Dickey v. Davis (231 F. Supp. 3d 634, 2017)

DEATH PENALTY CASE

MEMORANDUM AND ORDER:

(1) DENYING REQUEST TO STRIKE SECOND AMENDED ANSWER (DOC. NO. 128); (2) DENYING REQUEST FOR FACTUAL DEVELOPMENT (DOC. NOS. 116, 128); (3) DENYING GUILT PHASE CLAIMS (DOC. NOS. 51, 51-1); (4) SETTING CASE MANAGEMENT CONFERENCE; and (5) DIRECTING THE COURT CLERK TO SUBSTITUTE WARDEN RON DAVIS AS RESPONDENT

Anthony W. Ishii, SENIOR DISTRICT JUDGE

Petitioner Colin Raker Dickey is a state prisoner, sentenced to death, proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is represented in this action by appointed counsel David Senior, Ann Tria and Matthew Weston.

Respondent Ron Davis is named as Warden of San Quentin State Prison. He is represented in this action by Brian Smiley and Justain Riley of the Office of the California Attorney General.

Before the court for decision are i) petitioner’s request to strike respondent’s second amended answered filed September 10, 2014, ii) petitioner’s record based guilt phase claims I, II (portions), IV, VIII, XII (portions), XIII, XIV, XV, XVI, XVII, XVIII, XIX, XXI, XXII, XXIII, xxrv, XXVI and XXVIII, including subclaims, and iii) petitioner’s request for factual development of claims 11(B), 11(C), 11(F), 11(G), 11(H), II(S), II(T), II(V), XIII, XIV, XV and XXIV.

Having carefully reviewed the parties’ filings and the relevant case law and for the reasons set out below, the undersigned finds that respondent’s second amended answer filed as an opposition brief shall not be stricken; the petition’s noted guilt phase claims shall be denied on the merits; and petitioner’s motion for factual development of the noted guilt phase claims shall be denied.

The court sets a case management conference to discuss proceedings on the penalty phase claims and for ex parte budgetary discussions with petitioner’s counsel.

I. BACKGROUND

Petitioner was charged in Fresno County with counts 1 and 2 for murder (Penal Code § 187), with allegations of robbery-murder and burglary-murder special circumstances (Penal Code §§ 190.2(a)(17), 211, 459/460); counts 3 and 4 for robbery (Penal Code § 211); count 5 for burglary (Penal Code §§ 459/460); and allegations of multiple murder special circumstance (Penal Code §§ 190.2(a)(3)) and aider and abettor liability (Penal Code § 190.2(b)). (CT 297-301, 303-307.) Petitioner pleaded not guilty to all the charges. (RT 126; CT 232, 302.)

Petitioner’s jury trial began on January 7, 1991 in Fresno County Case No. 416903-3. (CT 295-296.) On March 15, 1991, the jury found petitioner guilty of the murders of Marie Catón and Louis Freiri with special circumstances of felony-murder robbery and felony-murder burglary and multiple murder and found petitioner guilty of first degree robbery of each victim and first degree burglary of their residence. (CT 380-385, 463-468, 610-614.)

On March 19, 1991, petitioner admitted a prior felony conviction (CT 472) and purported to waive presence at the penalty phase. (CT 472-76.) On March 22, 1991, the jury returned a penalty phase verdict of death. (CT 478-82, 504; see also Penal Code, § 190.2, subds. (a)(3), (17)(A)(G).)

On March 26, 1991, responsive to petitioner’s dissatisfaction with trial counsel Schultz, the trial court appointed Katherine Hart to represent petitioner on motion for new trial and motion to modify the verdict. (CT 505; RT 5181-87.) Therein Ms. Hart alleged insufficiency of evidence, prosecutorial misconduct, instructional error, improper waiver of prior felony conviction, trial court error and ineffective assistance of counsel at the guilt and penalty phases. (CT 525-589.) The motion for new trial was denied on January 17, 1992. (CT 516-518.) The motion for modification of the verdict was denied on February 21, 1992 and petitioner was sentenced to death. (CT 609-615; Feb. 21, 1992 Transcript, at 50.)

On April 14, 2003, petitioner filed a state habeas petition, In re Dickey, S115079 (Lod. Doc. 7), which the California Supreme Court denied on November 30, 2005. (Lod. Doc. 10.)

The California Supreme Court affirmed petitioner’s conviction on direct appeal on May 23, 2005. People v. Dickey, 35 Cal.4th 884, 28 Cal.Rptr.3d 647, 111 P.3d 921 (2005). That court denied petitioner’s request for rehearing on July 13, 2005. People v. Colin Raker Dickey, CSC Case No. S025519.

On February 21, 2006, the United States Supreme Court denied petitioner’s writ of certiorari. Dickey v. California, 546 U.S. 1177, 126 S.Ct. 1347, 164 L.Ed.2d 60 (2006).

On March 30, 2006, petitioner began this federal habeas proceeding under 28 U.S.C. § 2254 by filing a combined request for appointment of counsel and temporary stay of execution. On October 4, 2007, petitioner filed his federal petition for writ of habeas corpus. On May 21, 2008, this court ordered federal proceedings held in abeyance pending state exhaustion of certain claims. (Doc. No. 69.)

On July 21, 2008, petitioner filed his second state habeas petition, In re Dickey, S165302. (Lod. Doc. 30.) On May 23, 2012, the California Supreme Court summarily denied the second state petition on the merits as to all claim and on procedural grounds as to certain claims. (Lod. Doc. 31.)

Respondent filed his answer in this proceeding (Doc. No. 103) and amended answer correcting clerical error (Doc. No. 105), on August 29, 2013. Therein respondent admitted the jurisdictional allegations and asserted exhaustion and procedural defenses and denied all claims 1 through 29.

On November 18, 2013, this court ordered bifurcated briefing with the guilt phase claims briefed separately from and prior to the penalty phase claims. (Doc. No. 111.)

On April 16, 2014, petitioner filed his brief in support of guilt phase claims which includes his noted initial request for factual development. (Doc. No. 116.)

On September 10, 2014, respondent filed a second amended answer as his brief in response to petitioner’s brief. (Doc. No. 125.)

On November 7, 2014, petitioner filed his brief in reply to respondent’s brief including the noted request that respondent’s second amended answer be stricken and for further factual development. (Doc. No. 128.)

II. STATEMENT OF FACTS

The following factual summary is taken from the California Supreme Court’s opinion in People v. Dickey, 35 Cal.4th 884, 28 Cal.Rptr.3d 647, 111 P.3d 921 (2005), and is presumed correct. 28 U.S.C. § 2254(d)(2), (e)(1). Petitioner does not present clear and convincing evidence to the contrary; thus, the court adopts the factual recitations set forth by the state court. See Vasquez v. Kirkland, 572 F.3d 1029, 1031 n.1 (9th Cir. 2009) (“We rely on the state appellate court’s decision for our summary of the facts of the crime.”).

I. Facts

A. Guilt Phase

1. The Prosecution Case

The murder victims were Fresno residents — Marie Catón, 76, and Louis Freiri, 67, a friend and boarder of Mrs. Caton’s. Their bodies were discovered by one of Mrs. Caton’s daughters, La-velle Garratt. Mrs. Garratt or her sister checked on their mother every day, “[b]ecause she was lonely, because she was our mother, because we loved her and we wanted to see her.”

Late in the afternoon of November 8, 1988, when Mrs. Garratt could not reach her mother by telephone, she drove to her house. She found Mrs. Catón on the floor of her bedroom, covered with a bloodstained blanket. Mrs. Catón had been beaten so badly her eyes bulged out of their sockets like golf balls. Mrs. Catón also had knife wounds on her chest and a jagged cut on her back. She lingered for 11 days, but never regained consciousness. The cause of death was respiratory failure associated with “shock lung syndrome,” the shock having been caused by her injuries.

Mr. Freiri wore a brace on his right leg and required a cane. Mrs. Garratt found him facedown, stretched across the archway between the dining room and the living room. A chair, wall, and window blinds near his body were bloodstained. Pieces of his cane were found in the living room and one of the bedrooms. Mr. Freiri had been stabbed in the chest, armpit, and forearm; he also had a bone-deep laceration on his forehead. He was stabbed with such force that two of his ribs were broken. He died of blood loss.

Mrs. Garratt told the police she suspected her son, Richard Cullumber. Cullum-ber was, Mrs. Garratt believed, a drug addict, and he asked his grandmother Mrs. Catón for money — cash she would take out of a buffet drawer — almost every day. Mrs. Catón “grew up during the Depression and she was afraid of being hungry again, I guess, and so she hid money all over.” Among other caches, Mrs. Catón kept at least $6,000 in cash in a metal box placed inside a suitcase stored under her bed. She also kept a smaller sum in another suitcase.

Cullumber, also known as “R.C.,” lived in an apartment in Fresno, along with defendant, Gail Goldman, Richard Buchanan, and two other men. The night of the murders Cullumber packed his bag and left the apartment. He returned several days later but fled again when informed the police were looking for him. On November 12, 1988, after a high-speed police chase, Cullumber, cornered, killed himself.

The pistol Cullumber used to shoot himself was registered to Mr. Freiri. He had earlier warned the driver of a car he commandeered, “I need the car; I’ve already killed a woman.”

Two knives possibly linked to the murders were discovered in Mrs. Caton’s kitchen — a butcher knife and a steak knife. The steak knife (People’s exhibit No. 18) was, in the opinion of defendant’s housemates Gail Goldman and Richard Buchanan, identical to a knife belonging in their apartment.

In addition to his knife wounds, Mr. Freiri had a four-inch-long ligature wound, caused by a cord that was wrapped around his neck. It was a cotton cord of the color, weave, and texture used in Venetian blinds. The Venetian blinds in Mrs. Caton’s house were intact, but a Venetian blind kept in the hall closet of the apartment defendant shared with Cullumber and the others was missing its cord. On the night of the murders, Gene Buchanan saw defendant remove a Venetian blind from the closet of their apartment, walk into the bedroom with it, and then replace it in the closet. Goldman testified it was Cullum-ber who had done that. Defendant’s thumbprint was found on a slat from the Venetian blind found by the police in the apartment closet, n.2.

-FOOTNOTE-

n.2 No usable prints were found at the scene of the crime, not even those of Mrs. Catón or Mr. Freiri.

- END FOOTNOTE

The case against defendant rested on the testimony of Gail Goldman and Gene Buchanan, n.3.

-FOOTNOTE ---

n.3 Defendant impeached Buchanan on the grounds, among others, that his testimony against defendant was motivated by revenge and a desire to collect the reward offered by Mrs. Caton’s relatives. Defendant was less successful in attacking Goldman’s credibility. If not a hostile witness for the prosecution, she was clearly reluctant to testify against defendant, both because she was fond of him and because she feared the consequences of informing on anyone. A critical question, then, is to what extent Goldman’s testimony corroborates Buchanan’s. To facilitate consideration of that question, we have set out their testimony separately.

- END FOOTNOTE

a) The Testimony of Gail Goldman n.4.

-FOOTNOTE-

n.4 Because she died before the trial began, Goldman’s preliminary hearing testimony was read into the record. (See Evid. Code, § 240, subd. (a)(3).)

- END FOOTNOTE

Goldman shared a one-bedroom apartment in Fresno with defendant, Cul-lumber, Buchanan, and two other men. According to Detective Doug Stokes, Goldman told him “about a Venetian blind that had been in the hall closet that was ... taken by the suspect, Dickey, ... into a bedroom and that the cord was removed from that Venetian blind and then the Venetian blind was placed back inside the hall closet.” However, when she testified, Goldman said it was Cullumber who took the Venetian blind out of the closet and went into the bedroom with it. Later, she testified, the blind had been replaced in the closet, but the cord was missing from a blind in the bedroom.

At approximately the same time that Cullumber was engaged with the Venetian blind, defendant walked into the kitchen and opened a drawer containing knives and other silverware, n.5 According to Detective Stokes, Goldman told him defendant removed a knife from the drawer and left the kitchen with it. Again according to Detective Stokes, when he came to the apartment investí-gating the murders, he showed Goldman a knife. She told him, “I have a knife exactly like that knife, or they are twins.”

-FOOTNOTE-

n.5 Goldman later testified she did not know which drawer defendant had opened.

- END FOOTNOTE

After the activity just described, Goldman testified, defendant and Cullumber left the apartment. They had no money, Goldman believed, when they left. If Cullumber had money, he spent it on drugs; before defendant left he asked Goldman for money to buy cigarettes. However, when they returned, Cullum-ber gave Goldman $40 or $50 in cash, saying it was in partial payment of what he owed her. Cullumber then packed his clothes and left.

Sometime thereafter, while Goldman and defendant were watching the news on television, they saw a story about this crime. Defendant became upset when he learned Mr. Freiri was dead and that Mrs. Catón, while near death, was still alive. He told Goldman to come into the bedroom, that he wanted to talk to her. Buchanan followed them into the bedroom.

Defendant told them he had accompanied Cullumber to the home of Mrs. Catón. On the one hand, defendant said that Cullumber had assured him “nothing was going to happen.” On the other hand, defendant admitted he had gone with Cullumber “[t]o help [him] get the money.” With Mrs. Catón present, defendant looked for money in her bedroom, where Cullumber told him it could be found. When defendant stepped out of the bedroom and saw Mr. Freiri slumped over in a chair, he “knew something had happened.” Cullumber “went berserk. He came into the bedroom and started beating up on his grandmother.” Defendant and Cullumber found $700, which they split.

Defendant was crying, “like he was sad,” when he confessed to Goldman and Buchanan. Later, when defendant learned Mrs. Catón had died, “he wasn’t as depressed as he was before.” While he was confessing, defendant said maybe he should turn himself in. Goldman advised him against it. When Detective Stokes first asked Goldman whether she knew anything about these crimes, Goldman denied that she did. Defendant was a good friend of hers, she still liked him, and she did not want to do anything to get him into' trouble. She did not want to tell on anyone, especially someone she liked as much as she liked defendant. Buchanan told her he was going to turn defendant in for the reward. By contrast, Goldman testified at the preliminary hearing only because she had been subpoenaed. During a break, Goldman told the prosecutor she wanted to make sure defendant knew she was not the one who turned him in. She was afraid for her life. “I always felt that if you would inform on somebody they would kill you or have you killed.”

Defendant said he was not concerned that someone would betray him, “because if they did, they wouldn’t do it again.” On the other hand, Goldman thought that her relationship with defendant was such that “it would take an awful lot to make him hurt me.”

Goldman had “had 20 surgeries on [her] stomach,” and depending on how much pain she was in, she used “speed ball cocaine and heroin” or other “street drugs” to kill the pain.

b) The Testimony of Gene Buchanan

One evening in November 1988, defendant took a Venetian blind from the hall closet of the apartment he shared with Buchanan, Cullumber, Goldman, and two others. Defendant took the blind into the bedroom and. shortly thereafter replaced it in the closet. Buchanan looked into the bedroom. On the bed was a knife belonging to Gail Goldman, a knife with a bone handle and a serrated edge. People’s exhibit No. 18 was that knife, or else it looked exactly like Goldman’s knife.

Defendant and Cullumber left the apartment around 9:00 p.m. That night everyone living in the apartment was broke, or claimed to be. However, when defendant and Cullumber returned, defendant opened his wallet and said, “I got $350,” and, “call the connection.”

Buchanan ordered drugs, which were injected by defendant, Cullumber, Goldman, and Buchanan. Afterwards, Cul-lumber asked Buchanan to take him for a drive; defendant went along. Defendant directed Buchanan to a canal, and as they drove over it, defendant threw in a pair of shoes. After looking for a good place to do it, defendant also threw his jacket out of the window.

About two days later, Buchanan and defendant were in the living room of the apartment; defendant was watching the news on television. Defendant jumped up and ran into the bedroom to Goldman. Buchanan heard Goldman say, “ ‘Oh, my God, how low can you go,’ or ‘get’; something to that effect.” Buchanan went into the bedroom to find out what was going on. Defendant said to him, “I’ve already told her, so I might as well tell you.” Defendant told Buchanan that “him and R.C. had been over to R.C.’s grandmother’s house, and that they had entered the house — how he had done it, how he had walked up to the door, knocked, faked like R.C. was going to be in jail, needed to use the phone, and then R.C. sneaked in, they were supposed to tie them up, get this money and everything. And while the defendant is supposedly in the bedroom looking for the money he hears a commotion, looked out the bedroom door, sees an elderly man with his head slumped down, considers him dead, and that if you kill one you might as well kill them both.” In response to the prosecutor’s questions, Buchanan clarified his testimony. “[Defendant] said that he — only what he thought, he didn’t say what he did. He said that, ‘If you kill one you might as well kill them both.’ ” “[H]e didn’t say he said it to R.C., he just said it as that was his opinion.” Defendant did not tell Buchanan what happened after he had this thought.

Defendant also told Buchanan that what prompted his confession was a television story saying that Mrs. Catón “was still alive when she should have been dead.”

Buchanan did not speak to the police until several months after defendant’s confession to him. At a convenience store he saw a flyer announcing a reward, and he left his name with the clerk. He was then contacted by a grandson of Mrs. Caton’s, and he agreed to speak to Detective Stokes. However, his willingness to do so was not motivated by the reward; it was his “Christian upbringing.” He did not tell Goldman he was going to turn defendant in for the reward.

Defendant had torn up Buchanan’s one photograph of his youngest daughter, which made Buchanan angry. He wanted to throw defendant off the balcony of a motel, but Goldman stopped him.

Buchanan used drugs “[a]s often as I can get them.” He injected “speedballs,” a heroin/cocaine mixture. He used drugs an hour or two before defendant confessed to him, and he continued to do so as recently as the day before his testimony.

2. The Defense Case

Defendant testified he did not make the statements attributed to him by Goldman and Buchanan, and that he did not have anything to do with these crimes. He got along well with Goldman, but not with Buchanan, who was “just a snake; a deceitful person.” His fingerprint was on the Venetian blind because it had fallen off the back door and he had put it into the closet; he did not know why the cord was missing from it. He did rip up the photograph of Buchanan’s daughter.

John Inderrienden had known Goldman for five or six years, and they had once lived in the same apartment building. He “wouldn’t trust her as far as I could throw her, and she weighed quite a bit.”

Goldman once lived in a house owned by Harry Arax. She did not pay her rent, nor did she pay her bill at his market.

Goldman, a former neighbor of Peter Najarian’s, told him she was going to be a witness in a murder case, but that she “didn’t know nothing about no murder.” Magadelena Desumala, who ran a halfway house in which Goldman lived on and off for about 10 years, was “like a sister” to Goldman. She said Goldman told her it was the grandson of the murder victim who had confessed to her.

B. Penalty Phase

The only witness who testified at the penalty phase, Detective Stokes, was called by the prosecution to provide a foundation for the admission of the autopsy photographs. No other evidence, aside from a stipulation to defendant’s prior burglary conviction, was introduced.

Dickey, 35 Cal.4th at 894-900, 28 Cal.Rptr.3d 647, 111 P.3d 921.

III. JURISDICTION

Relief by way of a petition for writ of habeas corpus extends to a person 'in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of Fresno County Superi- or Court, which is located within the jurisdiction of this court. 28 U.S.C. §§ 2241(d), 2254(a).

This action was initiated after April 24, 1996. Therefore the amendments to 28 U.S.C. § 2254 enacted as part of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, apply. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); see also Van Tran v. Lindsey, 212 F.3d 1143, 1148 (9th Cir. 2000), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).

IV. STANDARDS OF REVIEW

A. Legal Standard — Habeas Corpus

Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner can show that the state court’s adjudication of his 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); see also Harrington v. Richter, 562 U.S. 86, 98, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Lockyer, 538 U.S. at 70-71, 123 S.Ct. 1166; Williams, 529 U.S. at 413, 120 S.Ct. 1495.

“[A] state has ‘adjudicated’ a petitioner’s constitutional claim ‘on the merits’ for purposes of § 2254(d) when it has decided the petitioner’s right to post-conviction relief on the basis of substance of the constitutional claim advanced, rather than denying the claim on the basis of a procedural or other rule precluding state court review of the merits.” Brown v. Walker, Case No. C 09-04663 JSW, 2014 WL 4757804, at *5 (N.D. Cal. Sept. 24, 2014), citing Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004).

As a threshold matter, this court must “first decide what constitutes clearly established Federal law, as determined by the Supreme Court of the United States.” Lockyer, 538 U.S. at 71, 123 S.Ct. 1166, quoting 28 U.S.C. § 2254(d)(1). In ascertaining what is “clearly established Federal law,” this court must look 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. “In other words, ‘clearly established Federal law’ under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Id. In addition, the Supreme Court decision must “squarely address [] the issue in th[e] case; otherwise, there is no clearly established Federal law for purposes of review under AEDPA.” Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009), quoting Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008); see also Panetti v. Quarterman, 551 U.S. 930, 949, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007); Carey v. Musladin, 549 U.S. 70, 74, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006).

If no clearly established Federal law exists, the inquiry is at an end and the court must defer to the state court’s decision. Carey, 549 U.S. 70, 127 S.Ct. 649; Wright, 552 U.S. at 126, 128 S.Ct. 743; Moses, 555 F.3d at 760. In addition, the Supreme Court has recently clarified that habeas relief is unavailable in instances where a state court arguably refuses to extend a governing legal principle to a context in which the principle should have controlled. White v. Woodall, — U.S. —, 134 S.Ct. 1697, 1706, 188 L.Ed.2d 698 (2014). The Supreme Court stated: “[I]f a habeas court must extend a rationale before it can apply to the facts at hand, then by definition the rationale was not clearly established at the time of the state-court decision.” Id., quoting Yarborough v. Alvarado, 541 U.S. 652, 666, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004).

If the court determines there is governing clearly established Federal law, the court must then consider whether the state court’s decision was “contrary to, or involved an unreasonable application of, [the] clearly established Federal law.” Lockyer, 538 U.S. at 72, 123 S.Ct. 1166, quoting 28 U.S.C. § 2254(d)(1). “Under the ‘contrary to’ clause, a federal habeas court may grant the writ 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] Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13, 120 S.Ct. 1495; see also Lockyer, 538 U.S. at 72, 123 S.Ct. 1166. “The word ‘contrary’ is commonly understood to mean ‘diametrically different,’ ‘opposite in character or nature,’ or ‘mutually opposed.’ ” Williams, 529 U.S. at 405, 120 S.Ct. 1495, quoting Webster’s Third New International Dictionary 495 (1976). “A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases.” Id.

“Under the ‘reasonable application clause,’ a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413, 120 S.Ct. 1495. “[A] federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411, 120 S.Ct. 1495; see also Lockyer, 538 U.S. at 75-76, 123 S.Ct. 1166. “A state court’s determination that a claim lacks merit precludes federal habeas relief so long as fair-minded jurists could disagree on the correctness of the state court’s decision.” Richter, 562 U.S. at 101, 131 S.Ct. 770, citing Yarborough, 541 U.S. at 664, 124 S.Ct. 2140. The Supreme Court stated:

As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.

Id. at 101-05, 131 S.Ct. 770. In other words, so long as fair-minded jurists could disagree on the correctness of the state court’s decision, the decision cannot be considered unreasonable. Id. at 98-99, 131 S.Ct. 770. In applying this standard, “a habeas court must determine what arguments or theories supported ... or could have supported the state court’s decision; and then it must ask whether it is possible fair-minded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme Court].” Id. at 101-03, 131 S.Ct. 770. This objective standard of reasonableness applies to review under both subsections of 28 U.S.C. § 2254(d). Hibbler v. Benedetti, 693 F.3d 1140, 1146-47 (9th Cir. 2012). If the court determines that the state court decision is objectively unreasonable, and the error is not structural, habeas relief is nonetheless unavailable unless the error had a substantial and injurious effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

Petitioner has the burden of establishing that the decision of the state court is contrary to or involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is objectively unreasonable. LaJoie v. Thompson, 217 F.3d 663, 669 n.6 (9th Cir. 2000); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 2000).

The AEDPA requires considerable deference to the state courts. “[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, 181, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), and “evidence introduced in federal court has no bearing on 2254(d)(1) review.” Id. at 185, 131 S.Ct. 1388. “Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary.” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), citing 28 U.S.C. § 2254(e)(1). However, a state court factual finding is not entitled to deference if the relevant state court record is unavailable for the federal court to review. Townsend v. Sain, 372 U.S. 293, 319, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), overruled by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992).

If a petitioner satisfies either subsection (1) or (2) of § 2254 for a claim, then the federal court considers that claim de novo. See Panetti, 551 U.S. at 953, 127 S.Ct. 2842 (when § 2254(d) is satisfied, “[a] federal court must then resolve the claim without the deference AEDPA otherwise requires.”); see also Frantz v. Hazey, 533 F.3d 724, 737 (9th Cir. 2008) (same).

In this case, some of petitioner’s claims and allegations were raised and rejected by the California Supreme Court on direct appeal while others were raised in his state habeas petitions to that court and summarily denied on the merits. In the latter case, where the state court decision is unaccompanied by an explanation, “the habeas petitioner’s burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98, 131 S.Ct. 770. The Supreme Court stated that “a habeas court must determine what arguments or theories supported or .. .could have supported, the state court’s decision; and then it must ask whether it is possible fair-minded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Id. at 101-03, 131 S.Ct. 770 (emphasis added). Petitioner bears “the burden to demonstrate that ‘there was no reasonable basis for the state court to deny relief.’ ” Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013), quoting Richter, 562 U.S. at 98, 131 S.Ct. 770. “Crucially, this is not a de novo review of the constitutional question,” id. as “even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id., quoting Richter, 562 U.S. at 102, 131 S.Ct. 770; see also Murray v. Schriro, 745 F.3d 984, 996-97 (9th Cir. 2014).

When reviewing the California Supreme Court’s summary denial of a petition, this court must consider that the California Supreme Court’s summary denial of a habeas petition on the merits reflects that court’s determination that:

[T]he claims made in th[e] petition do not state a prima facie case entitling the petitioner to relief. It appears that the court generally assumes the allegations in the petition to be true, but does not accept wholly conclusory allegations, and will also review the record of the trial ... to assess the merits of the petitioner’s claims.

Pinholster, 563 U.S. at 181 n.12, 131 S.Ct. 1388, quoting In re Clark, 5 Cal.4th 750, 770, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993); see also Johnson v. Williams, 568 U.S. 289, 133 S.Ct. 1088, 1094-96, 185 L.Ed.2d 105 (2013) (holding that even where the state court does not separately discuss a federal claim there is a presumption that that state court adjudicated the federal claim on the merits). Accordingly, if this court finds petitioner has unarguably presented a prima facie case for relief on a claim, the state court’s summary rejection of that claim would be unreasonable. Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); Nunes v. Mueller, 350 F.3d 1045, 1054-55 (9th Cir. 2003).

For any habeas claim that has not been adjudicated on the merits by the state court, the federal court reviews the claim de novo without the deference usually accorded state courts under 28 U.S.C. § 2254(d)(1). Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005); Pirtle v. Mor gan, 313 F.3d 1160, 1167 (9th Cir. 2002). In such instances, however, the provisions of 28 U.S.C. § 2254(e) still apply. Pinholster, 563 U.S. at 185, 131 S.Ct. 1388 (“Section 2254(e)(2) continues to have force where § 2254(d)(1) does not bar federal habeas relief.”); Pirtle, 313 F.3d at 1167-68 (stating that state court findings of fact are presumed correct under § 2254(e)(1) even if legal review is de novo).

V. PROCEDURAL BARS

Some of petitioner’s claims were alternatively denied by the California Supreme Court as proeedurally barred. As to those claims, respondent has invoked the independent state ground doctrine, pursuant to which a federal court will not review a question of federal law decided by a state court “if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Vang v. Nevada, 329 F.3d 1069, 1072 (9th Cir. 2003), quoting Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

Since “cause and prejudice” can excuse a proeedurally defaulted claim, Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007), quoting Coleman, 501 U.S. at 750, 111 S.Ct. 2546, and “prejudice” essentially requires a merits analysis, the court will proceed to the merits of claims found to be proeedurally defaulted without determining whether the state procedural default is adequate and independent to bar relief in federal court. Id., quoting Coleman, 501 U.S. at 732-35, 111 S.Ct. 2546. A district court may exercise discretion to proceed to the merits in advance of litigation of procedural default. Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (courts empowered to reach the merits if on their face the allegations are clearly not meritorious despite asserted procedural bar); see also Bell v. Cone, 543 U.S. 447, 451 n.3, 125 S.Ct. 847, 160 L.Ed.2d 881 (2005) (an application for habeas corpus may be denied on the merits even if unexhausted in state court); Loggins v. Thomas, 654 F.3d 1204, 1215 (11th Cir. 2011) (relief may be denied on the merits where petition is clearly not meritorious despite asserted procedural bar).

VI. MOTION TO STRIKE

Petitioner moves that the second amended answer be stricken and respondent directed to refile the document as an opposition to petitioner’s merits brief. He asserts as grounds that respondent has not complied with court orders and Rule 15 such that the second amended answer is a nullity. (See Doc. No. 128 at 57:5-58:24.)

A. Legal Standard — Motion to Strike

Rule 12(f) authorizes the court to strike from the pleadings “any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “Motions to strike are generally viewed with disfavor, and will usually be denied unless the allegations in the pleading have no possible relation to the controversy, and may cause prejudice to one of the parties.” Champlaie v. BAC Home Loans Servicing, LP, 706 F.Supp.2d 1029, 1039 (E.D. Cal. 2009) (Karlton, J.) [Citations]. “If the court is in doubt as to whether the challenged matter may raise an issue of fact or law, the motion to strike should be denied, leaving an assessment of the sufficiency of the allegations for adjudication on the merits.” [Citation]

Carolina Cas. Ins. Co. v. Oahu Air Conditioning Serv., Inc., 994 F.Supp.2d 1082, 1090-91 (E.D. Cal. 2014).

B. Analysis

Rule 15 provides that:

A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave....

Fed. R. Civ. P. 15(a)(1-2). Generally service of an amendment that does not comply with Rule 15 has no legal effect. Hardin v. Wal-Mart Stores, Inc., 813 F.Supp.2d 1167, 1181 (E.D. Cal. 2011) (“If an amended pleading cannot be made as of right and is filed without leave of court or consent of the opposing party, the amended pleading is a nullity and without legal effect.”)

Here, respondent’s opposition brief is captioned as a second amended answer (Doe. No. 125) and purports to amend the amended answer filed August 29, 2013 (Doc. No. 105) “pursuant to this [c]ourt’s November 18, 2013 order.” (Doc. No. 125 at 25:23-24.)

Petitioner correctly argues the court’s November 18, 2013 order did not direct or allow respondent to file an amended answer. (See Doc. No. 111.) That order directed respondent to file his “responsive brief and opposition to factual development.” (Id. at 2:13-14.) Respondent was not therein or subsequently allowed or directed to amend his previously filed amended answer. (Doc. No. 105; see also Doc. No. 124) (September 9, 2014 clerk’s notice that directed the purported second amended answer be re-filed as an opposition brief.)

Petitioner correctly argues that a second amended answer would be unauthorized as untimely, uneonsented to by petitioner and lacking court approval. However, the purported second amended answer was re-filed as an opposition brief. (Doc. No. 125.) It responds to petitioner’s merits brief and to that extent serves as an opposition thereto. Moreover, petitioner has not demonstrated prejudice from respondent’s filing of the purported second amended answer. The court has held that:

The absence of prejudice is a sufficient reason to deny moving defendants’ motion to strike. See, e.g., N.Y.C. Emps.’ Ret. Sys. v. Berry, 667 F.Supp.2d 1121, 1128 (N.D. Cal. 2009) (“Where the moving party cannot adequately demonstrate ... prejudice, courts frequently deny motions to strike even though the offending matter was literally within one or more of the categories set forth in Rule 12(f).”).

Carolina Cas. Ins. Co., 994 F.Supp.2d at 1091.

For the reasons stated, the court will not strike under Rule 12(f) as an improper amendment the purported second amended answer, refiled as an opposition brief. The motion to strike shall be denied.

VII. REVIEW OF GUILT PHASE CLAIMS

A. Ineffective Assistance of Trial Counsel Claims

1. Clearly Established Law — Ineffective Assistance of Counsel

The Sixth Amendment right to effective assistance of counsel, applicable to the states through the Due Process Clause of the Fourteenth Amendment, applies through the sentencing phase of a trial. U.S. Const. amend. VI; U.S. Const. amend. XIV, § 1; see also Gideon v. Wainwright, 372 U.S. 335, 343-45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Silva v. Wood- ford, 279 F.3d 825, 836 (9th Cir. 2002); Murray, 745 F.3d at 1010-11.

The clearly established federal law for ineffective assistance of counsel claims is Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In a petition for writ of habeas corpus alleging ineffective assistance of counsel, the court must consider two factors. First, the petitioner must show that counsel’s performance was deficient, requiring a showing that counsel made errors so serious that he or she was not functioning as the “counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The petitioner must show that “counsel’s representation fell below an objective standard of reasonableness,” and must identify counsel’s alleged acts or omissions that were not the result of reasonable professional judgment considering the circumstances. Richter, 562 U.S. at 104, 131 S.Ct. 770, citing Strickland, 466 U.S. at 688, 104 S.Ct. 2052.

Petitioner must show that counsel’s errors were so egregious as to deprive him of a fair trial, one whose result is reliable. Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Judicial scrutiny of counsel’s performance is highly deferential, and the habeas court must guard against the temptation “to second-guess counsel’s assistance after conviction or adverse sentence.” Id. at 689, 104 S.Ct. 2052. Instead, the habeas court must make every effort “to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at .the time.” Id.; see also Richter, 562 U.S. at 106-08, 131 S.Ct. 770. A court indulges a “ ‘strong presumption’ that counsel’s representation was within the ‘wide range’ of reasonable professional assistance.” Richter, 562 U.S. at 104, 131 S.Ct. 770, quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052; see also Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994) (same). This presumption of reasonableness means that not only do we “give the attorneys the benefit of the doubt,” we must also “affirmatively entertain the range of possible reasons [defense] counsel may have had for proceeding as they did.” Pinholster, 563 U.S. at 196, 131 S.Ct. 1388.

The Supreme Court has “declined to articulate specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that ‘[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.’” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052. However, “general principles have emerged regarding the duties of criminal defense attorneys that inform [a court’s] view as to the ‘objective standard of reasonableness’ by which [a court must] assess attorney performance, particularly with respect to the duty to investigate.” Summerlin v. Schriro, 427 F.3d 623, 629 (2005). “[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. It follows that:

[Strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgment.

Wiggins, 539 U.S. at 521, 123 S.Ct. 2527, quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052; sec also Thomas v. Chappell, 678 F.3d 1086, 1104 (9th Cir. 2012) (counsel’s decision not to call a witness can only be considered tactical if he had “sufficient information with which to make an informed decision”); Reynoso v. Giurbino, 462 F.3d 1099, 1112-1115 (9th Cir. 2006) (counsel’s failure to cross-examine witnesses about their knowledge of reward money cannot be considered strategic where counsel did not investigate this avenue of impeachment); Jennings v. Woodford, 290 F.3d 1006, 1016 (9th Cir. 2002) (counsel’s choice of alibi defense and rejection of mental health defense not reasonable strategy where counsel failed to investigate possible mental defenses).

Second, the petitioner must demonstrate prejudice, that is, he must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result ... would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “It is not enough ‘to show that the errors had some conceivable effect on the outcome of the proceeding.’” Richter, 562 U.S. at 104, 131 S.Ct. 770, quoting Strickland, 466 U.S. at 693, 104 S.Ct. 2052. “Counsel’s errors must be ‘so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’” Richter, 562 U.S. at 104, 131 S.Ct. 770, quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Under this standard, we ask “whether it is ‘reasonably likely’ the result would have been different.” Richter, 562 U.S. at 112, 131 S.Ct. 770, quoting Strickland, 466 U.S. at 696, 104 S.Ct. 2052.

That is, only when “[t]he likelihood of a different result [is] substantial, not just conceivable,” id. has the defendant met Strickland’s demand that defense errors were “so serious as to deprive the defendant of a fair trial.” Id., at 103-105, 131 S.Ct. 770, quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052. A court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the petitioner as a result of the alleged deficiencies. Strickland, 466 U.S. at 697, 104 S.Ct. 2052. Since the petitioner must affirmatively prove prejudice, any deficiency that does not result in prejudice must necessarily fail.

Under AEDPA, the court does not apply Strickland de novo. Rather, the court must determine whether the state court’s application of Strickland was unreasonable. Richter, 562 U.S. at 100-101, 131 S.Ct. 770. Establishing that a state court’s application of Strickland was unreasonable under 28 U.S.C. § 2254(d) is very difficult. See Richter, 562 U.S. at 102, 131 S.Ct. 770, (on deferential (2254(d)) review relief is granted only for “extreme malfunctions” in the state criminal justice system, not for ordinary errors that can be corrected on appeal).

Since the standards created by Strickland and § 2254(d) are both “highly deferential,” when the two are applied in tandem, review is “doubly so.” Id., quoting Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009). Further, because the Strickland rule is a “general” one, courts have “more leeway ... in reaching outcomes in ease-by-ease determinations” and the “range of reasonable applications is substantial.” Id. at 101, 131 S.Ct. 770; see also Premo v. Moore, 562 U.S. 115, 122-23, 131 S.Ct. 733, 178 L.Ed.2d 649 (2011).

2. Review of Claim I

Petitioner alleges that trial counsel was ineffective in the process of selecting jurors, denying him a fair and impartial jury, violating his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. (Doc. No. 51-1 ¶¶ 173-207.)

a. Clearly Established Law — Impartial Jury

The Sixth Amendment secures to criminal defendants the right to trial by an impartial jury. Skilling v. United States, 561 U.S. 358, 377-78, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010); Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).

“[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin, 366 U.S. at 722, 81 S.Ct. 1639; see also Skilling, 561 U.S. at 377-78, 130 S.Ct. 2896. In a capital case, “a prospective juror may be excluded for cause because of his or her views on capital punishment ... if the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’” Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), citing Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). Thus, “a juror who in no case would vote for capital punishment, regardless of his or her instructions, is not an impartial juror and must be removed for cause.” Morgan v. Illinois, 504 U.S. 719, 728, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). Likewise, a juror who would automatically impose the death penalty if a defendant is found guilty is not impartial and must be removed for cause. Id. at 733, 112 S.Ct. 2222; Ross v. Oklahoma, 487 U.S. 81, 85, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988).

“[P]art of the guarantee of a defendant’s right to an impartial jury is an adequate voir dire to identify unqualified jurors.” Morgan, 504 U.S. at 729, 112 S.Ct. 2222. “Voir dire ‘is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion.’” Ristaino v. Ross, 424 U.S. 589, 594, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976), quoting Connors v. United States, 158 U.S. 408, 413, 15 S.Ct. 951, 39 L.Ed. 1033 (1895). “[T]he trial court retains great latitude in deciding what questions should be asked on voir dire.” Mu'Min v. Virginia, 500 U.S. 415, 424, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991). No hard-and-fast formula dictates the necessary depth or breadth of voir dire, see United States v. Wood, 299 U.S. 123, 145-146, 57 S.Ct. 177, 81 L.Ed. 78 (1936), and “[t]he Constitution ... does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury.” Morgan, 504 U.S. at 729, 112 S.Ct. 2222. A trial court’s failure to ask certain questions does not violate the Constitution unless it “render[s] the defendant’s trial fundamentally unfair.” Mu’Min, 500 U.S. at 426, 111 S.Ct. 1899.

“[T]he trial court retains great latitude in deciding what questions should be asked on voir dire.” Id. at 424, 111 S.Ct. 1899. A trial court’s failure to ask certain questions does not violate the Constitution unless it “render[s] the defendant’s trial fundamentally unfair.” Id. at 426, 111 S.Ct. 1899.

Only two specific, inquires of voir dire are constitutionally compelled: inquiries into racial prejudice against a defendant charged with a violent crime against a person of a different racial group, id., at 424, 111 S.Ct. 1899, and, in a capital case, inquiries into a juror’s views on capital punishment. Morgan, 504 U.S. at 730-32, 112 S.Ct. 2222.

b. State Court Direct and Collateral Review

Petitioner presented some of these allegations to the California Supreme Court in his first state habeas petition. (Lod. Doc. 7 at 42-52.) That court summarily denied the allegations on the merits. (Lod. Doc. 10.) Petitioner presented other of these allegations to the California Supreme Court in his second state habeas petition. (Lod. Doc. 30 at 89-100.) That court summarily denied the allegations on the merits and on procedural grounds. (Lod. Doc. 31.)

c. Analysis of Claim I

(i) List of Randomly Selected Jurors

Petitioner alleges that defense trial counsel, Fresno County public defender Marvin Schultz, who was appointed to represent him in February 1989, was deficient by stipulating that counsel for both sides would be provided with a computer generated random list of the jurors in the order they would be called for Hovey voir dire. (Doc. No. 51-1 ¶ 177.)

The record reflects that jury qualification and selection began on January 14, 1991 with approximately three hundred fifty prospective jurors appearing. (RT 92.) Petitioner alleges that the noted stipulation impinged upon the “random selection” of the jury [because] [o]nee death qualification was complete, and seating of the jury began, both counsel knew, with the preprinted random list in hand, if they exercised a peremptory challenge, which jurors were in line to take the vacant seat.” (Doc. No. 51-1 ¶ 177, citing RT 112—115; see also RT 3854, 3873.)

Petitioner also alleges that given the list, Schultz was deficient by not using all of his peremptory challenges, resulting in selection of a pro death jury partial to the prosecution. (Doc. No. 51-1 ¶¶ 200-207; see also Morgan, 504 U.S. at 728-29, 112 S.Ct. 2222) (capital defense has a right to adequate voir dire to identify unqualified jurors and to an impartial jury). Petitioner also faults Schultz for failing to rehabilitate prospective jurors who voiced initial opposition to the death penalty. (Doc. No. 51-1 ¶ 205 citing 1989 ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (“ABA Guidelines”), Commentary to Guideline 10.10.2(B)(3).)

Here, the state supreme court could reasonably have concluded that Schultz used the random list of jurors and his peremptory challenges strategically. See e.g., Davis v. Woodford, 333 F.3d 982, 995-96 (9th Cir. 2003), amended and superseded 384 F.3d 628, 643 (9th Cir. 2004) (no ineffectiveness in failing to use peremptory challenges where jurors’ statements did not demonstrate actual or implied bias; each said they could “follow the judge’s instructions and decide the case impartially”); United States v. Quintero-Barraza, 78 F.3d 1344, 1349-50 (9th Cir. 1995) (where juror stated it would be “difficult” for him to be impartial because he believed persons to be guilty until proven innocent, no ineffectiveness in failing to strike juror because decision was manifestly tactical and due respect was paid to juror’s oath); Denham v. Deeds, 954 F.2d 1501, 1505 (9th Cir. 1992) (where juror stated that defendant may have told her about the charged crime while she waited on them at work, no ineffectiveness to fail to challenge her because she said she could be fair and where decision could be tactical).

The record reflects that neither side exercised all its available peremptory challenges. (RT 4075, 4094.) The prosecution exercised eight of twenty peremptory challenges in selecting the twelve member jury. (RT 3955, 3970, 4012, 4025, 4049, 4054, 4057, 4062.) Schultz exercised seven of twenty peremptory challenges in selecting this jury as well as one peremptory challenge in selecting the three alternates. (RT 3959, 3973, 3980, 3997, 4019, 4042, 4059, 4090.)

Petitioner suggests that the juror questionnaire responses of the jurors ultimately selected did not support Schultz’s selection strategy by showing an inclination to require a higher standard of prosecutorial proof at the guilt phase. (Doc. No. 51-1 ¶ 195 (c); Doc. No. 116 at 381:1-5.) However, as petitioner acknowledges (Doc. No. 51-1 ¶ 192), Schulz made “for cause” or peremptory challenges of prospective jurors who were so in favor of the death penalty that they were not impartial and receptive to defense evidence. (Id.)

Moreover, peremptory challenges are not necessarily of constitutional dimension. Ross, 487 U.S. at 88, 108 S.Ct. 2273; Gray v. Mississippi, 481 U.S. 648, 663, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987). The Supreme Court has upheld use of peremptory challenges that do not discriminate on a constitutionally suspect basis. See Holland v. Illinois, 493 U.S. 474, 478, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990) (rejecting argument that “a prosecutor’s use of peremptory challenges to eliminate a distinctive group in the community deprives the defendant of a Sixth Amendment right to the ‘fair possibility’ of a representative jury”).

(ii) Strategy of Selecting Pro-Death Jury

Petitioner alleges Schultz was deficient by selecting a pro-death jury, i.e., jurors “who were predisposed to impose the death penalty” (Doc. No. 51-1 ¶ 185) in the hope that at the guilt phase these jurors “would be more critical of the prosecution’s case and less likely to convict.” (Id.; see also SHCP, Ex. B ¶ 3.)

Petitioner alleges that Schultz’s above noted “pro death” jury strategy led to selection of a jury that was not impartial. He claims the jury selected was more prone both to convict and impose the death penalty thus aiding the prosecution. (Doc. No. 116 at 379:10-14.) He argues that is evident in the approximately four hours of deliberation required by the jury to convict and find all special circumstances true. (CT 380-85, 463-68.) He argues that “[a] criminal defendant has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective ... challenges for cause.” (Doc. No. 116 at 386:27-387:2); see also Uttecht v. Brown, 551 U.S. 1, 9, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007), citing Witherspoon v. Illinois, 391 U.S. 510, 521, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

Petitioner argues Schultz’s strategy fell below the experience and competency requirements for jury selection established by ABA Guidelines. ABA Guidelines, Commentary to Guideline 1.1; see also Correll v. Ryan, 539 F.3d 938, 949 (9th Cir. 2008) ([A]n “uninformed strategy is not a reasoned strategy. It is, in fact, no strategy at all.”).

Petitioner argues Schultz’s strategy was essentially uninformed and therefore unreasonable. Correll, 539 F.3d at 949. He argues Schultz, who had no death penalty case experience and had not researched this strategy or discussed with jury selection experts, unreasonably based the strategy upon his own deduction and personal opinion. (SHCP, Ex. B ¶¶ 2, 3.) He argues that had Schultz investigated this theory he would have discovered empirical evidence discounting it. See e.g., Hovey v. Superior Court, 28 Cal.3d 1, 40, 168 Cal.Rptr. 128, 616 P.2d 1301 (1980), superseded by statute as stated in People v. Jackson, 1 Cal.5th 269, 360, 205 Cal.Rptr.3d 386, 376 P.3d 528 (2016) (jurors with scruples against the death penalty vote to acquit more frequently than pro-death jurors).

However, the state supreme court was not unreasonable in rejecting this claim. As respondent notes, Schultz stated that his strategy was to pick jurors who would require the prosecutor to carry his burden of proof, i.e., “to select jurors who demanded they be absolutely positively convinced of the defendant’s guilt. [I wanted] [j]urors who said they had to be completely convinced of the guilt of the accused before they could vote to convict.” (SHOP, Ex. B ¶ 3.) Schultz’s posited theory finds support in the record. Some prospective jurors who felt death penalty was appropriate where guilt was certain also felt the converse was true. (See e.g., prospective juror Driscoll, RT 1158-65; prospective juror Sasaki, RT 2825-41; prospective juror Whiteman, RT 3425-30; and prospective juror Kincade (RT 3800-3803.)) Moreover, the Supreme Court has suggested that death qualified jurors can be more demanding of proof at the conviction phase. Lockhart v. McCree, 476 U.S. 162, 168-73, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986) (the Constitution does not prohibit the States from death qualifying juries in capital cases).

Petitioner’s citation to ABA Guidelines does not necessarily suggest otherwise. He argues the ABA Guidelines “advise counsel to design a jury selection strategy crafted to minimize the problem of death qualified juries that result from exclusion of prospective jurors whose opposition to capital punishment effectively skews the jury pool not only as to imposition of the death penalty but [also] as to conviction.” (Doc. No. 51-1 ¶ 203 citing ABA Guidelines, Commentary to Guideline 10.10.2(B)(1).) However, the ABA Guidelines are not “inexorable commands” with which all attorneys must comply to avoid a finding of ineffectiveness. Bobby v. Van Hook, 558 U.S. 4, 8, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009). “Strickland stressed ... that American Bar Association standards and the like are only guides to what reasonableness means, not its definition. Id.” (Doc. No. 125 at 75:5-8.)

Especially so where, as here, counsel could reasonably focus on the guilt phase and gaining acquittal given the alleged weakness of the physical evidence against the petitioner. Defense counsel Schultz had “fu