Full opinion text
ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS JON S. TIGAR, United States District Judge Before the Court is the above-titled petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254 by petitioner Robert Young, challenging the validity of a judgment obtained against him in state court. Respondent has filed an answer to the petition, and petitioner has filed a traverse. For the reasons set forth below, the petition is granted in part and denied in part. I. PROCEDURAL HISTORY On October 17, 1990, in a capital case trial, an Alameda County Superior Court jury found petitioner guilty of three counts of first degree murder, Cal. Penal Code § 187 (counts 1, 5, and 8), two counts of robbery, id. at § 211 (counts 2 and 7), two counts of attempted murder, id. at §§ 664/187 (counts 3 and 6), and one count of attempted robbery, id. at §§ 664/211 (count 4). The jury found true the enhancement allegations that petitioner personally used a firearm during the commission of each crime, id. at §§ 1203.06, 12022.5, and found true the enhancement allegations attendant to the count 2 robbery and count 3 attempted murder that petitioner inflicted great bodily injury upon his victim, id. at §§ 1203.075, 12022.7. The jury additionally found true the robbery-murder special circumstance allegation charged attendant to the count 1 and count 5 murders, id. at § 190.2(a)(17)(i) (now (a)(17)(A)), and lastly found the multiple-murder special circumstance allegation true as well, id. at § 190.2(a)(3)). Ex. A at 992-99, 1006-15; Ex. B at 3719-26. Petitioner subsequently admitted the truth of a prior-conviction allegation. Ex. A at 1022; Ex. B at 3728-30. On November 8, 1990, the jury returned its penalty-phase verdict against petitioner, fixing his punishment at death. Ex. A at 1067; Ex. B at 4103-04. On December 17, 1990, the trial court sentenced petitioner to death on the count 1 and count 5 first degree murder convictions, and sentenced him to life in prison without the possibility of parole on the count 8 first degree murder conviction. With respect to the remaining convictions and enhancements the trial court imposed a 45-year determinate state prison sentence, but ordered that sentence stayed under Cal. Penal Code § 654. Ex. A at 1088-93; Ex. B at 4135-40. Petitioner’s automatic appeal to the California Supreme Court proceeded. Petitioner filed his Appellant’s Opening Brief on April 13, 2001, Ex. C, the People of the State of California filed their Respondent’s Brief on October 1, 2001, Ex. D, and petitioner subsequently filed his Appellant’s Reply Brief, Ex. E. Petitioner made 11 attacks on the guilt-phase judgment against him in his briefing, including claims of insufficient evidence, prosecutorial misconduct, and instructional error. Exs. C, E. Petitioner also made numerous attacks on the death judgment against him. Id. On April 23, 2003, petitioner filed a Petition for Writ of Habeas Corpus in the California Supreme Court, again making allegations attacking the guilt-phase judgment against him, including claims of ineffective assistance of counsel and some of the claims he had raised on direct appeal. Ex. F. In his state habeas application petitioner also attacked the penalty-phase judgment against him, and argued therein that he had established a prima facie case that he was mentally retarded. Id. (citing Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding the execution of a mentally retarded person violates the Eighth Amendment)). On December 30, 2003, with respect to petitioner’s state habeas application, the People of the State of California filed an Informal Response to Petition for Writ of Habeas Corpus in the California Supreme Court. Ex. G. On January 31, 2005, the California Supreme Court issued its opinion in petitioner’s direct appeal, rejecting all of his assignments of error and affirming both the guilt and death judgments against him. Ex. H; People v. Young, 34 Cal.4th 1149, 24 Cal.Rptr.3d 112, 105 P.3d 487 (2005). On February 2, 2005, in the California Supreme Court, petitioner filed a Reply to Informal Response to Petition for Writ of Habeas Corpus. Ex. I. On May 6, 2005, petitioner filed a Petition for Writ of Certiorari in the United States Supreme Court, seeking discretionary review of the California Supreme Court’s decision on direct appeal. Ex. J. On October 3, 2005, the United States Supreme Court denied certiorari. Young v. California, 546 U.S. 833, 126 S.Ct. 57, 163 L.Ed.2d 86 (2005). On October 11, 2006, the California Supreme Court issued the following order in petitioner’s state habeas proceeding: Each request for judicial notice is denied. (People v. Rowland (1992) 4 Cal.4th 238, 268 fn. 6 [14 Cal.Rptr.2d 377, 841 P.2d 897].) The Director of the Department of Corrections and Rehabilitation is ordered to show cause in the Alameda County Superior Court, when the matter is placed on calendar, why petitioner’s death sentence should not be vacated and petitioner sentenced to life imprisonment without the possibility of parole on the ground that he is mentally retarded within the meaning of Atkins v. Virginia[,] [] 536 U.S. 304 [122 S.Ct. 2242], as alleged in Claim XIII of the petition for writ of habeas corpus filed April 23, 2003. (See In re Hawthorne (2005) 35 Cal.4th 40 [24 Cal.Rptr.3d 189, 105 P.3d 552].) The return is to be filed on or before November 9, 2006. All other claims set forth in the petition for writ of habeas corpus are denied. Each claim is denied on the merits. Except insofar as they allege ineffective assistance of counsel as a substantive basis for relief, the following claims are additionally barred to the extent they were raised and rejected on appeal (In re Harris (1993) 5 Cal.4th 813, 825, 829-841 [21 Cal.Rptr.2d 373, 855 P.2d 391]; In re Waltreus (1965) 62 Cal.2d 218, 225 [42 Cal.Rptr. 9, 397 P.2d 1001]): claims II, IV, V, and XXI. Kennard, J., is of the opinion an order to show cause should be issued as to claims XV and XIX. Ex. K. On October 8, 2010, the Alameda County Superior Court issued an order granting petitioner habeas corpus relief vacating his death sentence. The court found that petitioner had sustained his burden of proof that he is mentally retarded. The court then resentenced petitioner to life imprisonment without the possibility of parole on counts 1 and 5. Ex. L. On October 7, 2011, petitioner filed a Petition for Writ of Habeas Corpus in this Court, raising 20 claims of federal constitutional error. Docket No. 1. These attacks on his convictions are ones he raised on direct appeal in state court, on state' habe-as, or both. II. STATEMENT OF FACTS The following background facts describing the crime and evidence presented at trial are from the opinion of the California Supreme Court on direct appeal: 1. The Attempted Murder and Robbery of Manzine Miller and the Murder of Terry Rivers In the early morning hours of January 30, 1989, Manzine Miller and Terry Rivers were selling rock cocaine in front of Miller’s house on East 24th Street in Oakland (Miller’s house). Around 2:30 a.m., Miller observed a black-over-green Ford turn onto Highland Avenue from East 24th Street and park. Moments later, defendant and another man walked from Highland Avenue and approached Miller. Defendant told Miller he wanted to purchase $50 worth of rock cocaine. Miller indicated to defendant that he could sell him the drug, but would have to get it from his supplier. Defendant told his companion to watch the street and then followed Miller along a pathway through a nearby vacant lot known as the “swamp,” towards Miller’s supplier. As they walked, defendant pulled out a gun, told Miller to get on his knees, and robbed him of the rock cocaine he had in his pocket. As Miller begged defendant not to shoot him, defendant shot him above his right hip. Miller survived the gunshot wound and watched defendant walk back towards his (Miller’s) house. Miller heard three gunshots shortly after defendant left. When the police arrived at Miller’s house, they found the body of Terry Rivers lying across the front entryway. £ Murder of Glen Frazier and Attempted Robbery ofMelva Fite Sometime after 2:00 a.m. on January 30, 1989, on 89th Avenue in Oakland, defendant exited a vehicle and approached Melva Fite and Glen Frazier as they talked with Frazier’s cousin, Ricky Smith. Defendant suddenly began shooting at Smith. Smith ran to a house, and Fite and Frazier ran up 89th Avenue. Defendant followed Fite and Frazier in his vehicle. Defendant’s cousin, Patrick Jackson, was riding in the front passenger seat. When defendant caught up with Fite and Frazier near the intersection of 90th Avenue and Cherry Street, he exited the vehicle and demanded their money. Frazier told defendant they did not have anything. Defendant then accused Frazier of previously robbing him. Frazier replied that he did not know defendant. As he and Fite crouched down on their knees, they begged defendant not to shoot. Defendant told Fite to run, and moments later, Fite heard two shots fired. She saw Frazier slump to the ground. Frazier died later that morning from a gunshot wound to his lower back. 3. Murder of Sylvester Davis; Attempted Murder of Luther Thomas; Robbery of Gerald Livingston In the early morning hours of February 19, 1989, defendant crashed through the living room window of a “crack house” on 74th Avenue (74th Avenue house). Luther Thomas, Veronica Robinson, Joseph Lee Batiste, Gerald Livingston, Veronica Hackett, and Sylvester Davis were present in the house. Defendant immediately began shooting at Thomas, the “doorman,” as he ran towards the kitchen. Thomas suffered a gunshot wound to his forearm and escaped from the house. During the commotion, Davis left the northwest bedroom, and entered the southwest bedroom where he jumped out of the window. Robinson, who had been hiding in the closet, followed Davis out of the window. Meanwhile, defendant entered the northwest bedroom and robbed Livingston of $40. Defendant then left the bedroom and entered the southwest bedroom. Livingston heard the sound of a window breaking, followed by three gunshots. Within minutes after the shooting stopped, defendant entered the northwest bedroom, looked at Livingston, and then left the house through the front door. Outside, Robinson had crawled toward the front of the house while Davis had crawled toward the rear of the house. Robinson heard Davis say, “Oh, they going to kill me” and another gunshot. Shortly after defendant left the house, Livingston went to the front door and looked out. He saw defendant standing on the sidewalk and heard Davis moaning in pain. A vehicle pulled up in front of the house as Livingston went back into the house. A Ballistics Evidence Chester Young, a retired ballistics expert formerly employed by the Oakland Police Department, analyzed six bullets recovered from the three crime scenes in this case: the three bullets recovered from each of the bodies of Miller, Rivers, and Frazier; a bullet recovered from the living room wall at Miller’s house; and two bullets recovered from the 74th Avenue house. Young explained to the jury that two bullets are declared “a positive match” when they share a particular number and type of identification characteristics. When the bullets do not share common identification characteristics, the presence of a “pseudo land impression,” a very rare mark that is caused by a defect in the gun, very strongly suggests that the bullets were fired from the same gun. Based on his analyses, Young concluded that because all six bullets had one or two pseudo land impressions, there was a “very strong” likelihood that'all of the bullets were fired from the same gun. That gun was never recovered. People v. Young, 34 Cal.4th 1149, 1166-68, 24 Cal.Rptr.3d 112, 105 P.3d 487 (2005). III. DISCUSSION A. Standard of Review This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21, 96 S.Ct. 175, 46 L.Ed.2d 162 (1975). A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed 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); Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Additionally, habeas relief is warranted only if the constitutional error at issue “ ’had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Penry v. Johnson, 532 U.S. 782, 795, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). A state court decision is “contrary to” clearly established Supreme Court precedent if it “applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases,” or if it “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [its] precedent.” Williams, 529 U.S. at 405-06, 120 S.Ct. 1495. “Under the ’unreasonable application’ clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. 1495. “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411, 120 S.Ct. 1495. Section 2254(d)(1) restricts the source of clearly established law to the Supreme Court’s jurisprudence. “[C]learly established Federal law, as determined by the Supreme Court of the United States” refers to “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412, 120 S.Ct. 1495 (internal quotation marks omitted). “A federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme Court] is, at best, ambiguous.” Mitchell v. Esparza, 540 U.S. 12, 17, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003). Here, the California Supreme Court, in its opinion on direct review, addressed nine of the claims petitioner raises in the instant petition. The California Supreme Court thus was the highest court to have reviewed the claims in a reasoned decision, and, as to those claims, it is the California Supreme Court’s decision that this Court reviews herein. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005. The remaining claims were presented to the California Supreme Court only in petitioner’s state petition for writ of habeas corpus, which was summarily denied as to all claims other than the claim that petitioner’s death sentence should be vacated on the ground that he is mentally retarded. When presented with a state court decision that is unaccompanied by a rationale for its conclusions, a federal court must conduct an independent review of the record to determine whether the state court decision is objectively reasonable. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.2000). This “[independent review ... is not de novo review of the constitutional issue, but rather, the only method by which [a federal court] can determine whether a silent state court decision is objectively unreasonable.” See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.2003). “Where a state court’s decision is unaccompanied by an explanation, the ha-beas petitioner’s burden still must be met by showing there was no reasonable basis for the state court to deny relief.” See Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011). B. Petitioner’s Claims Petitioner raises twenty claims for federal habeas relief in his petition. The claims are most sensibly addressed in the following order, with the original enumeration shown in parentheses: 1) prosecuto-rial misconduct during jury selection (claim 3); 2) selective prosecution (claim 2); 3) prosecutorial misconduct in closing argument (claim 4); 4) prosecutorial misconduct in presenting “false and misleading evidence” (claim 5); 5) prosecutorial misconduct in failing to disclose exculpatory evidence (claim 6); 6) ineffective assistance of counsel during guilt-phase investigation (claim 7); 7) ineffective assistance of counsel during guilt-phase performance (claim 8); 8) ineffective assistance of counsel in investigating and presenting mental health evidence (claim 9); 9) improper rebuttal (claim 10); 10) insufficient evidence as to count 1 (claim 11); 11) insufficient evidence as to count 5 (claim 12); 12) jury misconduct (claim 13); 13) instructional error in court’s limiting of instructions (claim 14); 14) instructional error regarding robbery-murder special circumstance (claim 15); 15) false and unreliable ballistics evidence (claim 16); 16) actual innocence (claims 17-19); 17) missing record (claim 1); and 18) cumulative error (claim 20). 1. Jury Selection Petitioner claims that the prosecutor used peremptory strikes to remove from the jury pool all of the African-American women. The parties do not dispute the California Supreme Court’s description of the relevant trial court proceedings, as follows: During jury selection, and after the prosecutor exercised his ninth peremptory challenge, defense counsel asserted that the prosecutor had used his peremptory challenges to strike all of the African-American female prospective jurors from the jury panel — namely, D.D., V.S., and B.W. He added that' two African-American male prospective jurors were seated on the panel. The trial court indicated it was not, at that time, finding a prima facie- case of discrimination. Counsel then noted for the record that “all of the black women called into the jury box at this time have been excused by the prosecution.” The parties proceeded to use their remaining peremptory challenges and ultimately selected a jury and four alternates. Three African-American males were among the jurors selected. Fn 4: Although defendant initially identified B.W. as one of the prospective jurors against whom the prosecutor discriminated, defendant now concedes that the prosecutor “may have had a legitimate basis for exercising a peremptory challenge” against this prospective juror given her apparent difficulty with accepting the testimony of drug users as credible evidence, and given many of the prosecution’s percipient witnesses were drug users. Therefore, our analysis is limited to whether defendant stated a prima fa-cie case of purposeful discrimination only as to Prospective Jurors D.D. and V. S. Thereafter, out of the jury’s presence, the trial court addressed defendant’s Wheeler motion. It identified the African — American female prospective jurors by name (D.D. and V.S.), noted they were members of two cognizable groups, i.e., women and African-Americans, and then ruled that the defense had not made a prima facie case of discrimination. Young, 34 Cal.4th at 1171-72, 24 Cal.Rptr.3d 112, 105 P.3d 487. a. Equal Protection Standard The use of peremptory challenges by either the prosecution or defense to exclude cognizable groups from a jury may violate the Equal Protection Clause. See Georgia v. McCollum, 505 U.S. 42, 55-56, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). The Supreme Court first held that the Equal Protection Clause forbids the challenging of potential jurors solely on account of their race, see Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and later extended this protection to challenges solely based on gender, see J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 130-48, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994)). Batson permits prompt rulings on objections to peremptory challenges under a three-step process: (1) the defendant must make out a prima facie case that the prosecutor exercised peremptory challenges on the basis of race (or gender) “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose;” (2) if the prima facie case is made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question; and (3) if the prosecutor carries the burden of showing a race-neutral explanation, the defendant has the burden to prove purposeful discrimination. Batson, 476 U.S. at 93-94, 97-98, 106 S.Ct. 1712. A party establishes a prima facie equal protection violation based on race by showing that: (1) the defendant is a member of a cognizable racial group, (2) the group’s members have been excluded from the jury, and (3) the circumstances of the case raise an inference that the exclusion was based on race. Batson, 476 U.S. at 96, 106 S.Ct. 1712. b. Standard of Review Here, petitioner challenged the prosecutor’s use of peremptory strikes by way of a motion under People v. Wheeler, 22 Cal.3d 258, 280, 148 Cal.Rptr. 890, 583 P.2d 748 (1978). The trial court denied the motion because it found, relying on Wheeler, no prima facie case of racial discrimination. The Wheeler motion procedure used by California courts does not satisfy the constitutional requirement laid down for the first step of Batson, however. Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005); Wade v. Terhune, 202 F.3d 1190, 1197 (9th Cir.2000). California courts have routinely imposed the more stringent requirement that the defendant “show a strong likelihood,” Wheeler, 22 Cal.3d at 280, 148 Cal.Rptr. 890, 583 P.2d 748, rather than merely “raise an inference,” Batson, 476 U.S. at 96, 106 S.Ct. 1712, that the prosecutor had excluded venire members from the petit jury on account of their race. Wade, 202 F.3d at 1196-97. Because California courts using the Wheeler procedure have not applied federal law as clearly established by the United States Supreme Court, a federal habeas court need not defer to the California court’s findings as it would otherwise be required to do under 28 U.S.C. § 2254(d). Wade, 202 F.3d at 1197. In People v. Johnson, 30 Cal.4th 1302, 1 Cal.Rptr.3d 1, 71 P.3d 270 (2003), the California Supreme Court attempted to rectify the situation by concluding that “Wheeler’s terms ‘strong likelihood’ and ‘reasonable inference’ state the same standard” — one.that is entirely consistent with Batson. 30 Cal.4th at 1313, 1 Cal.Rptr.3d 1, 71 P.3d 270. Batson, the state high court held, “permits a court to require the objector to present, not merely ‘some evidence’ permitting the inference, but ‘strong evidence’ that makes discriminatory intent more likely than not if the challenges are not explained.” Id. at 1316, 1 Cal.Rptr.3d 1, 71 P.3d 270 (emphasis added). The Supreme Court of the United States disagreed, and made clear that “California’s ‘more likely than not’ standard is at odds with the prima facie inquiry mandated by Batson.” Johnson v. California, 545 U.S. at 173, 125 S.Ct. 2410. To satisfy Batson’s first step, a defendant need not persuade the judge that the challenge was more likely than not the product of purposeful discrimination; rather, he need only produce evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. Id. at 171, 125 S.Ct. 2410. Accordingly, federal habeas courts should continue to apply Wade’s de novo review requirement whenever state courts use the “strong likelihood”/“more likely than not” standard, as these courts are applying a lower standard of scrutiny to peremptory strikes than the federal constitution permits. Accord Paulino v. Castro, 371 F.3d 1083, 1090 (9th Cir.2004) (applying de novo review where state court applied “strong likelihood” standard); Cooperwood v. Cambra, 245 F.3d 1042, 1047 (9th Cir.2001) (same). Here, the California Supreme Court upheld the trial court’s finding that petitioner had not established a prima facie case of racial discrimination by the prosecutor. The California Supreme Court’s decision was announced after the United States Supreme Court had granted a petition for a writ of certiorari, but before it had announced its decision in Johnson v. California. Consequently, the California Supreme Court applied California’s “strong likelihood”/“more likely than not” standard in finding that petitioner had not made a prima facie case of discrimination under Batson. Young, 34 Cal.4th at 1172, 24 Cal.Rptr.3d 112, 105 P.3d 487. As that is the wrong standard, pursuant to Wade, this Court will review de novo the California Supreme Court’s finding of no prima facie case of discrimination. c. Analysis As a preliminary matter, the Court notes that while Batson prohibits discrimination based on race or gender, neither the Supreme Court nor the Ninth Circuit has recognized that the combination of race and gender, such as “black males,” may establish a cognizable group for Batson purposes. Turner v. Marshall, 63 F.3d 807, 812 (9th Cir.1995), overruled on other grounds, Tolbert v. Page, 182 F.3d 677, 685 (9th Cir.1999) (en banc). See also United States v. Dennis, 804 F.2d 1208, 1210 (11th Cir.1986), cert. denied, 481 U.S. 1037, 107 S.Ct. 1973, 95 L.Ed.2d 814 (1987) (holding Batson does not apply to claims based on “black men” or “black women”). Thus, this Court limits its inquiry to whether petitioner has made a prima facie case of racial discrimination under Batson, without regard to gender. Here, the first and second elements of the Batson prima facie case of discrimination are met because the prospective jurors are African-American and the prosecutor used peremptory strikes to remove them. See Batson, 476 U.S. at 96, 106 S.Ct. 1712. The issue is whether the third element is met, namely whether the circumstances of the case raise an inference that the challenges were based on race. See id. In Batson, the Supreme Court noted that, in “ ‘deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances,’ and noted that a ‘prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose.’ ” Williams v. Runnels, 432 F.3d 1102, 1107 (9th Cir.2006) (quoting Batson, 476 U.S. at 96-97, 106 S.Ct. 1712). The Supreme Court reiterated in Johnson that “a defendant may rely on ‘any other relevant circumstances’ to raise an inference of discriminatory purpose.” Id. (quoting Johnson, 545 U.S. at 170, 125 S.Ct. 2410). In assessing “all relevant circumstances” surrounding challenged peremptory strikes, for purposes of determining whether there is an inference of discrimination under Batson, “Supreme Court precedent requires a comparative juror analysis.” Boyd v. Newland, 467 F.3d 1139, 1149 (9th Cir.2006). Comparative juror analysis involves determining whether non-challenged jurors possess any of the characteristics on which the prosecution challenged jurors in the protected group. Snyder v. Louisiana, 552 U.S. 472, 482-83, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008); Boyd, 467 F.3d at 1150. Contrary to the view of the California courts, comparative juror analysis should take place on appeal even when the trial court did not engage in such analysis. Id. at 1148-50. In his petition, petitioner does not challenge the prosecution’s decision to strike B.W. Indeed, on direct appeal, petitioner ultimately conceded that the prosecutor may have had a legitimate basis for excusing B.W., “given her apparent difficulty with accepting the testimony of drug dealers as credible evidence, and given many of the prosecution’s percipient witnesses were drug dealers.” Ex. H at 9, n.4. Petitioner contends, however, that the prosecutor’s decision to strike D.D. and V.S. was based on unconstitutional considerations. Petition at 63-65. The record does not support this contention, however, as it reveals unique qualities of D.D.’s and V.S.’s answers to the jury questionnaires and voir dire that provide race-neutral reasons for striking them. As to D.D., the prosecutor learned that D.D. had worked with his office and with law enforcement on sexual assault cases. Ex. B. at 1304, 2307-08. The prosecutor explained that he had spoken with colleagues from his office and learned that they held the opinion that D.D. had “a difficult time perceiving the truth” and that she had exaggerated her own credentials or qualifications. See id. As the California Supreme Court further found, D.D. worked as a therapist, and the prosecutor may have reasonably believed that D.D. would have difficulty setting aside her own expertise as a therapist in evaluating the evidence, particularly the penalty phase evidence pertaining to extreme mental disturbance or emotional illness. Young, 34 Cal.4th at 1174, 24 Cal.Rptr.3d 112, 105 P.3d 487. Finally, D.D. stated in voir dire that she believed one explanation for the increase in crime is an “increase in the double standard of our governmental system.” Ex. A at 6913; Ex. B at 1294. And when asked in voir dire, “But you indicated there is no reason why you couldn’t be a fair and impartial juror after evaluating all the evidence in this case?,” D.D. answered “I don’t know.” Ex. B at 1306. Although these distinctive aspects of D.D.’s answers are not conclusive that she would not have been a good juror, the Court is mindful that at the voir dire stage lawyers are only making their best guess at how a prospective juror may act, and D.D.’s answers certainly provide a race-neutral basis for the perception that she might not have been impartial. No other jurors gave an anti-government explanation for the increase in crime. See United States v. Steele, 298 F.3d 906, 913-14 (9th Cir.2002) (finding it permissible' and race neutral to challenge a juror based on his opinions of the criminal justice system, even where the opinion is that the system is racist). Nor did any other jurors have a therapy background or experience working with the district attorney’s office. See Mayes v. Premo, 766 F.3d 949, 968-59 (9th Cir.2014) (finding trial court’s acceptance of prosecutor’s background checks was not an objectively unreasonable application of Batson). As a result, a comparative juror analysis does not raise an inference of discrimination as to D.D. As to V.S., the prosecutor explained that she worked for the California State Automobile Association where she assisted insurance defense lawyers. Ex. B at 2308. The prosecutor felt that this made V.S. more likely to identify with the defense team. Id. The record supports this explanation. As summarized by the California Supreme Court: Regarding Prospective Juror V. S., the prosecutor reasonably might have challenged her because of her experience as an insurance claims specialist. V.S. disclosed she assisted defense attorneys in preparation for litigation and arbitration. In response to questioning, she indicated she sometimes took an active role in the process. Although V.S. stated she might not speak up in settlement conferences or negotiations “[i]f our defense attorney is a strong attorney and he doesn’t need my input,” she said she would “have something to say” if the attorney “doesn’t put forth something that I think is essential to evaluating the claim and helping the judge make a decision as to, you know, what is fair or in helping the judge.” In light of these voir dire responses, the prosecutor might reasonably have challenged V.S. on the basis that she might be overly defense oriented in evaluating and deliberating the charges against defendant. Young, 34 Cal.4th at 1174, 24 Cal.Rptr.3d 112, 105 P.3d 487. Finally, the prosecutor also noted that V.S. was pregnant and expressed his opinion that someone who is “bearing new life” might “find it very difficult to exterminate someone else’s life.” Ex. B at 2308. Again, there is nothing in the record showing that other jurors similarly situated to V.S. were permitted to remain on the jury. There were no other jurors, for example, who reported that they worked in defense litigation or who reported that they were pregnant at the time of jury selection. A comparative juror analysis does not raise an inference of discrimination. In sum, the record in this case does not create an inference of discrimination in the prosecutor’s peremptory challenges to three African-American female prospective jurors. The prosecutor did not strike all of the African-American or women ven-irepersons; the state courts found race-neutral reasons for striking the prospective jurors at issue; this was not a case that involved gender or race discrimination; and a comparative juror analysis does not raise an inference of discrimination. As a result, petitioner has not established a prima facie case of discrimination under the first step of the Batson analysis. Accordingly, petitioner is not entitled to habeas relief on this claim. 2. Selective Prosecution Petitioner claims the prosecution and trial were “permeated with racial bias and discrimination,” which the Court construes as a claim for selective prosecution. Petition at 47-59. Petitioner presented this claim to the California Supreme Court only in his state habeas petition, which was summarily denied on the merits. Ex. F at 18-40. Although the decision whether to prosecute and what charges to bring generally rests entirely in the prosecutor’s discretion, this discretion is subject to constitutional constraints. United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). One of these constraints is that the prosecutorial decision may not violate equal protection by resting on “ ‘an unjustifiable standard such as race, religion, or other arbitrary classification.’ ” Id. Courts presume that prosecutors have properly discharged their official duties. Id. In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present “ ‘clear evidence to the contrary.’” Id. A prosecutor’s charging decision cannot be judicially reviewed absent a prima facie showing that' it rested on an impermissible basis, such as gender, race, or denial of a constitutional right. United States v. Diaz, 961 F.2d 1417, 1420 (9th Cir.1992). To establish a prima facie ease of selective prosecution, the claimant must show that the prosecutorial policy (1) had a discriminatory effect and (2) was motivated by a discriminatory purpose. Armstrong, 517 U.S. at 465, 116 S.Ct. 1480. In order to establish a discriminatory effect, the claimant must show that similarly situated individuals of a different race were not prosecuted. See id. The fact that he is part of a protected class does not alone provide a colorable basis for believing that a selection has taken place; nor would evidence that other members of the protected class were prosecuted. See United States v. Aguilar, 883 F.2d 662, 705-08 (1989), superseded by statute on other grounds, P.L. No. 99-603, 100 Stat. 3359, as stated in Khan v. Holder, 584 F.3d 773, 783 (9th Cir.2009). Petitioner supports his claim by pointing to declarations submitted by two Alameda County public defenders, Charles Denton and Michael Ogul, in the 1994 capital case of People v. Johnny Lee Barnes, Alameda County Superior Court, Case No. 103157. Ex. 103 to Ex. F. The Court has reviewed the declarations. The Denton declaration offers evidence of Alameda County murder cases involving non-African-American defendants in which the prosecutor chose not to seek death at the penalty phase. The declaration, and the cases discussed therein, are offered in support of petitioner’s argument that the prosecution was racially motivated in bringing capital charges. As discussed above, petitioner’s death sentence has been vacated, and thus, this is no longer a capital case. Petitioner’s argument that the sentencing charges were discriminatory is therefore moot. The Ogul declaration offers evidence of Alameda County murder cases involving non-African-American defendants in which special circumstances were either filed or could have been filed but the defendants were either not prosecuted for any special circumstances or the prosecution agreed to a disposition that did not result in the finding of any special circumstances. The Ogul declaration lists and describes nine cases, as follows: Luis Chavez [ASC # H-14646], a Hispanic or Asian male was charged with murder with special circumstances. Although he had previously suffered two prior convictions for murder, the Alameda County District Attorney’s Office allowed him to plead guilty to second degree murder without any special circumstances. David Misch [ASC # H-13968], a white male, was charged with murder and ultimately pled to second degree murder, although he was arrested for murder and violation of Vehicle Code section 1085, the evidence demonstrated probable cause to believe that a robbery special circumstance was true, and he had suffered at least three prior felony convictions in proceedings brought and tried separately. Amalie Cooper [ASC # 110025], a female, was charged with murder but pled guilty to voluntary manslaughter as a lesser offense although the evidence disclosed that she took the defendant’s wallet during the commission of the homicide, thereby demonstrating probable cause to believe the truth of a robbery special circumstance; moreover, Ms. Cooper had a substantial record of previous criminal offenses. John Jaco [ASC # H-16129A], a Hispanic male was allowed to plead guilty to second degree murder although the evidence demonstrated probable cause to believe that the murder occurred during the commission of a robbery, thereby supporting a robbery- special circumstance, and despite the fact that he had previously suffered three felony convictions in separate proceedings, including a prior conviction for manslaughter. Edwin Pauley [ASC # 89786], pled guilty to second degree murder pursuant to a negotiated disposition with the Alameda County District Attorney’s Office. He was originally charged with murder, robbery, and a robbery-murder special circumstance. Hal Haydon [ASC # 95433] was charged with murder and one robbery-murder special circumstance but was allowed to plead guilty to second degree murder pursuant to a negotiated disposition with the Alameda County District Attorney’s Office. Joey Lockett, aka Mohammed Akmad [ASC # 109424], was found guilty of first degree murder after a jury trial. The jury had specifically been instructed on first degree felony murder during the commission of a robbery. Although the evidence patently demonstrated probable cause to believe the truth of a robbery special circumstance, no special circumstance was charged — despite the fact that Mr. Lockett had suffered at least one prior felony conviction. Michael Horton [ASC # 101599] was charged and convicted of first degree murder on a felony (robbery) murder theory. The Court of Appeal subsequently reversed his conviction for instructional error, but specifically ruled that the felony murder instruction was proper and that the evidence was sufficient to support a conviction on that theory. Nevertheless, Mr. Horton was never charged with any special circumstance. James Hollister, Charles Ellis, and Caleb Ellis are currently charged with murder in Alameda County Superior Court [ASC # 109256A, 10956B, and 109256C]. Although the evidence demonstrates probable cause to believe the truth of robbery or kidnapping murder special circumstances, none of the defendants is charged with any special circumstance. Ex. 103 to Ex. F.. Petitioner uses this declaration to support his argument that the prosecutor in his case charged petitioner with special circumstances when similarly situated non-African-American defendants were not so charged. As an initial matter, the Ogul declaration concedes that special circumstances were in fact charged in three of the above nine cases and is silent as to whether special circumstances were charged as to another three of these cases. Thus only the last three of the listed cases, in which Ogul is clear that no special circumstances were charged, can be considered as support for petitioner’s differential charging claim. Three cases is not a large enough sample size to find differential charging. In any event, the Court does not agree that the facts of these nine cases, as represented by Ogul, are more serious than the facts in the underlying case. To reiterate, the evidence here shows that petitioner embarked on a heinous crime spree that covered two days and three locations and resulted in two robberies, two attempted murders causing serious bodily injury, and three murders performed via point-blank shootings. Petitioner has not shown that the crimes committed in the nine above-listed cases were similar in seriousness, such that the prosecutor’s decision to charge petitioner with robbery-murder and multiple-murder special circumstances was based on petitioner’s race. Thus, the state court had reasonable grounds to deny this claim. Accordingly, petitioner is not entitled to habeas relief on this claim. 3. Prosecutorial Misconduct in Closing Argument Petitioner claims several instances of prosecutorial misconduct in closing argument. Petitioner contends that the prosecutor committed misconduct in several different comments he made during the guilt phase portion of the trial, and that, singly or cumulatively, this misconduct amounted to a due process violation. Petition at 66-83. Petitioner also contends that the prosecutor committed numerous acts of misconduct at the penalty phase, rendering his death sentence unconstitutional. See id. at 66, 80-81, 83-94. Given that petitioner is no longer subject to a death sentence, having been granted habeas relief in state court, the Court will not address his penalty phase allegations of prosecutorial misconduct. Prosecutorial misconduct is cognizable in federal habeas corpus; “the appropriate standard of review for such a claim ... is the narrow one of due process, and not the broad exercise of supervisory power.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (internal quotation marks omitted). A defendant’s due process rights are violated when a prosecutor’s misconduct renders a trial fundamentally unfair. Id.; Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (noting, “the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial,, not the culpability of the prosecutor”). Under Darden, the first issue is whether the prosecutor’s remarks were improper; if so, the next question is whether such conduct “infected the trial with unfairness.” Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir.2005). A prosecutorial misconduct claim is decided by “examining the entire proceedings to determine whether the prosecutor’s remarks so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir.1995) (internal quotation marks omitted). With respect to the guilt-phase allegations of prosecutorial misconduct, petitioner specifically alleges that the prosecutor: (1) engaged in a pattern of attacks on defense counsel’s honesty and integrity, Petition at 68-77; (2) engaged in a pattern and practice of denigrating petitioner, id. at 77-78; and (3) argued “false ‘facts’ not in evidence,” id. at 78-83. Respondent argues that this claim is procedurally defaulted, and, even if it were addressed on its merits, it must be denied. a. Procedural Default The state appellate court determined that petitioner had waived all three claims: Defendant claims the prosecutor engaged in numerous acts of misconduct during closing arguments in the guilt phase. Except as noted below, defense counsel failed to request an assignment of misconduct or an admonition, or both, as to each asserted claim of misconduct. Defendant concedes we have held that, in general, failure to request an assignment of misconduct and an admonition forfeits a claim of prosecutorial misconduct on appeal unless an objection or request for admonition would have been futile or an admonition would not have cured the harm. (People v. McDermott (2002) 28 Cal.4th 946, 1001, 123 Cal.Rptr.2d 654, 51 P.3d 874.) He contends the trial court’s responses to defendant’s objections during summation and rebuttal suggested any objection or request for an admonition would have been futile. Citing our decision in Hill, supra, 17 Cal.4th at pages 820-821, 72 Cal.Rptr.2d 656, 952 P.2d 673, defendant also argues he should be excused from the legal obligation to object to prosecu-torial misconduct because the prosecutor’s summation was “so poisonous” that repeated objections by counsel would have risked angering the court or the jurors. Defendant, however, fails to show that any of these exceptions applies to any of his failures to object. We therefore conclude that defendant has forfeited each claim of misconduct. Young, 34 Cal.4th at 1188, 24 Cal.Rptr.3d 112, 105 P.3d 487. A federal court will not review questions of federal law decided by a state court if the decision also rests on a state law ground that is independent of the federal question and adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). In cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred. See id. at 750, 111 S.Ct. 2546. The rule cited here by the Court of Appeal, specifically, that a defendant must make a contemporaneous objection at trial. in order to preserve an issue on appeal, has been found to be a sufficiently independent and adequate procedural rule to support the denial of a federal petition on grounds of procedural default. See Paulino v. Castro, 371 F.3d 1083, 1092-93 (9th Cir.2004) (finding claim procedurally defaulted based on California’s contemporaneous objection rules). The claim is therefore procedurally defaulted. b. Merits Analysis Although the California Supreme Court found that the prosecutorial misconduct claims were procedurally waived, it also found that the claims failed on the merits. In each instance, it found that either the prosecutor did not commit misconduct or that any misconduct he did commit was harmless even absent admonition. Young, 34 Cal.4th at 1188-98, 24 Cal.Rptr.3d 112, 105 P.3d 487. Given the length of the state court’s discussion, this Court will not repeat it here. This Court has reviewed the state court’s analysis and finds that its basis for denying relief was objectively reasonable. See id. The state court’s rejection of this claim was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent. Finally, even assuming any of the prosecutor’s comments was inappropriate, it cannot be said that the comments “so infected the trial with unfairness” as to make the conviction a denial of due process. See Johnson, 63 F.3d at 929. The jury was instructed that the arguments of the attorneys were not evidence. Young, 34 Cal.4th at 1193, 1197, 24 Cal.Rptr.3d 112, 105 P.3d 487. See Drayden v. White, 232 F.3d 704, 713 (9th Cir.2000) (rejecting prosecutorial misconduct claim in part because court had instructed jury that attorneys’ statements were not evidence); Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) (jury is presumed to have followed' the trial court’s instructions). Finally, the evidence at trial — particularly the identification evidence, the testimony of Patrick' Jackson, and the ballistics evidence — overwhelmingly pointed to petitioner’s guilt. Accordingly, petitioner is not entitled to habeas relief on this claim. 4. Prosecutorial Misconduct in Presenting “False and Misleading Evidence” Petitioner claims the prosecutor presented false and misleading evidence. Petition at 94. Specifically, he asserts that the prosecutor “attempted to insinuate to the jury that petitioner was responsible for a fourth killing that had not been charged, failed to control a government witness, and committed other misconduct in concealing, manufacturing, and manipulating evidence as well as presenting false and misleading evidence.” Id. at 95. Petitioner cites four different events in support of this claim: prosecution questioning of Patrick Jackson; prosecution questioning of ballistics expert Chester Young; prosecution questioning of surviving victim Manzine Miller; and intentional placement of a witness in petitioner’s jail cell to create aggravating evidence for use in the penalty phase. Id. at 96-99. Once again, the Court does not address the last of these events as it concerns the penalty phase, and petitioner has already received state-court habeas relief vacating his death sentence. The remaining allegations of guilt-phase prosecutorial misconduct concerning the presentation of evidence are ones that petitioner made on direct appeal in the California Supreme Court. Ex. C at 136-51. He reiterated them in his habeas petition in the California Supreme Court. Ex. F at 119-27. The California Supreme Court, on direct appeal, summarized and rejected the claim as follows: a) References to Uncharged Homicides and the Valente Bullet Defendant complains the prosecutor improperly implied defendant had committed uncharged homicides during his direct examination of Jackson, defendant’s cousin. Jackson testified that shortly after defendant shot Frazier, defendant told Jackson he did so because Frazier had robbed him earlier. The prosecutor asked, “Aside from what you have testified here as to witnessing, did the defendant, your cousin, tell you that he had killed other people?” Defense counsel objected on relevance grounds. The trial court overruled the objection, and Jackson answered, “No.” The prosecutor then asked, “Did you tell the police on March 13th of 1989 that your cousin had told you of other killings?” During a conference held outside the jury’s presence, defense counsel objected to the prosecutor’s questions on the ground of irrelevance because there was no evidence defendant was involved in either the Rivers or Davis murders or any other uncharged killings. The prosecutor explained he intended to ascertain only whether defendant told Jackson about the Rivers or Davis murders, and that the factual basis of his question was the transcript of an interview of Jackson by Sergeants Brian Thiem and Ramon Paniagua. The transcript, however, indicated only that the police officers asked Jackson if defendant told him of any other “shootings” and that Jackson responded, “Uh-huh.” When Sergeant Thiem then asked Jackson what defendant said about other shootings, Jackson declined to discuss the matter further. The trial court indicated it was unsure whether there was a factual basis for the prosecutor’s question, because Jackson was questioned only about other shootings, not other killings, and then sustained defense counsel’s relevance objection on that ground. The trial court granted defense counsel’s subsequent request to strike any references to “any other shootings,” instead of “killings,” and admonished the jury to “disregard any other reference to any other shootings,” again instead of “killings.” Contrary to respondent’s assertion, we believe defendant has preserved his claim of prosecutorial misconduct for review. Although he did not request an assignment of misconduct or an admonition that the jury disregard the impropriety, through his relevance objection he gave the trial court an opportunity to correct the asserted abuse — an opportunity the court took advantage of by striking any references to “any other shootings” and admonishing the jury to “disregard any other reference to any other shootings.” Although preserved for review, defendant’s claim of prosecutorial misconduct nonetheless fails on the merits. It is well established that a prosecutor may not “ ‘ask questions of a witness that suggest facts harmful to a defendant, absent a good faith belief that such facts exist.’ ” (People v. Bolden (2002) 29 Cal.4th 515, 562, 127 Cal.Rptr.2d 802, 58 P.3d 931.) In other words, “a prosecutor may not examine a witness solely to imply or insinuate the truth of the facts about which questions are posed.” (People v. Visciotti (1992) 2 Cal.4th 1, 52, 5 Cal.Rptr.2d 495, 825 P.2d 388.) Here, contrary to defendant’s assertion, the trial court did not find the prosecutor lacked a good faith belief for his question regarding other killings defendant may have mentioned to Jackson; instead, the court concluded it was unsure whether there was a factual basis for the question. Further, the circumstance that the prosecutor failed to distinguish between “other shootings” and “other killings” in his question to Jackson is unremarkable in this case because each of the three murder victims — Rivers, Frazier, and Davis — was killed in a shooting. We therefore conclude the prosecutor’s question about other killings was not improper. Defendant next complains that during the direct examination of its ballistics expert, the prosecutor improperly insinuated a second time that he had committed uncharged homicides. The expert testified regarding his comparison of the bullet recovered from Frazier’s body with bullets recovered from the 74th Avenue house. The prosecutor then asked the expert whether he had received a “request from homicide” to examine other bullets. The expert responded that he retrieved four bullets from the property room, identifying them as the “Rivers,” “Frazier,” “Miller,” and “Valente” bullets. When the prosecutor began to question the expert specifically regarding his examination of the Valente bullet, defense counsel objected to the question as follows: “If it please the court, it has no relevance.” The prosecutor interjected, “That is why we are getting rid of it right now.” The prosecutor and defense counsel ultimately stipulated the Valente bullet had different characteristics and was not related to this case or to defendant, and this stipulation was read to the jury. Assuming the contention was preserved for appellate review, any misconduct was harmless given the stipulation that the Valente bullet had nothing to do with defendant’s case. b) Miller’s “No Remorse” Response Defendant contends the prosecutor engaged in misconduct by intentionally eliciting inadmissible and prejudicial testimony from prosecution witness Man-zine Miller. He further complains this misconduct constituted error under Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, by implying, contrary to his Fifth Amendment privilege against compelled self-incrimination, that defendant’s failure to testify supported an inference of guilt. At the conclusion of the prosecutor’s redirect examination of Miller, the prosecutor asked, “Is there any doubt in your mind that the defendant shot you?” Miller answered, “There’s no doubt. He still has that same look when he did shoot me, no remorse whatsoever.” Defense counsel objected that the response was “purposely conclusionary on the part of the witness” and moved that the response be stricken. The trial court overruled counsel’s objection and effectively denied the motion to strike. We reject defendant’s claim of prosecu-torial misconduct at the threshold because he failed to request an assignment of misconduct or an admonition that the jury disregard the impropriety on the ground now asserted. ([People v.] Ayala, supra [2000], 23 Cal.4th [225] at p. 284, 96 Cal.Rptr.2d 682, 1 P.3d 3 .) We also reject the claim on the merits. A prosecutor engages in misconduct by deliberately eliciting inadmissible testimony. (People v. Valdez (2004) 32 Cal.4th 73, 125, 8 Cal.Rptr.3d 271, 82 P.3d 296 (Valdez).) Here, no such misconduct occurred. Miller’s “no remorse” remark was nonresponsive. Further, there is no reasonable likelihood that the jury would have understood Miller’s response as referring to defendant’s failure to testify. (See [People v.] Clair, supra [1992], 2 Cal.4th [629] at pp. 662-663, 7 Cal.Rptr.2d 564, 828 P.2d 705, citing Griffin v. California, supra, 380 U.S. at pp. 611-615, 85 S.Ct. 1229.) Thus, no Griffin error occurred. Young, 34 Cal.4th at 1185-88, 24 Cal.Rptr.3d 112, 105 P.3d 487. In light of the foregoing, petitioner’s allegations — that false and misleading evidence was presented amounting to prose-cutorial misconduct — fail. First, the Miller “no response” allegation is proeedurally defaulted pursuant to California’s contemporaneous objection rule. See Coleman, 501 U.S. at 729-30, 111 S.Ct. 2546; Paulino, 371 F.3d at 1092-93. Second, the Court finds that the state court’s analysis denying relief was objectively reasonable. Applying the-legal principles on prosecutorial misconduct outlined above to petitioner’s current allegations, the state court’s rejection of this claim was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent. Finally, even assuming error, the evidence of petitioner’s guilt was so strong that any due process violation did not have a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). As discussed above, petitioner’s identity as the murderer was supported by physical evidence, identification evidence, and the testimony of witnesses. Accordingly, petitioner is not entitled to habeas relief on this claim. 5. Prosecutorial Misconduct — Failure To Disclose Exculpatory Evidence Petitioner claims that the prosecutor committed misconduct by suppressing possibly exculpatory evidence. Specifically, petitioner claims the prosecution suppressed: (1) evidence of possible third party culpability, (2) impeachment evidence regarding prosecution witness Melva Fite, and (3) evidence that government agents used force and coaching to obtain Patrick Jackson’s statement implicating petitioner. Petition at 99. Petitioner presented these claims in state court only in his state habe-as petition, which the California Supreme Court summarily denied on the merits. In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87, 83 S.Ct. 1194. In order to succeed on a Brady claim, a petitioner must show: (1) that the evidence at issue is favorable to the accused, either because it is exculpatory or impeaching; (2) that it was suppressed by the prosecution, either willfully or inadvertently; and (3) that it was material (or, put differently, that prejudice ensued). Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004). Evidence is material if “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” C