SEAN EZRA BROWN, Petitioner, v. JOE A. LIZARRAGA, Warden, Respondent NO. CV 16-02935-ODW (AGR) United States District Court, C.D. California Filed August 21, 2019 Counsel Sean Ezra Brown, Ione, CA, pro se. Ana R. Duarte, CAAG - Office of Attorney General California Department of Justice, Los Angeles, CA, for Respondent Rosenberg, Alicia G., United States Magistrate Judge REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE *1 The Court submits this Report and Recommendation (“Report”) to the Honorable Otis D. Wright, II, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order No. 05-07 of the United States District Court for the Central District of California. For the reasons set forth below, the Magistrate Judge recommends that the Petition for Writ of Habeas Corpus be denied with prejudice. I. SUMMARY OF PROCEEDINGS A Los Angeles County Superior Court jury found Petitioner guilty of oral copulation by force while armed with a firearm; falsely representing oneself as a public officer or investigator and intimidating another person while armed with a firearm; forcible oral copulation while impersonating a public officer and threatening arrest or incarceration while armed with a firearm; second degree robbery while armed with a firearm; falsely representing oneself as a public officer or investigator while armed with a firearm; rape by force, violence, duress, menace or fear of immediate and unlawful bodily injury; forcible oral copulation; sexual penetration by force, violence, duress, menace or fear of immediate and unlawful bodily injury; falsely representing oneself as a public officer or investigator; rape by threat to incarcerate, arrest or deport; forcible oral copulation by threat to retaliate in the future; and sexual penetration by threat to retaliate in the future. (Lodged Document (“LD”) 1 at 2-3.)[1] The court found true the allegations that Petitioner suffered three prior convictions pursuant to the three strikes law. (Clerk's Transcript (“CT”) 331-334, Dkt. No. 38-2 at 58-61.) Petitioner was sentenced to 363 years to life. (LD 1 at 2; Case No. NA091389.) On July 30, 2014, the California Court of Appeal vacated the sex offender fine imposed pursuant to Cal. Penal Code § 290.3, affirmed the judgment as modified and remanded the matter to the trial court to clarify and calculate the fines and assessments imposed. (LD 1 at 3; Case No. B250635.) On October 15, 2014, the California Supreme Court summarily denied the petition for review. (LD 3; Case No. S221009.) On November 6, 2015, the Superior Court denied a state habeas petition. (LD 5; Case No. NA091389.) The California Court of Appeal summarily denied a state habeas petition on December 9, 2015. (LD 7; Case No. B268695.) The California Supreme Court summarily denied a state habeas petition on April 13, 2016. (LD 9; In re Brown, No. S231530, 2016 Cal. LEXIS 2132, at *1 (2016).) On April 20, 2016, Petitioner constructively filed the Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”), pursuant to 28 U.S.C. § 2254. (Dkt. Nos. 1-2.) On March 15, 2017, the California Supreme Court denied a state habeas petition with citations to People v. Duvall, 9 Cal.4th 464 (1995) and In re Swain, 34 Cal.2d 300, 304 (1949). (LD 11; In re Brown, No. S239093, 2017 Cal. LEXIS 1962 (2017).) *2 On January 17, 2018, Respondent filed an answer. (Dkt. No. 37.) On April 10, 2018, Petitioner constructively filed a traverse. (Dkt. No. 52.) II. BACKGROUND INFORMATION A. Statement of Facts The California Court of Appeal set forth the following facts in its decision on direct appeal. (LD 16.) To the extent an evaluation of Petitioner's claims for relief depends on an examination of the record, the court has made an independent evaluation of the record specific to Petitioner's claims for relief. The Victims 1. Alisia B. On January 13, 2012 Brown called Eye Candy, an escort service, and requested that the company send an escort to a Best Western hotel in Wilmington to provide an hour of entertainment for $200. Eye Candy sent Alisia B., who provided personal entertainment by dancing topless. The company's policy prohibited sexual contact with clients, and Alisia had a personal policy of “no touching.” For Alisia's protection, the company provided her with a driver, who remained at the location specified by the client until Alisia was ready to leave. When Alisia entered the hotel lobby, a man followed her to the elevator and walked with her toward room 202, the room number given by Brown. When he asked her if she was going to room 202, she introduced herself. Then they walked together into the room and sat down. Brown appeared angry and said she was “not the girl in the picture” on the company's internet advertisement. Brown showed Alisia a badge he was wearing around his neck and said he was a police officer. He told Alisia she was under arrest and to lie face down on the bed with her hands behind her back. Alisia said she wanted another officer in the room because she did not believe he was a police officer and she feared he was going to rape her. Brown showed Alisia that he had a pair of handcuffs and a gun. He asked Alisia if she had any outstanding warrants or had ever been arrested, and then picked up a walkie-talkie and asked for her name so he could check her warrant status. He spoke into the walkie-talkie, and Alisia thought she heard someone respond. Alisia told him that she had a driver standing outside and apologized that she was not the girl in the advertisement. Brown told her to take “your fucking ad down because this is illegal for you to put false advertisement and I'm going to give you two minutes to get the fuck out of here.” Alisia left immediately. 2. Brianna M. On February 11, 2012 Brianna M. was living and working at the Royal Century Hotel in Inglewood as a prostitute. She offered companionship through the website “Back Page,” and listed her telephone number there. Brown contacted Brianna and arranged to meet her at her hotel room. When Brown knocked on her hotel room door, she opened it, and he pushed his way through the door. He said he was a police officer and showed her a badge. He told her to lay face down across the bed, patted her down, and searched her purse and luggage. From the identification in Brianna's wallet, Brown learned her full name. He then “ran” her name by someone on a walkie-talkie and said he was looking for warrants. Brianna thought she heard a woman answer. *3 Brown told Brianna to sit up on the edge of the bed. He undressed, told her to “suck his dick,” and warned her if she did not he would arrest her for prostitution. Brianna complied. Brown removed his penis from her mouth, forced her to lie on her back on the bed, and put his penis in her vagina without using a condom. She did not try to stop him because she believed he was a police officer. Brown told Brianna to pretend they were boyfriend and girlfriend. After he ejaculated, Brown told Brianna to go to the bathroom to clean up. He put his finger in her vagina and then wrapped a tissue or cloth around his finger, inserted it into her vagina, and wiped around the inside of her vagina. He said he was checking for DNA or semen to make sure all of his DNA was out of her body. Brown dressed and told Brianna to lie down on the bed again. He checked the windows “to see if his other police officers or whatever was still outside,” and left. Brianna discovered that her phone and $150 were missing from her purse. She packed up her other belongings and went home. She did not go to the police immediately because she believed Brown actually was a police officer. After she showered and obtained a new phone, Brianna went to her job at a bagel shop and told her boss what had occurred. She followed her boss' advice and went to the hospital, where she spoke with several police officers and underwent a rape kit examination. Brianna subsequently identified Brown from a six-pack photographic lineup as the man who had raped her after “barg[ing] into the room saying he was a police officer.” 3. Nasha'a B. On February 15, 2012 Nasha'a B. met in person someone who used the name Steve B., whom she had “met” previously on Tagged.com, a social networking site. Before they agreed to meet, Nasha'a and Steve B. had exchanged text messages discussing a possible “sugar daddy type of arrangement” if things worked out between them, where Steve B. would give her financial support rather than simply pay her money for sex. Nasha'a and Brown arranged to meet for drinks at a restaurant in Wilmington. Because it was raining heavily that day, Brown suggested that she come to his house to wait out the rain. He told her to park in space 307, and that his apartment was directly in front of that space. When Nasha'a arrived, Brown came out and walked her into his apartment. Brown told Nasha'a to sit down on the couch. Brown placed a bundle of cash on the table and said, “This is for you.” Nasha'a said she was planning to use the cash “for some bills and some other things, personally.” 4 FN 4. They had previously discussed Brown giving Nasha'a money for gas because she had to drive a long distance from her home to Wilmington. Brown then pulled out a badge from underneath his shirt and told Nasha'a that he was Detective Baldwin. The badge said “police department” and “detective” at the bottom. She thought it was a Los Angeles Police Department badge. Brown also had a silver briefcase, a black gun, and handcuffs. Brown said he was involved in a sting operation targeting girls listed on Tagged.com who were robbing men. Nasha'a believed him. When he asked Nasha'a if she had ever been arrested or was on probation, she admitted that she was on probation. Brown then told Nasha'a that she could “suck his dick” or “go to jail,” and that because she was on probation it “would be ... a six-month violation.” He told her that there were police officers outside conducting surveillance on the apartment building and that if she did not “suck his dick” he would tell them to come in and arrest her. Brown moved in front of Nasha'a, who was still sitting on the couch, and pulled down his pants and underwear to around his ankles. Brown's penis was erect. Nasha'a asked if she could put a condom on his penis. Brown said “no” because he could not ejaculate with a condom. Nasha'a started to perform oral sex, and Brown pressed her head against his penis as she began crying. Brown told her to stop playing the victim and that she must want to go to jail. He pulled handcuffs from his briefcase and grabbed Nasha'a's arm as if he were going to arrest her. Nasha'a was scared and did not want him to place her in handcuffs, and said she would resume performing oral sex. *4 Brown told Nasha'a to get off the couch and on her knees in front of him. He sat on the couch and pressed her head back down on his penis. Nasha'a continued to cry. She asked him not to “come” in her mouth, but he pressed her head down harder on his penis and ejaculated. Brown asked Nasha'a, “it wasn't that bad, was it?” He said, “Have you ever heard of police [tag.] [C]onsider your ass just tagged.” Brown then asked Nasha'a for her identification. When Nasha'a said it was in her wallet, Brown picked up her wallet and took her identification. He asked Nasha'a if she had any warrants, and she said “no.” Brown picked up a walkie-talkie and spoke into it, and asked whether Nasha'a had any outstanding warrants. Nasha'a heard static, and then a person's voice said, “Clear.” As Nasha'a continued to cry, Brown held his gun in his hand and told her not to play the victim and that she was not the victim. Brown told Nasha'a that when they walked out of the apartment, there would be police officers observing the building and she should act as though she was his girlfriend, otherwise it would alarm the officers. Nasha'a got into her car, drove to the front of the apartment building, and called 911 because she believed she had just been raped by a police officer. The 911 operator told her to go down the street to a gas station to wait. Before she drove away from the apartment building, Nasha'a checked Tagged.com to retrieve Brown's picture and profile to show the police, but he had already deleted it. Nasha'a drove to the gas station to wait for the police. She noticed that the two $100 bills she had in her wallet when she entered Brown's apartment were gone. She called 911 again. When the police officers arrived, Nasha'a explained what had happened and went with them back to the apartment building where she identified Brown's apartment. Nasha'a then went to the hospital to have a rape kit examination. Nasha'a subsequently met with Detective Mark Fassam, showed him the text messages on her phone from Brown, and identified Brown from a photographic lineup. The Investigation 1. Forensic Evidence Susan Barie, a registered nurse who performed forensic examinations on sexual assault victims and suspects, examined Nasha'a. She took several samples for DNA analysis. Barie later examined Brown and took samples of his DNA for analysis. Barie also examined Brianna for evidence of sexual assault. Stephanie Sandoval, a criminalist for the Los Angeles County Sheriff's Department crime laboratory assigned to the forensic biology section, analyzed the samples taken by Barie. The DNA profile from Brianna's external anal sample, and the profile from Brianna's vulva, matched Brown's profile. Sandoval also found that Brown's DNA was a possible contributor to the vaginal sample from Brianna. 2. Detective Fassam's Investigation Detective Fassam testified that he spoke with Brown's wife, Becky Brown, who told him that “she [had] destroyed the evidence ... relating to this case ....” She told Fassam that she had “disposed of a black bag; a handgun that she described as a Saturday night special, a black gun; a microphone similar to what you might see on a police officer[']s shoulder, a mic[rophone], but not the actual radio; and also a set of handcuffs.” According to Detective Fassam, Mrs. Brown “described the gun as a ... fake gun.” The detective testified that Mrs. Brown told him that Brown had told her about the black bag during telephone calls from jail.5 *5 FN 5. The People played for the jury recordings of the telephone calls between Brown and his wife while Brown was in jail. Detective Fassam also testified that when he interviewed Nasha'a after Brown had been arrested, he asked to see her cell phone because “apparently there had been messages between her and the defendant.” Nasha'a showed the detective a Tagged.com application for a cell phone and he “saw some messages from a Steve B. to her” and an exchange of messages over several days. Detective Fassam said that other than a discussion about gas money, there was no other discussion about money. According to the detective, subsequent attempts to retrieve the messages using a police department computer were unsuccessful, and when he asked Nasha'a for the phone again, she stated that she had lost it. (LD 16 at 4-9.) III. STANDARD OF REVIEW A federal court may not grant a petition for writ of habeas corpus by a person in state custody with respect to any claim that was adjudicated on the merits in state court unless it (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 (2011). “ ‘[C]learly established Federal law’ ... is the governing legal principle or principles set forth by the Supreme Court at the time the state court rendered its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003); see Greene v. Fisher, 565 U.S. 34, 40 (2011) (examining Supreme Court precedent as of the date of the last state court decision on the merits of the claim). Clearly established federal law includes only the holdings, as opposed to the dicta, of Supreme Court decisions. White v. Woodall, 572 U.S. 415, 419 (2014). A state court's decision is “contrary to” clearly established Federal law if (1) it applies a rule that contradicts governing Supreme Court law; or (2) it “ ‘confronts a set of facts ... materially indistinguishable’ ” from a decision of the Supreme Court but reaches a different result. Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (citation omitted). A state court's decision cannot be contrary to clearly established Federal law if there is a lack of holdings from the Supreme Court on a particular issue. Carey v. Musladin, 549 U.S. 70, 77 (2006). Under the “unreasonable application prong” of Section 2254(d)(1), a federal court may grant habeas relief “based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced.” Andrade, 538 U.S. at 76; see also Rompilla v. Beard, 545 U.S. 374, 380 (2005) (“An ‘unreasonable application’ occurs when a state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of petitioner's case.”) (citation and some quotation marks omitted). “In order for a federal court to find a state court's application of [Supreme Court] precedent ‘unreasonable,’ the state court's decision must have been more than incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520 (2003). “The state court's application must have been ‘objectively unreasonable.’ ” Id. at 520-21 (citation omitted). *6 “Under § 2254(d), a habeas court must determine what arguments or theories supported or, [in the case of an unexplained denial on the merits], could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this [Supreme] Court.” Richter, 562 U.S. at 102. “[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 fairminded disagreement.” Id. at 103. “Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding, § 2254(d)(2).” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). In applying these standards, this court looks to the last reasoned state court decision. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); see also Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). To the extent no such reasoned opinion exists, as when a state court rejected a claim without explanation, this court must conduct an independent review to determine whether the decisions were contrary to, or involved an unreasonable application of, “clearly established” Supreme Court precedent. Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013); Haney v. Adams, 641 F.3d 1168, 1171 (9th Cir. 2011). If the state court declined to decide a federal constitutional claim on the merits, this court must consider that claim under a de novo standard of review rather than the more deferential “independent review” of unexplained decisions on the merits. Cone v. Bell, 556 U.S. 449, 472 (2009); see also Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004) (standard of de novo review applicable to claim state court did not reach on the merits). IV. DISCUSSION A. GROUND ONE: Admission of Hearsay Testimony Petitioner argues that the trial court erroneously admitted Detective Fassam's testimony that Becky Brown (Petitioner's wife) said Petitioner instructed her to destroy evidence. Petitioner argues Ms. Brown was available to testify and the prosecution failed to call her as a witness because “Ms. Brown would reveal she was threatened by the prosecutor.” (Dkt. No. 2 at 2.) The California Court of Appeal's decision on direct appeal is the last reasoned decision. (LD 16.) 1. Trial Court Proceedings Detective Fassam testified that he interviewed Ms. Brown, who said “she destroyed ... certain items relating to this case that the defendant asked her to get rid of.” She said she “disposed of the items in different places at different malls in the area” and “couldn't tell me where exactly they were.” RT 982.)[2] 2. State Court Decision The California Court of Appeal concluded that the trial court erroneously admitted Detective Fassam's testimony about Ms. Brown's statements because the prosecution could not show that she was unavailable to testify and therefore her statements could not be admitted under the ‘statements made against penal interest’ exception to the hearsay rule. (LD 16 at 16-17.) The Court of Appeals found that the error was harmless: It is not reasonably probable that Brown would have obtained a more favorable result had Detective Fassam not testified about Mrs. Brown's statements to him, primarily because the jury heard the recordings of the telephone calls between Brown and his wife that included the statements by Brown about disposing of evidence that Detective Fassam repeated in court. The jury heard one call in which Brown told his wife to find a black bag upstairs in their house and throw it away. In a later telephone call, Brown asked his wife if she had done what he had requested, and she confirmed that she had. When Mrs. Brown subsequently told her husband that a forensics team was coming to inspect the couch, he said, “Wash that damn couch off. Give them nothing.” And, as noted, the other evidence of Brown's guilt was overwhelming. Therefore, there was no reasonable probability that Brown would have obtained a better result had the trial court excluded Detective Fassam's hearsay testimony, and the trial court error in admitting the testimony was harmless. *7 (LD 16 at 17.) 3. Applicable Federal Law Evidence erroneously admitted warrants habeas relief only when it results in the denial of a fundamentally fair trial in violation of the right to due process. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Perry v. New Hampshire, 565 U.S. 228, 237 (2012). In Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009), the Ninth Circuit stated: “The Supreme Court has made very few rulings regarding the admission of evidence as a violation of due process. Although the Court has been clear that a writ should be issued when constitutional errors have rendered the trial fundamentally unfair ... it has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ. Absent such ‘clearly established Federal law,’ we cannot conclude that the state court's ruling was an ‘unreasonable application.’ ” (citation and quotation omitted). Petitioner must show that any error “had a substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). The Brecht standard applies when a petitioner challenges a state court's determination of harmlessness under Chapman. Davis v. Ayala, 135 S.Ct. 2187, 2198 (2015). 4. Analysis The erroneous admission of hearsay testimony, without more, is an issue of state law that is not cognizable on federal habeas corpus review. See Estelle, 502 U.S. at 67-68. Moreover, the state court reasonably determined that any error was harmless. Detective Fassam's testimony about Ms. Brown's statements were cumulative of the recording of a phone conversation of Petitioner instructing Ms. Brown to get rid of the evidence while in jail. (CT 171-76.) The prosecution played the tape recording for the jury during trial. (RT 983-95.) Overwhelming evidence linked Petitioner to the crimes, including testimony from three victims alleging three separate encounters with Petitioner involving the same criminal behavior and modus operandi. (RT 605-30, 682-704, 721-26, 931-48.) See Inthavong v. Lamarque, 420 F.3d 1055, 1062 (9th Cir. 2005) (harmless error from erroneous admission of evidence); Miller v. Koenig, 2019 U.S. Dist. LEXIS 48340, at *24 (E.D. Cal. Mar. 22, 2019) (finding erroneous admission of hearsay evidence harmless “in light of the properly admitted evidence” against Petitioner). The state court's decision was not contrary to, or an unreasonable application of, clearly established United States Supreme Court precedent and was not an unreasonable determination of the facts. Ground One does not warrant habeas relief. B. GROUND TWO: Defense Counsel's Conflict of Interest Petitioner argues defense counsel created a conflict of interest by accepting money from his wife to represent Petitioner while she was a cooperating witness for the prosecution.[3] Petitioner claims that defense counsel failed to represent his interests because he advised Petitioner's wife to cooperate with law enforcement and shared confidential attorney-client information with her. (Dkt. No. 52 at 20.) *8 The California Supreme Court denied this ground with citations to People v. Duvall, 9 Cal.4th 464, 474 (1995) and In re Swain, 34 Cal.2d 300, 304 (1949). (LD 10-11; Case No. S239093.) Respondent argues Ground Two remains unexhausted. This court may deny on the merits an unexhausted claim where it is perfectly clear that the claim is not colorable. Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). 1. Applicable Federal Law “In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance.”[4] Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). “[T]he possibility of conflict is insufficient to impugn a criminal conviction.” Id. “Ordinarily, it denotes representation of multiple conflicting interests, such as an attorney's representation of more than one defendant in the same criminal case, or representation of a defendant where the attorney is being prosecuted for related crimes.” Stenson v. Lambert, 504 F.3d 873, 886 (9th Cir. 2007) (citing Mickens v. Taylor, 535 U.S. 162, 176 (2002)). To show an adverse effect on his attorney's performance, Petitioner must demonstrate “that some plausible alternative defense strategy or tactic might have been pursued but was not and that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests.” United States v. Wells, 394 F.3d at 733 (2005) (quotation omitted); e.g., Sullivan, 446 U.S. at 349 (defense counsel's actual conflict impaired petitioner's defense when he failed to cross examine witness who linked petitioner to crime due to desire to diminish co-defendant's guilt). 2. Analysis In Wood v. Georgia, 450 U.S. 261 (1981), the Supreme Court addressed a situation in which the defendants were represented by a lawyer hired and paid by their employer. Id. at 268-69. The Court observed that the employer had declined to pay the defendants' fines as promised and had a financial interest in pressing an equal protection claim that could be raised only if the defendants were jailed for failure to pay the fines. Id. at 267. Defense counsel had failed to file a motion to modify the fines based on defendants' inability to pay or otherwise obtain leniency for them. Id. at 268. The Court remanded for a hearing to determine whether an actual conflict of interest adversely affected counsel's performance. Id. at 273-74; see Mickens, 535 U.S. at 170-72 (interpreting Wood). Petitioner has not shown an actual conflict of interest that adversely affected his counsel's performance. Petitioner argues that defense counsel advised Ms. Brown to “cooperate with law enforcement telling her to ‘save yourself - your husband is finished.’ ” (Dkt. No. 52 at 19.) However, Petitioner does not identify any effect on his counsel's performance. Defense counsel's theory of the case was that the encounters between Petitioner and the victims were consensual and that the victims were dishonest about the circumstances surrounding the incidents with Petitioner. (RT 340-42, 1322-25.) Ultimately, defense counsel provided an alternate interpretation of the facts, attacked the credibility of the witnesses, and minimized evidence about Petitioner's prior convictions. (RT 1325-31.) Thus, Petitioner has not shown that counsel's performance was adversely affected. See United States v. Wells, 394 F.3d 725, 735 (2005) (petitioner failed to demonstrate adverse affect from third-party fee arrangement in absence of evidence that fee arrangement affected counsel's handling of any issue in case); Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir. 2001) (ineffective assistance claim rejected absent proof that conflict adversely affected counsel's performance). *9 Ground Two does not warrant habeas relief. C. GROUND THREE: Ineffective Assistance of Trial and Appellate Counsel The California Supreme Court's summary denial is the last reasoned decision. (LD 9.) When a state court issues an unexplained decision, the question is whether there is any reasonable argument supporting the state court's denial of relief. Richter, 562 U.S. at 98. “ ‘Judicial scrutiny of counsel's performance must be highly deferential,’ and ‘a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.’ ” Knowles v. Mirzayance, 556 U.S. 111, 124 (2009) (citation omitted). A petitioner “must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland v. Washington, 466 U.S. 668, 689 (1984) (citation omitted). “ ‘The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.’ ” Knowles, 566 U.S. at 124 (citation omitted). Strickland “calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind.” Richter, 562 U.S. at 110. To establish prejudice, a petitioner must establish a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. Instead, Strickland asks whether it is ‘reasonably likely’ the result would have been different. This does not require a showing that counsel's actions ‘more likely than not altered the outcome,’ but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters ‘only in the rarest case.' The likelihood of a different result must be substantial, not just conceivable.’ ” Richter, 562 U.S. at 111-112. A court need not address both deficiency and prejudice if a petitioner makes an insufficient showing on one. Strickland, 466 U.S. at 697. “The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Richter, 562 U.S. at 105. Petitioner alleges ineffective assistance of counsel based on the following errors: (1) failure to investigate; (2) failure to object to DNA evidence or call an unbiased DNA expert witness; (3) failure to present a defense; (4) hiring a “street thug” to harass or intimidate a witness; (5) failure to impeach a witness; (6) failure to object to exclusion of relevant evidence; (7) failure to object to Detective Fassam's testimony concerning DNA reports; (8) failure to communicate plea offers; (9) failure to challenge two non-English speaking jurors during voir dire; (10) cumulative errors; (11) ineffective assistance on appeal; and (12) undermining the government's investigative process. (Dkt. No. 1 at 5-7; Dkt. No. 2 at 3-11; Dkt. No. 52 at 21-40.) *10 For the reasons set forth below, the state court's decision was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent, and was not an unreasonable determination of the facts. Ground Three does not warrant habeas relief. 1. Subclaim 1 - Failure to Investigate Petitioner argues that defense counsel ignored the fact that Nasha'a “had numerous contacts with law enforcement for prostitution and had the A.I.D.S. virus.” (Dkt. No. 52 at 22.) Petitioner argues that defense counsel was ineffective “for not also investigating [Alisia] and [Brianna] and discovering any inconsistenc[ies] in the allegations [they] made against Petitioner [and] then bringing them to light in [P]etitioner's trial.” (Id.) Petitioner claims that defense counsel failed to “investigate any potential rel[e]vant facts related to [P]etitioner's case,” and failed to retrieve evidence that police seized from Petitioner's home, including information stored on Petitioner's “computers and external hard drives [and] the text message print out between witness Nasha'a and Petitioner...” (Id. at 23.) “[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. “Under Strickland, counsel's investigation must determine trial strategy, not the other way around.” Weeden v. Johnson, 854 F.3d 1063, 1070 (9th Cir. 2017). “Even the best criminal defense attorneys would not defend a particular client in the same way.” Strickland, 466 U.S. at 689. For deficient investigations, “the test for prejudice is whether the noninvestigated evidence was powerful enough to establish a probability that a reasonable attorney would decide to present it and a probability that such a presentation might undermine the jury verdict.” Mickey v. Ayers, 606 F.3d 1223, 1236-37 (9th Cir. 2010) (citing Wiggins, 539 U.S. 510). To establish prejudice based on counsel's failure to investigate or call a potential defense witness, there must be evidence to show what significant and beneficial testimony the witness would have provided. Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000). Petitioner fails to establish deficiency or prejudice. Petitioner's argument that defense counsel failed to investigate Nasha'a prior contacts with law enforcement is unpersuasive. The jury was made aware of Nasha'a's prior arrest for prostitution (RT 606, 632) and defense counsel mentioned Nasha'a's arrest during closing argument. (RT 1324.) Petitioner's claim that defense counsel failed to discover inconsistencies in the testimony from Alisia and Brianna, and failed to attack their credibility, is unsupported. During cross examination, defense counsel questioned Brianna about the initial story she told police officers and undermined her credibility during closing argument. (RT 708-12, 717-18, 1321-22.) Defense counsel also highlighted Alisia's inability to recall specific details about the assault during cross examination and attacked her credibility during closing argument. (RT 964, 1323-24.) Petitioner argues that defense counsel failed to uncover “evidence that was stored on Petitioner's computers and external hard drives, the text message print out between witness Nasha['a] and Petitioner, or any other items that were [seized]” during the search of Petitioner's home. (Dkt. No. 52 at 23.) Detective Fassam testified that law enforcement officers were unable to retrieve print-outs of the text messages or emails from Petitioner's computer because the information was no longer available on the laptop that had been seized from Petitioner's home while executing the search warrant. (RT 987-88.) Defense counsel filed a motion for Ms. Brown to testify about the text messages between Petitioner and Nasha'a. (RT 995.) However, the trial court denied defense counsel's motion because evidence of the pieced together text messages lacked foundation since Petitioner did not testify at trial. (RT 997-98.) *11 Petitioner claims defense counsel failed to uncover the fact that Brianna initially told investigators that her assailant was a “Hispanic [male] with tattoos on both arms.” (Dkt. No. 52 at 23.) The record shows that defense counsel questioned Brianna extensively during cross-examination about the inconsistent report that she provided to police officers. (RT 709-712.) The jury also heard Brianna's testimony on why she decided to provide police with a false depiction of events. (RT 703-04.) Petitioner is unable to show that defense counsel's performance was deficient. 2. Subclaim 2 - Failure to Object to DNA Evidence, Present a DNA Expert and Obtain Lab Reports Petitioner argues that defense counsel failed to object to DNA evidence, failed to introduce testimony from an unbiased DNA expert, and failed to contest the authenticity of the prosecution's lab reports and results. a. Trial Court Proceedings During trial, the prosecution called Stephanie Sandoval (“Sandoval”), a Criminalist with the Los Angeles County Sheriff's Department Forensic Biology Section, to testify about the results of Brianna's biological examination after her sexual assault. (RT 902-03.) On direct examination, Sandoval stated that she tested the sexual assault kit from Brianna under lab report number K-445745. (RT 905.) Sandoval analyzed the “cervical sample, external anal, external oral, left breast, oral sample, right breast[,] vaginal...and vulva sample” for the presence of semen, amylase, and blood. (RT 906-07.) Semen was detected for the cervical, external anal, and external oral samples. (RT 906.) Sandoval found or detected an “unknown male” after analyzing Brianna's cervical sample. (RT 913.) Sandoval searched for the profile of the unknown male by entering the profile in CODIS, a combined DNA index system that houses profiles of forensic samples obtained from anyone arrested for a felony. (RT 913-14.) After uploading the unknown male profile into CODIS, Sandoval compared a reference sample belonging to Petitioner, whose profile previously registered as a “hit” in CODIS. (RT 915-16.) Sandoval concluded that the external anal sperm fraction matched Petitioner's profile. (RT 916.) b. Failure to Object to DNA Evidence/Lab Reports Petitioner argues defense counsel failed to object to the authenticity of the prosecution's lab reports in Exhibits 7 and 9. Petitioner's Exhibit 7 is Sandoval's Biological Evidence and DNA Examination report listing the items of evidence that Sandoval used as samples from Brianna's rape kit, Sandoval's methods of examination, and Sandoval's conclusions on the presence or absence of DNA. (Dkt. No. 52, Exh. 7 at 67-70.) Sandoval testified on direct examination about the report and its contents. (RT 914.) Petitioner's Exhibit 9 contains a Table of DNA analysis or results. (Dkt. No. 52, Exh. 9 at 74-75.) The prosecutor introduced these charts as People's Exhibits 14-A and 14-B. Sandoval testified about their contents during trial. (RT 918-21.) Petitioner's claim fails because he has not shown any basis for a valid objection. Petitioner does not state with any specificity what further investigations should have been done to test the report's authenticity. Petitioner does not point to any lab protocol or procedure that Sandoval failed to follow. Defense counsel was not ineffective for failing to raise a meritless objection. See Jernigan v. Edward, 2017 U.S. Dist. LEXIS 184510, at *82 (S.D. Cal. Nov. 7, 2017) (rejecting ineffective assistance claim based on failure to object to allegedly unreliable DNA evidence when petitioner did not specify “what further investigation...should have been done by trial counsel and what information he would have obtained from that investigation”). c. Failure to Call Unbiased DNA Expert *12 Petitioner argues defense counsel failed to call a DNA expert to discover cross contamination in the DNA results and refute the prosecution's DNA findings. Petitioner fails to demonstrate ineffective assistance because his claims about what an “unbiased” expert might have said at trial is mere speculation. See Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997) (“Speculation about what an expert could have said is not enough to establish prejudice”); see also Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001) (rejecting ineffective assistance claim when petitioner “offered no evidence that an arson expert would have testified on his behalf at trial” and “merely speculate[d] that such an expert could be found”). Petitioner states that Dr. John M. Butler is an unbiased expert who could have shown “examples of real DNA reports” as opposed to the “excel document” prepared by Sandoval “purporting to be an actual DNA lab report.” (Dkt. No. 52 at 26.) In the absence of declarations from Dr. Butler or any other “unbiased” DNA expert, there is no evidence they would have testified as Petitioner represents. See Dows, 211 F.3d at 486 (finding that counsel's performance was not deficient, in part, because Petitioner provided “no evidence that [the] witness would have provided helpful testimony for the defense-i.e., [Petitioner] has not presented an affidavit from [the] alleged witness.”). 3. Subclaim 3 - Failure to Present A Defense Petitioner argues that defense counsel “failed to present even the slightest defense,” did not investigate the prosecution's key witnesses or potential exculpatory evidence, and failed to review relevant scientific documents. a. Applicable Federal Law Defense counsel has a “duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691; Wiggins, 539 U.S. at 521. This includes a duty to investigate the prosecution's case and to follow up on any exculpatory evidence that might show a defendant's innocence or raise sufficient doubt to undermine confidence in a guilty verdict. Riley v. Payne, 352 F.3d 1313, 1318-21 (9th Cir. 2003). To show prejudice, petitioner must demonstrate that further investigation would have revealed favorable evidence. Weaver v. Palmateer, 455 F.3d 958, 971 (9th Cir. 2006) (rejecting ineffective assistance claim based on failure to test fingerprints when “record provide[d] no indication that further testing of the fingerprints would have yielded a different result”); Franklin v. Johnson, 290 F.3d 1223, 1237 (9th Cir. 2002) (finding counsel not ineffective in failing to investigate mental state defense when petitioner presented no evidence concerning impact of any mental disease or defect on his commission of crime); United States v. Berry, 814 F.2d 1406, 1409 (9th Cir. 1987) (finding counsel not ineffective for failing to call witnesses when petitioner “offer[ed] no indication of what these witnesses would have testified to, or how their testimony might have changed the outcome of the hearing.”). b. Analysis Petitioner fails to establish deficiency or prejudice. Petitioner's claim that defense counsel failed to investigate the prosecution's key witnesses, which prevented him from bringing forth any inconsistencies to counter the prosecution's theory of the case, is unconvincing. The record indicates defense counsel actively highlighted inconsistencies in the testimony of the prosecution's key witnesses. (RT 632, 708-12, 717-18, 964.) Petitioner's claim that defense counsel failed to review relevant scientific data also fails because Petitioner has not demonstrated how any further investigations into scientific data would have helped his defense. See Dows, 211 F.3d at 486 (petitioner provided “no evidence that [the] witness would have provided helpful testimony for the defense-i.e., [Petitioner] has not presented an affidavit from [the] alleged witness.”). Petitioner's additional claim that defense counsel “just winged it” is insufficient to overcome the strong presumption that defense counsel's performance was reasonable. The record indicates that defense counsel presented a cohesive strategy and defense throughout trial. During opening arguments, defense counsel acknowledged that Petitioner successfully overcame a troubled criminal history, admitted Petitioner hired prostitutes on previous occasions, and provided an alternative explanation of the circumstances surrounding Petitioner's encounter with the three victims. (RT 331-42.) During closing arguments, defense counsel reminded the jury that “doesn't matter how bad you think the defendant is or what the evidence has been introduced...to show you the defendant is a bad man...you still have the same obligations that you would have whether the person that was sitting in the defendant's chair was a saint, it doesn't matter your duties as jurors are the same in terms of how you have to evaluate the evidence.” (RT at 1321.) Furthermore, defense counsel undermined the credibility of the prosecution's key witnesses (RT 643-44, 703-04, 706-14, 717, 949, 955-56), emphasized a different interpretation of the facts (RT 1321-26), highlighted flaws in the prosecution's reliance on circumstantial evidence (RT 1326-27), and reminded the jury of their duty to apply the beyond-a-reasonable-doubt standard irrespective of Petitioner's prior convictions (RT at 1320-21, 1328). See Richter, 562 U.S. at 109 (“To support a defense argument that the prosecution has not proved its case it sometimes is better to try to cast pervasive suspicion of doubt than to strive to prove a certainty that exonerates”); see also Hendricks v. Caledron, 70 F.3d 1032, 1042 (9th Cir. 1995) (“The hopelessness of some cases may even relegate the most competent defense counsel to the role of official hand-holder”) (citation and some quotation omitted). 4. Subclaim 4 - Hiring a “Street Thug” to Harass or Intimidate The Prosecution's Witnesses *13 Petitioner alleges that defense counsel used money from Petitioner's defense fund to pay Milon Mitchel, a “known thug and pimp,” to intimidate and bribe the prosecution's witnesses. Petitioner contends that defense counsel's actions “negatively influenced the prosecutor's office against Petitioner.” (Dkt. No. 52 at 29.) a. Factual Background Petitioner alleges that, during a meeting at the Los Angeles County jail in March or April of 2012, defense counsel said that Mitchel contacted defense counsel and informed him that he was Facebook friends with Nasha'a - a victim and witness for the prosecution. (Id.) Petitioner claims defense counsel hinted to Petitioner that “it would be great” if Mitchel could “make [Nasha'a] go away,” or record Nasha'a confessing “that she was trying to extort Petitioner.” (Id. at 30.) Petitioner alleges that defense counsel suggested someone should pay Mitchel to ensure his cooperation. (Id.) Defense counsel “[gestured] to Petitioner with hand movements not to respond stating, ‘Don't worry I'll take care of it.’ ” (Id.) Petitioner claims that, during a second meeting a few days later, defense counsel informed Petitioner that Ms. Brown “was questioned by police and the D.A.'s office and that she may be charged with obstruction of justice for witness intimidation.” (Dkt. No. 52 at 30.) Defense counsel said “they think she did it ... and I don't know what [Mitchel] ... may have did.” (Id.) Petitioner feels certain defense counsel “must have went [through] with his scheme” to encourage Mitchel to “intimidate and bribe” Nasha'a. (Id.) Petitioner attaches a statement from Mitchel dated January 27, 2016: On or about August 6, 2012, I was in communication with Sean's Attorney Carlo Spiga in regards to a [F]acebook friend ... Nasha'a Brown who was the victim in the criminal proceedings involving Sean. Mr. Spiga asked me what was my relationship to her. Which I stated I wasn't sure because I didn't know her by that name. He asked me to contact her and ask if she would be willing to drop the charges and to offer her compensation for doing so. About a month later I contacted Nasha'a [through] [F]acebook and asked her to call me. She called and I told her who I was and asked if she would be willing to drop the charges for money. She became angry and said that she couldn't drop the charges because the DA would charge her with violation of probation for prostitution. She asked me not to call her again. Mr. Spiga contacted me and ask[ed] if I contacted Ms. Brown[.] I told him yes he then stated that the DA called him and threatened to bring charges if it happened again. He blamed me for the incident and denied everything. (Dkt. No. 52, Ex. 10 at 77.) The prosecution called Nasha'a as a trial witness. When asked whether anyone attempted to contact her about the crime after Petitioner was arrested, Nasha'a replied “Yes.” (RT 627-28.) Nasha'a stated that an unidentified man sent her a message on Facebook and subsequently called her phone after she provided her number. (RT 628.) During the call, the unidentified man asked Nasha'a whether she planned to testify against Petitioner. (RT 628.) The caller asked Nasha'a if she would be willing to handle the case “outside of court because the [Petitioner's] wife was distraught behind the situation and she wanted to talk ....” (RT 628.) Nasha'a testified that she told the caller “no” and “hung up the phone.” (RT 629.) b. Analysis *14 Even assuming deficiency based on Petitioner's version of events, Petitioner has not shown a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different” given the overwhelming evidence of Petitioner's guilt. Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Petitioner argues only that defense counsel's actions “negatively influenced the prosecutor's office” against him. (Dkt. No. 52 at 29.) There is no indication that the prosecution brought additional charges against Petitioner based on this alleged incident. Absent a showing of prejudice, Petitioner is not entitled to relief on this subclaim. 5. Subclaim 5 - Failure to Impeach Petitioner alleges that defense counsel failed to impeach Brianna's credibility with evidence that Brianna initially reported to police officers that she “was rob[bed] and sexually assaulted in a CVS parking lot and that her assailant was a white or Hispanic male who had tattoos on his arms,” which differs from her second report to police and in-court identification of Petitioner as the culprit. (Dkt. No. 52 at 31.) a. Trial Court Proceedings Brianna testified that on February 11, 2012, she was staying at the Royal Century Hotel when she was “raped by a man that had barged into the room saying he was a police officer.” (RT 682-83.) Brianna identified Petitioner as that man. (RT 683.) However, according to the police report completed by Investigator Rumsey, Brianna initially described her assailant as a white or Hispanic male, between 45 to 50 years old, and standing between 5'7" to 5'9" tall. (Dkt. No. 52, Exh. 8 at 72.) Brianna initially described the perpetrator as having a tattoo on his left arm and reported that the assault occurred in a CVS parking lot. (Id.) Brianna testified that she provided a false story to police initially because she feared the ramifications of reporting her involvement with prostitution and feared retaliation from the police force since the crime involved “a cop.” (RT 703.) Brianna subsequently told Detective Rumsey the true story a few days later because Brianna felt comfortable with the female detective. (RT 704.) b. Analysis Petitioner has not shown deficiency or prejudice. Petitioner argues that the jury would not have found him guilty had defense counsel impeached Brianna with her inconsistent identifications. (Dkt. No. 52 at 32.) However, the jury heard Brianna testify at length about why she provided two different version of events (RT 702-04), and defense counsel specifically questioned Brianna about her inconsistent stories during cross examination (RT 709-12). Petitioner has not shown a reasonable probability of a different outcome had defense counsel asked more questions about her admitted inconsistencies. See Ramirez v. Yates, 2012 U.S. Dist. LEXIS 106043, at *44-45 (E.D. Cal. June 6, 2012) (finding no prejudice from counsel's failure to cross-examination more thoroughly). Accordingly, Petitioner is not entitled to relief on this claim. 6. Subclaim 6 - Failure to Object to Exclusion of Text Messages Petitioner argues that defense counsel failed to object to exclusion of text messages between Petitioner and Nasha'a. According to Petitioner, the text messages would have shown that Nasha'a and Petitioner “had a well documented prostitute/client relationship which included the subject of sexual role play activities that included guard and prisoner” and were “in direct contradiction to the states position that [P]etitioner was some unknown [h]ooker [r]obber and [r]apist who set out to meticulously plan the assault.” (Dkt. No. 52 at 32-33.) Petitioner further argues that defense counsel failed to obtain other exculpatory evidence – including the computers and external hard drives seized by police and the “actual source of the messages” located on tagged.com – that would have supported his defense that he had a previous “customer/prostitute” relationship with Nasha'a that involved role play and other sex games. (Id. at 33.) a. Trial Court Proceedings *15 In a discovery response letter dated June 20, 2012, the prosecutor advised that “[o]nce the hard drives of the computers are examined, arrangements will be made to facilitate examination by a defense computer analyst.” (Dkt. No. 52, Exh. 1 at 50.) On direct examination, Detective Fassam testified that police seized Petitioner's computer while executing a search warrant on his townhouse. (RT 986.) Although the computer analyst found forensic evidence that someone used Petitioner's computer to access tag.com, the analyst was unable to retrieve the specific emails because they were no longer available. (RT 987.) Detective Fassam testified that “[w]e were unable to retrieve [the text messages between Petitioner and Nasha'a] from her cell phone” and were unable to do so from the department computer due to firewalls. He later tried to get Nasha'a's phone but she had lost her phone. (RT 989.) b. Analysis Petitioner has not shown deficiency or prejudice. There is no indication that the evidence Petitioner sought existed on Petitioner's computer or could be obtained from Nasha'a's phone. The court denied defense counsel's motion to introduce Ms. Brown's pieced-together text messages into evidence absent any evidence of authentication. “The foundation has to be laid because it was a crumpled and torn piece of paper that somebody pieced together.” (RT 997-98; see also RT 10.) Petitioner did not testify and no foundation could be established. Petitioner is not entitled to relief on this claim. 7. Subclaim 7 - Failure to Object to Detective Fassam's Testimony About DNA Petitioner argues that defense counsel failed to object to Detective Fassam's expert testimony about DNA evidence for which he was unqualified. Detective Fassam provided the following testimony concerning DNA evidence on direct examination: Prosecutor: Was evidence ever taken from the couch? Detective Fassam: No. Prosecutor: Why not? Detective Fassam: We were unable to retrieve the evidence from the couch at a later time. (RT 986.) Petitioner is unable to establish that defense counsel was ineffective for failing to object to Detective Fassam's testimony about DNA evidence. Petitioner does not specifically allege, and there is no indication in the record that, Detective Fassam provided any in-depth testimony about DNA evidence. “[T]rial counsel cannot have been ineffective for failing to raise a meritless objection.” Juan H., 408 F.3d at 1273. 8. Subclaim 8 - Failure to Convey Plea Offer Petitioner states that “defense counsel was informed by the prosecutor of a [15] year plea bargain. Counsel informed petitioner of the plea deal after it was no longer available.” (Dkt. No. 2 at 8.) In his Traverse, Petitioner states that defense counsel, Mr. Spiga, told him after trial that the prosecution had made 15-year and 21-year plea offers “during pre-trial hearings when Petitioner was not present in the courtroom.” Counsel said he turned those plea offers down in light of Petitioner's age and health, and because he knew Petitioner “wouldn't go for it.” Defense counsel rejected the plea offers without Petitioner's knowledge or consent. (Dkt. No. 52 at 35.) a. Factual Background Petitioner attaches a letter dated August 21, 2012 from the prosecutor to defense counsel. (Dkt. No. 52, Exh. 16 at 89.) In relevant part, the letter states: “I am also faxing to you the DNA report that identifies your client as having sperm in the victim's mouth. Although the report is dated June 20, 2012, I received it today and was unaware of the completion of the testing. Perhaps with this new evidence, your client might be more accepting of a negotiated plea agreement .... I look forward to talking to you about the possibility of disposition.” (Id.) *16 Petitioner attaches an undated declaration by Mr. Spiga that was apparently filed in a different criminal case in support of a “motion to continue.” (Dkt. No. 1-5 at 7.) Defense counsel states he is “attorney of record in this case” and “also the attorney of record in th[e] case of People v. Brown #NA091389,” which is Petitioner's case. (Id. ¶ 1.) Defense counsel had scheduled two cases for trial on the same day in the hope that one case was settle but neither case settled. (Id. ¶ 2.) Defense counsel announced ready for trial on April 8, 2013 in Petitioner's case before Judge Ong but the case trailed the penalty phase of a death penalty trial. (Id. ¶¶ 3-4.) Defense counsel states that “[i]f you have any questions, Judge Ong requests you call him in his chambers.” (Id. ¶ 4.) Defense counsel then states: “I will make every attempt to settle this case. It is my belief a settlement is in the best interests of all involved.” (Id. ¶ 5.) It is clear from the declaration that “this case” is not Petitioner's case. b. Applicable Federal Law The Sixth Amendment right to counsel extends to the plea bargaining process. Lafler v. Cooper, 566 U.S. 156, 162 (2012). “If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it.” Id. at 168. “[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” Missouri v. Frye, 566 U.S. 134, 145 (2012). When, as here, the petitioner alleges ineffective assistance of counsel based on a failure to communicate a plea offer, Petitioner must show prejudice. Id. at 147. “To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel.” Id. at 148-49. “Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution cancelling it or the trial court refusing to accept it.” Id. at 147; Lafler, 566 U.S. at 164 (requiring showing that “defendant would have accepted the plea,” the “prosecution would not have withdrawn it in light of intervening circumstances,” “the court would accepted its terms,” and “the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that were imposed”). c. Analysis Petitioner does not present any evidence of actual plea offers from the prosecution during pretrial hearings or at any other time. See Sanchez v. Pfeiffer 745 Fed. Appx. 703, 705 (9th Cir. 2018) (finding reasonable jurist could conclude petitioner failed to demonstrate existence of plea offer in record). Assuming deficiency, nowhere does Petitioner even allege a reasonable probability that he would have accepted the earlier plea offer had he received effective assistance of counsel. (Dkt. No. 2 at 8; Dkt. No. 52 at 35.) Absent such an allegation, the state court's decision was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent and was not an unreasonable determination of the facts. Frye, 566 U.S. at 147-48 (holding that prejudice from “uncommunicated, lapsed plea” requires showing of “reasonable probability [defendant] would have accepted the earlier plea offer”). Petitioner also fails to make any allegation that the prosecution did not, or would not have, withdrawn any offer in light of intervening circumstances, and that the court would have accepted its terms. Id. at 147. 9. Subclaim 9 - Failure to Challenge Two Non-English Speaking Jurors Petitioner alleges that defense counsel failed to “challenge the judge's decision to allow two jurors that were Mexican Nationals, [who] claimed they did not understand or speak [E]nglish very well during the initial interview to determine whether they were e[ligible] to participate in [P]etitioner's trial.” (Dkt. No. 52 at 36.) According to Petitioner, Jurors No. 5 and 9 “explained in broken [E]nglish that they couldn't understand what was being said.” After learning about each juror's employment, the judge stated, “then you understand [E]nglish well enough otherwise you wouldn't be in this country.” (Id. at 36.) Petitioner contends his due process rights were violated because these jurors were unable to meaningfully participate in the deliberation process due to limited English proficiency. a. Voir Dire Proceedings *17 Voir dire proceedings commenced on April 15, 2013. (Dkt. No. 62-1 at 1.) Juror Nos. 5 and 9 answered basic questions from the court. (Id. at 4-6, 46-47.) Juror No. 9 answered specific questions from the court. (Id. at 56, 60-61.) When the Clerk administered the oath, Juror No. 5, a technical assistant for a group of hospitals, stated he did not “understand some words.” (Id. at 82.) The court asked whether he was refusing to serve. Juror No. 5 stated, “I not refuse. I don't understand 100 percent. I can do it, but a lot of words I no understand, that's my problem.” (Id.) Juror No. 5 had been a United States citizen for 10 years and had lived in the country for 20 years. “Most of the time I speak Spanish” on the job. (Id.) The court asked whether Juror No. 5 was required to speak any English on the job. Juror No. 5 replied, “A little, the only I can do.” (Id. at 83.) The court stated that Juror No. 5 was “speaking well enough to talk to me.” Juror No. 5 replied, “I don't know if it's enough to be [ ] a juror.” (Id.) The judge stated Juror No. 5 spoke English just fine, and asked whether he was refusing to serve. Juror No. 5 said, “I no refuse.” The court instructed the Clerk to administer the oath. Juror No. 5 stated, “I not understand some words that she speaks so fast.” (Id.) After the Clerk reread the oath at a slower pace, Juror No. 5 stated he understood and agreed. (Id. at 84.) Juror No. 9, a taxi driver, then raised his hand and stated that he had almost the same problem as Juror No. 5. Although his job required him to converse with people, Juror No. 9 said most of his passengers speak Spanish. The court noted that “[y]ou don't get to choose the passengers that you have when you are dispatched. You talk to people in English. If they want to go to a certain airport they tell you what time.” Juror No. 9 stated “sometimes I don't understand everything.” The court stated, “You understand enough to sit in a jury.” (Id. at 84-85.) “If you drive a taxi in Los Angeles County[,] you have to speak English to people. You understand what a Taxi is. You understand the traffic laws. You have to get a driver's license. You have to take [a] test from the D.M.V. You understand traffic signs. You have to understand [how] to read a map. You understand enough, Sir. I'm not going to excuse [you].” (Id.) b. Supplemental Questioning at Close of Evidence After the close of evidence, the judge addressed Juror No. 5 separately: Court: Having gone through the entire trial, I'm going to ask you: did you follow the case sufficiently so that you could discharge your duties as juror in this case? Did you follow the case? Juror No. 5: Most. * * * Court: My question is, can you talk with the other 11 people in order to come up with a decision in the case? Can you do that? Juror No. 5: Yeah, I got my own decision. Court: But you cannot make your own decision yet until you talk with the other 11. You understand that? Juror No. 5: I can talk with them. Court: And if they change your mind, you have to be able to keep an open mind, like I asked you. Can you do that? Juror No. 5: Yes. The court then addressed Juror No. 9 separately: Court: Juror No. 9...When we first started this case you wanted to stand up and tell me you didn't speak enough English to follow the case, if I remember correctly. Am I right? *18 Juror No. 9: That's correct. Court: Having gone through the entire trial now, did you follow the evidence in this case so you will be able to discuss the case with the other 11 jurors and decide this case. Are you able to do that? Juror No. 9: Sure. Court: You are? Juror No. 9: Yes. Court: ... So the question that I have is, do you understand enough of the trial in this case to be able to sit down and talk with the other 11 jurors to come up with a decision in this case? Juror No. 9: Yes. (RT 1258-60.) The court concluded that there was no reason to excuse Juror Nos. 5 and 9, and use the alternates. “[B]oth of them affirmatively said they can deliberate and they followed enough of the evidence.” (RT 1260-61.) Defense counsel stated he was satisfied with the competency of both jurors. (RT 1261.) After the verdict was rendered, the jury was polled. Juror Nos. 5 and 9 each responded “yes” when asked whether this was their individual verdict. (RT 1512-13.) c. Analysis Petitioner has not shown deficiency or prejudice. Under California law, “insufficient command of the English language to allow full understanding of the words employed in instructions and full participation in deliberations clearly renders a juror ‘unable to perform his duty’ within the meaning of [Cal.] Penal Code [§] 1089.”) People v. Szymanski, 109 Cal. App. 4th 1126, 1131 (2003). Both jurors demonstrated an ability to understand and respond to questions during voir dire. Both jurors indicated an ability to participate in deliberations, and both jurors were individually polled as to the verdict. Petitioner has not shown that defense counsel was deficient in failing to request that Juror Nos. 5 and 9 be excused. Defense counsel is not required to raise futile objections. Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005). Petitioner has not shown a reasonable probability that the court would have excused either of the two jurors for cause. See Tolliver v. Heredia, 2008 WL 11451564, at *2 (D.N.M. Apr. 9, 2008) (rejecting ineffective assistance claim when nothing in the record supported allegation that jurors could not read and understand English well enough to participate). 10. Subclaim 10 - Defense Counsel's Cumulative Errors Petitioner argues that “the cumulative effect of multiple constitutional violations by trial counsel compounded with several evidentiary trial court errors” violated his due process rights. (Dkt. No. 52 at 37.) “The Supreme Court has clearly established that the combined effect of multiple trial errors violates due process where it renders the resulting criminal trial fundamentally unfair.” Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (citing Chambers v. Mississippi, 410 U.S. 284, 298 (1973)). However, “[w]hile the combined effect of multiple errors may violate due process even when no single error amounts to a constitutional violation or requires reversal,” Petitioner is not entitled to habeas relief unless “the errors infect a trial with unfairness.” Payton v. Cullen, 658 F.3d 890, 896-97 (9th Cir. 2011) (citations omitted). *19 As discussed above, Petitioner has not shown an error or combination of errors that caused prejudice. Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011) (“Because we conclude that no error of constitutional magnitude occurred, no cumulative prejudice is possible.”). 11. Subclaim 11 - Ineffective Assistance of Appellate Counsel Petitioner argues that defense counsel failed to raise ineffective assistance of counsel claims on direct appeal. To succeed on a claim of ineffective assistance of counsel, Petitioner must demonstrate deficiency and prejudice. Wiggins, supra, 539 U.S. at 521. The standards for assessing the performance of trial and appellate counsel are the same. Evitts v. Lucey, 469 U.S. 387, 395-99 (1985). Appellate counsel is not required “to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points.” Jones v. Barnes, 463 U.S. 745, 751 (1983). To establish prejudice from deficient performance of appellate counsel, a petitioner “must show a reasonable probability that, but for his counsel's [error], he would have prevailed on his appeal.” Smith v. Robbins, 528 U.S. 259, 285 (2000). Appellate counsel cannot be deficient for failing to raise grounds that have no merit. Jones, 463 U.S. at 751. Petitioner has not shown a viable ineffective assistance of trial counsel claim, and has not shown a reasonable probability that he would have prevailed on appeal. Smith, 528 U.S. at 285. 12. Subclaim 12 - Government's Investigative Process Subclaim 12 is difficult to understand. Petitioner argues that defense counsel “drafted fraudulent District Attorney work product as a tactic to Bolster [Petitioner's] credibility with gang-members in order to (1) recruit gang-members to intimidate prosecution witnesses; (2) to show gang-members if paperwork was requested.” (Dkt. No. 52 at 39; Dkt. No. 2 at 10.) Petitioner attaches a “First Amended Information” which differs from the First Amended Information in the Clerk's Transcript. (Compare Dkt. No. 1-6 at 5-16 with CT 110-122, Dkt. No. 38-1 at 118-130.) Specifically, Petitioner's First Amended Information omits all charged sex offenses charged and substitutes other offenses. Assuming defense counsel provided Petitioner with a First Amended Information without sex offenses in the event another inmate requested his paperwork, Petitioner fails to demonstrate any prejudice. There is no indication the jury heard anything about Petitioner's First Amended Information or the reasons for it. Petitioner cannot show a reasonable probability of a different outcome and is not entitled to relief on this subclaim. D. GROUND FOUR: Prosecutorial Misconduct In Ground Four, Petitioner argues the prosecutor engaged in a pattern of misconduct by: (1) using false or perjured testimony; (2) making improper or inflammatory statements about Petitioner; and (3) using suggestive or coercive eyewitness identifications to establish probable cause for Petitioner's arrest. The California Supreme Court's summary denial is the last decision. (LD 9.) 1. Subclaim 1 - False or Perjured Testimony Petitioner argues the prosecutor encouraged Brianna “to tell a similar story” as Nasha'a during trial in order to show that petitioner had a common modus operdani. a. State Court Proceedings *20 At trial, as discussed above, Brianna admitted to fabricating details about the sexual assault in the initial report she provided to police officers. (RT 709-14.) Brianna initially told police that she was sexually assaulted by a stranger near the side of the CVS building. (RT 703.) At trial, however, Brianna identified Petitioner as the perpetrator and testified that the crime occurred in a motel room. Brianna testified that she reported the true story of events to Detective Rumsey. (RT 704.) Brianna testified that she did not initially tell the truth about the specific details concerning the sexual assault because she was afraid that people close to her would find out she was involved in prostitution. (RT 703.) b. Applicable Federal Law “Deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with ‘rudimentary demands of justice.’ ” Giglio v. United States, 405 U.S. 150, 153 (1972) (citation omitted). “[I]t is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.” Napue v. Illinois, 360 U.S. 264, 269 (1959) (citations omitted). “The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Id. A new trial is warranted if the false testimony could in any reasonable likelihood have affected the judgment of the jury. Giglio, 405 U.S. at 154; Dow v. Virga, 729 F.3d 1041, 1048 (9th Cir. 2013) (“Napue requires us to determine only whether the error could have affected the judgment of the jury, whereas ordinary harmless error review requires us to determine whether the error would have done so.”). Petitioner must show that (1) the testimony or evidence was actually false; (2) the prosecution knew or should have known that the testimony was actually false; and (3) the false testimony or evidence was material. Jones v. Ryan, 691 F.3d 1093, 1102 (9th Cir. 2012); Towery v. Schriro, 641 F.3d 300, 308-09 (9th Cir. 2010). c. Analysis Petitioner has not shown that Brianna's testimony was actually false. The fact that Brianna's testimony differed from her initial police report may undermine her credibility but does not establish that her testimony was false. See United States v. Zuno-Arce, 339 F.3d 886, 890 (9th Cir. 2003) (impeachment evidence undermining credibility of witness does not by itself establish that testimony was false). Moreover, there is no indication that the prosecutor knew or should have known that Brianna's testimony was false. See United States v. Geston, 299 F.3d 1130, 1135 (9th Cir. 2002) (two conflicting versions of incident insufficient to establish that government knew or should have known which version was false). 2. Subclaim 2 - Inflammatory Statements Petitioner contends that the prosecutor calling him a “disgusting Animal” during closing argument was “highly prejudicial and likely tainted the jurors' minds” against him. (Dkt. No. 52 at 41.) a. Trial Court Proceedings The prosecutor made the following remarks during closing arguments: The police must track, as Detective Fassam told you, every convicted sex offender who is under the requirement when they have a prior sex crime conviction. It is common sense. Why? Because they are going to do it again, not every one of them but enough to make that law. Sean Brown did do it again and again and again. He did it with Nasha'a. He tried to cuff and restrain Alisia to do it with her and he raped and humiliated and did the other sexual acts against Brianna. He did it [in] 1991 when he [was] 21 years younger. He is a disgusting animal. (RT 1342-43.) After defense counsel objected and moved to strike the record, the court informed the jury that “the lawyer's arguments and closing arguments are not evidence.” (RT at 1343.) b. Applicable Federal Law *21 “[I]t ‘is not enough that the prosecutors' remarks were undesirable or even universally condemned.’ The relevant question is whether the prosecutors' comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citations omitted) (limiting habeas review to due process and rejecting broad exercise of supervisory power). “[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith, 455 U.S. at 219. In Darden, the prosecutor used the word animal, improperly implied that the death penalty would be the only guarantee against a future similar act, and made a series of offensive comments. Darden, 477 U.S. at 180, n12. The Supreme Court rejected a due process claim. “The prosecutors' argument did not manipulate or misstate the evidence, nor did it implicate other specific rights of the accused such as the right to counsel or the right to remain silent.” Id. at 181-82. “The trial court instructed the jurors several times that their decision was to be made on the basis of the evidence alone, and that the arguments of counsel were not evidence. The weight of the evidence against petitioner was heavy; the ‘overwhelming eyewitness and circumstantial evidence to support a finding of guilt on all charges,’ reduced the likelihood that the jury's decision was influenced by argument.” Id. at 182 (citation omitted); see Tak Sun Tan v. Runnels, 413 F.3d 1101, 1115 (9th Cir. 2005) (“Darden measured the fairness of the petitioner's trial by considering, inter alia, (1) whether the prosecutor's comments manipulated or misstated the evidence; (2) whether the trial court gave a curative instruction; and (3) the weight of the evidence against the accused.”); see also Brecht, 507 U.S. at 639 (finding harmless error when “evidence of guilt was, if not overwhelming, certainly weighty”). Darden creates a general standard, giving state courts more leeway to apply it. Parker v. Matthews, 567 U.S. 37, 47-48 (2012). c. Analysis Petitioner has not shown that the prosecutor's comments so infected the trial with unfairness as to make the resulting conviction a denial of due process. Defense counsel objected to the prosecution's statement. The court instructed the jury that their decision was to be made on the basis of evidence alone, and that the arguments of counsel was not evidence. (RT 1343); see Darden, 477 U.S. at 182; Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974) (noting prosecutor's improper remark was followed by specific instructions); Cheney v. Washington, 614 F.3d 987, 997 (9th Cir. 2010) (holding state court reasonably determined petitioner was not prejudiced by improper closing argument when “counsel brought the prosecutor's impropriety to the court's attention with only a slight delay”). Petitioner is not entitled to relief on this subclaim. 3. Subclaim 3 - Suggestive or Coerced Eyewitness Identifications Petitioner claims that the prosecutor used Brianna's tainted photo identification to secure probable cause for Petitioner's arrest. Petitioner contends that Brianna's photo line-up was “unequivocally suggestive” and “tainted the entire trial process.” (Dkt. No. 52 at 41-42.) a. Background Information Petitioner attached an email dated September 12, 2012, from Detective Rumsey to Sergeant Lassen: Sgt. Lassen, I appreciate your help in this case.... The defendant depicted in this photographic line up is currently in custody at Twin Towers in Los Angeles for the same exact charges on a second victim. His name is Sean Ezra Brown, DOB: 01/10/67. He is number four in the photographic line up. *22 Can you have her circle if she I.D.'s his photo and placed her initials and the date next to the photo. (Dkt. No. 52 at 96.) Detective Newby displayed the photo line-up to Brianna at the Sacramento Police Department on September 17, 2012. (Dkt. No. 5-7 at 2.) Brianna identified Petitioner by circling his photograph. (Id. at 3.) The prosecution introduced the six-pack photograph as People's Exhibit 9 at trial. (RT at 705.) On direct examination, Brianna testified that she selected Petitioner's photograph from the line-up on September 17, 2012 and identified Petitioner as the perpetrator in court. (RT at 683, 705-06.) b. Applicable Federal Law The Supreme Court has recognized “a due process check on the admission of eyewitness identification, applicable when the police have arranged suggestive circumstances leading the witness to identify a particular person as the perpetrator of a crime.” Perry, 565 U.S. at 232. “[D]ue process concerns arise only when law enforcement officers use an identification procedure that is both suggestive and unnecessary.” Id. at 238-39. “An identification infected by improper police influence, our case law holds, is not automatically excluded. Instead, the trial judge must screen the evidence for reliability pretrial. If there is ‘a very substantial likelihood of irreparable misidentification,’ the judge must disallow presentation of the evidence at trial. But if the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth.” Id. at 232 (citing Simmons v. United States, 390 U.S. 377, 384 (1968)). Reliability is the linchpin in the evaluation of the fairness of eyewitness identification. Manson v. Brathwaite, 432 U.S. 98, 114 (1977). Factors to be considered in the reliability analysis include the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of her prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Id. The corrupting effect of the suggestive identification itself is weighed against these factors. Id. c. Analysis Petitioner is unable to establish that the photo line-up identification was suggestive or misleading. The evidence indicates Brianna had an opportunity to see Petitioner. Brianna testified that Petitioner sexually assaulted her at the Royal Century Hotel in Inglewood on February 11, 2012. (RT 681-83.) Although Brianna stated she did not see Petitioner during certain moments of the assault, she did observe Petitioner as he initially walked into the hotel room disguised as a police officer. (RT 683-86.) There is no indication the room was dark or that the circumstances would have rendered Brianna unable to view Petitioner. Although the photo line-up identification took place months after the sexual assault, Brianna identified Petitioner's individual photograph from among the six individuals depicted in the photo line-up on September 17, 2012 and subsequently identified Petitioner at trial. (Dkt. No. 5-7 at 3; RT at 683, 705-06.) Petitioner has not stated how the identification process was in any way unreliable. See Ochoa v. Davis, 2016 WL 3577593, at *38 (C.D. Cal. June 30, 2016) (rejecting suggestive identification claim when petitioner “submitted no evidence, nor has he asserted that there is any evidence, that the procedures used in the live lineups were suggestive in any way”), report and recommendation adopted by, 2016 WL 3574006 (C.D. Cal. June 30, 2016). *23 Moreover, Petitioner has not shown a substantial likelihood of irreparable misidentification. Petitioner had an opportunity to highlight any identification errors on cross-examination. It was the jury's province to weigh the credibility and reliability of the eyewitness evidence, which was the subject of cross-examination. See Simmons, 390 U.S. at 384 (potential misidentification “may be substantially lessened by a course of cross examination at trial which exposes to the jury the method's potential for error”); Watkins v. Sowders, 449 U.S. 341, 348 (1981) (counsel may cross-examine identification witness and argue as to factors, such as suggestibility, that raise doubts as to accuracy of identification). Petitioner is not entitled to relief on this subclaim. E. GROUND FIVE: Admission of 23-Year-Old Prior Offense Petitioner argues error in admitting a 23-year-old prior offense in the form of testimony from Brigitte B. (“Brigitte”). The California Supreme Court's summary denial is the last reasoned decision. (LD 9.) The prosecution called Brigitte as a witness at trial. (RT 1008-17.) Brigitte identified Petitioner as one of the individuals who sexually assaulted her in 1991, more than 20 years before trial. (RT 1008.) The incident occurred in a hotel room when Brigitte was around 20 or 21 years old. (RT 1010.) Brigitte stated that she was “too afraid” to testify against Petitioner for her sexual assault because she was “very young and very inexperienced and didn't want to deal with it at all.” (RT 1015-16.) Petitioner's claim implicates a question of state law and is not cognizable on federal habeas review. Estelle, 502 U.S. at 67-68 (correctness of state evidentiary rulings presenting only issues of state law not cognizable on federal habeas corpus review). To the extent Petitioner contends that evidence of his prior criminal acts constituted impermissible propensity evidence, his claim fails. The Supreme Court has left open the question of whether admission of propensity evidence violates due process. Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir. 2008) (because Estelle left constitutionality of propensity evidence an open question, state court did not unreasonably apply clearly established federal law when it determined admission of criminal history did not violate due process). “The admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process.” Holley, 568 F.3d at 1101 (citation omitted). Petitioner has not made the requisite showing. V. RECOMMENDATION For the reasons discussed above, it is recommended that the district court issue an order (1) accepting this Report's findings and recommendation; (2) dismissing Petitioner's motion; and (3) directing that judgment be entered denying the petition and dismissing the action with prejudice. Footnotes [1] Page citations are to the page numbers generated by the CM/ECF system in the header of the document. [2] Citations to the Reporter's Transcript (“RT”) are to the RT page numbers. [3] Petitioner filed a separate civil rights action in this court against defense counsel in Brown v. Spiga, CV 15-08585-ODW (AGR) (C.D. Cal.) (“Brown II”). In opposition to Defendant's motion for judgment on the pleadings, Petitioner sought leave to amend to allege that the prosecutor agreed not to seek obstruction charges against defense counsel if defense counsel would instruct Petitioner's wife to testify against Petitioner. (Brown II, Dkt. No. 73 at 6-7.) The court dismissed Brown II without prejudice as barred by Heck v. Humphrey, 512 U.S. 477 (1994). (Brown II, Dkt. Nos. 73, 79-80.) The Ninth Circuit dismissed the appeal as frivolous. (Brown II, Dkt. Nos. 86-87.) In this habeas action, the court provided Petitioner the opportunity to file a motion for leave to amend the Petition to add the conspiracy allegations to Ground Two in this habeas action. (Dkt. No. 57.) Petitioner did not file such a motion. Nor is there any indication Petitioner exhausted such a claim in state court. Accordingly, the court does not address the conspiracy allegations in this Report. [4] “[A] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.” Sullivan, 446 U.S. at 349-50.