Sanchez v. Hedgpeth (706 F. Supp. 2d 963, 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 of the records and files herein, and the Magistrate Judge’s Report and Recommendation. The time for filing Objections to the Report and Recommendation has passed and no Objections have been received. Accordingly, the Court accepts and adopts the findings, conclusions and recommendations of the Magistrate Judge.

Accordingly, IT IS ORDERED THAT:

1. The Petition is DENIED and Judgment shall be entered dismissing this action with prejudice.

2. The Clerk shall serve copies of this Order and the Judgment herein by United States mail on Petitioner and on counsel for Respondent.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

SUZANNE H. SEGAL, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Andrew J. Guilford, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

I.

INTRODUCTION

On August 10, 2007, Samuel B. Sanchez (“Petitioner”), a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody (the “Petition”) and a Memorandum of Points and Authorities in Support of the Petition (the “Pet. Memo.”). On November 7, 2007, Respondent filed an Answer to the Petition (the “Answer”) and a Memorandum of Points and Authorities in Support of the Answer (the “Ans. Memo.”). Respondent lodged eighteen documents including a two-volume copy of the Clerk’s Transcript (“CT”) and a two— volume copy of the Reporter’s Transcript (“RT”) from Petitioner’s trial proceedings in the Riverside County Superior Court. On December 7, 2007, Petitioner filed a Traverse to the Answer (the “Traverse”). On December 11, 2007, Petitioner filed a Memorandum of Points and Authorities in Support of the Traverse (the “Trav. Memo.”). For the reasons discussed below, it is recommended that the Petition be DENIED and that this action be DISMISSED with prejudice.

II.

PRIOR PROCEEDINGS

On March 10, 2004, a Riverside County Superior Court jury found Petitioner guilty of second degree robbery in violation of California Penal Code (“Penal Code”) section 211 and possession of a firearm by a felon in violation of Penal Code section 12021(a)(1). (1 CT 250, 252). The jury also found true the allegation that Petitioner personally used a firearm within the meaning of Penal Code sections 12022.53(b) and 1192.7(c)(8). (1 CT 251). Two of the counts were bifurcated from the initial trial and on April 9, 2004, Petitioner pled guilty to two counts of unlawful sexual intercourse with a minor in violation of Penal Code section 261.5(c). (2 CT 333-36). The trial court then imposed an indeterminate term of fifty years to life in state prison plus an additional term of twenty — -one years. (2 CT 339).

On March 10, 2005, 2005 WL 555580, the California Court of Appeal affirmed the trial court’s judgment. (Lodgment 8, Opinion of the California Court of Appeal (“Lodgment 8”) at 1, 23). Petitioner thereafter filed a petition for review in the California Supreme Court, which was denied on June 8, 2005, “without prejudice to any relief to which [Petitioner] might be entitled [under] ... Blakely v. Washington [, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) ].” (Lodgment 9, Petition for Review (“Lodgment 9”); Lodgment 10, California Supreme Court Order (“Lodgment 10”)).

On June 23, 2006, Petitioner filed a petition for writ of habeas corpus in the Riverside County Superior Court, which was denied on August 2, 2006, without comment or citation to authority. (Lodgment 11, Petition for Writ of Habeas Corpus (“Lodgment 11”); Lodgment 12, Riverside County Superior Court Order (“Lodgment 12”)). On November 2, 2006, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, which was denied on November 9, 2006, without comment or citation to authority. (Lodgment 13, Petition for Writ of Habeas Corpus (“Lodgment 13”); Lodgment 14, California Court of Appeal Order (“Lodgment 14”)). On December 7, 2006, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, which was denied on May 23, 2007, without comment or citation to authority. (Lodgment 15, Petition for Writ of Habeas Corpus (“Lodgment 15”); Lodgment 16, California Supreme Court Order (“Lodgment 16”)).

On December 12, 2006, Petitioner filed a second petition for writ of habeas corpus in the California Supreme Court, which was denied on May 28, 2007, with a citation to In re Miller, 17 Cal.2d 734, 112 P.2d 10 (1941). (Lodgment 17, Petition for Writ of Habeas Corpus (“Lodgment 17”); Lodgment 18, California Supreme Court Order (“Lodgment 18”)). The instant Petition was filed on August 10, 2007.

III.

FACTUAL BACKGROUND

The following facts, taken from the California Court of Appeal’s unpublished decision, have not been rebutted with clear and convincing evidence and must, therefore, be presumed correct. 28 U.S.C. § 2254(e)(1).

On December 9, 2002, employees of the Kirby vacuum cleaner company were demonstrating and selling carpet— cleaning equipment door to door in a residential area of Moreno Valley. There were five or six employees participating, supervised by David Schmidt, the manager. One of the employees, Lauren Sanchez, also was Schmidt’s girlfriend. (Sanchez was not related to [Petitioner].)

Near the end of the day, Schmidt and Sanchez drove in the company van to a restaurant to get something to eat. While at the restaurant, they received several phone calls from their office manager telling them that they needed to go pick up Kirby employee Audrey Williams from one of the houses on the route, where she had been demonstrating equipment. Schmidt and Sanchez left the restaurant and drove to the house. Williams came out of the house, and she and Schmidt starting putting the equipment in the van.

While they were loading the equipment, Lajamara Jenkins came out of the house and starting [sic] yelling at Schmidt. Jenkins was upset that he had not come promptly to pick up Williams. It was 8:30 to 9:00 p.m. by this time.

Jenkins asked Schmidt how much money he had. Schmidt asked, “What, are you trying to rob me or what?” [Petitioner], who had come out of the house in the meantime, came around the van and stood on one side of Schmidt while Jenkins stood on the other. [Petitioner] asked Schmidt again how much money he had.

Schmidt kind of smirked and asked [Petitioner] if he was trying to rob him. [Petitioner] pulled a gun and held it to Schmidt’s temple. Jenkins asked Schmidt to open his wallet. [Petitioner] told Schmidt to do as Jenkins said.

Schmidt opened his wallet and let Jenkins take his money. As [Petitioner] and Jenkins left the scene, [Petitioner] yelled something like, “Don’t be doing this in my hood.”

Schmidt, Sanchez, and Williams left in the van to go pick up the other Kirby employees. Sanchez called 911 on her cell phone and reported the incident.

On December 11, 2002, police found [Petitioner] and Jenkins inside the house at the address at which the robbery had occurred. They also found a gun in the backyard that resembled the one described by the eyewitnesses to the robbery.

(Lodgment 8 at 2-3).

IV.

PETITIONER’S CLAIMS

In the Petition, Petitioner raises five grounds for federal habeas relief. First, Petitioner contends that his trial counsel rendered ineffective assistance by failing to: (A) “challenge the tainted in court identification”; (B) raise the issue “that Petitioner’s Miranda rights were violated”; (C) “make an adequate and timely proffer of alleged victim’s bad act — priors to impeach his veracity”; (D) “request limited jury instruction^]”; (E) “object during trial to evidence that was suppressed”; and (F) demonstrate “that alleged witness participated to [sic] this alleged robbery.” (Petition at 5) (emphasis added). Second, Petitioner contends that the trial court violated his constitutional right to self-representation because: (A) “discovery motions were not fully honored”; (B) the trial court “failed to admonish the district attorney for malfeasance/misconduct”; and (C) the trial court “denied Petitioner the compulsory process for obtaining a defense witness in his favor.” (Id.). Third, Petitioner contends that his sentence violates a 1991 plea agreement. (See id. at 6). Fourth, Petitioner contends that his appellate counsel rendered ineffective assistance by failing to raise Grounds 1, 2, and 3 on appeal. (See id.). Fifth, Petitioner contends that the trial court violated his constitutional rights by: (A) excluding evidence of the victim’s prior bad acts; (B) failing to sua sponte give the jury a limiting instruction regarding Petitioner’s prior conviction; and (C) imposing consecutive sentences based on facts not found by the jury beyond a reasonable doubt. (See id.).

V.

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which effected amendments to the federal habeas statutes, applies to the instant Petition because Petitioner filed it after AEDPA’s effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, a federal court may grant habeas relief if a state court adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1) and (2).

“[A] decision by a state court is ‘contrary to’ [the] clearly established law [of the Supreme Court] if it ‘applies a rule that contradicts the governing law set forth in [Supreme Court] cases.’ ” Frantz v. Hazey, 533 F.3d 724, 734 (9th Cir.2008) (quoting Price v. Vincent, 538 U.S. 634, 640, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003)). It is also “contrary to” clearly established Supreme Court case law “if it applie[s] the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result.” Bruce v. Terhune, 376 F.3d 950, 953 (9th Cir.2004) (citing Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). “A decision involves an ‘unreasonable application’ of federal law if ‘the state court identifies the correct governing legal principle ... but unreasonably applies that principle to the facts of the prisoner’s case.’ ” Id. (quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495).

Pursuant to AEDPA’s “unreasonable application” clause, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state — court decision applied [Supreme Court precedent] incorrectly. Rather, it is the habeas applicant’s burden to show that the state court applied [Supreme Court precedent] to the facts of his case in an objectively unreasonable manner.” Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam) (citations omitted). This standard requires more than a finding that the state court committed “clear error.” Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Instead, the reviewing court must find that the application of federal law was “objectively unreasonable” in order to warrant habeas relief. Id. at 76, 123 S.Ct. 1166. The Supreme Court has characterized AEDPA’s standard of review as a “highly deferential standard for evaluating state-court rulings,” Lindh, 521 U.S. at 333 n. 7, 117 S.Ct. 2059, and has opined that this standard “demands that state court decisions be given the benefit of the doubt.” Woodford, 537 U.S. at 24, 123 S.Ct. 357.

AEDPA limits the scope of clearly established federal law to the holdings of the United States Supreme Court as of the time of the state court decision under review. Andrade, 538 U.S. at 71, 123 S.Ct. 1166 (citing Williams, 529 U.S. at 412, 120 S.Ct. 1495). The applicable state court decision here is the California Court of Appeal’s opinion. (See Lodgment 8). The California Supreme Court denied Petitioner’s petition for review “without prejudice to any relief to which [Petitioner] might be entitled [under] ... Blakely v. Washington [, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) ].” (Lodgment 10). In these circumstances, a district court “looks through” the California Supreme Court decision to the last reasoned decision as the basis for the state court’s judgment. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir.2000) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)). To the extent that Petitioner’s federal habeas claims were not addressed in any reasoned state court decision, however, this Court conducts an independent review of the record. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.2003) (“Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable.”); accord Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.2002).

VI.

DISCUSSION

A. Petitioner Is Not Entitled To Habeas Relief On His Instructional Error Claim

In Ground 5B, Petitioner contends that the trial court violated his constitutional rights by failing to sua sponte give the jury a limiting instruction regarding Petitioner’s prior conviction. (See Petition at 6). Specifically, Petitioner argues that the “where a prior is stipulated [,] the trial court must limit the jurors’ use of that prior sua sponte.” (Pet. Memo., Exh. 8 at 20). There is no merit to this claim.

Instructional error constitutes a violation of the Constitution only where the error by itself so infected the entire trial that the resulting conviction violates due process. See Waddington v. Sarausad, -U.S.-, 129 S.Ct. 823, 832, 172 L.Ed.2d 532 (2009); Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Turner v. Calderon, 281 F.3d 851, 865-66 (9th Cir.2002). Where the alleged error is the failure to give an instruction, the burden on the petitioner is “especially heavy.” Henderson v. Kibbe, 431 U.S. 145, 155, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977) (“An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.”); accord Clark v. Brown, 450 F.3d 898, 904 (9th Cir. as amended May 30, 2006); Murtishaw v. Woodford, 255 F.3d 926, 971 (9th Cir.2001); Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir.1997). “The significance of the omission of such an instruction may be evaluated by comparison with the instructions that were given.” Henderson, 431 U.S. at 156, 97 S.Ct. 1730; accord Murtishaw, 255 F.3d at 971.

Even if an error occurred in instructing the jury, habeas relief will be granted only if the petitioner can establish that the error had a substantial and injurious effect or influence in determining the jury’s verdict. Hedgpeth v. Pulido, — U.S.-, 129 S.Ct. 530, 532, 172 L.Ed.2d 388 (2008) (per curiam); Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); accord Clark, 450 F.3d at 905.

Here, the California Court of Appeal rejected Ground 5B as follows:

Count 3 charged that [Petitioner] violated Penal Code section 12021, subdivision (a)(1), which provides that any person who has been convicted of a felony and who possesses or controls a firearm is guilty of a felony. [Petitioner] stipulated for purposes of count 3 that he had received a felony conviction in May 1998.

The prosecutor read the stipulation to the jury. At the end of the case, the court instructed the jury they must accept as true the existence of the prior conviction for purposes of count 3.

[Petitioner] contends the court’s failure to instruct the jury specifically to consider the prior conviction only for the purpose for which it was admitted — to establish the element of his status as a felon' — violated the federal Constitution. [Petitioner] did not request such a limiting instruction but contends the court was obligated to give one sua sponte.

Evidence Code section 355 provides: “When evidence is admissible ... for one purpose and is inadmissible ... for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.” ([Emphasis] added.) Consistent with section 355, numerous decisions of the California Supreme Court have established that “a trial court generally has no sua sponte duty to give an instruction limiting the purpose for which evidence is received .... ” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 84 [17 Cal.Rptr.3d 710, 96 P.3d 30]; accord, People v. Horning (2004) 34 Cal.4th 871, 909 [22 Cal.Rptr.3d 305, 102 P.3d 228]; People v. Carter (2003) 30 Cal.4th 1166, 1197-1198 [135 Cal.Rptr.2d 553, 70 P.3d 981]; People v. Jones (2003) 30 Cal.4th 1084, 1116 [135 Cal.Rptr.2d 370, 70 P.3d 359].)

In People v. Hernandez (2004), 33 Cal.4th 1040 [16 Cal.Rptr.3d 880, 94 P.3d 1080], for example, the defendants contended the court should have instructed the jury on the limited use it could make of gang evidence. Rejecting the contention, the Supreme Court stated that “although a court should give a limiting instruction on request, it has no sua sponte duty to give one. [Citations.]” (Id. at p. 1051 [16 Cal.Rptr.3d 880, 94 P.3d 1080].)

[Petitioner] notes that in People v. Valentine (1986) 42 Cal.3d 170 [228 Cal.Rptr. 25, 720 P.2d 913], the Supreme Court stated in dicta that if a prior conviction is admitted solely to establish ex-felon status for purposes of Penal Code section 12021, the trial court should give a limiting instruction “at defendant’s request .... ” (Valentine, at p. 182, fn. 7 [228 Cal.Rptr. 25, 720 P.2d 913].) [Petitioner] then asserts that had the Supreme Court squarely considered the issue, it would have found a limiting instruction is constitutionally required in that situation, even without a request. [Petitioner’s] assertion is simply inconsistent with the Supreme Court’s decisions in the Coffman, Horning, Carter, Jones, and Hernandez cases cited, ante.

In addition, [Petitioner] does not address People v. Griggs (2003) 110 Cal.App.4th 1137 [2 Cal.Rptr.3d 380] (Griggs), in which the court resolved the precise issue now before this court and rejected the position [Petitioner] advocates. The court held that where a defendant stipulates to a prior felony conviction offered to prove his felon status for purposes of Penal Code section 12021, subdivision (a)(1), the trial court’s failure to give a sua sponte limiting instruction does not violate due process. (Id. at pp. 1138-1139 [2 Cal.Rptr.3d 380].) In reaching that conclusion, the court considered and rejected the arguments [Petitioner] proposes in support of his position.

One of those arguments is that Evidence Code section 355 does not apply in this case, because the statute deals with the admissibility of “evidence,” while here the prior conviction was proved through a stipulation, not through the introduction of evidence. The Griggs court said in rejecting that argument: “We fail to see how a sanitized stipulation can create greater prejudice to a defendant than if the prosecution was able to present evidence, in the form of testimony or documents, of the number and nature of the defendant’s prior convictions' — -a situation where there is no sua sponte duty to give a limiting' instruction.” (Griggs, supra, 110 Cal.App.4th 1137, 1141 [2 Cal.Rptr.3d 380].) We agree with Griggs’ s reasoning and conclusion on this point.

The Griggs court similarly rejected the argument, asserted by [Petitioner] in this case, that since jurors are told they must accept stipulated facts as conclusively proved, without a limiting instruction there is too great a risk they will consider prior misconduct as an indicator of criminal propensity, rather than for the limited purpose for which it is admissible. The Griggs court stated: “ ‘[E]vidence of past offenses may not improperly affect the jury’s deliberation if ... the evidence is obviously used to effect one or more of the many legitimate purposes for which it can be introduced.’ [Citation.] Where a stipulation in [sic] entered into for the purpose of proving a prior felony conviction, the fact of that conviction is ‘obviously used’ to effect a legitimate purpose — in this case, to prove an element of the offenses of being a felon in possession of a firearm and ammunition.” (Griggs, supra, 110 Cal.App.4th 1137, 1142 [2 Cal.Rptr.3d 380].)

Here, it was made abundantly clear to the jury that [Petitioner’s] prior felony conviction was admitted only for the purpose of establishing his status as a felon, as an element of count 3. The stipulation, as read to the jury, stated: “Both the People and the defense stipulate that [Petitioner] received a felony conviction on May 20th, 1998, for purposes of Count 3 of the amended information.” ([Emphasis] added.)

[Petitioner] complains the court in its subsequent instructions emphasized that the jurors “must accept as true the existence of [Petitioner’s] previous felony conviction.” He omits the context of that admonition. In full, the court instructed:

“Every person who, having previously been convicted of a felony, owns or has in his possession or under his custody or control any pistol, revolver, or other firearm, is guilty of a violation of section 12021, subdivision (a), subsection (1) of the Penal Code, a erime.[”]

“In this case the previous felony conviction has already been established by stipulation so that no further proof of that fact is required. You must accept as true the existence of this previous felony conviction.”

Again, the quoted language demonstrates it was made abundantly clear that the jury was to accept the conviction as proven for the purpose of the Penal Code section 12021, subdivision(a)(l) charge.

No other instruction the court gave suggested in any way that the prior conviction could be used for any purpose other than to establish the status element of count 3. The court merely gave a general instruction stating: “Statements made by the attorneys during the trial are not evidence. However, if the attorneys have stipulated or agreed to a fact, you must regard that fact as proven.” There is no reasonable possibility the jurors interpreted that instruction, as [Petitioner] speculates, to mean, “you must regard that fact as proven and you may consider it in determining [Petitioner’s] guilt of any of the crimes charged.”

The Supreme Court has recognized a “possible exception” to the rule that no sua sponte limiting instruction is required where evidence is admitted for a limited purpose. However, the court has made clear that if such an exception applies at all, it applies only “in ‘an occasional extraordinary case in which unprotested evidence ... is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose.’ [Citation.]” (People v. Hernandez, supra, 33 Cal.4th 1040, 1051-1052 [16 Cal.Rptr.3d 880, 94 P.3d 1080].)

The possible exception could not apply here. The prior conviction was not a dominant part of the evidence against [Petitioner]. Most of the evidence consisted of the three eyewitnesses’ accounts of the robbery. The stipulation that [Petitioner] had received a felony conviction was not highly prejudicial, since the jurors were not told what felony [Petitioner] had been convicted of or any facts of the offense. The evidence was not “minimally” relevant to a legitimate purpose, because it was the only proof offered on one of the elements of one of the charged offenses. We therefore conclude no sua sponte limiting instruction was required.

(Lodgment 8 at 14-19).

Under California law, a trial court generally has “no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct.” People v. Griggs, 110 Cal.App.4th 1137, 1139, 2 Cal.Rptr.3d 380 (2003). The Ninth Circuit has similarly held that trial courts have no sua sponte duty to give a limiting instruction regarding the admission of evidence of “other criminal acts.” United States v. Multi—Management, Inc., 743 F.2d 1359, 1364 (9th Cir.1984) (“It is well- — settled that where no limiting instruction is requested concerning evidence of other criminal acts, the failure of the trial court to give such an instruction sua sponte is not reversible error.”). Petitioner argues that “[t]here remains a ‘reasonable likelihood’ that the court’s instructions were interpreted so as to permit consideration of [Petitioner’s] prior felony conviction in finding him guilty.” (Pet. Memo., Exh. 8 at 26). However, the parties’ stipulation clearly explained that Petitioner’s prior felony conviction was being admitted “for purposes of Count 3 of the amended Information.” (See 2 RT 273) (“Both the People and the defense stipulate that [Petitioner] received a felony conviction on May 20th, 1998, for purposes of County 3 of the amended Information.”).

Moreover, the trial court’s subsequent instructions also informed the jury that Petitioner’s prior felony conviction had been admitted for purposes of Count 3:

[Petitioner] is accused in Count 3 of having violated section 12021, subdivision (a), subsection (1), a crime.

Every person who, having personally been convicted of a felony, owns or has in his possession or under his custody or control any pistol, revolver, or other firearm, is guilty of a violation of section 12021, subdivision (a), subsection (1) of the Penal Code, a crime.

In this case the previous felony conviction has already been established by stipulation so that no further proof of that fact is required. You must accept as true the existence of this previous felony conviction.

In order to prove this crime, each of the following elements must be proved: One, [Petitioner] owned or had in his possession or had under his control a handgun, and, two, [Petitioner] had knowledge of the presence of the handgun.

(2 RT 433-34; 1 CT 212). Indeed, as noted by the court of appeal, “[n]o other instruction the court gave suggested in any way that the prior conviction could be used for any purpose other than to establish the status element of count 3.” (Lodgment 8 at 18).

Thus, Petitioner has failed to meet his especially heavy burden of showing that the trial court’s choice of jury instructions “by itself so infected the entire trial that the resulting conviction violates due process.” McGuire, 502 U.S. at 72, 112 S.Ct. 475 (internal quotation marks omitted). Indeed, the Ninth Circuit has held that the admission of propensity evidence does not violate clearly established federal law. See Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir.2008), cert. denied, — U.S.-, 129 S.Ct. 941, 173 L.Ed.2d 141 (2009); see also Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir.2009) (“The Supreme Court has made very few rulings regarding the admission of evidence as a violation of due process.”).

Even assuming that the trial court should have given a limiting instruction sua sponte, Petitioner cannot show prejudice because the evidence of his guilt was overwhelming. See Waddington, 129 S.Ct. at 833 (holding that it was not objectively unreasonable for the state courts to conclude that the instructional error was harmless because of the overwhelming evidence); see also Allen v. Woodford, 395 F.3d 979, 992 (9th Cir. as amended Jan. 24, 2005) (“[T]o the extent that any claim of error ... might be meritorious, we would reject that error as harmless because the evidence of [the petitioner’s] guilt is overwhelming.”). Indeed, David Pineda Schmidt (“Schmidt”) testified that Petitioner held a gun to Schmidt’s right temple and demanded Schmidt’s money. (See 2 RT 328, 343^44). Lauren Sanchez (“Sanchez”) and Audrey Williams also testified that Petitioner held a gun against Schmidt’s right temple and demanded Schmidt’s money. (See 2 RT 216, 230, 274, 284, 286-87). Thus, the Court concludes that the state courts’ denial of this claim was not contrary to nor did it involve an unreasonable application of clearly established federal law as determined by the United States Supreme Court, nor was it an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). Accordingly, Petitioner is not entitled to habeas relief on this claim.

B. Petitioner Is Not Entitled To Habeas Relief On His Self-Representation Claims

In Ground 2, Petitioner contends that the trial court violated his constitutional right to self-representation because: (A) “discovery motions were not fully honored”; (B) the trial court “failed to admonish the district attorney for malfeasanee/misconduct”; and (C) the trial court “denied Petitioner the compulsory process for obtaining a defense witness in his favor.” (Petition at 5). There is no merit to these claims.

Under the Sixth Amendment, a criminal defendant has the right to waive his right to counsel and represent himself. See Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); see also Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 2383, 171 L.Ed.2d 345 (2008); Robinson v. Kramer, 588 F.3d 1212, 1216 (9th Cir.2009). Unlike the Sixth Amendment right to counsel, the right to self — representation does not attach until asserted. See Sandoval v. Calderon, 241 F.3d 765, 774 (9th Cir.2000). Invocation of the right must be unequivocal, timely, and not a tactic to secure delay. See Stenson v. Lambert, 504 F.3d 873, 882 (9th Cir.2007), cert. denied sub nom., Stenson v. Uttecht, — U.S. -, 129 S.Ct. 247, 172 L.Ed.2d 188 (2008); Hirschfield v. Payne, 420 F.3d 922, 926 (9th Cir.2005).

However, “the right of self— representation is not absolute.” Edwards, 128 S.Ct. at 2384; accord Martinez v. Court of Appeal, 528 U.S. 152, 161, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000); see also Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. 2525 (“The right of self — representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.”); Cooks v. Newland, 395 F.3d 1077, 1080 (9th Cir.2005). A defendant’s right to self — representation is contingent on his being “able and willing to abide by rules of procedure and courtroom protocol.” McKaskle v. Wiggins, 465 U.S. 168, 173, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); see also Kulas v. Flores, 255 F.3d 780, 786 (9th Cir.2001) (“Since the trial judge bears the responsibility for maintaining order and the appellate court is limited to reviewing a cold record, we give substantial deference to the trial judge’s decisions about courtroom management. This is true even where the defendant is pro se.”). Thus, a “trial judge may terminate self — representation by a defendant who deliberately engages in serious and obstructionist misconduct.” Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. 2525; see also Martinez, 528 U.S. at 162, 120 S.Ct. 684 (“Even at the trial level, therefore, the government’s interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as his own lawyer.”).

As there is no reasoned state court decision addressing Ground 2, this Court conducts an independent review of the record. See Pirtle, 313 F.3d at 1167. On June 23, 2003, Petitioner was scheduled to appear before the Honorable Robert G. Spitzer (“Judge Spitzer”) for the start of trial, (see 1 CT 94-95), but did not appear because he was placed on suicide watch at the jail. CSee 1 CT 102; 1 RT 77-78). Petitioner’s trial counsel suggested that Petitioner undergo a mental health evaluation pursuant to Penal Code section 1368 (competency to stand trial). (See 1 CT 102; 1 RT 94-95). Judge Spitzer ordered Petitioner to undergo a mental health evaluation and continued the matter until June 26, 2003. (See 1 CT 102-03, 107; 1 RT 104). On June 26, 2003, Judge Spitzer again continued the matter until July 11, 2003. (See 1 CT 104; 1 RT 119).

On July 11, 2003, Judge Spitzer reviewed a mental health report prepared by Dr. Harvey Oshrin (“Dr. Oshrin”) and determined that Petitioner was competent to stand trial. (See 1 CT 106). Dr. Oshrin’s report and the transcript of the hearing do not appear in the record because Judge Spitzer ordered them sealed. (See 1 CT 106; 1 RT 122-41). At a subsequent hearing, however, the prosecutor commented that Dr. Oshrin “diagnosed [Petitioner] with malingering” and concluded that he “would try to do anything he could to avoid going to trial.” (1 RT 179). A different judge, the Honorable J. Thompson Hanks (“Judge Hanks”), eventually set Petitioner’s trial for August 25, 2003, (see 1 CT 110), but the trial was continued to September 10, 2003, because of defense counsel’s unavailability. (See 1 CT 111-13).

On September 10, 2003, Petitioner appeared before the Honorable Patrick F. Magers (“Judge Magers”) and requested to represent himself. (See 1 CT 114; 1 RT 142). Petitioner initialed and signed a Petition to Proceed in Propria Persona which stated that he understood his right to be represented by a lawyer; understood that the trial court recommended that he not represent himself; understood that he would have to follow technical rules of substantive law, criminal procedure, and evidence; understood that the People’s case would be handled by an experienced prosecutor; understood that he would have to conduct his own trial; and understood that he was waiving any claim based on ineffective assistance of counsel. (See 1 CT 115). Judge Magers then explained to Petitioner his maximum possible sentence, advised Petitioner not to represent himself, and warned Petitioner that the trial court would not provide any special attention or assistance. (See 1 RT 144-45). When asked how long he needed to prepare for trial, Petitioner stated that he needed “[a]t least two months.” (1 RT 147). Judge Magers responded that he would permit Petitioner to have “about thirty days with no further continuances.” (1 RT 148). Petitioner then accepted the trial court’s terms. (See id. (“I’ll trail for thirty days, then.”)). Finally, Judge Magers granted Petitioner’s request to represent himself and continued the trial until October 14, 2003. (See 1 CT 114; 1 RT 149).

On October 8, 2003, Petitioner requested a thirty day continuance so that his investigator could interview potential witnesses. (See 1 CT 123-27; 1 RT 170). The Honorable Edward D. Webster (“Judge Webster”) granted Petitioner’s request and continued the trial until November 12, 2003. (See 1 CT 121; 1 RT 170). On November 12, 2003, Petitioner requested an additional sixty day continuance because his investigator had not been able to locate certain witnesses. (See 1 CT 129-32). Judge Webster held a hearing to consider Petitioner’s request, but Petitioner asked Judge Webster to continue the hearing. (See 1 CT 128). Judge Webster then continued the hearing until November 14, 2003. (See id.). On November 14, 2003, Judge Webster granted Petitioner’s request and continued the trial until December 4, 2003. (See 1 CT 139).

On December 4, 2003, Petitioner requested that Judge Webster appoint an attorney to represent him. (See 1 CT 143-46). Judge Webster held a hearing to consider Petitioner’s request, but Petitioner asked Judge Webster to continue the hearing. (See 1 CT 140). Judge Webster then continued the hearing until December 5, 2003. (See id.). On December 5, 2003, Judge Webster explained to Petitioner that “generally speaking, when you make a choice to represent yourself, you have no right night [sic] to have an attorney re— appointed to represent you.” (1 RT 173). Petitioner replied, “I have no other things to say. I’m not going to represent myself anymore.” (Id.). Judge Webster then asked the public defender when he could be ready to represent Petitioner at trial. (See id.). The public defender stated that he could be ready by January 15 or 16, 2004. (See id.). Finally, Judge Webster denied Petitioner’s request as follows:

In light of the public defender being unavailable until January and [Petitioner’s] attitude toward this process, it seems to me he made a choice to represent himself and he should stay with that choice, and I don’t think it’s appropriate to delay the case given that the crime occurred on December 9th of 2002. And I think in my view his attitude and refusal to even discuss this issue suggest he’s trying [to] manipulate the process. We don’t have to put up with it. [¶] We’ll see you on December 15th for trial.

(1 RT 173).

On December 8, 2003, Petitioner reasserted his desire for an attorney before Judge Magers. (See 1 CT 147; 1 RT 176). Petitioner explained as follows: “I got a little over my head and stuff, and I’m — my medication is kind of affecting my health, my mental health issues, just want to back up out of pro per.” (1 RT 177). Over the prosecutor’s objection, Judge Magers granted Petitioner’s request as follows:

At this time, ... I’m going to exercise my discretion, and, as I indicated, I like these cases tried only once, and I don’t want this case tried again two years from now ....

At this time, the Public Defender is appointed. It appears there’s no prejudice to the People in a five — week delay. But, [Petitioner], I’m going to tell you this, if I reappoint the Public Defender, you will not be representing yourself.

(1 RT 180). Petitioner stated that he understood. (See id.). Judge Magers then engaged in the following colloquy with Petitioner:

THE COURT: You understand that?

THE [PETITIONER]: I understand that.

THE COURT: If I appoint the Public Defender, that’s a final deal.

THE [PETITIONER]: Yes, that’s it.

THE COURT: That’s it. Do you understand?

THE [PETITIONER]: Yes.

(Id.). Judge Magers continued the trial until January 20, 2004. (See 1 CT 147; 1 RT 181).

On January 9, 2004, the prosecutor requested that the Public Defender’s Office be relieved from representing Petitioner. (See 1 CT 148). Judge Webster then continued the hearing on the prosecutor’s request until January 12, 2004. (See id.). On January 12, 2004, the prosecutor argued that appointing a public defender to represent Petitioner would cause further delays of a trial that had already been repeatedly delayed. (See 1 RT 183-84). After considering the prosecutor’s arguments, Judge Webster denied the request as follows:

I agree. There are many things about this case that make it desirable to get out to trial, not the least of which is the age, not the least of which is the fact that [Petitioner], apparently, refused to come to court. There was a 1366[sic] hearing which showed that he may be malingering.

The fact that he went pro per and now wants to have an attorney, all of are common tactics by a sophisticated defendant to delay a trial. And I think a reasonable person would perceive that’s what’s going on here. And it’s offensive, and I agree it’s offensive, and I think you can make a compelling argument that’s what’s occurring here.

But having said all that, he now has an attorney appointed by Judge Magers, not by myself. It’s a reasonable choice by Judge Magers, under the circumstances, because Judge Magers was worried what happens when [Petitioner] doesn’t come down to court and you’re faced with a trial where he’s absented himself voluntarily, which is conduct consistent with what we’ve seen before.

If you have a lawyer, you can go ahead and proceed. But there’s no one there to stand in for the person. It creates an additional problem for the Appellate Court and the appellate record. So, I mean, we all know there are many ways to manipulate the system. And it’s frustrating that we can’t do much about some of these, but, essentially, once a person’s developed a track record, we’re in a much better position to deal with it in the future.

And I think [Petitioner] has reached that point. I think unless he can show compelling proof that [the public defender] is not doing the job, he’s not going to get a new lawyer. He wants to represent himself, he’ll probably be unsuccessful, because he’s already tried that once. So I think he’s going to finally have to come to trial.

(1 RT 186-87).

On January 20, 2004, Petitioner’s public defender requested a continuance and Judge Webster continued the trial until February 17, 2004. (See 1 CT 150). On February 17, 2004, Judge Webster assigned the trial to the Honorable Timothy J. Heaslet (“Judge Heaslet”) and the trial trailed to February 19, 2004. (See 1 CT 151) .

On February 19, 2004, Petitioner requested the appointment of a different attorney and Judge Heaslet scheduled a hearing on Petitioner’s request for February 20, 2004. (See 1 CT 152). On February 20, 2004, Petitioner withdrew his request and the trial was trailed to February 26, 2004. (See 1 CT 153-54). On February 26, 2004, the trial was trailed to March 1, 2004. (See 1 CT 155). On March 1, 2004, the trial was trailed to March 2, 2004. (See 1 CT 156). On March 2, 2004, the trial was trailed to March 3, 2004. (See 1 CT 157). On March 3, 2004, the trial commenced with Petitioner represented by a public defender. (See 1 CT 159).

Having independently reviewed the record, it is abundantly clear that the state court did not violate Petitioner’s right to self — representation. Indeed, the record powerfully demonstrates that all of the superior court judges assigned to Petitioner’s case made great efforts to protect Petitioner’s rights by granting numerous continuances and ultimately granting all of Petitioner’s requests regarding his representation. On September 10, 2003, Judge Magers granted Petitioner’s request to represent himself. (See 1 CT 114; 1 RT 149). While Judge Webster denied Petitioner’s request to appoint counsel on December 5, 2003, (see 1 RT 173), Judge Magers subsequently granted Petitioner’s request on December 8, 2003. (See 1 CT 147; 1 RT 181). Finally, Petitioner initially requested the appointment of a different attorney on February 19, 2004, (see 1 CT 152) , but later withdrew his request on February 20, 2004. (See 1 CT 154).

Petitioner asserts that Judge Webster “treated him unfairly and failed to conduct the pre-trial court proceedings impartially.” (Pet. Memo, at 19). However, as set forth above, Judge Webster granted Petitioner’s request to continue the trial on October 8, 2003, (see 1 CT 121; 1 RT 170), Petitioner’s request to continue the hearing on November 12, 2003, (see 1 CT 128), Petitioner’s request to continue the trial on November 14, 2003, (see 1 CT 139), and Petitioner’s request to continue the trial on January 20, 2004. (See 1 CT 150). The only request that Judge Webster denied was Petitioner’s request to reappoint counsel on December 5, 2003. (See 1 RT 173). However, defendants are not entitled to have counsel reappointed after requesting to represent themselves. See, e.g., Menefield v. Borg, 881 F.2d 696, 700 (9th Cir.1989) (“There are times when the criminal justice system would be poorly served by allowing the defendant to reverse his course at the last minute and insist upon representation by counsel. When, for example, for purposes of delay, criminal defendants have sought continuances on the eve of trial, we have refused to disrupt the proceedings to accommodate their wishes.” (citations omitted)).

Moreover, Judge Webster made a factual finding that Petitioner was intentionally trying to delay his trial. (See 1 RT 186) (“The fact that he went pro per and now wants to have an attorney, all of [which] are common tactics by a sophisticated defendant to delay a trial. And I think a reasonable person would perceive that’s what’s going on here. And it’s offensive, and I agree it’s offensive, and I think you can make a compelling argument that’s what’s occurring here.”); see also Avila v. Roe, 298 F.3d 750, 753 (9th Cir.2002) (explaining that trial courts may deny a Faretta request if “it is shown to be a tactic to secure delay” (internal quotation marks omitted)). Judge Webster’s factual finding is entitled to a presumption of correctness on habeas review, see 28 U.S.C. § 2254(e)(1), and Petitioner “has the burden of rebutting this presumption by clear and convincing evidence.” Sophanthavong v. Palmateer, 378 F.3d 859, 866 (9th Cir., as amended Aug. 3, 2004).

To the extent Petitioner claims that Judge Webster was biased against him, Petitioner’s claim fails because he cannot “overcome [the] presumption of honesty and integrity in those serving as adjudicators.” Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975); see also Ortiz v. Stewart, 149 F.3d 923, 938 (9th Cir.1998) (“[W]e abide by the general presumption that judges are unbiased and honest.”). Indeed, the Supreme Court has held that “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994); see also id. at 556, 114 S.Ct. 1147 (“A judge’s ordinary efforts at courtroom administration — even a stern and short — tempered judge’s ordinary efforts at courtroom administration— remain immune.”); accord Ortiz, 149 F.3d at 940. Here, Petitioner’s claims are essentially complaints about Judge Webster’s judicial rulings and his efforts at courtroom administration. (See Pet. Memo. at 18-28).

In short, the Court concludes that the state courts’ denial of this claim was not contrary to nor did it involve an unreasonable application of clearly established federal law as determined by the United States Supreme Court, nor was it an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). Accordingly, Petitioner is not entitled to habeas relief on this claim.

1. Ground 2A

In Ground 2A, Petitioner contends that the trial court violated his constitutional right to self-representation because “discovery motions were not fully honored.” (Petition at 5). Specifically, Petitioner argues that he filed two discovery motions pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which the trial court did not adequately address. (See Pet. Memo. at 19-21). In Brady, the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment.” Brady, 373 U.S. at 87, 83 S.Ct. 1194; accord Schad v. Ryan, 595 F.3d 907, 914-15 (9th Cir.2010); Edwards v. Ayers, 542 F.3d 759, 768 (9th Cir.2008). Impeachment evidence as well as exculpatory evidence falls within the Brady rule. See United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Additionally, “[t]he Supreme Court has clearly held that Brady suppression occurs when the government fails to turn over even evidence that is known only to police investigators and not to the prosecutor.” United States v. Price, 566 F.3d 900, 908 (9th Cir.2009) (citing Youngblood v. West Virginia, 547 U.S. 867, 869-70, 126 S.Ct. 2188, 165 L.Ed.2d 269 (2006) (per curiam)) (internal quotation marks omitted).

Evidence is material under Brady only “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (internal quotation marks omitted); accord Edwards, 542 F.3d at 768. A reasonable probability is one that “undermines confidence in the outcome of the trial.” Bagley, 473 U.S. at 678, 105 S.Ct. 3375. In sum, “[t]here are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either wilfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

Here, the trial court held a hearing to consider Petitioner’s first Brady discovery motion on September 25, 2003. (See 1 CT 116; 1 RT 149 — A). The trial court asked the prosecutor if he had any objection to the motion and pointed out that the prosecution had “an independent constitutional obligation anyway.” (1 RT 149-A). The prosecutor stated that he did not object and the trial court granted the motion. (See id.). The trial court then scheduled a follow-up hearing for the next day and directed the prosecutor to bring his case file so that Petitioner could obtain any discovery he was missing. (See 1 RT 151). The prosecutor agreed to bring his file and provide Petitioner any discovery he did not have. (See id.). The record does not contain a transcript of the hearing on September 26, 2003, but it does show that the trial court ordered the prosecutor’s investigator to provide reports to Petitioner. (See 1 CT 117).

On November 12, 2003, Petitioner filed a second Brady discovery motion arguing that the prosecutor had failed to provide all the evidence in his possession. (See 1 CT 134-36). The record does not reveal the trial court’s response to this motion. However, on November 14, 2003, the prosecutor filed a letter detailing all of the evidence that he had provided to Petitioner. (See 1 CT 137-38). In the letter, the prosecutor explained to Petitioner that he was attaching copies of all the documents that Petitioner claimed not to have. (See id,.).

Thus, the record belies Petitioner’s claims that the prosecutor suppressed evidence. See, e.g., Dows v. Wood, 211 F.3d 480, 486-87 (9th Cir.2000) (holding that factually unfounded claims present no basis for federal habeas relief). Indeed, Petitioner’s claims about suppressed evidence are vague and completely unsubstantiated. See, e.g., Phillips v. Woodford, 267 F.3d 966, 987 (9th Cir.2001) (denying Brady claim based on “mere suppositions” (internal quotation marks omitted)); Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir.1995) (“The district court noted that [the petitioner’s] Brady claim was argued in a single page, without reference to the record or any document. [The petitioner’s] conclusory allegations did not meet the specificity requirement. The district court therefore did not err in denying habeas relief on this ground.” (internal quotation marks and footnote omitted)). For example, Petitioner claims that the prosecutor failed to “sign and date a written statement attesting that he did provide [Petitioner the mandatory discovery.” (Pet. Memo, at 20). However, the record demonstrates that the prosecutor did exactly that. (See 1 CT 137-38). Petitioner further claims that as a result of his discovery requests, he “was the victim of a vindictive prosecution.” (Pet. Memo. at 20). Petitioner, however, has failed to provide any facts in support of this conclusory allegation. See, e.g., James v. Borg, 24 F.3d 20, 26 (9th Cir.1994) (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”).

Having independently reviewed the record, the Court concludes that Petitioner’s Brady rights were not violated. Moreover, even if Petitioner could show that the prosecution suppressed favorable evidence, Petitioner cannot show prejudice because the evidence of his guilt was overwhelming. See supra Part VI.A.; see also Schad, 595 F.3d at 916 (“Finally, and most important, the circumstantial evidence demonstrating [the petitioner’s] guilt was powerful, and [he] did not offer any significant evidence to rebut the strong inference of guilt arising from that evidence. In light of the evidence against [the petitioner], any additional impeachment value of the [undisclosed evidence] would not have changed the jury’s verdict.”); Allen, 395 F.3d at 992 (“[T]o the extent that any claim of error ... might be meritorious, we would reject that error as harmless because the evidence of [the petitioner’s] guilt is overwhelming.”). Thus, the Court concludes that the state courts’ denial of this claim was not contrary to nor did it involve an unreasonable application of clearly established federal law as determined by the United States Supreme Court, nor was it an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). Accordingly, Petitioner is not entitled to habeas relief on this claim.

2. Ground 2B

In Ground 2B, Petitioner contends that the trial court violated his constitutional right to self — representation by “failing] to admonish the district attorney for malfeasance/misconduct.” (Petition at 5). Specifically, Petitioner argues that the prosecutor instructed Williams not to speak with Petitioner’s investigator. (See Pet. Memo. at 22). Prosecutorial misconduct warrants habeas relief only if the prosecutor’s actions “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (internal quotation marks omitted); accord Williams v. Stewart, 441 F.3d 1030, 1042 (9th Cir.2006); Davis v. Woodford, 333 F.3d 982, 996 (9th Cir.2003). The Ninth Circuit has recognized that a prosecutor’s interference with a defendant’s access to witnesses may constitute misconduct. See United States v. Black, 767 F.2d 1334, 1337 (9th Cir.1985) (“Absent a fairly compelling justification, the government may not interfere with defense access to witnesses.”); accord Cacoperdo v. Demosthenes, 37 F.3d 504, 509 (9th Cir.1994). Even if prosecutorial misconduct is established which rises to the level of a constitutional violation, however, a habeas petitioner must still show that the error was not harmless under the Brecht standard. See Karis v. Calderon, 283 F.3d 1117, 1128 (9th Cir.2002).

On November 12, 2003, Petitioner filed a motion for a continuance in which he argued that the prosecutor instructed Williams not to speak with Petitioner’s investigator. (See 1 CT 129-32). Petitioner attached to his motion a memorandum from his investigator which stated as follows:

Audrey Williams: I had a phone conversation with her. She told me that the [prosecutor] told her not to talk to defense investigators. She said that she gave the police a statement and that she was not going to change her story. I read to her the police report in regards to her statements and she told me that it was accurate. Williams would not comment further.

(1 CT 132).

During a hearing on December 5, 2003, Petitioner repeated his argument that the prosecutor had been “telling the witnesses not to speak to [his] investigator.” (See 1 RT 174). The trial court, however, rejected Petitioner’s claim by commenting on “the many unfounded charges [Petitioner] ha[d] made.” (See 1 RT 175). The trial court further stated, “I think a fair assessment is [Petitioner] is playing games with the [c]ourt and that’s what I so find.” (Id.).

At trial, Williams denied ever telling Petitioner’s investigator that the prosecutor told her not to speak with the defense. (See 2 RT 294-95). Rather, Williams explained that she told Petitioner’s investigator that the prosecutor said she did not have to speak with the defense if she did not want to. (See 2 RT 294-95) (“And I told him that I was told that I didn’t have to speak to him. if I didn’t want to.”). Thus, the record belies Petitioner’s claims that the prosecutor told Williams not to speak with the defense. See, e.g., Dows, 211 F.3d at 486-87 (holding that factually unfounded claims present no basis for federal habeas relief).

Moreover, the Ninth Circuit has held that a prosecutor may advise witnesses of their right not to speak with the defense. See Black, 767 F.2d at 1338 (“[The prosecutor] merely advised the witnesses of their right to decline the defendant’s request for an interview .... [T] he prosecutor’s letter constituted a correct statement of the law and was not improper.”); accord United States v. Tipton, 90 F.3d 861, 889 (4th Cir.1996) (“[0]nly access is a matter of right, there is no right to have witnesses compelled to submit to interview, hence no violation by a prosecutor’s advising witnesses to that effect.”); see also Cacoperdo, 37 F.3d at 509 (“In fact, the [witness] had a right not to be interviewed if she so chose.”).

Having independently reviewed the record, the Court concludes that the prosecutor did not commit misconduct. Moreover, even if Petitioner could show that the prosecutor committed misconduct, Petitioner cannot show prejudice because the evidence of his guilt was overwhelming. See supra Part VI.A.; see also Karis, 283 F.3d at 1128 (explaining that a successful prosecutorial misconduct claim requires a showing of prejudice); Allen, 395 F.3d at 992 (“[T]o the extent that any claim of error ... might be meritorious, we would reject that error as harmless because the evidence of [the petitioner’s] guilt is overwhelming.”). Thus, the Court concludes that the state courts’ denial of this claim was not contrary to nor did it involve an unreasonable application of clearly established federal law as determined by the United States Supreme Court, nor was it an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). Accordingly, Petitioner is not entitled to habeas relief on this claim.

3. Ground 2C

In Ground 2C, Petitioner contends that the trial court violated his constitutional right to self-representation by “den[ying] [him] the compulsory process for obtaining a defense witness in his favor.” (Petition at 5). Specifically, Petitioner argues that the trial court should have granted him a forensic expert to test the gun recovered from the crime scene for fingerprints. (See Pet. Memo. at 24). Indeed, the Supreme Court has recognized that indigent defendants have a due process right to obtain the assistance of certain expert witnesses. See Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (holding that a defendant had a constitutional right to the appointment of a psychiatrist because his sanity was a “significant factor at trial”); accord Williams v. Stewart, 441 F.3d 1030, 1048 (9th Cir. as amended April 18, 2006); Chaney v. Stewart, 156 F.3d 921, 925 (9th Cir.1998). However, the Supreme Court has declined to consider whether the Ake holding extends beyond psychiatrists to other expert witnesses and investigators. See Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (“We therefore have no need to determine as a matter of federal constitutional law what if any showing would have entitled a defendant to [a criminal investigator, a fingerprint expert, or a ballistics expert].”). The Ninth Circuit has similarly limited the Ake holding to psychiatrists and held that it does not extend to eyewitness identification experts. See Jackson v. Ylst, 921 F.2d 882, 886 (9th Cir.1990) (“No issue was presented to the Supreme Court in Ake concerning the right of an indigent to the appointment of an expert on eyewitness identification.”).

Thus, Petitioner’s claim fails because the Supreme Court has not clearly established a constitutional right to the appointment of forensic experts. See Carey v. Musladin, 549 U.S. 70, 77, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006) (“Given the lack of holdings from [the Supreme] Court regarding [the petitioner’s claim], it cannot be said that the state court unreasonably applied clearly established Federal law.” (internal quotation marks and brackets omitted)); see also Mennick v. Hardison, 2009 WL 187889, at *7 (D.Idaho Jan. 26, 2009) (“[T]he United States Supreme Court has not extended Ake beyond appointment of a psychiatrist to answer the question of defendant competency! ] ... [and] to broaden that application to requiring trial courts to appoint experts to help defendants support other defenses is beyond the scope of Ake ....”); Atcherley v. Scribner, 2008 WL 4279552, a