Roybal v. Davis (148 F. Supp. 3d 958, 2015)

DEATH PENALTY CASE ORDER:

(1) DENYING PETITIONER’S REQUEST FOR AN EVIDENTIARY HEARING AND/OR DISCOVERY ON CLAIMS 4-8, 10-11, 25-27, AND 29-31;

(2) DENYING RESPONDENT’S REQUEST TO DISMISS CERTAIN CLAIMS ON THE BASIS OF STATE PROCEDURAL BARS;

(3) DENYING HABEAS RELIEF ON CLAIMS 1-8, 10-11, AND 13-38 IN THE FIRST AMENDED PETITION; AND

(4) GRANTING HABEAS RELIEF ON CLAIMS 9, 12, AND 39 IN THE FIRST

AMENDED PETITION

Hon. Jeffrey T. Miller, United States District Judge

TABLE OF CONTENTS

I. PROCEDURAL HISTORY.. .978

II. TRIAL PROCEEDINGS.. .980

A. Guilt Phase.. .980

B. Penalty Phase... 983

III. PROCEDURAL MATTERS.. .986

A. Procedural Default.. .986

1. Dixon... 986

a. Independence... 986

b. Adequacy.. .987

2. Contemporaneous Objection.. .988

B. Teague v. Lane... 990

IV. STANDARDS OF REVIEW.. .990

A. Standard of Merits Review under AEDPA...990

B. Standard for Evidentiary Hearing...992

V. DISCUSSION.. .993

A. CLAIMS OF TRIAL COURT ERROR AND JUROR BIAS.. .993

1.Claim 1... 993

a. State Court Decision... 993

b. Standard of Review... 997

c. Discussion.. .999

2. Claim 2.. .1007

3. Claim 14.. .1011

4. Claim 15.. .1014

5. Claim 16.. .1016

6.'Claim 17.. .1019

7. Claim 18.. .1022

8. Claim 19.. .1024

9. Claim 20... 1027

10. Claim 21... 1029

11. Claim 22... 1031

12. Claim 23... 1033

13. Claim 24... 1034

14. Claim 25... 1036

B. PROSECUTORIAL MISCONDUCT CLAIMS... 1041

1. Claim 3... 1041

2. Claim 12.. .1043

3. Claim 13.. .1053

C. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS.. .1054

1. Claim 4 — Ineffective Assistance of Counsel — Failure to Investigate and Present Evidence to Rebut Flight and Consciousness of Guilt,.. 1058

2. Claims 5 and 6... 1060

A. Trial Counsels’ Investigation and Presentation of Organic Brain Damage ...1061

B. Information Submitted in Post-Conviction Proceedings... 1064

C. Claim 5- Guilt Phase... 1067

D. Claim 6... 1072

3. Claim 7... 1075

A. Petitioner’s Penalty Phase Presentation ...1076

B. Information Submitted in Post-Conviction Proceedings... 1078

C. Discussion... 1081

4. Claim 8... 1083

5. Penalty Phase Prejudice,. .1088

6. Claim 9... 1093

7. Claim 10.. .1096

8. Claim 28... 1098

D. CLAIMS CONCERNING POST-CONVICTION PROCEEDINGS.,. .1099

1. Claims 26 and 27... 1099 .

2. Claim 29... 1103

E. STATUTORY CLAIMS... 1105

1. Claim30... 1105

2. Claim 31... 1106

3. Claim 32... 1107

4. Claim 33.. .1109

5. Claim 34.. .1109

6. Claim 35,.. 1111

7. Claim 36... 1112

8. Claim 37.. .1114

A. Statute Does Not Explain Which Factors are Mitigating and Which Are Aggravating... 1114

B. Vague and Standardless Factors ...1114

C. Statute Does Not Require Written Findings... 1115

D. Statute Does Not Require Unanimity Regarding Aggravating Factors ..,1115

E. Statute Does Not Require Unanimity Beyond a Reasonable Doubt As To the Penalty Decision.. .1115

F. Statute Does Not Require Comparative Appellate Review.-.'. 1116 ■

G. Statute Does Not Exclude- Inapplicable Factors in Aggravation,.. 1116

9. Claim38.. .1116

F. ATKINS CLAIM AND CUMULATIVE ERROR... 1117

1. Claim 11.. .1117

2. Claim 39... 1123

VI. CERTIFICATE OF APPEALABILITY. ..1125

VII. CONCLUSION... 1125

On June 17, 2013, Petitioner filed the First Amended Petition [“FAP”] and filed a motion for leave to file the FAP on August 1, 2013. (ECF Nos. 215, 220.) After briefing on issues discussed in more detail bélów, on December 16/2013, the Court granted Petitioner’s motion. (ECF. No. 240.) On February 14,, 2014, Respondent filed an Answer; [“Ans.”] to the FAP, and on April 15, 2014, Petitioner filed a Traverse. (ECF Nos. 241, 243.) On June 6, 2014, Petitioner filed a Request' for an Evidentiary Hearing and Discovery on Claims 4-8,10-11,25-27 and 29-30 in the FAP. (ECF No. 249.) On June 25, 2014, Respondent filed a Response. (ÉCF No. 250.) On September 4, 2Q14, Petitioner filed a Reply. (ECF No. 264.) The Court held oral arguments on April 22, 2015. The parties also submitted , supplemental briefing on the impact, if any, of Davis v. Ayala, 576 U.S. —, 135 S.Ct. 2187, 192 L.Ed.2d 323 (2015), on the Court’s consideration of Petitioner’s claims. (See ECF Nos. 278-81.)

For the following reasons, and based on the arguments presented in the written pleadings and at oral argument, the Court DENIES Respond'ent’s request tó dismiss certain claims on the basis of procedural default, DENIES Petitioner’s request for an'evidentiary hearing and/or discovery on Claims 4-8, 10-11, 25-27, and 29-31, DENIES habeas relief as to Claims 1-8, 10-11, and 13-38 in the FAP, and GRANTS habeas relief as to Claims 9, 12, and 39 in the FAP.

I. PROCEDURAL HISTORY

On July 21, 1992, a San Diego County jury found Petitioner guilty of first-degree murder in violation of California Penal Code section 187(a), first-degree robbery in violation of Cal. Penal Code section 211, and first-degree burglary in violation of Cal. Penal Code section 459, in the death of Yvonne Weden. (Clerk’s Transcript [“CT”] 2506-09.) As .to each offense, the jury found true that Petitioner personally used a knife, that he inflicted great bodily injury on the victim, and that the victim was a person 60 years of age or older. (Id.) The jury also found true two special circumstances, murder in the commission of a robbery and murder in the commission of a burglary. (Id.) On August 24, 1992, the jury sentenced Petitioner to death. (CT 2534-35.) The trial court denied Petitioner’s motion for a new trial and sentenced him to death on October 20, 1992. (CT 2536-37.)

On January 24, 1996, attorney Barry Morris was appointed by the California Supreme Court to represent Petitioner on direct appeal and on state habeas proceedings. The California Supreme Court affirmed Petitioner’s conviction and sentence on November 12, 1998. See People v. Roybal, 19 Cal.4th 481, 79 Cal.Rptr.2d 487, 966 P.2d 521 (1998). On January 13, 1999, the California Supreme Court denied the petition for rehearing. After one extension of time, a petition for writ of certiorari was filed in the United States Supreme Court on May 13, 1999, which was denied on October 4, 1999.

On October 5, 1999, Petitioner filed a motion for appointment of counsel in this Court. On December 14, 1999, the Court appointed Elizabeth Barranco and Russell Babcock as federal habeas counsel. On September 29, 2000, federal counsel Bar-ranco and Babcock timely filed a federal habeas Petition. The federal Petition contained a footnote indicating in part that, “[p]ursuant to the ruling of this Court on June 30, 2000, petitioner alleges herein only those claims previously exhausted in the courts of the State of California. Petitioner intends to file a subsequent petition in this Court should claims which have not yet been adjudicated in the courts of the State of California be denied in that forum.” (ECF No. 25 at 1, fn.1.) Respondent filed an Answer to the federal Petition on October 27, 2000, and on May 2, 2001, Petitioner filed a Traverse. Further proceedings surrounding efforts to file a'state habeas petition, and events surrounding the destruction of records in Petitioner’s case,. are recounted in the Court’s prior Order granting Petitioner’s motion to file an amended petition (see ECF No. 240), and resulted in the removal of initial federal habeas counsel and the appointment of current counsel.

On March. 12, 2004, attorneys John La-nahan and Elizabeth Missakian were conditionally appointed as federal habeas counsel, subject to their concurrent appointment as state habeas counsel. On July 1, 2004, Babcock moved to withdraw as state habeas counsel and on'August 30, 2004, Lanahan and Missakian moved for appointment as state habeas counsel. On September 29, 2004, the California Supreme Court removed Barranco as state habeas counsel and noted that: “Barranco is hereby referred to the State Bar of California for appropriate disciplinary proceedings in light of her abandonment of her condemned client.” (Case No. S029453 at http://www.courtSiCa.gov/supremecourt. htm.) Also on September 29, 2004, the California Supreme Court granted Bab-cock permission to withdraw as counsel, and appointed Lanahan and Missakian as state habeas counsel. On October 29, 2004, the Court converted the conditional appointment of Lanahan and Missakian to an unconditional appointment and relieved Babcock of further representation in Petitioner’s federal habeas case.

On October 1, 2007, Petitioner filed a state habeas petition in the California Supreme Court in Case No. S156846. On April 28, 2008, Respondent filed an Informal Response, and on December 23, 2008, Petitioner filed an Informal Reply. On January 3, 2013, the California Supreme Court denied the state habeas petition.

On January 17, 2013, this Court held a status hearing and later issued a briefing schedule, setting a deadline for filing the amended petition and a motion for leave to amend the petition, on or before June 17, 2013. On June 17, 2013, Petitioner filed the FAP, the operative pleading in this action. After a July 12, 2013 status hearing, the parties agreed upon, and the Court ordered, a revised briefing schedule. Petitioner filed a Motion for leave to amend the petition on August 1, 2013. Respondent filed an Opposition on September 16, 2013, and on November 1, 2013, Petitioner filed a Reply. On December 16, 2013, the Court granted Petitioner’s motion. On February 14, 2014, Respondent filed an Answer to the FAP, and on April 15, 2014, Petitioner filed a Traverse.

On June 6, 2014, Petitioner filed a Memorandum [“Pet. EH Mem.”] in Support of the Request for Evidentiary Hearing and Discovery, requesting an evidentiary hearing and/or discovery on Claims 4-8, 10-11, 25-27, and 29-30. On June 25, 2014, Respondent filed a Response [“Resp. to EH Mem.”] to Petitioner’s Statement Regarding Evidentiary Development. On September 4, 2014, Petitioner filed a Reply [“EH Reply.”].

II. TRIAL PROCEEDINGS

The Court refers the parties to the statement of evidence issued by the California Supreme Court in Roybal, 19 Cal.4th at 495-502, 79 Cal.Rptr.2d 487, 966 P.2d 521. The California Supreme Court’s factual findings are presumptively correct and entitled to deference in these proceedings. See Sumner v. Mata, 449 U.S. 539, 545-47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981).

To provide context to the Court’s discussion of the claims in the FAP, particularly the claims asserting ineffective assistance of counsel, restated below is the California Supreme Court’s summary of evidence and testimony presented during the guilt and penalty phase proceedings.

A. Guilt Phase

The People introduced evidence to the following effect.

In 1989, Yvonne Weden lived with her husband, Paul, in Oceanside. She was 65 years old and suffered from arthritis and loss of hearing and was using crutches because of an injury to her ankle. Paul worked nights at a supermarket; Yvonne usually went to bed around 11:30 p.m. and awoke early. She did not smoke; Paul had quit smoking in January. Even when he smoked, he did not do so in the house; he usually smoked Marlboro brand cigarettes, never Camel brand.

Defendant had lived in Santa Fe, New Mexico, with his mother for most of his life. In April or early May 1989, he lived with his half brother, Frank Orozco, and the latter’s family in Oceanside, about a half-mile from the Weden home. He was not permitted to use the car, but he was able to use his brother’s bicycle. He smoked Camel brand cigarettes. He earned money doing yard work in Oceanside and helped in his brother’s business.

. In May 1989, defendant came to- the Wedens’ home and offered to do yard work, leaving his name and telephone number on a slip of paper. He was hired to perform yard work, mostly pulling weeds, for four days in late May. He stopped working for the Wedens when Paul became dissatisfied with the slowness of the work. The slip of paper with his name and telephone number remained pinned to a bulletin board in the den.

On Thursday, June 8, defendant knocked on the door of the Wedens’ neighbor, asking for gardening work. The neighbor, who described him as. appearing aggressive and nervous, did not hire him. The following day, Friday, June 9, he sought work at the home of another Oceanside resident, leaving his name and telephone number.

On June 9, at 7:45 p.m., Paul left the house. He finished work at 7:30 a.m. on June 10, went out for a “couple of beers” with some coworkers, and then, at 8:00 a.m., drove to pick up a new gardener but was unable to locate him. When he returned home, he was unable to open the garage door, his usual entry into the house. When he entered the house, he found his wife lying on the floor of the bedroom in her pajamas; there was blood on the wall and her body was cold. He called 911 around 8:30 a.m.

The front door was unlocked and there was no sign of a forced entry. The slip of paper with defendant’s name and telephone number was missing. A Camel brand filter cigarette butt was on the floor of the guest bedroom.

A jewelry box containing Paul’s wedding ring, some Masonic rings, and other items, was missing from the master bedroom. The outer box in which it had been kept had a blood smear or stain on it. Some of Yvonne’s jewelry was missing, including gold chains and costume jewelry, as was some cash. A pistol and holster were missing from a dresser.

The police arrived. Yvonne was pronounced dead at the scene. There was a bloody laceration around her neck and blood on her pajamas, the walls, and the carpet. Her wédding ring was missing from her finger.

She died from multiple stab wounds. The coroner estimated the time of death as occurring between midnight and 2:00 a.m. An autopsy showed blunt force injuries to her head and multiple stab wounds to her chest, shoulder, hands, and neck. The stab wounds were deep; there was a jagged gaping wound to the neck, and multiple punctures of the lungs, and a rib was fractured by the force of the knife. There were wounds and blood on the palm of her left hand. It was difficult to obtain fingerprints from the hand, because the fingers were clenched.

. On the night of June 9, defendant telephoned his mother, Stella Orozco, in New Mexico. He left Oceanside for New Mexico -on June 10, around 10:00 p.m, arriving on June 11. When she asked about cuts on his face, he said he had been injured in a robbery earlier the same week or the week before.

Later, she saw him take a plastic produce bag from her kitchen, go into the backyard, and place it in one of the cinder blocks on top of the wall between her yard and that of neighbors. The day after he arrived, he offered to sell some jewelry to his half sister, Theresa Romero, who lived next door. Theresa called the probation department the next day and told a probation officer that defendant was staying at their mother’s house, and that he was selling jewelry.

On June 13, Theresa led police to the back room of Stella’s home, where defendant was watching television. In the course of a patdown search, police discovered a small folding knife in his pocket. They also found hypodermic syringes in his sock and marijuana in his pocket. He had a packet of Camel brand filter cigarettes in his shirt pocket. Before he was. taken into custody, he left a gold rope chain in the room; as he was removing articles from his pocket to leave behind, a foil packet containing tar heroin fell to the ground. Defendant told police he had been in Seattle for months and had returned to New Mexico to visit his ailing mother; he did not mention that he had been living in Oceanside.

After the police left, Theresa’ learned from Stella that defendant had hidden something in the wall “right in between everyoné’s yard;” She telephoned the police to say that Stella wanted to turn over some items, and they returned that evening. Stella told them that she wanted them to remove things that were not hers; she gave them several articles, including a folding knife, and asked them to remove the plastic bag that defendant had .placed in her backyard walk The police saw a portion of a plastic bag protruding from a hole in a cinder block. They removed what .proved to be two plastic produce bags with green writing on them, containing a paper bag from a Santa Fe drug store. The bags contained jewelry, later identified as including rings and other items belonging to Paul and Yvonne Weden. Stella also gave police a folding knife in a black sheath. They asked her for the gold rope chain he had left behind; she said “Absolutely and also gave them some of his soiled laundry from the washing machine.

Detective Sheila Hancock, who was investigating the possibility that defendant was involved in ‘the Weden crimes, contacted Santa Fe police to report the homicide in Oceanside involving theft of jewelry. She flew to New Mexico on June 13, and searched the residence of Stella Orozco. She also saw defendant at the police department; she noticed he was smoking Camel brand cigarettes.

Several items; including the cigarette butt, a dinner knife, a jewelry case, a sock, and knives, were tested at the Serological Research Institute in Richmond, California. Both Yvonne Weden and defendant had the same blood type and were both secretors; their blood tested differently in only three genetic markers tested. Researchers at the institute examined the saliva on the cigarette butt using polymerase chain reaction (PCR) DNA testing. An employee of the institute was of the view that bloodstains from the knife and sock, as well as saliva from the cigarette butt, could have come from defendant, Yvonne Weden, or others with the same DNA characteristics. There were no identifiable fingerprints on the cigarette butt. Blood on the jewelry box had the same blood type as defendant and Yvonne Weden. Microfibers similar to fibers from Yvonne Weden’s pajamas were found on defendant’s socks and sweatshirt.

A partial print in “orangish-red,” possibly blood, was found on a metal doorjamb to the utility room of the Weden residence. Photographs were taken of it, and an attempt was made to lift a fingerprint; the doorjamb was thereafter removed at Detective Hancock’s direction for further testing. Attempts .were made by an expert to obtain a usable print from the doorjamb, but were unsuccessful. Thereafter, the doorjamb, which was kept after the testing in a locked evidence area in Oceanside, Was found to be missing.

For his part, defendant introduced evidence as follows.

On the evening of June 9, both Frank Orozco and his wife were out, and defendant was supposed to watch their children. Whén Frank returned home, he found defendant “completely and totally inebriated, drunk to the point that he was falling down.” This was the first time he had found him drunk at his home. He picked defendant up and led him .to the bedroom. His wife was angry and they discussed asking defendant to leave. He checked on defendant an hour later; defendant had “passed out.”

On June 10, he awoke defendant around 7:00 or 8:00 a.m. by shaking him. Defendant asked, “What’s wrong? What’s wrong?” Frank and his wife argued with' defendant about his drinking. Defendant complained that Frank’s wife was treating him “like a slave” and stated that he wanted to return to Santa Fe. That evening, Frank- drove him to the bus depot for the trip to Santa Fe, and gave him money for the ticket and food.

A forensic pathologist estimated that Yvonne Weden had been murdered as early as 8:00 p.m. on June 9 or as late as 4:00 a.m. on June 10. A police detective recalled that he was asked to take defendant’s fingerprints and compare them with prints collected-- at the crime scene, including the doorjamb; he recalled being told there was no.match. A fingerprint expert was of the view that the print on the doorjamb was of a finger or thumb, rather than a palm; he was unable to exclude the victim as the maker of the print because of the poor quality of the prints that were taken from her.

Another fingerprint expert concluded that the print on the doorjamb could have been left by someone wearing surgical latex gloves; similar glove's appeared in a photograph taken after the crime of a trash can outside the side door leading to the Wedens’ garage. But he could not tell by looking at the photograph of the print on the doorjamb whether the person who left the print was wearing gloves. Emergency personnel from the Oceanside Fire Department testified that it was standard procedure to wear latex gloves, but they were not usually disposed of at a crime scene; A resident of Oceanside who had hired defendant to do yard work in the spring of 1989 did not remember seeing him use gloves.

A newspaper delivery girl and her father drove past the Wedens’ house on June 10, about 6:30 a.m., and noticed two cars in the street near the driveway.

B. Penalty Phase

. The People presented evidence in aggravation to the following effect.

Defendant was convicted of six prior felonies in New Mexico, for larceny; auto burglary, shoplifting, attempted residential burglary, and burglary. He was also involved in four violent incidents in New Mexico;

On September 15,1976, at 10:30 in the evening, Santa Fe Police Officer Robert Guillen attempted to stop defendant’s car, which had jumped the curb. Defendant sped away and was followed, in a high-speed chase, through residential areas of the town. Defendant pulled up to his mother’s house. A passenger in his car fired several gunshots at Officer Guillen; defendant backed his ear into Guillen, causing Guillen to hit the hood of his patrol car. Another police officer chased defendant, who fled into his .mother’s house and hid under a bed. After he was pulled out from under the bed, he broke away and attempted to hide behind his .mother to avoid arrest.

On July 23, 1982, Curtis Bruce encountered George Cervantes .near a store in Santa Fe. An argument ensued about $2 Cervantes owed for marijuana cigarettes. After, an exchange of pushes, Bruce ran toward the store. Cervantes and three others, including defendant, followed and a fight ensued. During the fight, defendant sprayed Bruce’s arm, neck, and face with silver paint. Someone stabbed Bruce; he managed to flee. Defendant was arrested carrying a can of spray paint and two marijuana cigarettes. It was the same kind of paint defendant would ordinarily “sniff’ in order to become “high.”

On June 15,1985, the Santa Fe police, including Officer Joseph Lopez, were telephoned by Stella Orozco about a domestic dispute; she wanted defendant to leave her house after he threatened her with a knife. Officer Lopez found defendant in the bedroom and told him that Stella wanted him to leave. Angry and intoxicated, defendant responded with loud cursing, but eventually was persuaded to leave. As he left the house, he swore at the police and started coming toward the officers. He resisted arrest, trying to hit them. He was carrying a container of marijuana in his pocket.

On May 11, 1986, Carmen Annette Pacheco, who identified herself as defendant’s former girlfriend, went to a Mother’s Day dinner with Stella Orozco and Theresa Romero. After she dropped them off at home, she bought two glass bottles of water, for herself and defendant, and went to find him in a park. He had “round, blank, scary eyes” and was “high.” He grabbed the bottles, then attacked her, hitting, punching, kicking and throwing her to the ground. She deliberately broke the' bottles so he could not use them in his attack. She yelled for help and was assisted by her sister and two friends, who were driving by. Later that evening, defendant told police that “someone had beaten the fuck out of him.” They took defendant to the hospital, where Pacheco was also being treated. She declined to press charges and subsequently saw him a few times. Defendant did not remember hitting Pacheco and did not apologize.

As to the murder of Yvonne Weden, the autopsy physician testified that it involved a struggle and numerous stab wounds inflicted over several minutes. There were abrasions on her face and stab wounds to her lungs, armpit, abdominal cavity, windpipe, and a large artery. Several wounds were inflicted while she was no longer moving.

In mitigation, defendant introduced evidence relating to his background and character.

Stella Orozco left school in the third grade and did not learn to read or write. She spent the ages between 13 and 19 first in a convent and then in a reform school in New Mexico. She then worked in California, returning at age 20 to New Mexico, where she married John Orozco. They lived in a one-room .house built by her husband, without water or utilities. He could not have children because “he was sterilized or something.” They adopted a son, Frank. After John began “gambling and going out on” her, she became pregnant, with defendant, by another man. She offered to give defendant away if John would remain with her, but then decided to keep him. John divorced her before defendant was born and did not return; her mother, who had been living with her, also left.

Stella drank alcohol while she was pregnant with defendant. When he was 18 months old, defendant fell from his crib and broke his front teeth; his aunt took him to the hospital, but his mother refused to come.

Stella was “basically” a “prostitute” when she was not living with a man. The family was poor. She later lived with a truck driver for three years and bore his child, Ralphie. She had another child, Theresa, with Dewie Brazfield, a heavy drinker who beat her every weekend and burned her with a hot knife. He also hit defendant and the other children. Frank, who lived on and off with his grandmother, finally joined the Marines to get away from home.

Defendant was nicknamed “Mojo” or “Mojado’-Spanish slang for “wetback”by Stella. She did not show him affection, as she did the other children; she never praised him or told him that she loved him. He was a difficult child and frequently truant from school. At one point, he was left alone with his brother Ralphie and began drinking alcohol. He also sniffed paint. By the time he was 21, he had been involved in several drug programs. Stella did not accompany him.

Two former employers testified that defendant was a dependable employee.

Defendant also presented testimony concerning his drug and mental problems.

Lucie Madrid, a certified alcohol counselor, met defendant in 1076 through a residential alcohol treatment program and became his counselor. He participated in the program over a 10-year period. He was “deep in the disease of alcoholism” and had “very little” self-esteem. Once, Madrid found him crying in a park; he described himself as a failure who was unable to make a different life for himself. Madrid, herself a recovering alcoholic, explained that, like defendant, she sometimes had blackouts, for as long as eight days.

Nan Busby knew defendant from Seadrunar, a drug .and narcotics treatment center in Seattle, which he attended from June 1987 until February 1989. She described him as shy and withdrawn at first, but eventually more expressive about his feelings. He had several relapses during the program arid left the aftercare program after four days.

James Blackmer, a judge and former prosecutor, prosecuted defendant in 1986 for four pending felony cases. Defendant pleaded guilty to charges including auto burglary, shoplifting, attempted residential burglary, and burglary. After he was evaluated by the New Mexico Department of Corrections, he was sentenced to a term of eight years, six months, which was suspended on the condition that he enter a residential drug program. He enrolled at Seadru-nar, which Blackmer described as “often tougher than going to prison.”

Timmen Cermak, M.D., a psychiatrist, evaluated defendant 'and his family. He found that defendant had significant impairment from brain dysfunction, a schizoid personality structure, and was profoundly chemically dependent since age nine, resulting in disruption of his personality development. Intelligence testing indicated organic-based learning disabilities. Cermak considered .it likely that defendant had organic brain damage, possibly -the .result of fetal alcohol effects, but did not believe he met the criteria for diagnosis as an “anti-social personality.” Defendant also suffered “psyche numbing” as the result of physical and emotional abuse. He experienced memory blackouts since the age of nine, when he starting sniffing glue and using alcohol. Regarding the time of Yvonne Weden’s murder, defendant told Dr. Cermak that he took drugs on “Thursday” and “the next thing he remembered was getting off the bus in Santa Fe.” He said that he had “absolutely no idea how he got the jewelry.”

In rebuttal, the prosecution presented the testimony of Steven Bucky, Ph.D., a clinical psychologist. Bucky reviewed Dr. Cermak’s report and a videotaped interview of Stella Orozco but did not personally interview defendant or his family and did not review the trial testimony of Stella or Frank Orozco. In his opinion, defendant had a long-standing multi-polysubstance abuse problem and a personality disorder “closely aligned to an anti-social personality disorder.” He disputed Dr. Cermak’s conclusions that defendant’s alcoholism was genetic and that defendant suffered from a schizoid personality or posttraumatic stress syndrome. It was his view that defendant suffered from a “mild, subtle brain dysfunction” caused by substance abuse.

Roybal, 19 Cal.4th at 495-502, 79 Cal. Rptr.2d 487, 966 P.2d 521.

III. PROCEDURAL MATTERS

A. Procedural Default

Generally, when a state court’s rejection of a federal claim “rests oñ a state law ground that is independent of the federal question and adequate to support the judgment,” a habeas petitioner has prócédurally defaulted his claim. Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). To be adequate, the state procedural rule “must have been ‘firmly established and regularly followed’ by the time as'of which it is to be applied.” Fields v. Calderon, 125 F.3d 757, 760 (9th Cir.1997), quoting Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). “For a state procedural rule to be ‘independent,’ the state law basis for the decision must not be interwoven with federal law.” La Crosse v. Kernan, 244 F.3d 702, 704 (9th Cir.2001), citing Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) and Harris v. Reed, 489 U.S. 255, 265, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). If found to be both adequate and independent, “federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546.

1. Dixon

On state habeas review, the California Supreme Court denied habeas relief on Claims 13, 23, 24 and 33 of the FAP (raised in state court as Claims 6, 8, 7, and 4, respectively) on the merits, and alternatively stated that “claims 4, 6, 7, 8, and 9 are denied on the ground that they could have been, but were not, raised ‘on appeal, (In re Dixon (1953) 41 Cal.2d 756, 759, 264 P.2d 513.)” (Lodgment No. 144.)

a. Independence

“For a state procedural rule to be ‘indépendent,’ the state law basis for the decision must not be interwoven with federal law.” La Crosse, 244 F.3d at 704, citing Long, 463 U.S. at 1040-41, 103 S.Ct. 3469 and Harris, 489 U.S. 255, 265, 109 S.Ct. 1038. In 1998, the California Supreme Court announced that it would thereafter refrain from considering federal law in determining whether a claim was procedurally defaulted. See In re Robbins, 18 Cal.4th 770, 811-12, 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998); see also Park v. California, 202 F.3d 1146, 1152 (9th Cir.2000) (“The California Supremé Court has adopted in Robbins a stance from which it will now decline to consider federal law when deciding whether claims are procedurally defaulted.”) The independence of a state procedural rule is examined at the time the rule is applied. See Park, 202 F.3d at 1151-53. In this case, the rule was applied by the California Supreme Court when Petitioner’s state habeas petition was denied on January 3, 2013.

- While the Ninth Circuit has- not ruled that a post-Robbins application of the Dixon procedural bar was* independent of federal law, several California district courts have found the procedural bar to be independent. See e.g. Protsman v. Pliler, 318 F.Supp.2d 1004, 1007-08 (S.D.Cal. 2004); Gallardo v. Barnes, 2014 WL 2854162 (C.D.Cal.2014) (collecting cases). As the Dixon rule was applied in this case nearly fifteen years after Robbins and the California Supreme Court’s stated intention to refrain from considering federal law in applying state procedural bars, this Court is in accord with other' district courts in concluding that the procedural rule was independent of federal law at the time of its application to Petitioner’s habeas claims.

b; Adequacy

To be adequate, a state procedural rule “must have been ‘firmly established and regularly followed’ by the time as of which it is to be applied.” Fields, 125 F.3d at 760, quoting Ford, 498 U.S. at 424, 111 S.Ct. 850. In Bennett v. Mueller, 322 F.3d 573 (9th Cir.2003), the Ninth Circuit outlined a burden-shifting test to determine the adequacy of a state procedural bar, stating that:

[T]he ultimate burden of proving the adequacy of the California state bar is upon the State of California.... Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner. The petitioner may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority-demonstrating inconsistent application of the rule. Once having done so, however, the ultimate burden is the state’s.

- Accordingly, because it is the State who seeks dismissal based on the procedural bar, it is the State who must bear the burden of demonstrating that the bar is applicable-in this case that the state procedural rulé has'been regularly and consistently applied in habeas actions. '

Bennett, 322 F.3d at 585-86.

Respondent asserts that Claims 13, 23, 24, and 33 are procedurally defaulted under Dixon and that the procedural rule in question was both independent and adequate. (Ans. at 15-17.) Here, Respondent has satisfied the initial burden of pleading the Dixon procedural bar as an affirmative defense, and the burden shifts to Petitioner. See Bennett, 322 F.3d at 586.

Petitioner ‘.‘may satisfy this burden by asserting specific factual allegations that demonstrate the .inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule.” Id. “Because the Dixon rule precludes collateral, review of a claim that could have been.-.brought-on direct appeal, the procedural default, though announced by the California Supreme,Court when the habeas petition is denied, technically occurs at the moment the direct appeal did not include those claims that should have been included for review.” Fields, 125 F.3d at 761. Petitioner’s default with respect to the’ Dixon rule occurred on June 16,1997, the date he filed an opening brief on direct appeal. (Lodgment No. 123.)

Petitioner argues that “Dixon was not being followed in the vast majority of cases at the time of Petitioner’s alleged default,” and cites Dennis v. Brown, 361 F.Supp.2d 1124, 1130-31 (N.D.Cal.2005), which in turn noted 200 cases demonstrating inconsistent application of state procedural bars, including Dixon. (Traverse at 19-20.) Petitioner also argues: “It is notable that, when federal courts have examined California’s application of Dixon on the basis of evidence from both the petitioner and respondent, they have found the rule inadequate to bar federal habeas review. Only when there has been a technical failure on the part of a petitioner to present any evidence at all have the courts ruled on behalf of respondent and held the bar adequate.” (Traverse at 20-21) (footnotes omitted.) Petitioner cites to numerous cases in which the Dixon rule was found inadequate, as well as numerous other cases in which Dixon was ruled adequate on “technical grounds.” (Id.) Given Petitioner’s argument and citation to authority showing the Dixon rule has been applied inconsistently, the Court finds that Petitioner has satisfied the “burden to place that defense in issue.” Bennett, 322 F.3d at 586.

Therefore, “the ultimate burden is the state’s.” Id.; see also King v. LaMarque, 464 F.3d 963, 967 (9th Cir.2006). Because Respondent has not attempted to demonstrate the adequacy of the Dixon bar, the Court cannot conclude that this state procedural rule is sufficient to bar consideration of Petitioner’s claims on the merits. The Court will consider Claims 13, 23, 24, and 33 on the merits.

2. Contemporaneous Objection

Respondent contends that “Claim Twelve is procedurally barred because the California Supreme Court found that the claim was not preserved for appellate review.” (Ans. at 17, citing Roybal, 19 Cal.4th at 520, 79 Cal.Rptr.2d 487, 966 P.2d 521.) The state supreme court denied this claim on alternative grounds, as follows:

As a threshold matter, because he did not object to the prosecutor’s remarks, defendant failed to preserve the claim of prosecutorial misconduct for review. (People v. Wash (1993) 6 Cal.4th 215, 259-260, [24 Cal.Rptr.2d 421, 861 P.2d 1107].) But the claim also fails on its merits, in the absence of prejudice.

Roybal, 19 Cal.4th at 520, 79 Cal.Rptr.2d 487, 966 P.2d 521.

Petitioner argues that claims denied on the merits are not barred from federal habeas review unless “the state court ‘actually relied’ on the procedural bar as an independent basis for disposing of the claim.” (Traverse at 23.) In this case, it appears that the state court did rely upon a state procedural bar as an independent basis for denying Claim 12, and the procedural bar stands regardless of the state court’s decision to also adjudicate the claim on its merits. See Harris, 489 U.S. at 264 n. 10, 109 S.Ct. 1038 (“[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court’s judgment, even when the state court also relies on federal law.”)

Petitioner does not appear to offer any specific argument on the independence or adequacy of this particular procedural bar, but instead generally argues that “[t]o the extent that this Court might find that a claim for relief in the First Amended Petition is defaulted because the California Supreme Court denied relief based on an adequate and independent state procedural bar, Petitioner is excused from that default because he can demonstrate cause and prejudice.” (Traverse at 23.) Petitioner offers a lengthy argument asserting that the ineffective assistance of counsel he suffered satisfies cause and prejudice for any defaulted claims. (Id. at 23-28, 88-91, 94-96.) With respect to the allegations raised in Claim 12, Petitioner has separately alleged in Claim 9 that trial counsel’s failure to object to the prosecutor’s comments is an independent claim of constitutional error.

“ ‘Cause’ is a legitimate excuse for the default; ‘prejudice’ is actual harm resulting from the alleged constitutional violation.” Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir.1984). The Supreme Court has held that a cause and prejudice analysis applies to the contemporaneous objection rule. See e.g. Wainwright v, Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).

The Supreme Court has explained that while “[attorney ignorance or inadvertence is not ‘cause’ because the attorney is petitioner’s agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must ‘bear the risk of attorney error,’ ” that “[attorney error that constituted ineffective assistance of counsel is cause, however.” Coleman, 501 U.S. at 753-54, 111 S.Ct. 2546. “Where a petitioner defaults a claim as a result of the denial of the right to effective assistance of counsel, the State, which is responsible for the denial as a constitutional matter, must bear the costs of any resulting default and the harm to state interests that federal habeas review entails.” Id. at 754, 111 S.Ct. 2546.

In this case, trial counsel’s failure to object to the prosecutor’s biblical argument prevented the preservation of that prosecutorial misconduct claim for appeal. Again,' “counsel’s ineffectiveness will constitute cause only if it is an independent constitutional violation.” Coleman, 501 U.S. at 755, 111 S.Ct. 2546. With respect to trial counsel’s failure to object, the Ninth Circuit has indicated that “[b]ecause many lawyers refrain from objecting during opening statement and closing argument, absent egregious misstatements, the failure to object during closing argument and opening statement is within the ‘wide range’ of permissible professional legal conduct.” Cunningham v. Wong, 704 F.3d 1143, 1159 (9th Cir.2013), quoting United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir.1993). However, as discussed below with respect to Claim 9, the prosecutor’s exhortation to the jury about biblical law was egregious, and defense counsel’s failure to object to the misconduct fell outside the admittedly “wide range” of constitutionally tolerable conduct. In light of the prosecutor’s clearly and conspicuously improper remarks, the Court concludes that Petitioner’s claim of ineffective assistance satisfies cause in this regard. See Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000) (“Although wé have not identified with precision exactly what constitutes ‘cause’ to excuse a procedural default, we have acknowledged that in certain circumstances counsel’s ineffectiveness in failing properly to preserve the claim for review in state court will suffice.”), citing Murray v. Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

Petitioner has also shown “actual prejudice.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546. Prejudice is “actual harm resulting from the claimed constitutional violation.” LaGrand v. Stewart, 173 F.3d 1144, 1148 (9th Cir.1999), citing Magby, 741 F.2d at 244. The California Supreme Court recognized that the prosecutor’s remarks constituted “clear misconduct.” See Roybal, 19 Cal.4th at 521, 79 Cal.Rptr.2d 487, 966 P.2d 521. Here, given the closeness of the penalty phase case, evidenced by the fact that the jurors deliberated for several days, during which they requested read back of witness testimony, received supplemental instructions and repeatedly expressed that they were deadlocked prior to finally reaching a verdict, in combination with the inflammatory nature of the improper remarks, it is evident to this Court that Claim 12 is meritorious, and that the misconduct at issue resulted in “actual harm.” LaGrand, 173 F.3d at 1148. Petitioner has demonstrated cause and prejudice sufficient to excuse the procedural default. Accordingly, the Court will evaluate Claim 12. on the merits.

B. Teague v. Lane

“Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be. applicable to those cases which have become final before the new rules are announced.” Teague v. Lane, 489 U.S. 288, 316, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality); see also Stringer v. Black, 503 U.S. 222, 227, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992) (“Subject to two exceptions, a case decided after a petitioner’s conviction and sentence became final may not be the predicate for federal habeas corpus relief unless the decision was dictated by precedent existing when the judgment in question became final.”) A new rule is one that “breaks new ground or imposes a new obligation on the States or the Federal Government,” or one whose “result was not dictated by precedent existing at the time defendant’s conviction became final.” Teague, 489 U.S. at 301, 109 S.Ct. 1060. The two exceptions to Teague are if the new rule in question: (1) “places ‘certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe,’ ” or (2) “requires the observance of’ procedures ‘implicit in the concept of ordered liberty.’” Id. at 307, 109 S.Ct. 1060, quoting Mackey v. United States, 401 U.S. 667, 692, 693, 91 S.Ct. 1160, 28 L.Ed.2d 404-(1971). “That a new procedural rule is ‘fundamental’ in some abstract sense is not enough; the rule must-be one ‘without which the likelihood of án accurate conviction-is seriously diminished.’” Schriro v. Summerlin, 542 U.S. 348, 352, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), quoting Teague, 489 U.S. at 313, 109 S.Ct. 1060. “[I]f the State does argue that the defendant seeks the benefit of a new rule of constitutional law, the court must apply Teague v. Lane before considering the merits of the claim.” Caspari v. Bohlen, 510 U.S. 383, 389, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994).

Here, Respondent generally references Teague, but fails to offer any argument specific to the claims in the FAP, stating only that: “To the extent any of Roybal’s claims rely upon a new rule of constitutional law, including so-called ‘actual innocence,’ the non-retroactivity doctrine forecloses federal habeas relief because, at the time his conviction became final, existing precedent did not ‘compel’ the result he now seeks.” (Ans. at 18.) The Ninth Circuit has previously declined to conduct a Teague analysis when it is noted “only in passing.” Arredondo v. Ortiz, 365 F.3d 778, 781 (9th Cir.2004) (“Normally we decline to address an issue that is simply mentioned but not argued, and we see no reason to depart from that practice in a habeas appeal;”) (internal citation omitted). In this case, Respondent does not offer any specific Teague ’ argument with respect to the claims in the FAP and has not properly raised the issue before the Court. See Arredondo, 365 F.3d at 782 (“No true Teague argument having been made by the state in this case, we decline to conduct a Teague analysis on our own.”), citing Caspari, 510 U.S. at 389, 114 S.Ct. 948.

IV. STANDARDS OF REVIEW

A. Standard of Merits Review under AEDPA

The provisions of the Anti-Terrorism and Effective Death Penalty Act [“AED-PA’’] apply to federal habeas petitions filed after its. effective date of April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Woodford v. Garceau, 538 U.S. 202, 207, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003). Because Petitioner filed his federal petition in this Court after that date, AEDPA applied to this case.

Pursuant to AEDPA, a state prisoner is not entitled-to federal habeas relief on a claim that the state court adjudicated on the merits unless that ruling: “(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.” Harrington v. Richter, 562 U.S. 86, 97-98, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), quoting 28 U.S.C. § 2254(d)(1)-(2).

A. decision is “contrary to” clearly established law if “the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” 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 clearly established 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.; Bruce v. Terhune, 376 F.3d 950, 953 (9th Cir.2004). “Section 2254(d)(1)’s ‘clearly established’ phrase ‘refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions at the time of the relevant state-court decision.’ ” Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003), quoting Williams, 529 U.S. at 412, 120 S.Ct. 1495.

“[C]ircuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court,’ 28 U.S.C. 2254(d)(1). It therefore cannot form the basis for habeas relief under AEDPA.” Parker v. Matthews, 567 U.S. —, 132 S.Ct. 2148, 2155, 183 L.Ed.2d 32 (2012). However, “circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably.” Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir.2011), quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir.2010); see also Marshall v. Rodgers, 569 U.S. —, 133 S.Ct. 1446, 1450-51, 185 L.Ed.2d 540 (2013) (per curiam) (While a reviewing court may “look to circuit, precedent to ascertain whether it has already held that the particular point in issue .is clearly established by Supreme Court precedent, ... it may not canvass circuit decisions to determine whether a particular rule of law is so widely accepted among Federal. Circuits that it would, if presented to [the Supreme] Court, be accepted as correct.”) (internal citations and quotations omitted).

Additionally, with respect to section 2254(d)(2), “[t]he question under AEDPA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable — a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007), citing Williams, 529 U.S. at 410, 120 S.Ct. 1495. “State court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.’ ” Rice v. Collins, 546 U.S. 333, 338-39, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006), quoting 28 U.S.C. § 2254(e)(1).

“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.” Richter, 562 U.S. at 101, 131 S.Ct. 770, quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). “If this standard is difficult to meet, that is because it was meant, to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceed-ings.... It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with, [the Supreme] Court’s precedents.” Richter, 562 U.S. at 102, 131 S.Ct. 770.

' Claims 4-11, 13, 23-30, and 32-39 were each denied on the merits by the California Supreme Court in a January 2, 2013, Order which stated in relevant part:

The “Petition for Writ of Habeas Corpus” filed October 1, 2007, is denied. Claim 19 is denied as premature without prejudice to petitioner’s filing a renewed petition after any execution date is set. (People v. Lawley (2002) 27 Cal.4th 102, 169, fn. 25, 115 Cal.Rptr.2d 614, 38 P.3d 461.) All remaining claims are denied on the merits.

(Lodgment No. 144.)

Because these claims were denied on the merits without a statement of reasoning, the Court will conduct an independent review of the record with respect to Claims 4-11, 13, 23-30, and 32-39 in order “to determine whether the state court, clearly erred in its application of Supreme Court Law.” See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.2002); see also Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.2000) (in the absence of a reasoned decision by the state court, “[o]nly by [an independent review of the record] may we determine whether the . state court’s decision was objectively unreasonable.”)

‘Petitioner also argues that a number of claims in the FAP are “not' entitled to deference because there was a complete breakdown in the state habeas corpus procedure as a result of the destruction of the trial files by former habeas counsel,” and asserts that de novo review is instead appropriate. (FAP at 139.) Petitioner contends that “the lack of a complete or even cohesive trial record makes it impossible to determine which facts could have been presented by current habeas counsel or considered by the California Supreme Court in its ‘postcard’ denial on the merits” with respect to Claims 4-10 and 25-26. (Id.) He also asserts that de novo review of Claim 1 is appropriate because the state court proceeding was “procedurally defective.” (Id. at 153-54.) The Court will address these arguments in the merits discussion of those claims.

B. Standard for Evidentiary Hearing

For claims previously decided on the merits by a state court, the Supreme Court has held that a federal habeas court’s “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). “Although state prisoners may sometimes submit new evidence in federal court, AEDPA’s statutory scheme is designed to strongly discourage them from doing so.” Id. at 1401. Section 2254(d)(2), meanwhile, expressly limits a reviewing court to the “evidence presented in the State court proceeding.” 28, U.S.C. § 2254(d)(2).

Section 2254(e)(2) of AEDPA further limits the circumstances under which a district court may hold an evidentiary hearing. If the prisoner “has failed to develop the factual basis of a claim in State court proceedings,” a district court is precluded from holding an evidentiary hearing unless the prisoner meets certain narrow exceptions. 28 U.S.C. § 2254(e)(2). The claim in question must either rely upon “(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable” or “(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence;” and the prisoner must show that “the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” Id. “Section 2254(e)(2) continues to have force where 2254(d)(1) does not bar habeas relief,” for instance, “when deciding claims that were not adjudicated on the merits in state court.” Pinholster, 131 S.Ct. at 1401.

“Because the deferential standards prescribed by 2254 control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evidentiary hearing is appropriate.” Landrigan, 550 U.S. at 474, 127 S.Ct. 1933. “It follows; that if the record refutes the applicant’s factual allegations or otherwise precludes relief, a district court is not required to hold an evidentiary hearing.” Id.; see also Sully v. Ayers, 725 F.3d 1057, 1075 (9th Cir.2013) (“[A]n evidentiary hearing is pointless once the district court has determined that § 2254(d) precludes habeas relief.”)

In light of these limitations, the Court will therefore conduct a section 2254(d) review, provided the. claims'-at issue are subject to section- 2254(d), together with the evaluation of whether Petitioner’s federal habeas claims warrant an evidentiary hearing.

V. DISCUSSION

The claims presented in the FAP include allegations of ineffective assistance of counsel, trial court error, prosecutorial misconduct, juror bias, claims of error in jury instructions during the guilt and penalty phase proceedings, an Atkins claim, claims concerning issues surrounding Petitioner’s post-conviction representation and destruction of the record, and several claims alleging defects in California’s death penalty statute.

A, CLAIMS OF TRIAL COURT ERROR AND JUROR BIAS

1. Claim 1

Petitioner alleges that his sentence and incarceration are in violation of the United States Constitution “because of the trial court’s rulings that a bloody, fingerprint found at the Weden residence — a fingerprint made by someone other, than Mr. Roybal — was not exculpatory evidence and because of the trial court’s refusal to appropriately instruct the jury given the circumstances surrounding the collection including, but not limited to the negligent preservation of this evidence.” (FAP at 140.) - -

á. State Court Decision

The California Supreme Court rejected this claim on direct appeal, detailing the background of the claim and the grounds for the ruling, as follows;

During the search of the Weden residence, police found an “orangish-red” print on a doorjamb. The print was photographed and, after . unsuccessful attempts to lift it, the doorjamb was removed for further analysis.- When defense counsel later sought to view the doorjamb, it was missing from the police department facility where it had been stored after testing.

Defendant moved to dismiss or, in the alternative, for sanctions, on the grounds that the prosecution had lost or destroyed exculpatory evidence in violation of the due process clause of the Fourteenth Amendment, and that comparable evidence could not be obtained by other reasonable means. Both the defense and the prosecution subpoenaed numerous 'witnesses to testify at the hearing on the motion. At the hearing, the superior court determined' that, to “streamline” the procedure, defendant would first be required' to make an offer of proof, which the court would take “at face value” subject to further examination; the prosecution would then be permitted to rebut the offer of proof through the testimony of witnesses, who would also be available for cross-examination by defendant. Defense counsel reluctantly agreed to the procedure: “I’m •only hesitant because of the nature of the'proof, your honor. The quality of my talking to the court versus live testimony is a concern to me. And, as you’ve indicated, you have the power in ‘this courtroom to decide. And I still have my reservations about- proceeding this way; but I will, if that’s the court’s desire.”

Defendant’s offer of proof was to the effect that the print “was believed to have been made by the person who committed the homicide or by a person involved,” and that analysis showed that it was not defendant’s print. Police were subsequently unable ' to produce the doorjamb for inspection by the defense because it was missing.

With the exception of two witnesses-Lee Smith, an expert in fingerprint comparison who purportedly would have testified that the photograph was limited in usefulness compared to the doorjamb itself, and Prosecutor James Koerber, who purportedly would have been asked why it took two years to arraign defendant formally on murder charges-all of defendant’s proposed witnesses were called by the prosecution and cross-examined by defendant. Their testimony regarding the identity of the print was to, the effect that attempts to lift the print from the doorjamb were unsuccessful, but the photographs of the print were of sufficient quality for comparison purposes. Based on analysis of the photographs, the print could not be positively identified as belonging to defendant, but neither could defendant be eliminated as a donor. The superior court denied defendant’s request to permit his expert, Smith, to sit in on the testimony of one of the prosecution’s witnesses on this point, Joe Sypnicki, a print examiner for the Department of Justice.

The testimony of the prosecution’s witnesses as to the disappearance of the doorjamb was to the effect that it was routinely booked in