Rowland v. Chappell (902 F. Supp. 2d 1296, 2012)

Citations

902 F. Supp. 2d 1296

Full opinion text

ORDER GRANTING SUMMARY JUDGMENT FOR RESPONDENT

WILLIAM ALSUP, District Judge.

Petitioner Guy Kevin Rowland, a California state prisoner sentenced to death, seeks a writ of habeas corpus under 28 U.S.C. 2254. Respondent now moves for summary judgment on all of petitioner’s claims. For the following reasons, respondent’s motion is Granted.

FACTUAL BACKGROUND

On February 11, 1987, petitioner Guy Kevin Rowland was charged with one count of first-degree murder with the special circumstance that the murder took place during the commission of rape and one count of rape. The information alleged 12 prior felony convictions and that petitioner was on parole when he committed the offense.

Petitioner was represented at trial by attorneys Charles Pierpont and James Courshon. Evidence at trial established that on March 16, 1986, Marion Geraldine (“Geri”) Richardson went to the “Wild Idle” bar in Byron, Contra Costa County. Geri lived with her mother in Byron and worked as a cook at the Boys’ Ranch. She regularly snorted methamphetamine and evidently had a vial of the substance in her possession.

Petitioner was also at the bar. He socialized with Geri for a while. According to an off-duty bartender, petitioner was “coming on” to Geri, but she did not respond positively. Before 10 p.m., petitioner left the bar. Some time later, Geri told her friend, Jeanne Weems, that she had a terrible headache and needed to go home to get some sleep as she had to go to work early the next morning. She left the bar alone. Apparently, she drove away in her car. Her vehicle was later seen parked at an odd angle about half a block from the bar. It was empty and unlocked.

In the hours that followed, petitioner brutally beat Geri about the head, face and elsewhere. He also had intercourse with her, evidently against her will. According to expert testimony, Geri had a bruise on her inner thigh which could have been caused by someone using a knee to force the knees apart. Petitioner also choked Geri twice, killing her the second time. Before her death, Geri ingested a potentially lethal dose of methamphetamine. It appears that petitioner put the methamphetamine in her mouth, as apparently she could not have snorted the requisite amount of the substance or would not have done so voluntarily.

Petitioner hauled Geri’s body in his truck to the vicinity of Half Moon Bay, dragged it across the ground and dumped it in the ocean. On March 17, at around 7 a.m., petitioner arrived at the house of his lover, Susan Lanet, in Livermore. He appeared disturbed and said he wanted to leave the state. Petitioner and Lanet shared some methamphetamine. He admitted to Lanet that he had killed Geri and asked her whether she wanted Geri’s belongings, including a ring and make-up. Lanet declined. Petitioner offered her $20 to clean his truck and remove “blood and every strand of hair.” Lanet pretended to accept, but then called the police. Petitioner was arrested as he attempted to flee. At around 9:45 a.m., Geri’s body was found at the base of a cliff by Moss Beach near Half Moon Bay. Blood and other evidence in petitioner’s vehicle tied him to the killing.

At the guilt phase of the trial, petitioner did not present any evidence, call witnesses or take the stand. His primary defense was that the evidence did not establish first-degree murder or rape. On May 13, 1987, the jury convicted petitioner of first-degree murder and rape and also found true the special circumstance allegation of felony murder in the course of rape.

During the penalty phase, the prosecution offered in aggravation: (1) the circumstances of the offenses, (2) other criminal activity perpetrated by petitioner, and (3) his prior felony convictions. As to other violent criminal activity, the prosecution presented evidence during the penalty phase to the following effect:

On April 4, 1978, petitioner entered the residence of Harriet Larson in San Ramon. Attempting to escape, he battered Larson, who was 63 years old. She suffered a crushed vertebra and was hospitalized for 11 days.

On October 4, 1980, petitioner lured 26 year-old Tereza V. out of a bar in Pleasanton to a park with an offer to share cocaine. At the park, he made sexual advances. She rebuffed him. He assaulted, battered and raped her.

On November 7, 1980, together with a male partner, petitioner lured Lisa V. and Caren F. into a truck in Fremont with a false offer of a ride. Both girls were 13 years old. Petitioner and his counterpart then kidnapped the girls. Caren escaped. Petitioner helped his partner rape Lisa twice. He raped her six times, caused her to orally copulate him, sodomized her twice, and fondled her. During the attack, he threatened her with death if she resisted.

On March 11, 1986, petitioner got into an argument with his step-sister, Keli T., in the home she shared with her mother and stepfather in Pleasanton. They argued about the locking of a door. The underlying cause, however, was apparently something else: petitioner had expressed a romantic interest in Keli. She responded with antagonism. During the argument, petitioner picked up a knife and punched his fist through the door of Keli’s bedroom. Petitioner assaulted her and threatened her with death.

On March 11, 1986, petitioner was introduced to Patricia G. by Susan Lanet at Lanet’s home. The trio used methamphetamine. Later, petitioner offered to drive Patricia G. home. Instead, he drove her to the top of a cliff that loomed over a body of water. During the trip, he beat her. At the cliff, he pulled her out of the car, beat her, told her he was going to kill her and throw her body off the cliff. He told her to undress. She complied. He continued to beat and choke her. Although the matter is uncertain, he may have raped her. He then drove her to his mother’s house, where he kept her in the bathroom against her will for a time period. He called Lanet and admitted what he had done. Petitioner asked Patricia for some time before she called the police and then fled.

As to prior felony convictions, the prosecution presented evidence that petitioner was convicted on June 8, 1981, of the following offenses arising out of the Lisa V./Caren F. incident: two counts of sodomy, one count of lewd and lascivious conduct with a child under fourteen years of age, and one count of oral copulation.

In mitigation, petitioner offered evidence to the following effect. He was born into a middle class family in 1961. He had a brother and two sisters and was at least of average intelligence. His parents had a violent, alcoholic marriage. His mother, especially, neglected and abused him. She twice attempted to drown him in the bathtub when he was a baby. As a toddler, he experienced night terrors and convulsions. At a young age, he commenced psychotherapy and drug therapy. In school, he experienced learning disabilities and behavioral problems. With time, he started to abuse alcohol and drugs. He went on to spend time in correctional facilities. At various points in life, petitioner was diagnosed with various mental conditions, including hyperactivity. At the time of trial, when he was 26, petitioner was diagnosed with borderline personality disorder.

Petitioner also offered the background of members of his family. His parents each came from violent, alcoholic backgrounds. His mother was sexually molested by her father. His father, at age eleven, was given gifts in exchange for sexual favors by a neighborhood man. Petitioner’s mother once put his sister’s head in the oven when she was a baby and turned the gas on. His father later sexually molested that same sister. Under the influence of alcohol, his father abused his mother.

Following deliberations after the penalty phase, the jury returned a verdict of death for the murder of Geri.

PROCEDURAL BACKGROUND

The California Supreme Court affirmed petitioner’s conviction on December 17, 1992, Rowland, 4 Cal.4th at 238, 14 Cal.Rptr.2d 377, 841 P.2d 897, and summarily denied his petition for a writ of habeas corpus on June 1, 1994. On June 28, 1996, petitioner filed a federal habeas petition. This petition was later amended to delete unexhausted claims. An amended petition containing newly exhausted claims was filed on August 6, 1997. Respondent filed an answer on October 16, 1997. On January 16, 1998, petitioner filed a traverse.

On August 15, 2002, an order herein determined that claims 6, 8 and 10, as well as portions of claims 13 and 14, were procedurally defaulted. Subsequent orders ruled that petitioner had failed to demonstrate cause and prejudice to overcome the defaults. On November 30, 2005, petitioner filed a motion to once again amend his petition. The motion was granted. The third amended petition was filed on October 29, 2007. A corrected copy was filed on November 19, 2007. An amended answer was filed on March 24, 2008. An amended traverse was filed on September 16, 2009.

Respondent now brings a motion for summary judgment on all claims in the petition. Petitioner opposes respondent’s motion and requests an evidentiary hearing on all claims.

LEGAL STANDARDS

1. The Antiterrorism and Effective Death Penalty Act

AEDPA applies to this case because petitioner filed his original habeas petition on June 28, 1996, several months after the enactment of the AEDPA. See Woodford v. Garceau, 538 U.S. 202, 206, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003). Pursuant to AEDPA, a district court may not grant a writ of habeas corpus with respect to any claim that was adjudicated on the merits in state court unless the state court’s adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. 2254(d). A federal court must presume the correctness of the state court’s factual findings, and the presumption of correctness may only be rebutted by clear and convincing evidence. 28 U.S.C. 2254(e)(1).

The “contrary to” and “unreasonable application” clauses of Section 2254(d) have separate and distinct meanings. A state court’s decision is “contrary to” clearly established United States Supreme Court law if it fails to apply the correct controlling authority or if it applies the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result. See Williams v. Taylor, 529 U.S. 362, 404, 413-14, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A decision is an “unreasonable application” of United States Supreme Court 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. at 414, 120 S.Ct. 1495. In Harrington v. Richter, the Supreme Court further clarified that “ ‘an unreasonable application of federal law is different from an incorrect application of federal law.’ ” — U.S. -, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011) (citing Williams, 529 U.S. at 410, 120 S.Ct. 1495) (emphasis in original). “A state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Id. at 786 (citing Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)).

“[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must be objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). “While the ‘objectively unreasonable’ standard is not self-explanatory, at a minimum it denotes a great[ ] degree of deference to the state courts.” Clark v. Murphy, 331 F.3d 1062, 1068 (9th Cir.2003).

Holdings of the Supreme Court at the time of the state court decision are the only definitive source of clearly established federal law under AEDPA. See Williams, 529 U.S. at 412, 120 S.Ct. 1495. While circuit law may be “persuasive authority” for purposes of determining whether a state court decision is an unreasonable application of Supreme Court law, only the Supreme Court’s holdings are binding on the state courts and only those holdings need be reasonably applied. See Clark, 331 F.3d at 1070.

When a federal court is presented with a state court decision that is unaccompanied by a rationale for its conclusions, there is no basis other than the record “for knowing whether the state court correctly identified the governing legal principle or was extending the principle into a new context.” Delgado v. Leivis, 223 F.3d 976, 982 (9th Cir.2000). In such situations, federal courts must conduct an independent review of the record to determine whether the state court decision is objectively unreasonable. Ibid. Specifically, “where a state court’s decision is unaccompanied by an explanation, the habeas petitioner’s burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Richter, 131 S.Ct. at 784.

While federal courts “ ‘are not required to defer to a state court’s decision when that court gives [them] nothing to defer to, [they] must still focus primarily on Supreme Court cases in deciding whether the state court’s resolution of the case constituted an unreasonable application of clearly established federal law.’ ” Greene v. Lambert, 288 F.3d 1081, 1089 (9th Cir.2002) (quoting Fisher v. Roe, 263 F.3d 906, 914 (9th Cir.2001)). Furthermore, independent review of the record is not de novo review of the constitutional issue, but rather the only way a federal court can determine whether a silent state court decision is objectively unreasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.2003).

Even if a petitioner meets the requirements of Section 2254(d), habeas relief is warranted only if the constitutional error at issue had a substantial and injurious effect or influence in determining the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Under this standard, petitioners “may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual prejudice.’ ” Brecht, 507 U.S. at 637, 113 S.Ct. 1710 (citing United States v. Lane, 474 U.S. 438, 439, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986)).

2. Evidentiary Hearing Under Aedpa

In his opposition to respondent’s motion for summary judgment, petitioner requests an evidentiary hearing on every claim.

Section 2254(d), as amended by AEDPA provides:

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 proceeding.

28 U.S.C. 2254(d). The Supreme Court held in Cullen v. Pinholster that “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” — U.S. -, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011).

While the central holding of Pin-holster pertains to Section 2254(d)(1), the Supreme Court unambiguously observed that “§ 2254(d)(2) includes the language ‘in light of the evidence presented in the State court proceeding,’ ” providing “additional clarity” that review under Section 2254(d)(2) is limited to the state court record. Pinholster, 131 S.Ct. at 1400 n. 7. A reviewing court is, therefore, no more able to consider new evidence developed at a federal evidentiary hearing when determining whether a petitioner has satisfied Section 2254(d)(2) than it is when considering Section 2254(d)(1). Thus, while a federal court may continue to consider new evidence when applying de novo review, such review is available only after a petitioner has satisfied Section 2254(d). See Panetti v. Quarterman, 551 U.S. 930, 953-54, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) (holding that when “the requirement set forth in § 2254(d)(1) is satisfied[, a] federal court must then resolve the claim without the deference AEDPA otherwise requires”); Maxwell v. Roe, 628 F.3d 486, 494-495 (9th Cir.2010) (“[W]hen a state court adjudication is based on an antecedent unreasonable determination of fact, we proceed to consider the petitioner’s related claim de novo”); Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir.2008) (holding that where “there is [§ 2254(d)(1) ] error, we must decide the habeas petition by considering de novo the constitutional issues raised”). Moreover, even where a petitioner has had no hearing on his claim in state court, the federal court must consider whether his claim could satisfy Section 2254(d) before holding a hearing. See Schriro v. Landrigan, 550 U.S. 465, 474, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). Thus, this order finds that petitioner Rowland must satisfy the requirements of Section 2254(d) on the basis of the state court record before he may show that he is entitled to an evidentiary hearing.

3. Summary Judgment

Summary judgment is appropriate where the moving party demonstrates “that there is no genuine issue as to any material fact and that the party is entitled to judgment as a matter of law.” Fed. R. Civ. Pro. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The motion should not be granted, however, if a reasonable trier of fact, viewing the evidence in the light most favorable to the non-moving party, could resolve a material issue in the nonmoving party’s favor. See ibid, at 248-49, 106 S.Ct. 2505; Barlow v. Ground, 943 F.2d 1132, 1134-36 (9th Cir.1991).

4. Ineffective Assistance of Counsel

The Sixth Amendment guarantees the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on a claim of ineffective assistance of counsel, petitioner must show both that counsel’s performance was deficient and that the deficient performance prejudiced petitioner’s defense. Ibid, at 688, 104 S.Ct. 2052. To prove deficient performance, petitioner must demonstrate that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. Ibid,.; see also Bobby v. Van Hook, 558 U.S. 4, 130 S.Ct. 13, 18, 175 L.Ed.2d 255 (2009) (per curiam) (noting that guidelines, such as those promulgated by the American Bar Association, purporting to establish what reasonable attorneys would do may be helpful but are not the test for determining whether counsel’s choices are objectively reasonable). This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. See Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052.

The relevant inquiry is not what defense counsel could have done, but rather whether the choices made by defense counsel were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir.1998). Judicial scrutiny of counsel’s performance must be highly deferential, and a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Wildman v. Johnson, 261 F.3d 832, 838 (9th Cir.2001); Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir.1994). The reasonableness of counsel’s decisions must be measured against the prevailing legal norms at the time counsel represented the defendant. Wiggins v. Smith, 539 U.S. 510, 522-23, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); see also Jennings v. Woodford, 290 F.3d 1006, 1016 (9th Cir.2002) (finding deficient performance where counsel who had settled on alibi defense failed to investigate possible mental defense despite state supreme court decision before trial that in such instances counsel is not excused from investigating the potential mental defense). A difference of opinion as to trial tactics does not constitute denial of effective assistance, see United States v. Mayo, 646 F.2d 369, 375 (9th Cir.1981), and tactical decisions are not ineffective assistance simply because in retrospect better tactics are known to have been available. See Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir.).

Under AEDPA, “[t]he pivotal question is whether the state court’s application of the Strickland standard was unreasonable. This is different from asking whether defense counsel’s performance fell below Strickland’s standard.” Richter, 131 S.Ct. at 785. The state decision under review need not explain the state court’s reasoning, and the habeas petitioner still bears the burden to show there was no reasonable basis for the state court to deny relief. Id. at 784.

To prove counsel’s performance was prejudicial, petitioner must demonstrate 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. A petitioner must show that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. at 688, 104 S.Ct. 2052. The test for prejudice is not outcome-determinative, i.e., defendant need not show that the deficient conduct more likely than not altered the outcome of the case; however, a simple showing that the defense was impaired is also not sufficient. Id. at 693, 104 S.Ct. 2052.

The Strickland prejudice analysis is complete in itself. Therefore, there is no need for additional harmless error review pursuant to Brecht, 507 U.S. at 637, 113 S.Ct. 1710. Musladin v. Lamarque, 555 F.3d 830, 834 (9th Cir.2009); Avila v. Galaza, 297 F.3d 911, 918 n. 7 (9th Cir.2002).

ANALYSIS

1. Claim 1

In Claim 1, petitioner maintains that his trial attorneys were ineffective for failing to investigate and present potentially meritorious mental defenses at the guilt phase. This claim was raised in petitioner’s first state habeas petition and denied on the merits in a summary opinion by the California Supreme Court.

Petitioner is unable to cite to any clearly established federal law that would entitle him to relief, and a review of the record does not demonstrate that the state court was objectively unreasonable in denying this claim. As discussed supra, in order to establish ineffective assistance of counsel, petitioner must show both that counsel’s performance was deficient and that the deficient performance prejudiced petitioner’s defense. Strickland, 466 U.S. at 688, 104 S.Ct. 2052. To prove deficient performance, petitioner must demonstrate that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. Ibid. To prove counsel’s performance was prejudicial, petitioner must demonstrate 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.” Ibid, at 694, 104 S.Ct. 2052.

The United States Supreme Court and the Ninth Circuit have affirmed that adequate counsel in a capital case has an “obligation to conduct a thorough investigation of the defendant’s background.” Wiggins, 539 U.S. at 522, 123 S.Ct. 2527. At a minimum, counsel must conduct a reasonable investigation enabling him or her to make informed decisions as to how best represent his or her client. Sanders, 21 F.3d at 1457.

Although counsel is obligated to investigate a capital defendant’s background, it is:

clearly within the ‘wide range of professionally competent assistance’ for [defense counsel] to choose not to present a psychiatric defense theory that might conflict with [other defenses and/or mitigation]. It is also acceptable trial strategy to choose not to call psychiatrists to testify when they can be subjected to cross-examination based on equally persuasive psychiatric opinions that reach a different conclusion.

Harris v. Vasquez, 949 F.2d 1497, 1525 (9th Cir.1990).

Here, petitioner has not established that his defense counsel failed to conduct an adequate investigation into his mental health. The record establishes that on May 28, 1986, well before petitioner’s trial began in March 1988, defense counsel retained psychiatrist Dr. George Wilkinson to conduct an examination of petitioner (Exh. 21 of App. No. 16). As petitioner acknowledges, Dr. Wilkinson concluded prior to trial that there was no viable mental defense. Petitioner’s Amended Reply to Respondent’s Answer to Third Amended Petition at 17.

In August 1986, defense counsel also retained psychologist Dr. Albert Fricke, who conducted psychological testing of petitioner (Exhs. 23 and 49 of App. No. 16). In addition, defense counsel sent an investigator to interview Dr. Arthur Mattocks, a mental health professional who had treated petitioner at the California Medical Facility (Exh. 24 of App. No. 16). Finally, defense counsel retained Dr. Hugh Ridlehuber to evaluate petitioner for ADHD in February 1988 (approximately one month before the start of the guilt-phase trial) at the suggestion of Drs. Wilkinson and Fricke, because Dr. Ridlehuber was considered a local expert on the subject (Exhs. 50 & 51 of App. No. 16). Dr. Ridlehuber was retained after the guilt phase as well to conduct an in-depth examination of petitioner and to testify regarding his mental health at the penalty phase. None of the doctors testified at the guilt phase.

The gravamen of petitioner’s claim is that his counsel ought to have retained Dr. Ridlehuber earlier and instructed him to conduct a full examination of petitioner prior to the guilt phase. While Dr. Ridlehuber testified at the penalty phase that petitioner suffered a borderline personality disorder, he also testified that he found no evidence of organic brain dysfunction or schizophrenia (RT 6757, 6769, 6796-97). He has since stated, however, in a declaration that was before the California Supreme Court at the time it considered and rejected this claim, that had he been able to thoroughly examine petitioner prior to the guilt phase, he would have “advised defense counsel to seriously consider legal insanity as a defense during the guilt phase of trial” (Exh. No. 50 of App. No. 16 at 5).

The investigation conducted by counsel was reasonable under the circumstances. See Siripongs v. Calderon, 133 F.3d 732, 736 (9th Cir.1998) (stating the “[t]he relevant inquiry under Strickland is not what defense counsel could have pursued, but rather whether the choices made by defense counsel were reasonable.”) The record confirms that petitioner’s counsel explored the possibility of a mental defense by retaining and consulting with multiple mental health professionals. Dr. Ridlehuber acknowledged that neither Dr. Fricke nor Dr. Wilkinson believed that there was a psychiatric defense available to petitioner (Exh. 51 of App. No. 16 at 3), and it was reasonable for defense counsel to rely on their expertise. Additionally, Dr. Fricke has averred — in a declaration that was before the California Supreme Court at the time it considered and rejected this claim — that he met with petitioner three times and conducted various tests. Dr. Fricke has further declared that based on the testing and analysis that he performed on petitioner, as well as that done by Dr. Wilkinson, Dr. Fricke did not find, inter alia “cognitive deficits suggestive of other neurological problems” (Exh. 49 of App. No. 16 at 3-4). The fact that Dr. Ridlehuber now declares that he would have suggested the consideration of a defense of legal insanity had he been retained earlier does not mean that the investigative choices that counsel did make were unreasonable, and petitioner can cite to no decisions so establishing.

“In assessing the reasonableness of an attorney’s investigation, ... a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.” Wiggins, 539 U.S. at 537, 123 S.Ct. 2527. Having reviewed the record of this case, this order finds that it was reasonable for petitioner’s counsel not to retain additional mental health professionals, and there was no cause for counsel to have retained Dr. Ridlehuber prior to the time that they did. That counsel arranged for multiple mental health professionals to evaluate petitioner confirms that they considered a mental defense well before trial commenced. A statement by Dr. Ridlehuber that he may have disagreed with the other experts had he been retained earlier does not establish ineffective assistance of counsel. As the Supreme Court has recognized, “psychiatrists disagree widely and frequently on what constitutes mental illness,” Ake v. Oklahoma, 470 U.S. 68, 81, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and Strickland -and its progeny command only that defense counsel conduct a thorough and reasonable investigation, not that they continue to consult with experts indefinitely until one is found to support a particular defense.

Accordingly, this order finds and concludes that petitioner has not demonstrated that his counsel were deficient in their investigation of his mental health nor in their conduct regarding potential presentation of mental health evidence at his guilt phase trial. While it is not required to do so, this court also finds that petitioner cannot show prejudice as a result of counsel’s actions. The United States Supreme Court has never required defense counsel to pursue every nonfrivolous claim or defense, regardless of its merit, viability, or realistic chance of success. Knowles v. Mirzayance, 556 U.S. 111, 125, 127, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009). And attempting to establish an insanity defense at the guilt phase trial may well have opened the door to the prosecution introducing evidence of petitioner’s history of violent sex offenses, thereby negating any possible advantage of an insanity defense. See, e.g. Brodit v. Cambra, 350 F.3d 985, 994 (9th Cir.2003) (finding that state court reasonably concluded that trial attorney provided effective assistance of counsel where attorney declined to present evidence favorable to defense out of concern that it would open door to unfavorable evidence).

Because petitioner cannot establish either that his counsel’s performance was deficient or that any alleged deficiencies were prejudicial, and given that a reviewing court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, petitioner has not satisfied the requirements of Section 2254(d) and both his claim and his request for an evidentiary hearing must be denied. Strickland, 466 U.S. at 688, 104 S.Ct. 2052; Sanders, 21 F.3d at 1456. Respondent’s motion for summary judgment on this claim is granted.

2. Claim 2

In Claim 2, petitioner maintains that his trial attorneys were ineffective for failing to investigate and present mitigating psychiatric evidence at the penalty phase trial. Specifically, petitioner argues that trial counsel contacted Dr. Ridlehuber (who testified at the penalty phase) too late and failed to provide him with important evidence. As a result, according to petitioner, strong mitigating evidence was not presented to the penalty phase jury. This claim was raised in petitioner’s first state habeas petition and denied on the merits in a summary opinion by the California Supreme Court.

Trial counsel has a duty to investigate in capital penalty phase proceedings. Summerlin v. Schriro, 427 F.3d 623, 629-30 (9th Cir.2005). Our Court of Appeals has also held that, in order to prepare for the penalty phase of a capital trial, capital counsel “must conduct sufficient investigation and engage in sufficient preparation to be able to present and explain the significance of all the mitigating evidence.” Mayfield v. Woodford, 270 F.3d 915, 927 (9th Cir.2002) (en banc) (citations omitted).

This order has already addressed petitioner’s contention that Dr. Ridlehuber was hired too late in its discussion of Count 1, supra. Petitioner’s attorneys retained a psychiatrist and a psychologist, and then Dr. Ridlehuber himself examined petitioner and testified extensively at the penalty phase. In fact, Dr. Ridlehuber himself testified that he interviewed and examined petitioner for 12 hour’s and researched the case for an additional 14 hours (RT 6755). The record does not reflect, however, that Dr. Ridlehuber indicated to counsel at the time he was retained or at the time of the penalty phase trial that he believed that he had not had adequate time to examine petitioner or that he had been retained too late to perform a thorough evaluation.

Trial counsel in capital cases are required to conduct a thorough investigation of a defendant’s background, but they are not required to hire any particular mental health professional, nor, as stated, are they required to consult multiple doctors until one is found who will advocate a psychiatric defense. Given counsel’s retention of multiple mental health experts and the corresponding investigation into petitioner’s mental health, petitioner cannot demonstrate that it was ineffective assistance for his counsel not to have specifically retained Dr. Ridlehuber at an earlier time. Strickland, 466 U.S. at 688, 104 S.Ct. 2052; Siripongs, 133 F.3d at 736.

Petitioner also argues that his trial counsel did not properly prepare Dr. Ridlehuber or provide him with necessary information about petitioner. Inadequate preparation of a defense mental health expert witness can amount to deficient performance. See, e.g., Bean v. Calderon, 163 F.3d 1073, 1078-81 (9th Cir.1998). Moreover, counsel in a capital case have a duty to provide background information to their penalty phase mental health expert, even if the expert does not request such evidence. Wallace v. Stewart, 184 F.3d 1112, 1118 (9th Cir.1999).

Here, however, defense counsel did investigate petitioner’s background and provided Dr. Ridlehuber with multiple sources of information about petitioner. Dr. Ridlehuber testified that he reviewed petitioner’s family history, information from a doctor who treated petitioner as a child, and reports from a defense investigator who had interviewed a number of petitioner’s family members (RT 6755-6818). He interviewed both Drs. Fricke and Wilkinson — the psychologist and psychiatrist who had evaluated petitioner prior to the guilt phase — and reviewed petitioner’s treatment in the California Medical Facility (RT 6783-6803). Dr. Ridlehuber’s testimony also confirms that he knew about the history of violence, alcoholism and sexual abuse in petitioner’s family and about incidents where petitioner’s mother believed she attempted to drown petitioner (RT 6760-6812). Dr. Ridlehuber stated that petitioner presented a reliable, complete and detailed picture of himself (RT 6818); Dr. Ridlehuber also noted that he was “compulsive” when evaluating a patient and preferred to have as many sources of information as possible, but never indicated that he felt he did not have adequate information to evaluate petitioner (RT 6755-6798).

Petitioner’s assertion that earlier retention of Dr. Ridlehuber might have led to a different diagnosis of petitioner is belied by Dr. Ridlehuber’s own testimony at trial and the factual record. For example, he declares that “[t]here is now information concerning the Rowland family’s history of violence, alcoholism, and sexual abuse,” (Exh. No. 50 of App. No. 16 at 7), but, as discussed above, the record confirms that Dr. Ridlehuber knew of these conditions and stated that they may have contributed to petitioner’s mental health (RT 6760-61). Dr. Ridlehuber also declares that, had he had additional information, he would have performed additional tests to determine whether petitioner had suffered organic brain damage (Exh. No. 50 of App. No. 16 at 4-5. Exh. No. 51 at 6-11). Dr. Ridlehuber testified, however, that he tested petitioner for organic brain damage and found none (RT 6769-96); that he now would like to perform additional tests does not mean counsel’s performance was deficient.

Petitioner fails to demonstrate that his counsel were ineffective in preparing for the penalty phase of his trial. As the record reflects and the discussion above confirms, petitioner’s counsel retained Dr. Ridlehuber in addition to other mental health experts, and Dr. Ridlehuber testified extensively on petitioner’s behalf at the penalty phase. Dr. Ridlehuber’s own testimony confirms that his examination of petitioner was thorough and that he was provided with extensive records and information about petitioner’s family background, criminal background, and health history. Dr. Ridlehuber also indicated that his examination of petitioner was extensive and did not state, at the time, that he had been retained too late to conduct an adequate examination and render his professional opinion. Accordingly, this order finds and concludes that petitioner’s trial attorneys fulfilled their duty to seek out background information and provide it to the penalty phase mental health expert. See Wallace, 184 F.3d at 1118.

This order has concluded that counsel’s investigation of petitioner’s background and counsel’s investigation of petitioner’s mental health status were reasonable under the circumstances and did not constitute deficient performance. As such, this order is not required to conduct a prejudice analysis of those claims. See, e.g., Siripongs, 133 F.3d at 737. Nonetheless, the court finds that, even had counsel’s performance been deficient, none of the alleged errors were prejudicial to petitioner’s penalty phase defense. Any additional evidence of petitioner’s family background appears to be duplicative of that already in Dr. Ridlehuber’s possession at the time of trial, since he testified as to violence, alcoholism and sexual abuse in petitioner’s family.

Moreover, the government’s case in aggravation was extremely strong. The jury was presented with evidence showing, for example, that petitioner had been convicted of multiple sexual assault felonies, including sodomy, against a 13-year old girl. Petitioner cannot show that additional testimony from Dr. Ridlehuber regarding his mental diagnoses or his family background would been enough to overcome the strong ease in aggravation or, given the circumstances of the crime for which petitioner was convicted, would have persuaded the jury to be lenient. Petitioner has not demonstrated anything that sufficiently undermines the court’s confidence in the fairness of the death verdict. See, e.g., Wong v. Belmontes, 558 U.S. 15, 130 S.Ct. 383, 390, 175 L.Ed.2d 328 (2009) (finding no prejudice where the aggravation evidence was “simply overwhelming”); Rhoades v. Henry, 596 F.3d 1170, 1195 (9th Cir.2010) (holding “that [petitioner’s] newly proffered facts ... add too little, and the aggravating circumstances are too strong, to make it reasonably probable that the sentencing decision would have been different but for counsel’s performance”). In sum, the order finds and concludes that there was no reasonable probability that, absent counsel’s alleged errors, the jury might have imposed a sentence of life without parole instead of death. Accordingly, this claim is denied, petitioner’s request for an evidentiary hearing is denied and summary judgment is granted to respondent.

3. Claim 3

In Claim 3, petitioner maintains that the jury speculated that, if given a sentence of life without parole (“LWOP”), petitioner might still be released from prison. According to petitioner, the jury considered this as a factor supporting a sentence of death and committed misconduct as a result. This claim was raised in petitioner’s first state habeas petition and denied by the California Supreme Court on the merits in a summary opinion.

“[W]here a state court’s decision is unaccompanied by an explanation, the habeas petitioner’s burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Richter, 131 S.Ct. at 784. Petitioner is unable to meet this burden.

Petitioner is unable to cite to any clearly established federal law that would entitle him to relief, and a review of the record does not demonstrate that the state court was objectively unreasonable in denying this claim. Instead, petitioner cites to decisions such as Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) and Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892) for the general principle that capital juries are precluded from considering outside evidence.

These decisions do not support petitioner’s claim that it was reversible misconduct for the jury to allegedly speculate that a sentence of LWOP might mean that petitioner could still be released from prison at some point. While there is no decision directly on point, the Supreme Court has considered the constitutionality of California’s Briggs instruction, which informed capital jurors that the state governor could commute or modify a sentence of LWOP, but did not inform capital jurors that a sentence of death could also be commuted or modified. California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983). The Court upheld the instruction, finding that a jury’s consideration of the commutation power did not undermine the jury’s sentencing responsibility nor “impermissibly inject an element too speculative for the jury’s deliberation;” furthermore, failure to inform the jury of the gubernatorial power to also commute death sentences did not render the instruction unconstitutional. Ibid, at 1012-13, 103 S.Ct. 3446.

Petitioner is correct that a Briggs instruction was not given in his case. Nonetheless, Ramos is relevant. If the Supreme Court has held that a capital jury may be specifically instructed that it is allowed to consider gubernatorial commutation powers of a LWOP sentence, then petitioner cannot — absent clearly established federal law to the contrary — demonstrate that the jury’s speculation regarding such a possibility is prejudicial error. Petitioner cannot meet the requirements of Section 2254(d), and respondent is entitled to summary judgment on this claim.

4. Claim 4

In Claim 4, petitioner alleges that one of his attorneys at trial, Charles Pierpont, had a conflict of interest that was not revealed to petitioner or waived by him. According to petitioner, this conflict violated his rights to conflict-free counsel under the Fifth, Sixth, Eighth and Fourteenth Amendments. This claim was raised in petitioner’s first state habeas petition and was denied on the merits by the California Supreme Court.

Petitioner alleges that attorney Pierpont knew Detective Mifflin Singleton, a chief investigating officer and testifying witness in the case against petitioner, from his time as a Deputy District Attorney in the San Mateo District Attorney’s Office. According to petitioner, Detective Singleton and attorney Pierpont remained friends during the time of petitioner’s trial, and attorney Pierpont or his legal partner had represented Detective Singleton in several civil suits, including a divorce action. This relationship was allegedly not revealed to petitioner. Petitioner concedes that Pierpont’s representation of Singleton terminated in October 1986, before the commencement of trial in this case; Pierpont did, however, cross-examine Singleton in the preliminary hearing on September 15, 1986. Petitioner maintains that, because Singleton was a social friend and legal client of Pierpont, he had an actual conflict of interest that prejudiced petitioner’s defense.

The Sixth Amendment’s right to conflict-free counsel is violated only if the conflict “adversely affected” trial counsel’s performance. Alberni v. McDaniel, 458 F.3d 860, 870 (9th Cir.2006). “[A]n actual conflict of interest mean[s] precisely a conflict that affected counsel’s performance— as opposed to a mere theoretical division of loyalties.” Mickens v. Taylor, 535 U.S. 162, 171, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (emphasis omitted).

A conflict of interest can arise when counsel represents multiple defendants whose interests are hostile to one another. In order to establish a violation of the Sixth Amendment, a petitioner “who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” See Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (footnote omitted); accord Mickens, 535 U.S. at 171, 122 S.Ct. 1237; Paradis v. Arave, 130 F.3d 385, 391 (9th Cir.1997); United States v. Del Muro, 87 F.3d 1078, 1080 (9th Cir.1996); Sanders, 21 F.3d at 1452. An “actual conflict” is not separate from an “adverse effect;” rather, it is defined as one which adversely affects the lawyer’s performance. Earp v. Ornoski, 431 F.3d 1158, 1183 (9th Cir.2005) (quoting Mickens, 535 U.S. at 172 n. 5, 122 S.Ct. 1237).

An “actual conflict of interest” only occurs when counsel “actively represented conflicting interests.” Strickland, 466 U.S. at 692,104 S.Ct. 2052. A theoretical or potential conflict is insufficient to constitute actual conflict; instead counsel must have actively represented conflicting interests. Cuyler, 446 U.S. at 350, 100 S.Ct. 1708 (holding that “the possibility of conflict is insufficient to impugn a criminal conviction”); Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir.2001), amended, 253 F.3d 1150 (9th Cir.2001); Morris v. California, 966 F.2d 448, 455 (9th Cir.1991). A petitioner must prove an actual conflict through a factual showing in the record. Bragg, 242 F.3d at 1087; Mortis, 966 F.2d at 455.

Petitioner urges a finding of an “actual conflict” and thus a presumption of prejudice based on attorney Pierpont’s relationship with Detective Singleton. The Supreme Court, however, has applied the presumption only to multiple-representation cases, such as those cases where attorneys were representing multiple defendants at the same trial or defendants charged with the same murders in separate trials. See, e.g. Cuyler, 446 U.S. at 340-50, 100 S.Ct. 1708. Petitioner can cite to no Supreme Court cases finding an actual conflict of interest where, as here, defense counsel previously represented a state witness in a civil matter completely unrelated to the criminal matter. Furthermore, petitioner also cannot demonstrate that any alleged conflict “significantly affected counsel’s performance.” Mickens, 535 U.S. at 172-73, 122 S.Ct. 1237. As such, petitioner cannot demonstrate that an independent review of the record shows that the California Supreme Court’s decision denying this claim was objectively unreasonable under clearly established federal law, or was based on an unreasonable determination of the facts. Summary judgment on this claim must be granted to respondent.

5. Claim 5

In Claim 5, petitioner alleges that both of his trial attorneys had an unconstitutional conflict of interest because they were both previously employed by the same district attorney’s office that prosecuted petitioner. This claim was raised in petitioner’s first state habeas petition and was denied on the merits by the California Supreme Court.

Petitioner maintains that his attorneys, Charles Pierpont and James Courshon, were former Deputy District Attorneys who had worked at the San Mateo District Attorney’s Office at the same time as Martin Murray, the Deputy District Attorney responsible for prosecuting petitioner. According to petitioner, we should infer: 1) that his attorneys’ previous employment caused his attorneys to view his case from the perspective of a prosecutor and; 2) that his attorneys had a personal relationship with prosecutor Murray that compromised their loyalty to petitioner and adversely impacted their conduct as trial counsel.

This claim is without merit. As discussed supra, in order to prevail on a claim of actual conflict of interest, a petitioner must demonstrate that his counsel “actively represented conflicting interests.” Strickland, 466 U.S. at 692, 104 S.Ct. 2052; Cuyler, 446 U.S. at 350, 100 5. Ct. 1708 (holding that “the possibility of conflict is insufficient to impugn a criminal conviction”). A petitioner also must demonstrate that any alleged conflict “significantly affected counsel’s performance.” Mickens, 535 U.S. at 172-73, 122 S.Ct. 1237. This petitioner cannot do. In addition, he cannot cite to any clearly established federal law holding that a defense attorney’s prior employment as a prosecutor amounts to a conflict of interest, nor can he show that the state court decision denying this claim was based on an unreasonable determination of the facts. Accordingly, this claim must be denied and summary judgment is granted to respondent.

6. Claim 6

In Claim 6, petitioner maintains that he was denied a fair trial, due process of law, the effective assistance of counsel and the right to present a defense when the trial court ruled that if the entirety of petitioner’s confession to Susan Lanet was admitted, evidence of petitioner’s prior convictions would also be allowed into evidence. A prior order has already held that this claim is procedurally defaulted. See Order Granting Motion to Dismiss Claims 6, 8 and 10 As Defaulted, Aug. 15, 2002. Furthermore, another order has previously determined that petitioner cannot show either cause and prejudice or a miscarriage of justice sufficient to overcome the default. See Order Regarding Cause and Prejudice, Sept. 14, 2010. Petitioner has submitted nothing additional that would justify reconsideration of any previous decisions. Accordingly, this claim is denied and summary judgment is granted to respondent.

7. Claim 7

In Claim 7, petitioner maintains that he was denied effective assistance of counsel at the penalty phase of his trial. Specifically, he maintains that his attorneys should have elicited testimony from Susan Lanet regarding certain of petitioner’s statements concerning an argument with the victim. The California Supreme Court denied this claim in a reasoned opinion on direct appeal, as follows:

B. Ineffective Assistance of Counsel

Defendant contends that trial counsel provided him with ineffective assistance under the Sixth Amendment to the United States Constitution by failing to call Susan Lanet as a witness in order to elicit his extrajudicial statement to the effect that he killed [Geri] after a fight unrelated to sex.

To succeed in his claim, defendant must show (1) deficient performance under an objective standard of professional reasonableness and (2) prejudice under a test of reasonable probability. (E.g., People v. Ledesma (1987) 43 Cal.3d 171, 215-18, 233 Cal.Rptr. 404, 729 P.2d 839 [parallel citations omitted].)

Defendant fails in his attempt. Counsel’s performance was not deficient because the omission was not unreasonable. In view of the evidence concerning the circumstances for the present offenses adduced at the guilt phase, counsel could properly have declined to reopen the matter — especially through a self-serving, out-of-court statement of the defendant. Moreover, even if counsel’s performance has been deficient, it could not have subjected defendant to prejudice. There is no reasonable probability that the introduction of a statement of the sort here would have affected the outcome.

Rowland, 4 Cal.4th at 273-74, 14 Cal.Rptr.2d 377, 841 P.2d 897.

Petitioner cannot demonstrate that anything in the state court’s reasoned opinion denying this claim is contrary to, or an unreasonable application of, clearly established United States Supreme Court law. Nor can he show that the opinion was based on an unreasonable determination of the facts. As the state court concluded, counsel’s performance was not deficient because it was not unreasonable for counsel to decide not to elicit this testimony from Lanet. See Strickland, 466 U.S. at 687-688, 104 S.Ct. 2052. Petitioner cannot show that testimony from Lanet that petitioner killed Geri after a fight, but that the fight was unrelated to sex, would have been helpful to his defense. In addition, even if petitioner had been able to show that counsel’s behavior was deficient in this regard, he is unable to demonstrate prejudice. There is no reasonable probability that had this testimony been elicited, the jury would have been more likely to return a verdict of life without parole instead of death. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Accordingly, this claim must be denied and summary judgment is granted to respondent. Petitioner’s request for an evidentiary hearing on this claim is also denied.

8. Claim 8

In Claim 8, petitioner maintains that his due process and confrontation clause rights were violated by evidence of certain of the victim’s statements. A prior order has already held that this claim is procedurally defaulted. See Order Granting Motion to Dismiss Claims 6, 8 and 10 As Defaulted, Aug. 15, 2002. Furthermore, a prior order has previously determined that petitioner cannot show either cause and prejudice or a miscarriage of justice sufficient to overcome the default. See Order Regarding Cause and Prejudice, Sept. 14, 2010. Petitioner has submitted nothing additional that would justify reconsideration of any previous decisions. Accordingly, this claim is denied and summary judgment is granted to respondent.

9. Claim 9

In Claim 9, petitioner maintains that there was insufficient evidence to support both the rape conviction and the special circumstance of murder during the commission of rape. The California Supreme Court denied this claim in a reasoned decision on direct appeal, as follows:

E. Sufficiency of the Evidence for the Rape Conviction

Defendant contends that the evidence is insufficient to support his conviction for rape.

In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 [parallel citations omitted].) To our mind, we must ask the same questions when we conduct such review under the due process clause of article I, section 15 of the California Constitution.

A state court conviction that is not supported by sufficient evidence violates the due process clause of the Fourteenth Amendment and is invalid for that reason. (Jackson v. Virginia, supra, 443 U.S. at pp. 313-324, 99 S.Ct. 2781 [parallel citations omitted].) In our view, a California conviction without adequate support separately and independently offends, and falls under, the due process clause of article 1, section 5.

Defendant’s claim is to the following effect: although the evidence is sufficient to prove that he engaged in sexual intercourse with [Geri], it is insufficient to prove that he did so while she was alive or without her consent.

Of course, in rape the act of sexual intercourse must involve a live victim. (People v. Kelly (1992) 1 Cal.4th 495, 524, 3 Cal.Rptr.2d 677, 822 P.2d 385 [parallel citations omitted]) who does not effectively consent (see Penal Code, § 261).

The evidence is more than sufficient on each point. To support our conclusion, we need cite only this. There was expert testimony that before death, [Geri] suffered a bruise “an inch or two above the [right] kneecap and somewhat towards the inside part of the thigh”; the location of the injury was “unusual”; such a bruise, however, could have been caused “if someone used a knee ... to force the legs apart.” Relying on that testimony, as it would plainly have been entitled to, a rational trier of fact would surely have found beyond a reasonable doubt that at the time defendant engaged in sexual intercourse, [Geri] was alive and did not consent.

Defendant argues to the contrary. His words establish nothing more than that some rational trier of fact might have made a different finding. That is not enough.

Rowland, 4 Cal.4th at 269-70, 14 Cal.Rptr.2d 377, 841 P.2d 897.

The rejection of this claim by the state court was neither contrary to nor an unreasonable application of clearly established United States Supreme Court authority. In addition, the state court’s decision was not based on an unreasonable determination of the facts. In his opposition to respondent’s motion, petitioner does little more than cite to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the controlling decision regarding this issue and the decision relied upon by the California Supreme Court. He does not cite to any controlling authority demonstrating that the state court’s decision was unreasonable, nor does he cite to any evidence in the record indicating that the state court relied on an unreasonable determination of the facts. To the contrary, as the California Supreme Court demonstrated, there was more than sufficient evidence for a rational trier of fact to conclude both that Geri was alive at the time of intercourse and that she did not consent. Rowland, 4 Cal.4th at 270, 14 Cal.Rptr.2d 377, 841 P.2d 897. Accordingly, petitioner cannot meet his burden under Section 2254(d), and respondent is entitled to summary judgment on this claim.

10. Claim 10

In Claim 10, petitioner maintains that he was denied effective assistance of counsel when his counsel failed to object to evidence regarding future conditions of confinement. The court has already held that this claim is procedurally defaulted. See Order Granting Motion to Dismiss Claims 6, 8 and 10 As Defaulted, Aug. 15, 2002. Furthermore, the court has previously determined that petitioner cannot show either cause and prejudice or a miscarriage of justice sufficient to overcome the default. See Order Regarding Cause and Prejudice, Sept. 14, 2010. Petitioner has submitted nothing additional that would justify the reconsideration of any previous decisions. Accordingly, this claim is denied.

11. Claim 11

In Claim 11, petitioner maintains that alleged misconduct of the prosecutor during closin