demonstrate that “the challenged action cannot reasonably be considered sound trial strategy under the circumstances of the case.” Lord v. Wood, 184 F.3d 1083, 1085 (9th Cir.1999), cert. denied, 528 U.S. 1198, 120 S.Ct. 1262, 146 L.Ed.2d 118 (2000).

To meet his burden of showing the distinctive kind of “prejudice” required by Strickland, petitioner must affirmatively “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. See also Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (noting that the “prejudice” component “focuses on the question whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair”).

It is unnecessary to address both Strickland requirements if the petitioner makes an insufficient showing on one. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.”); see also Rios v. Rocha, 299 F.3d 796, 805 (9th Cir.2002) (“Failure to satisfy either prong of the Strickland test obviates the need to consider the other.”); Williams v. Calderon, 52 F.3d 1465, 1470 n. 3 (9th Cir.1995), cert. denied, 516 U.S. 1124, 116 S.Ct. 937, 133 L.Ed.2d 863 (1996).

A. Petitioner’s claim

Petitioner contends in the Petition that his trial counsel rendered ineffective assistance at trial in the following respects: (1) failing to investigate and introduce Luis Gutierrez’s numerous crimes of moral turpitude, readiness to violently retaliate, and motive to falsely implicate petitioner; (2) failing to introduce the testimony of petitioner’s closest friends, work associates, mother, wife, daughter Inisha, son Nathan, and ex-boyfriend of daughter Vanessa that petitioner had done nothing that indicated in any way that he had conspired in the crimes charged and that the only person who had suggested retaliation was Luis Gutierrez; (3) missing two opportunities to directly impeach Luis Gutierrez’s trial testimony by introducing evidence that Gutierrez did have guns; (4) failing to introduce testimony of defense character witnesses that were either present in court or readily available to attest to petitioner’s character for non-violence; (5) failing to investigate and introduce news articles at the time of the shooting to refute the claim that Luis Gutierrez had no way of knowing how the shooting had taken place; (6) failing to introduce evidence that Alex Guerrero’s background and prominent tattoo manifested his readiness for retaliation without third party inducement; and (7) failing to challenge the prosecution’s peremptory challenges to prospective Hispanic jurors and yet leaving on the panel a juror with a family member, friends, and neighbor in law enforcement. Petitioner further maintains that he was prejudiced by trial counsel’s errors, and that the State appellate court’s decision involved an unreasonable application of the facts and of State and Federal authority. (See Pet. Mem. at 25-78).

B. The standard of review for this claim

As to the Strickland prejudice prong, respondent has conceded that the standard of review is de novo since the state courts did not reach the issue. See Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005); (see Amd. Ans., Exh. E).

As to the deficient performance prong, the Supreme Court has not decided whether the AEDPA standard of review applies where, as here, the district court has concluded that further development of the record is not precluded by 28 U.S.C. § 2254(e), as evidenced by the Supreme Court’s grant of certiorari in Bell v. Kelly, 553 U.S. 1031, 128 S.Ct. 2108, 171 L.Ed.2d 228 (2008) (granting certiorari to decide issue of whether Circuit Court erred in applying § 2254(d) to claim predicated on evidence of prejudice the state court refused to consider and that was properly received for the first time in a federal evidentiary hearing), cert, dismissed as improvidently granted at — U.S. —, 129 S.Ct. 393, 172 L.Ed.2d 353 (2008), and its recent decision in Knowles v. Mirzayance, — U.S. —, 129 S.Ct. 1411, 1419 n. 2, 173 L.Ed.2d 251 (2009) (where petitioner did not “argue[ ] that § 2254(d) is entirely inapplicable to his [ineffective assistance] claim or that the state court failed to reach an adjudication on the merits, we initially evaluate his claim through the deferential lens of § 2254(d)”). However, under Ninth Circuit jurisprudence, the AEDPA standard of review does not apply where, as here, the state courts refused to grant the petitioner an evidentiary hearing to fully develop the facts supporting his claim and evidence relevant to the determination of the claim is developed during the course of the federal habeas proceeding. See Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir.2002) (holding that the AEDPA standard of review did not apply to a knowing use of perjured testimony claim where evidence of the perjury was adduced only at the hearing before the magistrate judge), cert. denied, 537 U.S. 1179, 123 S.Ct. 992, 154 L.Ed.2d 927 (2003); see also Miller v. Terhune, 510 F.Supp.2d 486, 492-93 (E.D.Cal.2007) (citing Killian, finding AEDPA inapplicable on petitioner’s IAC claim where evidence upon which adjudication must be based was adduced for the first time at a federal evidentiary hearing); Torres v. Lytle, 461 F.3d 1303, 1312 (10th Cir.2006) (“We have held that after a federal-court evidentiary hearing, we no longer defer to the state court’s decision.”); Monroe v. Angelone, 323 F.3d 286, 297 (4th Cir.2003) (“AEDPA’s deference requirement does not apply when a claim made on federal habeas review is premised on Brady material that has surfaced for the first time during federal proceedings.”); but see Matheney v. Anderson, 377 F.3d 740, 747 (7th Cir.2004) (“[0]ur case law is clear in holding that § 2254(d) is applicable even though the district court held an evidentiary hearing. The evidence obtained in such a hearing is quite likely to bear on the reasonableness of the state courts’ adjudication but we do not see why it should alter the standard of federal review.” (internal quotation marks, citations, and ellipsis omitted)), cert. denied, 544 U.S. 1035, 125 S.Ct. 2252, 161 L.Ed.2d 1063 (2005).

C. Evidence excluded from the evidentiary hearing in this Court

Prior to the evidentiary hearing, the parties submitted statements detailing the evidence that they proposed to present in support (or defense) of each ineffective assistance subclaim. After duly considering their respective positions, the Court issued a ruling detailing what evidence the parties would be allowed to present at the evidentiary hearing. As to petitioner’s proposed evidence, the Court ruled: (1) evidence on the issue of Guerrero’s tattoos, gang ties, and readiness to retaliate would be excluded, since under Cal. Evid.Code § 1101(a), the evidence would not have been admissible at trial to show character to prove conduct; (2) evidence on the issue of Gutierrez’s drug dealing would be limited to Michael Gabriel’s witnessing of petitioner’s Gutierrez’s offer to sell Gabriel’s Mend cocaine at a party; other evidence of Gutierrez’s alleged drug dealing would be excluded as irrelevant and inadmissible hearsay; (3) evidence of Gutierrez having set his ex-girlfriend Laura Frausto’s car on fire after their break-up would be excluded since it was not supported by a proper foundation and would likely have been excluded at trial under Cal. Evid. Code § 352; (4) evidence of Gutierrez’s alleged murder of his cousin’s attacker and his participation in a shooting at a park would be excluded since such evidence would likely have been excluded at trial under Cal. Evid.Code § 352; (5) Inisha’s proposed testimony regarding incident involving a cable salesman and Michael Gabriel’s witnessing of petitioner hiding guns during that incident would be excluded since the conduct did not involve moral turpitude; (6) evidence regarding Gutierrez’s purchase of an automatic rifle from Ray Valentine would be excluded since such evidence would likely have been excluded at trial as collateral impeachment; and (7) newspaper articles to refute Gutierrez’s claim that he had no way of knowing how the shooting took place would be excluded since petitioner had failed to convince the Court that such evidence would have been admissible at trial on cross-examination of Gutierrez or during the presentation of the defense case. (See Court’s December 11, 2008 Tentative Ruling and January 22, 2009 Minute Order).

At the September 25, 2008 status conference, petitioner conceded that if the Court found that the evidence that petitioner had proffered would not even have been admissible under California Evidence law, the failure of trial counsel to investigate and present that evidence could not constitute ineffective assistance of counsel under either the deficient performance prong or the prejudice prong. Accordingly, as to the evidence excluded from the evidentiary hearing because of its likely inadmissibility at trial as set forth above, the Court finds and concludes that trial counsel was not ineffective in failing to investigate and present such evidence, and that petitioner was not prejudiced by counsel’s failure to investigate and (attempt to) present such evidence. See, e.g., James v. Borg, 24 F.3d 20, 27 (9th Cir.) (failure to take a futile action does not constitute ineffective assistance of counsel), cert. denied, 513 U.S. 935, 115 S.Ct. 333, 130 L.Ed.2d 291 (1994); Morrison v. Estelle, 981 F.2d 425, 429 (9th Cir.1992), cert. denied, 508 U.S. 920, 113 S.Ct. 2367, 124 L.Ed.2d 273 (1993). This finding and conclusion is dispositive of sub-claims (3), (5), and (6).

D. Evidentiary hearing testimony

A summary of the testimony presented at the evidentiary hearing, along with the Court’s credibility findings relating to each witness, is set forth in Appendix A hereto.

E. Analysis

1. Deficient Performance

The duty to investigate is not limitless and does not require that every conceivable witness be interviewed. See Riley v. Payne, 352 F.3d 1313, 1318 (9th Cir.2003); Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir.1995); United States v. Tucker, 716 F.2d 576, 584 (9th Cir.1983). However, defense counsel has a “duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 691, 104 S.Ct. 2052; see also Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir.1994) (“[C]ounsel must, at a minimum, conduct a reasonable investigation enabling him to make informed decisions about how best to represent his client.”). Where an attorney has consciously decided not to conduct further investigation because of reasonable tactical evaluations, his or her performance is not constitutionally deficient, see Siripongs v. Calderon, 133 F.3d 732, 734 (9th Cir.1998); Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir.1998); Hensley v. Crist, 67 F.3d 181, 185 (9th Cir.1995), but “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation,” Reynoso v. Giurbino, 462 F.3d 1099, 1114 (9th Cir.2006) (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052). “[A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Cox v. Del Papa, 542 F.3d 669, 679 (9th Cir.2008), cert. denied, - U.S. -, 129 S.Ct. 1403, 173 L.Ed.2d 610 (2009). “A lawyer who fails adequately to investigate, and to introduce into evidence [information] that demonstrate[s] his client’s factual innocence, or that raise[s] sufficient doubt as to that question to undermine confidence in the verdict, renders deficient performance.” Hart v. Gomez, 174 F.3d 1067, 1070 (9th Cir.1999) (as amended); Reynoso, 462 F.3d at 1112 (same); Avila v. Galaza, 297 F.3d 911, 919 (9th Cir.2002) (same), cert. dismissed, 538 U.S. 919, 123 S.Ct. 1571, 155 L.Ed.2d 308 (2003); see also, e.g., Richter v. Hickman, 578 F.3d 944, 952-53 (9th Cir.2009) (finding counsel ineffective when he failed to conduct investigation into forensic evidence that would have contradicted the prosecution’s explanation of the events and would have strongly supported the defense’s version).

Here, Mr. Robusto acknowledged that it would have been helpful to the defense case to present evidence of Gutierrez’s bad character. Mr. Robusto testified that his theory of the case was that Gutierrez was involved in the murder and was trying to divert the blame — therefore, he testified, any acts of violence with which he could have confronted Gutierrez would have been consistent with this defense. However, Mr. Robusto did not hire an investigator to delve into Gutierrez’s background, despite the family’s expressed willingness to provide financial resources for an investigator. Specifically, Mr. Robusto testified that he initially attempted to retain an investigator — Lawrence De-Losh — but when DeLosh was unavailable, Mr. Robusto failed to retain another investigator. He purported to justify his ultimate failure to hire an investigator on the lack of any leads for the investigator to follow. The Court finds, however, based on the evidence presented at the evidentiary hearing, that a competent investigator would have ferreted out that there was evidence of Gutierrez’s bad character that could and should have been presented at trial. This is borne out by the evidence developed post-trial by habeas counsel. A competent pretrial defense investigation would have revealed that Inisha Barco could present percipient testimony about the Faststrip gas station incident, when Gutierrez had exhibited a propensity for violence and retaliatory conduct by running down an enemy gang member who had been taunting him minutes before. Consistent with the other bad character evidence, Mr. Robusto also could have presented evidence through Inisha Barco that she and Gutierrez had a fight after she inquired of him whether he was selling drugs and she asked him to leave. Gutierrez told Inisha he would kill her and the person she was with if she dated anyone else. After Gutierrez moved out of the apartment the next day, and petitioner changed the locks at Inisha’s request, Gutierrez broke into the apartment and removed approximately $500-600 in