Noguera v. Davis (290 F. Supp. 3d 974, 2017)

CHRISTINA A. SNYDER, United States District Judge

I. BACKGROUND

Petitioner William A. Noguera is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a judgment of the Superior Court of California, Orange County, following his April 29, 1987 conviction of the first-degree murder ( Cal. Pen. Code § 187(a) ) of Jovita Navarro, the mother of Petitioner's girlfriend, Dominique. (RT 8312.) The financial gain special circumstance allegation ( Cal. Pen. Code § 190.2, subd. (a)(1) ) was found true. (RT 8313.) The jury also found Petitioner used a dangerous and deadly weapon in the murder of Ms. Navarro ( Cal. Pen. Code § 12022(b) ). (RT 8313-15.)

On May 18, 1987, the penalty phase of Petitioner's capital trial began. The jurors began penalty phase deliberations at 3:05 p.m. on May 21, 1987 and adjourned at 4:30 p.m. (RT 8711.) The following afternoon, on May 22, 1987, the jury returned a verdict of death. (RT 8717-18.) On January 29, 1988, the trial court heard and denied Petitioner's Motion for New Trial and for Modification of the Verdict, heard and denied Petitioner's Request to Strike the Special Circumstance, and sentenced Petitioner to death. (RT 8787-8874.)

On December 28, 1992, the California Supreme Court affirmed Petitioner's conviction and death sentence on direct appeal. See People v. Noguera , 4 Cal.4th 599, 15 Cal.Rptr.2d 400, 842 P.2d 1160 (1992). The California Supreme Court denied Petitioner's petition for rehearing on March 10, 1993. (Dkt. No. 148, Lodgment No. 8.) The United States Supreme Court denied Petitioner's petition for writ of certiorari on June 30, 1994. Noguera v. California , 512 U.S. 1253, 114 S.Ct. 2780, 129 L.Ed.2d 892 (1994).

Petitioner filed his initial state habeas petition in the California Supreme Court on November 16, 1992. (Dkt. No. 148, Lodgment No. 4.) The California Supreme Court summarily denied the petition on September 29, 1993, with three justices noting their opinions that an order to show cause should issue. In re Noguera , No. S029779. (Dkt. No. 336, Lodgment No. 3.)

Almost one year later, Petitioner initiated federal habeas corpus proceedings by filing a Request for Appointment of Counsel and Stay of Execution in the United States District Court for the Central District of California. (Dkt. Nos. 1-2.) The Court appointed Rober Bryan and Nicholas C. Arguimbau on January 27, 1995. (Dkt. No. 11.) Petitioner filed a 91-claim federal habeas petition on July 26, 1996, and, just four days later, Mr. Arguimbau filed an Urgent Motion to Withdraw as Counsel. (Dkt. Nos. 99, 101-104.) The Court granted Mr. Arguimbau's Motion on August 5, 1996. (Dkt. No. 106.) On July 7, 1997, Petitioner moved to stay and abey the federal proceedings pending exhaustion of 31 unexhausted claims in state court. (Dkt. No. 154.) After initially dismissing the petition for failure to exhaust state remedies on October 28, 1997, the Court granted in part petitioner's motion for reconsideration on December 23, 1997, but denied Petitioner's Motion to Hold Proceedings in Abeyance. (Dkt. No. 174.)

On January 12, 1998, Petitioner filed an Amended Petition for Writ of Habeas Corpus, excluding the 31 unexhausted claims. (Dkt. Nos. 175-76.) He filed his first exhaustion petition in the California Supreme Court on March 2, 1998, raising the unexhausted claims. (Dkt. No. 336, Lodgment 4.) While the exhaustion petition was pending in state court, the parties proceeded to litigate the merits of the first amended federal petition. Respondent filed an Answer to the Amended Petition on September 9, 1998; and on February 9, 1999, Petitioner filed a Traverse to the State's Answer to the Amended Petition for Writ of Habeas Corpus. (Dkt. Nos. 180, 187-88.) On February 23, 1999, Petitioner filed a Motion for Evidentiary Hearing, which the Court denied on April 14, 2000, after a December 10, 1999 hearing. (Dkt. Nos. 190, 211, 216.) In its denial order, the Court ruled that Petitioner was not entitled to an evidentiary hearing on Claims 2, 4, and 60 of the first amended petition because those claims were without merit. (Dkt. No. 216.) The Court determined that, as to the remaining claims, the record was sufficiently developed to decide those claims without evidentiary hearing. (Dkt. No. 216.)

The parties filed supplemental briefs on the remaining claims in the first amended petition and, on August 31, 2001, the parties appeared for oral argument on the remaining claims. (Dkt. Nos. 225, 236, 227, 228, 245.) During oral argument, the Court noted that, on careful examination of the record and in view of changes in the law since the Court's October 28, 1997 Order, some of the claims in the first amended petition which the Court believed to be exhausted, might not be exhausted. The Court invited supplemental briefing, and the parties filed additional briefs on the question. (Dkt. Nos. 247, 248, 250.)

Meanwhile, the California Supreme Court denied petitioner's exhaustion petition on October 17, 2001. In re Noguera , No. S068360. (Dkt. No. 336 Lodgment 8.) Subsequently, on November 29, 2001, Petitioner filed a Motion for Leave to File Second Amended Petition. (Dkt. No. 249.) On April 9, 2003, the Court dismissed the first amended petition as a partially unexhausted, "mixed" petition and denied the motion to file the second amended petition because it included the same unexhausted claims as the first amended petition. (Dkt. No. 256; see also, Dkt. No. 262.) The Court also invited Petitioner to file a fully exhausted Third Amended Petition; and, on June 9, 2003, Petitioner simultaneously filed petitions in state and federal court. (Dkt. No. 258; Dkt. No. 336, Lodgment 9.) On July 28, 2003, this Court granted Petitioner's Motion to Hold Proceedings in Abeyance Pending Determination by State Court of Petitioner's Exhaustion Petition. (Dkt. Nos. 258, 259, 262, 263.) While Petitioner's third state petition was pending, he filed a fourth state petition on August 29, 2005. (Dkt. No. 336, Lodgment 13.) The third and fourth state habeas petitions were both denied on October 10, 2007. In re Noguera, No. S116529; In re Noguera , No. S136826. (Dkt. No. 336, Lodgments 12 & 15.) Petitioner notified the Court of the denials in a letter dated October 20, 2007, and this Court vacated the stay on November 5, 2007. (Dkt. Nos. 272, 273.)

On February 22, 2008, this Court again stayed the proceedings in this action due to Petitioner's then-pending request for substitution of federal habeas counsel and, on March 3, 2008, Robert R. Bryan filed a Request to Withdraw as Attorney for Petitioner. (Dkt. Nos. 284, 292.) The Court appointed the Federal Public Defender as advisory counsel on March 4, 2008, and on July 21, 2008, granted Bryan's request to withdraw. (Dkt. No. 286, 305.) The Office of the Federal Public Defender for the Central District of California was appointed as counsel for Petitioner on August 14, 2008. (Dkt. No. 307.)

Petitioner filed the operative Fourth Amended Petition for Writ of Habeas Corpus on March 9, 2009. (Dkt. Nos. 317, 318.) Respondent filed an Answer on November 6, 2009, and Petitioner filed a Traverse on January 19, 2010. (Dkt. Nos. 330, 338.) The parties began litigating discovery issues in 2010. However, after the United States Supreme Court issued its decision in Cullen v. Pinholster , 563 U.S. 170, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), on April 4, 2011, this Court ordered Respondent to file a motion to dismiss, identifying on a claim by claim basis those claims Respondent contends are subject to summary dismissal without discovery or an evidentiary hearing. (Dkt. No. 351.) Respondent filed a Motion to Dismiss on February 6, 2012. (Dkt. No. 355.) Petitioner filed an Opposition to Respondent's Motion to Dismiss on June 20, 2012, and Respondent filed a reply on October 16, 2012. (Dkt. No. 361.) On November 2, 2012, Petitioner filed a Surreply, and Respondent filed a Reply Response to the Surreply on November 26, 2012. (Dkt. Nos. 366, 368.)

On March 7, 2013, the case was reassigned from the calendar of Judge Stotler to the calendar of Judge Snyder for all further proceedings. (Dkt. No. 369.)

II. STATEMENT OF FACTS

This factual summary is taken in large part from the California Supreme Court's summary of the facts in its December 28, 1992 opinion. Pursuant to 28 U.S.C. §§ 2254(d)(2), (e)(1), the state court's summary of facts is presumed correct. To the extent that Petitioner does not present clear and convincing evidence to the contrary, the Court adopts the factual recitations set forth by the state appellate 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.")

A. Guilt Phase Evidence

1. The murder of Jovita Navarro: the prosecution's case

Sometime between 11:30 on the night of April 23, 1983, and 4:30 the following morning, Jovita Navarro was murdered in the bedroom of her La Habra bungalow. La Habra police found Jovita's body after being summoned by a "911" call from Mindy Jackson, Jovita's next-door neighbor. After securing the area, investigating officers went to the Jackson residence where they interviewed Dominique Navarro, Jovita's 16-year-old daughter. Dominique told them she had returned from a date with her then-18-year-old boyfriend around 2:00 that morning; after chatting briefly with her mother, who was reading in bed, and removing her makeup, Dominique had gone to bed and to sleep. She was awakened a few hours later, she said, by muffled noises coming from her mother's adjacent bedroom.

After a few minutes, Dominique heard her mother cry out, "get out, mi hija ("hija" is Spanish for "daughter"), get out, mi hija." Frightened, and unsure what was afoot in the darkened house, Dominique told Mindy Jackson that she sat at the end of her bed for "about 5 to 15 minutes," before running blindly down the hall and out the back door. As she ran, she heard a "thumping" sound coming from her mother's bedroom, followed by what sounded like the footsteps of someone close behind her.

Reaching Mindy Jackson's house, Dominique banged on the door until Jackson answered. In tears and near hysteria, according to Jackson, Dominique said that someone was hurting her mother; she begged Jackson to return to the house with her. Jackson refused. Instead, she managed to telephone 911. Authorities logged in the emergency call at 4:43 a.m.

To the casual observer, the murder scene suggested that Jovita had been killed in the course of a combined rape and burglary. Her body was found lying across the bed, her feet touching the floor. Her nightgown had been pulled up around her neck, and a pair of blue women's underpants was wadded between her thighs. The contents of the bedroom were in disorder-bedding and blankets had been pulled from the bed and thrown haphazardly on the floor; a jewelry box, normally resting on a dresser, was found upended on the hall floor, its contents of costume jewelry scattered along the hallway.

Jovita had been badly beaten, mainly on the face and head. She had suffered extensive facial injuries, including dental and eye damage from at least 18 blows to the face and head; her skull had multiple depressed fractures and her scalp had been loosened and torn by the force of the beating; her nose almost touched her left cheek and "defensive wounds" were evident on her arms and hands. On her left thigh, examiners found oval shaped wounds. Blood was spattered on the walls, furniture, and ceiling of the bedroom.

The pathologist who examined the body testified that the proximate cause of Jovita Navarro's death was not the beating but asphyxiation-induced by pressing a rounded object against her throat with such force that her larynx was crushed, choking off her airway. Extensive cyanosis, or blueing, of her lips and pinpoint hemorrhaging beneath her eyelids confirmed that Jovita had, in effect, been strangled. Had she not died from a lack of oxygen, the pathologist concluded, the severity of the beating would have resulted in her death.

In the bedroom, La Habra police investigators found a "tonfa," a martial arts weapon fashioned from red oak and resembling a police baton; it lay shattered in two pieces, testimony to the savagery of the beating. In a neighboring yard, police recovered a piece of wood shaped like a broom handle, with traces of blood on it. In another yard, they found a bloodstained tan leather glove; bloodstains were also found on a cinder block wall adjoining a nearby lot. The bloodstains on the tonfa, the wooden dowel, and the glove were the same type as Jovita's. An analysis of fibers removed from the brick wall and the glove were consistent with those found on the bedroom blanket.

La Habra and Orange County authorities began an extensive forensic investigation of the crime scene. As a result, investigators concluded that much of the evidence pointing to a burglary and rape/murder of Jovita had been faked. An autopsy failed to reveal the presence of sperm in Jovita's vagina. An analysis of vaginal swabs was consistent with a finding that the victim might have had intercourse several hours earlier the preceding evening, but there was no external evidence of sexual trauma consistent with a forcible rape. Tests of the blue underwear for semen or other stains indicative of forcible sex were negative.

Although the bedroom appeared to have been rifled, nothing of value was missing, including a clear plastic change purse stuffed with small bills that the intruder could not have overlooked. The jewelry box had been knocked from its place and its contents scattered, but none of the jewelry had been taken. An analysis of the blood-spattering pattern on the bed linen suggested that it had been removed from the bed and arranged on the floor after the murder, rather than during a struggle. Moreover, the spatter analysis indicated that Jovita had probably been murdered before the contents of the bedroom had been upended. Finally, investigators could find no evidence that Jovita's killer had gained entry into the house by force.

The on-scene criminalist, examining the body at 6:30 that morning, initially estimated the time of death at between three and six hours prior to his examination, or between 12:30 and 3:30 a.m. Although routine examinations for lividity and rigor mortis-two crude measures used to approximate time of death-confirmed that estimate, it was later revised upward, to 4:45 a.m., based on Dominique's statement to the police that she had heard her mother cry out around 4:30 that morning.

After conducting an autopsy on the morning of April 24, the examining pathologist concluded on the basis of the quantity and state of the contents of her stomach that Jovita died sometime between 12:30 and 2:30 that morning. Another criminalist, who observed the body at the autopsy, testified that the 4:45 a.m. time of death stated in the certificate of death was based on Dominique's account of the murder.

Although that hour was not substantially out of line with the results of the lividity and rigor tests, had it not been for Dominique's statement the condition of the body suggested that death had occurred between three and seven hours earlier, or between 11:30 the preceding evening and 3:30 that morning.

An inquiry into Jovita's financial circumstances disclosed that she carried $13,000 in life insurance and at the time of her death had approximately $14,000 in accumulated retirement benefits from her job as an Orange County welfare clerk. The house, with a market value of around $90,000, had an existing mortgage balance of $7,000; Jovita carried mortgage insurance in the event of her death. Dominique was her sole heir.

As their investigation deepened, police learned from interviews with Margaret Garcia, a coworker, and Mindy Jackson that relations between Jovita and Dominique's boyfriend, the Petitioner, were not always pleasant. Jovita had quarreled with both over Dominique's repeated violations of curfew hours, over her pregnancy and subsequent abortion, and over what Jovita regarded as a steep decline in Dominique's schoolwork and attendance beginning with the onset of her relationship with Petitioner. Garcia and Jackson both testified that Jovita was planning to sell the house and move to the beach, or to enlist Dominique in the Army, in an attempt to separate her from Petitioner. According to Garcia, Jovita had considered hiring a "hit man" to kill Petitioner. About two weeks before her death, Garcia said, Jovita told her that she had awakened in the middle of the night to find the front door open and all the outside lights off. Jovita found Dominique wandering the house; Dominique told her that she had opened the front door, but could not explain why.

About two or three weeks before Jovita's murder, Jackson had witnessed her screaming into the telephone and had seen Dominique in the bathroom crying. Jovita had slammed down the handset and said that she "hated" Petitioner and didn't want to hear his name again. "If he [Petitioner] is going to use his karate on me, he has another thing coming," Jackson reported Jovita as saying.

Through interviews with Dominique and Petitioner, authorities learned that on the night of Jovita's death the two had gone to a party in West Covina about 7:00. They left around 11:30 that evening, they told police, and went for a hamburger with a friend; after dropping their friend off, they parked for an hour or two, returning to Jovita's house between 1:30 and 2:00 a.m. Dominique let herself in, locked the front door, opened a sliding glass door at the rear of the house in order to let the family dogs out, and turned off the outside lights. After chatting briefly with her mother, she went to bed.

Petitioner told police that after leaving Dominique's house, he went home. Because he had missed the 1:30 curfew set by his mother, he had to knock on the front door to get in. His grandmother, who was watching television with his mother, let him in. After talking with them and being lectured by his mother about being late, he went to bed.

La Habra police also interviewed Peter LaCombe, a diesel mechanic employed by the county who had been dating Jovita for about two weeks before her death. LaCombe had spent the evening of April 23 with Jovita at her house. The two ate a substantial dinner around 7:30 and then danced and watched television. Around 11:00 that evening, LaCombe testified, he left for home.

From interviews with the adjoining neighbor, Mindy Jackson, police learned that Jackson and her husband had entertained a friend, Tom Brooks, on the night of the murder. All three had heard loud noises coming from the Navarro house around 11:00 p.m. Brooks testified that he had gone outside to investigate but had noticed nothing remarkable; the house was dark and the sliding glass door at the rear was closed. Later that night, they heard what Brooks described as "really radical noises" next door. The three had gone outside about 1:45 a.m. They heard Jovita's two dogs barking and growling; there were no lights either outside or inside the Navarro house.

Despite discrepancies in the accounts given by Dominique and Petitioner and others interviewed, and suspicions presented by the forensic analyses, police made no arrests in the case until late in the year. In December, the police inspector assigned to the investigation, Sergeant Keltner, received a tip from Steve Arce, an acquaintance of Petitioner, that Ricky Abram might have information relevant to the homicide investigation. Keltner interviewed Abram on December 14, 1983, at the Ione Juvenile Detention Facility near Sacramento, where Abram was an inmate. He tape-recorded most of their conversation.

In substance, Abram testified at trial that he decided to disclose his knowledge of the murder scheme after Keltner told him of his possible criminal liability for Jovita's murder. Abram told the jury that in March 1983, a few weeks after he first met Petitioner, the two had driven in Petitioner's car to pick up Dominique at her house. On the way over, Petitioner told Abram that he intended to kill Dominique's mother. He asked for Abram's help in borrowing a shotgun for that purpose. After picking up Dominique, the three drove to Bob's Big Boy, a nearby restaurant. There, according to Abram, they discussed in detail Petitioner's plan to murder Jovita.

The murder, Abram testified, would be staged to look as if Jovita had been killed by a burglar in the middle of the night. Dominique's role would be to let the two men into the house; Abram would fake the burglary and take any items of value; Petitioner would kill Jovita with a shotgun blast. Petitioner and Dominique would then have intercourse, Abram said, after which Dominique, feigning a rape, would run hysterically next door to report the break-in and murder/rape. For his part in the crime, Petitioner promised Abram $5,000 from the $25,000 obtained from "the mother's insurance." In addition to his share of the insurance, Abram told the jury, Petitioner promised he could live in Jovita's house with Petitioner and Dominique, since "the house would be passed on to the daughter after the mom's death."

After leaving the restaurant and returning Dominique to her house, Petitioner dropped Abram off. In early April, Abram was arrested for auto theft, convicted and imprisoned. He testified that he did not see Petitioner or Dominique again until the trial, regarded the murder scheme as a "joke," and did not learn of Jovita's death until Keltner told him.

Police interviews with others provided additional evidence of Petitioner's involvement in the murder. Steve Arce told the jury of a fight he had with Petitioner around the Easter preceding Jovita's death. Petitioner had used his feet to quickly knock Arce to the ground. Arce had also seen tonfas in Petitioner's car and had seen Petitioner spinning a tonfa in his hand. He had seen Petitioner wearing tan leather motorcycle gloves on occasion, and had seen him with Ricky Abram. He also related an incident about a month before Jovita's death in which Petitioner kicked two individuals in a street encounter, knocking one of them to the ground in "thirty seconds maybe," using martial arts techniques. A couple of weeks before the murder, Arce had heard Petitioner complain about Jovita's interference in his relationship with Dominique; Petitioner had said that he wanted "to kill that bitch," referring to Jovita.

In the months following Jovita's death, investigators learned, Dominique spoke frequently with Petitioner by telephone from an uncle's house, where she was now living. Once, the uncle testified, he overheard Dominique complain after completing a call from Petitioner that she did not want to call the family attorney again; she was upset, her uncle said. The attorney, Dominique's cousin, confirmed that Dominique made a growing number of telephone calls to him in the months following Jovita's death; her questions centered on the disposition of the family home and details concerning the amount of Jovita's insurance, the sums due creditors, and any surplus in the estate; Dominique was "very emphatic," he testified, that she did not want the house to be sold. That June, the attorney attended a meeting with Petitioner, his mother, Dominique, and another lawyer at which the possibility of Dominique's legal emancipation was discussed.

In December 1983, authorities arrested Dominique and Petitioner. Charged with one count of conspiracy to commit murder and one count of first degree murder, Dominique was tried as a juvenile, convicted and sentenced to the custody of the Youth Authority; her conviction was affirmed on appeal.

2. The defense case.

Petitioner testified in his defense. His relations with Jovita were "fair," he said; sometimes they got along well, sometimes not. He had lived at the Navarro residence for a few months in 1982 with Jovita's consent. The three regularly had dinner out about once a month. Petitioner denied any involvement in Jovita's death. He had talked to Ricky Abram once about selling him an automobile engine; they had gone to Bob's Big Boy with Dominique. While they had lunch, Dominique had complained that her mother had restricted her for coming home late. He never saw Abram again. Petitioner had studied martial arts as a young teenager, but had not earned a black belt and had no training in the use of a tonfa; nor had he ever owned one. He had been badly stabbed in the thigh in a fight in June of 1982, still walked with a limp and had difficulty stretching one of his legs. He had never had any knowledge of Jovita's life insurance.

On the night of Jovita's murder, Petitioner testified, he had gone with Dominique to a party in West Covina. After a hamburger with a friend, the two had parked for awhile. He dropped Dominique off at her house around 2:00 that morning, went home and, after talking with his mother and grandmother, went to bed. About 3:30 a.m., he heard a knock on his window. It was Margaret Noone, a friend; he let her in and she stayed in bed with him for about an hour before leaving by the window. Around 6:00 a.m., Dominique had telephoned; she was very upset; Petitioner dressed and left immediately for her house.

Petitioner's sister supported his testimony regarding the injury to his leg and the fact that he had never received training in or owned a tonfa. His grandmother confirmed that Petitioner had arrived home around 2:00 on the morning of Jovita's murder.

Petitioner's mother testified that he returned home at exactly 2:00 on the morning of April 24, 1983-she had been watching a program on Spanish television and remembered the time. She spoke to Petitioner briefly as to why he was late. Later that night, Petitioner's mother heard the sound of voices in her son's room. Through the door, she asked Petitioner who was there; he told her to go to sleep and later refused to tell her the identity of his visitor. Asked about the meeting with Dominique's attorney in June of 1983, at which Dominique's legal emancipation was discussed, Mrs. Noguera testified that she had earlier accompanied Dominique to the Social Security office in an effort to help her receive some benefits-she had been without any income in the five months since her mother's death. A previous attorney had done nothing, and Dominique needed help.

Margaret Noone testified that around 3:00 a.m. on April 24, 1983, she had climbed into the window of Petitioner's bedroom and stayed for about one and one-half hours. She left when she heard someone knocking on the bedroom door.

Two of Petitioner's friends testified to prior conversations with Ricky Abram and Steve Arce. Wilbur Boring told the jury that in December of 1983, after he had implicated Petitioner in Jovita's murder, Abram had told him that "he [Petitioner] got what he deserved; he put me in jail so I put him in jail." Patrick Reese testified that Arce had told him that he cooperated with the police in exchange for immediate release on a felony charge; Arce had observed a pair of nunchuku sticks in Petitioner's possession, not tonfas, and had told Reese that he (Arce) should not have told the police some of the things he told them.

3. Rebuttal.

The prosecution recalled Margaret Noone to the stand. She stated that, in testifying on behalf of Petitioner, she had "lied ... [about] basically almost everything" because she "was getting threats if I didn't say something like that [i.e., her alibi testimony] something would happen to me or my family because [Petitioner] has such powerful friends, even though he's in jail." She had seen nunchuku sticks in Petitioner's car, and he liked to "mess around with them." Noone told the jury that she had been granted immunity from prosecution by the People.

In addition, the trial court took judicial notice that Dominique had been called as a witness by the prosecution, had refused to testify, and been adjudged in contempt of court. A deputy marshal testified that shortly after Dominique was held in contempt, he heard Petitioner say to another inmate that Dominique "did a good job and tell her I love her."

B. Penalty Phase Evidence

1. The prosecution's case.

John Antenucci testified that in August 1983, he placed a newspaper advertisement to sell a used Volkswagen. Accompanied by a friend, Petitioner responded to the advertisement and expressed an interest in buying the automobile. The three went for a test drive, during which Petitioner stopped the car and told Antenucci to get out because his friend "has a gun." Petitioner's friend displayed a handgun and threatened to shoot Antenucci, who managed to grab the car keys and escape.

2. The defense case.

Petitioner called 15 witnesses, including a former employer, his high school girlfriend, and several friends of his family. Several witnesses testified that Petitioner's family was very close until his parents were divorced in 1980. His mother testified that Petitioner, who had hunted, fished, and gone on motorcycle trips with his father, appeared to take the divorce hard; he became quieter, more serious, less playful. She asked the jury to spare her son's life. Petitioner's sister and grandmother also asked the jury not to impose the death penalty.

Several witnesses testified to Petitioner's participation in the California Blue Jacket Cadette Corps, a youth organization modeled on the Navy. Junior high school authorities testified to his participation in such sports as basketball, track, softball, and football; elementary school employees testified that Petitioner's parents had been involved actively in his schooling.

III. STANDARDS OF REVIEW

Because Petitioner's original § 2254 habeas petition was filed after April 24, 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA"), codified in 28 U.S.C. § 2254, applies to petitioner's claims. Woodford v. Garceau , 538 U.S. 202, 210, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003) (holding that applicability of the AEDPA depends on whether the petitioner filed an application for habeas relief seeking an adjudication on the merits before or after the AEDPA's effective date); see also Lindh v. Murphy , 521 U.S. 320, 322, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner can show that the state'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) ; Harrington v. Richter , 562 U.S. 86, 98, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) ; Williams v. Taylor , 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). If a petitioner satisfies either subsection (1) or (2) for a claim, then the federal court considers the claim de novo. See Panetti v. Quarterman , 551 U.S. 930, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) (when section 2254(d) is satisfied, "[a] federal court must then resolve the claim without the deference AEDPA otherwise requires."); Frantz v. Hazey , 533 F.3d 724, 737 (9th Cir. 2008).

The United States Supreme Court held in Cullen v. Pinholster , that when determining whether a petitioner has satisfied § 2254(d), a court may only consider evidence in the state court record. 563 U.S. at 180-81, 185 n. 7, 131 S.Ct. 1388. The Court held that "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Id. at 180-81, 131 S.Ct. 1388. Further, the Court found that section 2254(d)(2)"includes the language 'in light of the evidence presented in the State court proceeding,' ... [providing] additional clarity ... on this point." Id. at 185 n. 7, 131 S.Ct. 1388.

The "contrary to" and "unreasonable application" clauses of section 2254(d) have separate and distinct meanings. Williams v. Taylor, 529 U.S. at 404, 120 S.Ct. 1495. The Supreme Court explained that a state court decision is "contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from our precedent."

Lockyer v. Andrade , 538 U.S. 63, 73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (internal quotations omitted). A state court decision is an "unreasonable application" of federal law 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 petitioner's case. Williams v. Taylor, 529 U.S. at 414, 120 S.Ct. 1495 ; Lockyer, 538 U.S. at 75, 123 S.Ct. 1166. "The 'unreasonable application' clause requires the state court decision to be more than incorrect or erroneous. The state court's application of clearly established law must be objectively unreasonable." Lockyer, 538 U.S. at 75, 123 S.Ct. 1166 (internal citation omitted); Richter, 562 U.S. at 101, 131 S.Ct. 770. "While the 'objectively unreasonable' standard is not self-explanatory, at a minimum it denotes a great[ ] degree of deference to the state courts." Clark v. Murphy, 331 F.3d 1062, 1068 (9th Cir.), cert. denied, 540 U.S. 968, 124 S.Ct. 446, 157 L.Ed.2d 313 (2003). The United States Supreme Court made clear in Richter that "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Richter, 562 U.S. at 101, 131 S.Ct. 770 (citing Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ).

Further, under § 2254(d)(2), a decision adjudicated on the merits in a state court will not be overturned on factual grounds unless it is objectively unreasonable in light of the evidence presented in the state-court proceeding. 28 U.S.C. § 2254(d)(2). Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1) ; Cudjo v. Ayers , 698 F.3d 752, 762 (9th Cir. 2012) ("[T]he statement of facts from the last reasoned state court decision is afforded a presumption of correctness that may be rebutted only by clear and convincing evidence."), cert. denied, 569 U.S. 1013, 133 S.Ct. 2735, 186 L.Ed.2d 208 (2013). Thus, this Court must defer to the state court's factual findings unless a defect in the process is so apparent that "any appellate court ... would be unreasonable in holding that the state court's factfinding process was adequate." Hibbler v. Benedetti , 693 F.3d 1140, 1146-47 (9th Cir. 2012), cert. denied, 568 U.S. 1172, 133 S.Ct. 1262, 185 L.Ed.2d 204 (2013) ; Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.), cert. denied, 543 U.S. 1038, 125 S.Ct. 809, 160 L.Ed.2d 605 (2004).

In this case, many of Petitioner's claims were raised in his state petitions to the California Supreme Court, and summarily denied. In such a 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 ; Walker v. Martel , 709 F.3d 925, 939 (9th Cir.), cert. denied , 571 U.S. 989, 134 S.Ct. 514, 187 L.Ed.2d 366 (2013). The Supreme Court has stated that "a habeas court must determine what arguments or theories supported or ... could have supported, the state court's decision;" the court must not "overlook[ ] arguments that would otherwise justify the state court's result ..." Richter, 562 U.S. at 102, 131 S.Ct. 770. "Crucially, this is not a de novo review of the constitutional question," as "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Walker v. Martel , 709 F.3d at 939 (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). Section 2254(d) provides "a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that the state-court decisions be given the benefit of the doubt." Pinholster , 563 U.S. at 181, 131 S.Ct. 1388 (internal quotations omitted).

Respondent contends that the California Supreme Court's denial of Petitioner's state habeas petition was, on its face, "on the merits," and, as such, Petitioner must overcome § 2254(d)'s relitigation bar. Respondent maintains that Petitioner cannot demonstrate that the state court's resolution of his claims was unreasonable under either § 2254(d)(1) or (d)(2).

Petitioner argues, on the other hand, that the California Supreme Court's "process and analysis of his claims were unreasonable in light of California's special procedures for resolving habeas petitions." (Dkt No. 361, Response at 9.) He notes that the California Supreme Court's failure to issue an OSC in his case, under California law, necessarily means that the Court found that-assuming the truth of Petitioner's allegations and drawing all legitimate inferences in his favor-he had not made a prima facie case for relief on any of his claims. The summary denial, Petitioner suggests, was a final determination that is not entitled to deference because (1) it is not a merits determination such that 2254(d) applies; (2) the California Supreme Court's failure to issue an OSC constitutes an unreasonable interpretation and application of clearly established federal law under § 2254(d)(1) ; and (3) if the state court based its denial of claims on factual findings or credibility determinations counter to Noguera's allegations and evidence, its decision amounts to an unreasonable determination of facts under § 2254(d)(2). As such, Petitioner suggests that § 2254(d) and Pinholster have no relevancy to this Court's review of his claims.

Respondent rejects Petitioner's "process-based" theory as an attempt to "broaden federal review beyond whether state court factual findings were reasonable 'in light of the evidence presented in the State court proceeding.' " (Dkt. No 365, Response to Opposition at 15.)

IV. REVIEW OF CLAIMS

A. Conflict of Interest

1. Legal Standard

"Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest." Wood v. Georgia , 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981) ; see also Cuyler v. Sullivan , 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). The United States Supreme Court recognizes the unique nature of claims that arise out of a conflict of interest and does not impose on such claims the Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) two-pronged standard for ineffective assistance of counsel claims. Rather, prejudice is presumed if the petitioner demonstrates that his attorney "actively represented conflicting interests" and that "an actual conflict of interest adversely affected his lawyer's performance." Sullivan , 446 U.S. at 348, 350, 100 S.Ct. 1708 ; see also Wood , 450 U.S. at 272-73, 101 S.Ct. 1097 ; Strickland , 466 U.S. at 692, 104 S.Ct. 2052 ; Mickens v. Taylor , 535 U.S. 162, 168, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). Conflicts can also arise from successive representation, particularly when a substantial relationship exists between the cases, such that the "factual contexts of the two representations are similar or related." Trone v. Smith , 621 F.2d 994, 998 (9th Cir.1980) ; see also Fitzpatrick v. McCormick , 869 F.2d 1247, 1252 (9th Cir.1989). The Supreme Court, however, has left open the question whether conflicts in successive representation that affect an attorney's performance require a showing of prejudice for reversal. See Mickens , 535 U.S. at 176, 122 S.Ct. 1237.

2. CLAIM 1: Lead Defense Counsel Suffered from a Conflict of Interest Due to His Representation of Petitioner's Mother and Because of Her Financial Control Over the Defense

In Claim 1, Petitioner alleges that his rights under the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated because his trial attorney, Lorenzo Pereyda, suffered from an undisclosed and unwaived conflict of interest that permeated the entire trial and adversely affected the representation Petitioner received. He argues that counsel's conduct violated his rights to the effective assistance of counsel, an impartial jury, a reliable special circumstance determination, a fair and reliable guilt and penalty determination, confrontation and cross-examination, Equal Protection and Due Process. (Dkt. 317 at 37-49.)

Petitioner raised this claim in his November 16, 1992, initial state habeas petition (Dkt. No. 148, Lodgment 4 at 57-64), and again in his June 9, 2003, exhaustion petition (Dkt. No. 336, Lodgment 9 at 11-42). On both occasions, the California Supreme Court summarily denied the claim on the merits. (Dkt. No. 336, Lodgments 3 & 12.) In 2003, the California Supreme Court alternatively denied the claim as untimely, successive, and as having previously been raised in the 1992 petition. (Dkt. No. 336, Lodgment 12.)

In moving to dismiss Claim 1, Respondent contends that Petitioner has failed to meet his burden of showing that the California Supreme Court's resolution of the claim amounted to an unreasonable application of clearly established Federal law, or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding and, as such, Petitioner is barred from relitigating the claims in federal court. 28 U.S.C. § 2254(d) ; Pinholster , 563 U.S. at 181-82, 131 S.Ct. 1388. This Court disagrees.

a. Facts Presented to the California Supreme Court

(1) Initial State Habeas Petition

Petitioner first raised the issue of counsel's alleged conflict of interest in Claim III of his initial state habeas petition. In the 1992 petition, Petitioner presented the following facts:

- Petitioner's mother, Sarita Salinas, retained Pereyda in 1979 to represent her in the divorce action she brought against Petitioner's father, Guillermo Noguera.

- Pereyda represented Salinas in very acrimonious proceedings, through which he became privy to confidential information regarding the turmoil that pervaded the Noguera household and the emotional problems of both of Petitioner's parents.

- During their attorney-client relationship, Salinas told Pereyda that her husband was violent, had threatened her with bodily harm and death on many occasions, and had audio tapes detailing sexual acts involving animals. She also confided her concerns that Guillermo's actions were having a negative effect on her children.

- Salinas subsequently retained Pereyda to represent Petitioner in his capital trial.

- Pereyda was unable to present evidence of Petitioner's home life because to do so would have violated his on-going duty of loyalty to Salinas.

In support of Claim III, Petitioner submitted a Declaration of A. Lorenzo Pereyda (Exhibit I), in which Mr. Pereyda stated:

- His law practice included criminal law and general civil litigation, including family law.

- He had never before tried a death penalty case.

- He has known the Noguera family for many years and has Petitioner since he was twelve or thirteen years old.

- He was retained to represent Petitioner's mother in connection with her bitter and acrimonious divorce from Petitioner's father. The litigation began in 1979 and ended in 1983.

- Ms. Salinas told Mr. Pereyda that Guillermo was violent and had a bad temper and that she had concerns that his actions were negatively impacting her children.

- At the time he was retained to represent Petitioner, Mr. Pereyda "was not totally familiar with capital litigation, particularly penalty phase strategy and tactics."

- Mr. Pereyda never explained to Petitioner that he had a legal conflict due to his prior representation of Salinas; and he never obtained a waiver of that conflict.

- The vast majority of Pereyda's trial preparation in Petitioner's case was spent on guilt-phase issues. Pereyda did no mental health investigation in connection with the guilt phase and did not explore Petitioner's social history to determine how family dynamics may have impacted his culpability.

- Pereyda's strategy for the penalty phase was to focus on the positive aspects of Petitioner's life, and present him in a favorable light. Pereyda did not investigate the case to determine whether Petitioner's troubled background could have contributed to the crime, or mitigated punishment.

- Pereyda was a potential witness during the penalty phase as he could have testified regarding mitigating information he learned about the family during the divorce proceedings.

(2) Third State Habeas Petition

Petitioner again raised the conflict of interest issue in his 2003 state habeas petition in which he presented additional facts in support of the claim, including Declarations from his father (Exhibit D), his sister (Exhibit G), his mother (Exhibit AA), and his wife (Exhibit GG). Petitioner alleged that not only was his mother a former client of Mr. Pereyda, to whom he owed an ongoing ethical and legal duty of confidentiality and loyalty, she was also paying Petitioner's legal fees and influencing his representation. In particular, Petitioner alleged:

- In retaining Pereyda, Ms. Salinas still considered him to be her attorney, obligated first to her. (Exhibit AA.) Moreover, she was outspoken regarding her control over Petitioner's defense and Mr. Pereyda's role as protector for her family. (Exhibit GG.)

- Mr. Pereyda had an on-going ethical and legal duty to Ms. Salinas and a fundamental obligation not to reveal information disclosed in confidence during the divorce proceedings.

- Ms. Salinas retained Mr. Pereyda to represent Petitioner on the condition that he not bring out any of the family's problems, but exclusively present the false defense that Petitioner was not the killer. (Exhibit G, Exhibit AA.)

- Ms. Salinas advised Mr. Pereyda that he was not to use any of the information he learned about the family during the divorce proceedings in Petitioner's defense case. (Exhibit AA.)

- Mr. Pereyda could not pursue viable mental health defenses and did not have Petitioner examined by a mental health expert because Ms. Salinas prohibited Mr. Pereyda from using information he "knew about [Petitioner] and the family ... in [Petitioner's] defense." (Exhibit AA.)

- Mr. Pereyda could not question Ms. Salinas regarding her behavior which contributed to Petitioner's mental health problems.

- Mr. Pereyda could not present evidence of the violence and abuse perpetrated by Ms. Salinas and other members of the family. (Exhibit D, Exhibit G.)

- Although Petitioner told his mother that he thought he was crazy, and asked her for help, she told him there would be no mental health examinations, and that he was not crazy. She told him, "just listen to my attorney, who would get him out." (Exhibit AA.)

- Salinas told Petitioner it did not matter that his defense team knew that he killed Jovita, "[her] attorney was going with the innocence defense." (Exhibit AA.)

- Petitioner's father did not trust Mr. Pereyda because he was Salinas' divorce attorney. (Exhibit D.)

- Neither Mr. Pereyda nor Mr. Campos attended a special circumstance/penalty conference on the case at which the case could have settled at a penalty less than death. According to Petitioner, "he was not consulted but rather instructed by his mother and his attorneys to refuse any type of settlement.... By accepting a plea bargain, his mother stated that everyone would say he committed the homicide and people would look at her as a bad mother." (Exhibit GG at 7.)

- Mr. Pereyda never disclosed his conflict of interest to Petitioner and there was no waiver. (Exhibit I.)

In light of the conflict, Petitioner argued, Mr. Pereyda failed to provide petitioner with constitutionally adequate representation.

b. California Supreme Court's Post Card Denial Was Premised on an "Unreasonable Determination of the Facts" Within the Meaning of § 2254(d)(2)

To demonstrate that the state court erred under § 2254(d)(2), "the petitioner must establish that the state court's decision rested on a finding of fact that is 'objectively unreasonable.' " Hibbler v. Benedetti , 693 F.3d at 1146, quoting Lambert v. Blodgett , 393 F.3d 943, 972 (9th Cir. 2004) and citing Miller-El v. Cockrell , 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) and Taylor v. Maddox , 366 F.3d at 999. The question "is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan , 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) ; Wood v. Allen , 558 U.S. 290, 301, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010) ; Brumfield v. Cain , 135 S.Ct. at 2277.

In Hibbler , the Ninth Circuit noted that "[c]hallenges under § 2254(d)(2) fall into two main categories. First, a petitioner may challenge the substance of the state court's findings and attempt to show that those findings were not supported by substantial evidence in the state court record. Second, a petitioner may challenge the fact-finding process itself on the ground that it was deficient in some material way." Hibbler , 693 F.3d at 1146 [citations omitted]; see also Taylor v. Maddox , 366 F.3d at 999 (concluding that "unreasonable determination" in § 2254(d)(2) may be based on a contention "that the [state court] finding is unsupported by sufficient evidence, that the process employed by the state court is defective, or that no finding was made by the state court at all." (citations omitted).) "Thus, if a petitioner challenges the substance of the state court's findings ... '[the federal court] must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.' " Hibbler, 693 F.3d at 1146, citing Taylor v. Maddox , 366 F.3d at 1000. "Similarly, when the challenge is to the state court's procedure, 'mere doubt as to the adequacy of the state court's findings of fact is insufficient; '[the court] must be satisfied that any appellate court to whom the defect [in the state court's fact-finding process] is pointed out would be unreasonable in holding that the state court's fact-finding process was adequate.' " Hibbler , 693 F.3d at 1146-47, citing Lambert v. Blodgett , 393 F.3d at 972. It is relevant to remember, Pinholster itself was a summary denial case. "The ultimate issue is whether the state's fact-finding procedures were reasonable; this is a fact-bound and case-specific inquiry." Hibbler , 693 F.3d at 1147. The state court does not act unreasonably in denying relief without holding an evidentiary hearing "so long as the state court could have reasonably concluded that the evidence already adduced was sufficient to resolve the factual question." Id.

This Court finds that Petitioner has satisfied his burden under AEDPA, showing that the state court's decision was premised on either "an unreasonable application of clearly established federal law" or an "unreasonable determination of the facts" within the meaning of § 2254(d). On the record before this Court-the record presented to the California Supreme Court in state habeas corpus proceedings-Petitioner has demonstrated that his trial attorney "actively represented conflicting interests" and that the conflict "adversely affected his lawyer's performance." Sullivan , 446 U.S. at 350, 100 S.Ct. 1708. The evidence presented to the California Supreme Court in two state habeas corpus actions-including declarations from both Mr. Pereyda and Ms. Salinas-indicated that Mr. Pereyda was influenced in his basic strategic decisions by the interests of the third party who hired him, petitioner's mother. Pereyda labored under an actual conflict of interest throughout his representation of Petitioner, triggering the California Supreme Court's duty to inquire further. Assuming Petitioner's allegations, and the declarations submitted in support thereof, to be true (see Pinholster, 563 U.S. at 188 n. 12, 131 S.Ct. 1388 ), nothing more was required for a prima facie case. See Nunes , 350 F.3d at 1054 (taking petitioner's claims "at face value," petitioner "clearly made out a prima facie case of ineffective assistance" where petitioner claimed his "attorney gave him the wrong information and advice about the state's plea offer" and that if he had "been informed accurately" he would have taken the plea offer).

"Under California law, the California Supreme Court's summary denial of a habeas petition on the merits reflects the court's determination that 'the claims made in th[e] petition do not state a prima facie case entitling the petitioner to relief.' " Pinholster , 563 U.S. at 188 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) ). As noted, the evidence Petitioner presented was sufficient to raise a doubt as to Mr. Pereyda's representation and suggest that he labored under a conflict of interest that adversely affected his performance. Sullivan , 446 U.S. at 348, 100 S.Ct. 1708. Nevertheless, the California Supreme Court twice summarily rejected the claim. (Dkt. No. 336, Lodged Docs. 3 & 8.) There was no reasonable basis for the California Supreme Court's decisions. See Pinholster , 563 U.S. at 187-88, 131 S.Ct. 1388 (where there has been a summary denial, petitioner satisfies § 2254 by showing " 'there was no reasonable basis' for the California Supreme Court's decision") (quoting Richter , 562 U.S. at 98, 131 S.Ct. 770 ). As such, the California Supreme Court's denials of this claim were based on "an unreasonable application of clearly established federal law" or an "unreasonable determination of the facts" within the meaning of § 2254(d), and are not entitled to AEDPA deference.

This Court must now proceed to evaluate Petitioner's claim de novo. Panetti v. Quarterman , 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) (when "the requirement set forth in § 2254(d)(1) is satisfied[, a] federal court must then resolve the [constitutional] claim without the deference AEDPA otherwise requires"); see also Rompilla v. Beard , 545 U.S. 374, 390, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (reviewing the prejudice requirement for an ineffective assistance of counsel claim de novo after identifying a § 2254(d)(1) error in the state court's evaluation of the performance requirement); Wiggins v. Smith , 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (similar); Penry v. Johnson , 532 U.S. 782, 795, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (holding that even if the state court's decision was contrary to Supreme Court case law, "that error would justify overturning Penry's sentence only if Penry could establish that the error" was prejudicial under the pre-AEDPA standard for evaluating prejudice); Williams , 529 U.S. at 406, 120 S.Ct. 1495 (explaining that when a federal habeas court identifies a "contrary to" error, it "will be unconstrained by § 2254(d)(1)").

Clearly established federal law holds that an actual conflict of interest arises where an attorney represents multiple clients with divergent interests. See, e.g., Sullivan , 446 U.S. at 348, 100 S.Ct. 1708 ; Mickens v. Taylor , 535 U.S. at 166-69, 122 S.Ct. 1237 ; Holloway v. Arkansas , 435 U.S. 475, 487-90, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978) ; Glasser v. United States , 315 U.S. 60, 75-76, 62 S.Ct. 457, 86 L.Ed. 680 (1942), superseded by rule on other grounds, Bourjaily v. United States , 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). Conflicts can also arise from successive representation. Mickens , 535 U.S. at 175-76, 122 S.Ct. 1237 ; Lewis v. Mayle , 391 F.3d 989, 989 (9th Cir. 2004) (applying Sixth Amendment analysis to question of successive representation); Trone v. Smith , 621 F.2d at 998 ; see also Fitzpatrick v. McCormick , 869 F.2d at 1252. The Sixth Amendment does not protect against a "mere theoretical division of loyalties." Mickens , 535 U.S. at 171, 122 S.Ct. 1237. Rather, it protects against conflicts of interest that adversely affect counsel's performance.

Id. at 172 n. 5, 122 S.Ct. 1237. Indeed, in Mickens , the Court held that "actual conflict" is defined by the effect a potential conflict had on counsel's performance.

In Wood v. Georgia , three indigent defendants convicted of distributing obscene materials had their probation revoked for failure to make monthly installment payments on their fines. In reviewing the case, the United States Supreme Court found that the record suggested the root of the problem might be the "divided loyalties of their counsel." 450 U.S. at 263, 101 S.Ct. 1097. At all times during the proceedings against them, the defendants had been represented by a lawyer for their employer (the owner of the "adult" theater and bookstore that purveyed the obscenity), and the employer paid the attorney's fees and had promised to pay the fines. However, when the employer declined to make installment payments on the fines, and because their attorney "ha[d] acted as the agent of the employer and ha[d] been paid by the employer, [the Court found that] the risk of conflict of interest ... [was] evident." Id. at 267, 101 S.Ct. 1097. The record suggested that the employer's interest in reducing the fines he would have to pay for his indigent employees in the future diverged from the defendants' interest in obtaining leniency or paying lesser fines to avoid imprisonment. The Supreme Court found that the possibility that counsel was actively representing the conflicting interests of the employer and employee-defendants "was sufficiently apparent at the time of the revocation hearing to impose upon the court a duty to inquire further." Id. at 272, 101 S.Ct. 1097. The Court remanded to the trial court "to determine whether the conflict of interest that th[e] record strongly suggest[ed,] actually existed" because, on the record before it, the Court could not "be sure whether counsel was influenced in his basic strategic decisions by the interests of the employer who hired him." Id. at 272-73, 101 S.Ct. 1097.

The present record is sufficient to determine that Mr. Pereyda operated under an actual conflict of interest in representing Petitioner. Mr. Pereyda had an on-going ethical and legal duty to Petitioner's mother, and a fundamental obligation not to reveal information disclosed in confidence during the divorce proceedings. Ms. Salinas retained Mr. Pereyda to represent Petitioner with the understanding that she would control the defense and that Mr. Pereyda would not bring out any of the family's problems, but would exclusively present the false defense that Petitioner was not the killer. (Exhibit G, Exhibit AA.) Clearly, Mr. Pereyda could not simultaneously act in the best interest of both clients. In his declaration, Mr. Pereyda admits that he represented Petitioner's mother in her divorce from Petitioner's father; that he never explained to Petitioner that he had a legal conflict due to his prior representation of Petitioner's mother; and that he never obtained a waiver of that conflict. The Court finds that Petitioner has established that Mr. Pereyda did, in fact, have an unwaived conflict of interest in representing Petitioner. The ultimate question, then, is whether the conflict adversely impacted Mr. Pereyda's performance as Petitioner's capital defense attorney. This Court finds that the answer t