JOHNNY LEE GUYTON, JR., Petitioner, v. CYNTHIA TAMPKINS, Warden, Respondent Case No. SA CV 19-00862 SB (PVC) United States District Court, C.D. California Filed December 02, 2021 Castillo, Pedro V., United States Magistrate Judge REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE *1 This Report and Recommendation is submitted to the Honorable Stanley Blumenfeld, Jr., United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California. I. INTRODUCTION On April 30, 2019,[1] Johnny Lee Guyton, Jr., (“Petitioner”), then a California state prisoner proceeding pro se,[2] constructively filed a Petition for Writ of Habeas Corpus (“Pet.”) pursuant to 28 U.S.C. § 2254, raising three grounds for relief in a single claim. (Dkt. No. 1). On June 23, 2019, Petitioner filed an amended Petition (“FAP”), raising one additional claim along with the three original grounds for relief. (Dkt. No. 8). On August 13, 2019, Respondent filed a Motion to Dismiss the FAP because the claims were unexhausted. (Dkt. No. 13). Concurrently with the Motion to Dismiss, Respondent lodged several records from Petitioner's case below, including an opinion from the California Court of Appeal (along with briefs), a Petition for Review and Order from the California Supreme Court, Petitions for Writ of Habeas Corpus filed in California Superior Court in Orange County, the California Court of Appeal, and the California Supreme Court. (“Lodgments 1-15,” Dkt. No. 14). On September 9, 2019, Petitioner filed a Motion for a Stay and Abeyance, informing the Court that he had filed a habeas corpus petition raising the unexhausted claims in the California Supreme Court. (Dkt. No. 16). On October 8, 2019, the Court denied the motion for a stay as moot because the California Supreme Court had subsequently ruled on the habeas petition, thereby exhausting the claims. (Dkt. No. 18). The Court also denied the Motion to Dismiss the FAP and ordered Respondent to file an Answer. (Dkt. Nos. 15, 18). *2 On November 8, 2019, Petitioner requested leave of the Court to file a Second Amended Petition (“SAP”).[3] (Dkt. No. 22). After the Court granted his request, Petitioner filed a 169-page SAP, raising a total of eight claims that included numerous exhibits.[4] (Dkt. Nos. 27; 27-1).[5] On July 6, 2020, Respondent filed an Answer with an accompanying memorandum of points and authorities (“Ans. Mem.”). (Dkt. No. 44). Concurrently with the Answer, Respondent lodged additional relevant portions of the record from Petitioner's state court proceedings, including a six-volume Reporter's Transcript (“RT”) and a three-volume Clerk's Transcript (“CT”).[6] (“Lodgments 16-25,” Dkt. No. 45). On February 23, 2021, Petitioner filed a Reply (“Traverse”). (Dkt. No. 60). For the reasons discussed below, it is recommended that the SAP be DENIED and this action be DISMISSED with prejudice. II. PRIOR PROCEEDINGS In 2016, an Orange County Superior Court jury found Petitioner guilty of human trafficking, pimping, attempted pimping, and two counts of pandering. (3 CT at 612-16). Petitioner was sentenced to 14 years in state prison. (Id. at 693). The California Court of Appeal affirmed the conviction in a reasoned, published decision on the merits on February 14, 2018. (Lodgment 4). The California Supreme Court summarily denied Petitioner's petition for review without comment or citation to authority on May 9, 2018. (Lodgment 6). Petitioner also sought collateral review by filing a habeas petition in the Orange County Superior Court. (Lodgment 7). On April 19, 2019, the superior court denied the petition as procedurally barred and untimely, and in the alternative, on the merits of the claims. (Lodgment 8). Petitioner next filed a habeas petition with the California Court of Appeal, which was denied without comment on May 30, 2019. (Lodgments 9-10). Finally, on July 1, 2019, Petitioner filed a habeas petition in the California Supreme Court, which also was denied without comment on September 25, 2019. (Lodgments 11-13, 16). While the habeas petition in the California Supreme Court was pending, Petitioner filed another habeas petition in the California Court of Appeal on July 11, 2019. (Lodgment 14). That petition was summarily denied on July 25, 2019. (Lodgment 15). III. FACTUAL BACKGROUND The following facts, taken from the California Supreme Court's written decision on direct review, have not been rebutted with clear and convincing evidence and must, therefore, be presumed correct. 28 U.S.C. § 2254(e)(1); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009). *3 Jessica L. was 23 years old and worked as a home health aide when she bore her son. She grew up in a small farm area in Minnesota. Unable to pay her bills, she “moved from the country to the city,” leaving her son with his father. She had a difficult time in the city when her car and driver's license were taken away because she had traffic citations and no insurance. During this time, Jessica was advertising herself on the Internet as a prostitute in South Dakota. [Petitioner] responded to her online advertisement. He did not describe himself as a pimp, and asked her many questions, such as whether she had kids, was close with her family, and if she finished school. Jessica told [Petitioner] she needed to “get [her] son back.” She also told him about her financial problems, and that it was important for her to get her traffic tickets paid so she could get her license and car back and get “a regular job.” [Petitioner] sent her pictures of a mansion and cars and told her, “This could be you.” Jessica said, “I'm a country girl from the ranch. You don't see mansions or huge cars and everything.” [Petitioner] told her: “You could work for having stuff like this. Like, you know, you could earn this.” [Petitioner] bought Jessica a bus ticket, and picked her up at the bus station in a new car. Jessica was impressed. He introduced her to a woman named Kelly. Kelly taught Jessica “how to answer the phone, how to talk to the right people, how to not talk to certain people. How to stay focused. Stay in pocket,” which means “you don't talk to other pimps, you don't talk to other ho's. You don't miss a phone call, you don't miss a text message.” She was required to stay in constant contact with [Petitioner] or Kelly. Jessica was instructed not to speak with “any guys that don't pull up as a trick or ask for a date.” Nor was she permitted to speak with other prostitutes or law enforcement. [Petitioner] helped her obtain fake identification, to use in renting hotel rooms. Jessica got her son back before Christmas 2014. While she worked, [Petitioner], Kelly or “another girl” watched the child. When her son was not with her, Jessica never knew where he was, nor where [Petitioner] was. When she wanted to see her son, she had to get [Petitioner's] permission. The amount of time Jessica was able to spend with her son depended on how much money she made and how fast she made it. Sometimes she asked to see her child, but [Petitioner] would not permit it. Jessica explained if she made money fast, she could have her son all night. Jessica had a daily quota: “A thousand. I mean there is a lot, a lot, a lot of times I didn't make a thousand, but—but I tried.” Jessica explained: “So like if I made a thousand one day, maybe I get the next day off or I get to sleep in and go out that night or sleep in and go out the day after that in the morning. The schedule is to get up early in the morning so I can make the hotel rent. And then I break and then for that, and then maybe keep on working then until lunch, or I have lunch, or just work all day.” She had to walk up and down the street and “flirt, wave.” The sex acts occurred in cars or rented rooms, which Jessica described as “trashy places.” She was required to work even when she had her menstrual cycle. In Orange County, she worked in Anaheim and Santa Ana. Jessica worked for [Petitioner] doing sex acts for money from November 2014 until the police became involved on April 18, 2015. During that time, she had four days off in total. [Petitioner] took all the money Jessica made, although she was allowed to keep a small amount to pay for food, clothes, hotels, and to get her nails done. [Petitioner] told her he bought her a car, showed her pictures of it, and told her it was in the shop. *4 When Jessica did not follow the rules, [Petitioner], who is a foot taller than her, called her names, such as a “faggot punk bitch.” She said she had to think before she spoke to [Petitioner] because he had a “stern reaction” and was “kind of just like a teacher or directing you or showing you what to say or how to say it.” Jessica said the way [Petitioner] treated her made her “just kind of stay in [her] own bubble.” She kept working “because I would get caught and yelled at.” Jessica felt [Petitioner] was always watching her and always knew where she was. He discouraged her from talking to her baby's father, and monitored her phone usage. When she spoke with “the wrong people,” [Petitioner] took the phone away from her. [Petitioner] changed Jessica's cell phone number three times. The phones [Petitioner] gave her to use did not have Internet access, and any time she used someone else's phone to see what her friends were doing on Facebook, [Petitioner] would find out, so she “gave up being on it.” She felt “stuck” because she had to work every day, the hours were exhausting and she missed her son. Jessica told [Petitioner] multiple times that she wanted to go home and “stop doing this,” and [Petitioner] would respond, “just wait.” Jessica felt isolated from other people, was always crying and “just turn numb.” She said at times, she “didn't understand what was happening.” Jessica received a $4,500 tax refund from a job she previously had, prior to prostitution. Jessica was able to keep about $320. [Petitioner] took the rest. [Petitioner] told her the money would be used for a car or an apartment for her. Jessica Decided To Flee On April 18, 2015, Jessica decided to sneak away in the middle of the night. She called her father and asked him to have the baby's father pick her up by a Walmart close to her motel later that night, at 12:30 a.m., because that was when she could get away from some people. She wanted to have her son and her luggage, and just “hop in” and “keep on driving.” She told her father not to try to call her, explaining in court that a call could come in “when I'm like on a date or if I'm with [Petitioner].” She said she was “scared and nervous.” Jessica's father spoke to the supervising police officer of the Orange County Human Trafficking Multi-Agency Law Enforcement Team at about 8:30 p.m. The police officer stated that the father sounded distraught, frustrated and “in a panic.” After the police learned that Jessica was in a motel near the Walmart, they located her in a specific motel and set up surveillance in the general area. When they saw Jessica in the lobby, the supervisor and another officer, wearing police gear, entered the motel. As soon as Jessica saw them, she started crying. The police determined Jessica's son was not with her, and they did not know where he was. At that point, the police believed the child was with a suspected human trafficker. The supervising police officer testified: “All of our scenarios have been where the child is being used as leverage to get the person to continue working.” Until 4:00 a.m., the police worked toward finding the little boy. Jessica called [Petitioner] a couple of times to try to get him to bring her son to the motel. The police were present while [Petitioner] and Jessica spoke on the speaker phone. A police officer who was a member of the Orange County Human Trafficking Task Force overheard [Petitioner] “beg[i]n yelling at her and calling her names.” The officer added: “[Petitioner] was on speaker when she was talking to him on the phone. I was standing across from her. She was sitting on the bed. And as he is yelling at her and asking her why she kept calling so many times, she started she had the phone here in front of her [indicating], and she started to just kind of concave. She started to just kind of roll up as if she was just, ‘He's yelling at me again,’ and didn't want to experience it. She kind of rolled up a little bit, curled.” *5 Eventually, [Petitioner] said on the phone that Kelly was complaining about babysitting, and that he was “tired of this kid shit man.” Thereafter, a black Mercedes with [Petitioner] and the child inside pulled into the parking lot of the motel. [Petitioner] was detained and the child, who was approximately a year old, was recovered. The little boy was brought to Jessica's motel room. He ran toward Jessica and they embraced each other. Police searched [Petitioner's] car and found $3,300 in cash. One of [Petitioner's] ongoing text messages found on his cell phone stated: “LMPAO.” An expert later explained this means “laughing my pimp ass off.” A photo on [Petitioner's] cell phone showed an image of a white female standing next to a black male with the words: “White girls pay the bills.” In a video on his phone, [Petitioner] referred to himself as a pimp. The Expert At trial, a deputy with the Orange County Human Trafficking Task Force, who was also deemed the investigating officer in this case, testified about pimp culture. Pimps solicit prostitutes to work for them by “selling the dream.” The officer explained: “Selling the dream is basically the pimp getting to know the female he's looking to—he's looking to hire as one of his girls and getting to know her, getting to know what she needs. What is she looking for? What is she trying to do? Does she need money? Does she lack family? Does she not have close friends? You know, getting to know her. [¶] And then whatever he discovers or deems that she needs or she lacks in her life, he will somehow fulfill.” With regard to Jessica, the expert said: “Well, in this case particularly, the false promises for Jessica were the car, the apartment, the nanny, and her being able to have all this money she was making.” The deputy said that pimps are constantly driving around where the prostitute is “posted on the track.” The expert said prostitutes “have experienced where a pimp has parked across the street and has a steady eye on her to monitor what she's doing and/or they're frequently texting.” The officer added: “The pimp is constantly texting her or calling her. ‘Where are you at? I want you to walk this way. I want you to go that way. I want you to go to this corner or that corner.’ ” It is common for pimps to stay at a hotel just down the street from the prostitute. The investigating officer explained to the jury what a “faggot bitch” means in pimp culture: “[T]hat is just describing someone who isn't down—who isn't down for the cause, who isn't willing to go—who isn't willing to stay on the track, who isn't willing to work through their menstrual cycle, who isn't willing to meet their trap; therefore, they are a faggot bitch or they are fagging off, which means that they're just not committed to the goal.” Based on training and experience, the expert explained that “pimping is when someone gains from another's material or financial gain knowing that that other person has engaged in commercial sex,” and a case goes from pimping into human trafficking “[w]hen someone's personal liberty has been deprived of them and/or violated, it'll elevate the case. It changes the dynamics of the case.” The officer opined that [Petitioner] violated Jessica's personal liberty “because Jessica did not have access to her child, her child was not readily available to her. If she wanted to see her child, she had to ask for permission. She had to earn her time spent with her child. She was not free to leave. She wouldn't have left without her child. [¶] Jessica was—Jessica was working up to seven days a week, long hours, making the money that was expected of her to make.” *6 (Lodgment 4 at 2-7). IV. PETITIONER'S CLAIMS The SAP raises eight grounds for federal habeas relief. In Ground One, Petitioner contends that trial counsel was ineffective for failing to request a lesser included offense of attempted human trafficking, failing to object to the investigator's testimony, failing to admit the affidavit of a witness, failing to file a suppression motion, and failing to share evidence with Petitioner. (SAP at 2-6). In the same ground, Petitioner claims appellate counsel was ineffective for failing to raise the issue of the suppression motion. (SAP at 3). In Ground Two, Petitioner asserts that the prosecutor committed misconduct by intimidating his expert witness. (SAP at 7). In Ground Three, Petitioner claims that the lack of a financial investigation into the source of his income violated his due process rights and demonstrated ineffective assistance of counsel. (SAP at 8). In Ground Four, Petitioner argues that the prosecution's lead investigator gave false testimony at trial.[7] (SAP at 9-10). In Ground Five, Petitioner contends that the state court erred in failing to dismiss the charges at the preliminary hearing for lack of evidence. (SAP at 11-12). In Ground Six, Petitioner asserts that an unreasonable delay in obtaining a warrant for his phone violated the Fourth Amendment. (SAP at 13-17). In Ground Seven, Petitioner claims that the delay in providing discovery and the prosecutor's motion to “wipe clean” the phone and hard drive from Petitioner's computer constituted a Brady violation. (SAP at 18-21). Finally, in Ground Eight, Petitioner argues that the failure to instruct the jury with the lesser included offense of attempted human trafficking violated his constitutional rights.[8] (SAP, Part 2 at 79-81). V. STANDARD OF REVIEW The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “bars relitigation of any claim ‘adjudicated on the merits’ in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).” Harrington v. Richter, 562 U.S. 86, 98 (2011). Under AEDPA's deferential standard, a federal court may grant habeas relief only if the state court adjudication was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or was based upon an unreasonable determination of the facts in light of the record before the state court. Id. at 100 (citing 28 U.S.C. § 2254(d)). “This is a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt[.]” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations and internal quotation marks omitted). *7 “ ‘[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 also 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, 420 (2014). A state court's decision is “contrary to” clearly established federal law if “the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002); Early v. Packer, 537 U.S. 3, 8 (2002). A state court's decision cannot be “contrary to” clearly established Federal law if the Supreme Court has not squarely ruled on a particular issue. Carey v. Musladin, 549 U.S. 70, 77 (2006). “An ‘unreasonable application’ [of clearly established federal law] occurs when a state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of petitioner's case.” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (citation and some quotation marks omitted); see also Lockyer, 538 U.S. at 76 (“Section 2254(d)(1) permits a federal court to 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.”). “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). A state court's “spare order denying a petition without explanation or citation ordinarily ranks as a disposition on the merits.” Walker v. Martin, 562 U.S. 307, 310 (2011); see also Johnson v. Williams, 568 U.S. 289, 301 (2013) (“When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits -- but that presumption can in some limited circumstances be rebutted.”); Richter, 562 U.S. at 99 (“When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.”). Where the high state court does not provide an express explanation of the basis for its ruling, this court looks to the last reasoned state court decision. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); see also Wilson v. Sellers, __ U.S. __, 138 S. Ct. 1188, 1192 (2018) (“We hold that the federal court should ‘look through’ the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning. But the State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court's decision ....”). *8 “However, where there is no reasoned decision on a particular claim, a petitioner must show that ‘there was no reasonable basis for the state court to deny relief.’ ” Reis-Campos v. Biter, 832 F.3d 968, 974 (9th Cir. 2016) (quoting Richter, 562 U.S. at 98). To assess whether a petitioner “has met this burden,” the court must: ask “what arguments or theories supported or ... could have supported ... the state court's decision,” and determine “whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of” the Supreme Court. [Richter, 562 U.S. at 102]. Thus, “ ‘when the state court does not supply reasoning for its decision,’ we are instructed to engage in an ‘independent review of the record’ and ascertain whether the state court's decision was ‘objectively unreasonable.’ ” Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000)). “Crucially, this is not a de novo review of the constitutional question,” id., as “ ‘even a strong case for relief does not mean the state court's contrary conclusion was unreasonable,’ ” id. (quoting Richter, [562 U.S. at 102]). Murray v. Schriro, 745 F.3d 984, 996-97 (9th Cir. 2014). 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 applies to claim that state court did not reach on the merits). The Supreme Court further instructs that courts may “deny writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear whether AEDPA deference applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review.” Berghuis v. Thompkins, 560 U.S. 370, 390 (2010); see also Norris v. Morgan, 622 F.3d 1276, 1290 (9th Cir. 2010) (affirming denial of habeas corpus petition where claim failed even under de novo review); Frantz v. Hazey, 533 F.3d 724, 735-37 (9th Cir. 2008) (en banc) (a federal habeas court may review constitutional issues de novo before performing a § 2254(d)(1) analysis). Finally, pursuant to 28 U.S.C. § 2254(b)(2), “[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” Because in such instances there is no decision on the merits by the high state court, review under § 2254(b)(2) is de novo. Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (“[A] federal court may deny an unexhausted petition on the merits only when it is perfectly clear that the applicant does not raise even a colorable federal claim.”); Allen v. Mullin, 368 F.3d 1220, 1235 (10th Cir. 2004) (reviewing de novo an unexhausted claim and citing § 2254(b)(2)). Here, the California Supreme Court summarily denied Petitioner's petition for review on direct appeal and his habeas petitions on collateral review without comment or citation to authority. (Lodgments 6, 16). As for Grounds Two, Three, Four, and Eight, a lower court dismissed the claim, at least in part, on the merits. (Lodgments 4, 8). Accordingly, for these claims, AEDPA deference applies, and the Court will “look through” the California Supreme Court's silent denial to the lower court's reasoned decision as the basis for the high court's ruling. Wilson, 138 S. Ct. at 1192; Ylst, 501 U.S. at 803. As for the remaining claims, Grounds One, Five, Six, and Seven, either there is a reasoned lower court decision, but the lower court rejected the claim on procedural grounds without reaching the merits (Grounds One, Five, and Seven), or it appears that the claim was not fairly presented to the California Supreme Court and, thus, is arguably unexhausted (Ground Six).[9] Because there is no state court ruling on the merits, for these claims, the Court will apply a de novo standard of review to the extent that the Court reaches the merits of the claims. Cone, 556 U.S. at 472; Lewis, 391 F.3d at 996. VI. DISCUSSION A. Parts Of Ground One And All Of Grounds Two, Three, Five, Six, And Seven Are Untimely Under The Statute of Limitations *9 Respondent contends that the claims in Grounds One, Two, Three, Five, Six, and Seven, as well as several sub-claims in Ground Four, in the SAP are untimely because they do not “relate back” to the filing of the original Petition or FAP. (Ans. Mem. at 13-26). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs the adjudication of this action. Lindh v. Murphy, 521 U.S. 320, 336 (1997). “AEDPA establishes a 1-year period of limitation for a state prisoner to file a federal application for a writ of habeas corpus.” Wall v. Kholi, 562 U.S. 545, 550 (2011); 28 U.S.C. § 2244(d)(1). In most cases, as here, state prisoners must file their habeas petitions within one year of “the date on which the judgment [in their underlying criminal case] became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Petitioner's judgment became “final” for purposes of § 2244(d)(1)(A) on the date on which the direct appeal of his conviction and sentence in state court became final. The California Supreme Court denied Petitioner's petition for review on direct appeal on May 9, 2018. (Lodgment 6). There is no evidence that Petitioner sought a writ of certiorari in the United States Supreme Court. Accordingly, Petitioner's conviction became “final” ninety days later, i.e., on August 7, 2018, when the deadline for him to file a petition for writ of certiorari in the United States Supreme Court expired, and his AEDPA limitations period began running the next day. See 28 U.S.C. § 2244(d)(1)(A); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (“We hold that the period of ‘direct review’ in 28 U.S.C. § 2244(d)(1)(A) includes the period within which a petitioner can file for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition. Therefore, when petitioner fails to seek a writ of certiorari from the United States Supreme Court, the AEDPA's one-year limitations period begins to run on the date the ninety-day period defined by Supreme Court Rule 13 expires.”). As such, Petitioner had one year, until August 7, 2019, in which to file a timely federal habeas petition presenting his claims, absent statutory or equitable tolling. Under 28 U.S.C. § 2244(d)(2), AEDPA's limitations period is tolled while “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” Allen v. Siebert, 552 U.S. 3, 4 (2007) (per curiam). An application is “pending” until it has achieved final resolution through the state's post-conviction procedures. Carey v. Saffold, 536 U.S. 214, 220 (2002); see also Welsh v. Carey, 350 F.3d 1079, 1082-83 (9th Cir. 2003). The time before a petitioner initiates the state collateral review process is not subject to statutory tolling. See Thorson v. Palmer, 479 F.3d 643, 646 (9th Cir. 2007). State habeas petitions filed after the AEDPA limitations period expires do not reinitiate the limitations period. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Finally, the filing of a federal habeas petition “does not” toll the statute of limitations. Dixon v. Baker, 847 F.3d 714, 719 (9th Cir. 2017); see also Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001) (“[A]n application for federal habeas corpus relief does not toll the limitations period pursuant to § 2244(d)(2).”) (citing Duncan v. Walker, 533 U.S. 167, 181-82 (2001)). In addition to statutory tolling, a habeas petitioner may be entitled to equitable tolling “in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). The petitioner bears the burden of proving he is entitled to equitable tolling of the statute of limitations by showing “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Holland, 560 U.S. at 649. “The petitioner must show that ‘extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time.’ ” Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010) (citation omitted). According to the Ninth Circuit, “equitable tolling is unavailable in most cases.... Indeed, ‘the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.” Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (internal quotation marks omitted). *10 Petitioner constructively filed his original Petition in this Court on April 30, 2019, and his FAP on June 23, 2019—both of which were within AEDPA's one-year limitations period, even without consideration of any tolling. The SAP, however, was not constructively filed until January 16, 2020, more than five months after the AEDPA limitations period expired on August 7, 2019, absent tolling. Here, Petitioner did pursue collateral relief in state court prior to the running of the statute of limitations. On February 27, 2019, Petitioner filed a habeas petition in the Orange County Superior Court. (Lodgment 7). The superior court, however, denied the petition, in part, because it was untimely and Petitioner failed to “justify with specificity the three-year delay in seeking post-conviction” relief. (Lodgment 8 at 3). When a state petition is untimely under state law, it is not “properly filed” and AEDPA's statute of limitations is not tolled. Pace, 544 U.S. at 417; see also Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) (finding that when a state petition is untimely, then “none of the time before or during the court's consideration of that petition is statutorily tolled”), as amended, 439 F.3d 993 (9th Cir. 2006). For the same reason, Petitioner's subsequent state petitions in the California Court of Appeal and California Supreme Court also failed to toll the limitations period. Though those petitions were filed prior to the running of the one-year statutory period, they were also rejected for being untimely and, thus, not properly filed under state law. See Ylst, 501 U.S. at 803-04 (where the last reasoned state court decision relies on a procedural bar, it is presumed that a subsequent unexplained decision did not silently disregard the procedural bar and consider the merits); see also Vasquez v. Almager, 2008 WL 622014, at *4 (C.D. Cal. Mar. 3, 2008) (where superior court found petition untimely and state appellate and supreme courts issued subsequent summary denials, “all three courts ... found the petitions were not timely-filed under state law”). Accordingly, Petitioner is not entitled to any statutory tolling during his first round of collateral review in state court. Petitioner also constructively filed a second habeas petition in the California Court of Appeal on July 1, 2019, raising a new claim for relief and, in essence, beginning a new round of collateral review. (Lodgment 14). That petition was denied summarily on July 25, 2019. (Lodgment 15). There is no evidence that petitioner subsequently pursued this claim in the California Supreme Court. (See Ans. Mem. at 29). Thus, Petitioner is entitled to 25 days of statutory tolling while the petition was pending in the appellate court. Considering that the SAP was filed more than five months after the expiration of the statute of limitations, however, the 25-day period of statutory tolling does not render the SAP timely. Petitioner does not argue that he is entitled to equitable tolling, and the record does not reveal any basis to support such an entitlement. Finally, the filing of the original federal Petition and FAP did not toll the statute of limitations. Duncan, 533 U.S. at 181-82; Dixon, 847 F.3d at 719. As such, tolling will not render the claims in the SAP timely. Therefore, as Respondent rightly contends, the claims in the SAP are timely only if they “relate back” to the filing of the FAP, which was filed prior to the expiration of the statute of limitations. (See Ans. Mem. at 21-22). *11 Federal Rule of Civil Procedure 15(c)(1)(B) provides that an amendment to a pleading “relates back” to the date of the original pleading when the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out in the original pleading. Relation back will lie only if the claims in the amended petition and the claims in the original petition share a “common core of operative facts” uniting the original and newly asserted claims. Mayle v. Felix, 545 U.S. 644, 649 (2005). A claim in an amended habeas petition does not relate back if it asserts a new ground for relief supported by facts that differ in both time and type from those set forth in the original pleading. Id. at 650. “AEDPA's one-year statute of limitations in § 2244(d)(1) applies to each claim in a habeas application on an individual basis.” Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012). Petitioner's FAP raised four claims for federal habeas relief: (1) there was insufficient evidence to support Petitioner's convictions; (2) a video was erroneously admitted at trial; (3) the lead investigator testified falsely at trial; and (4) the trial court failed to instruct on the lesser included offense of attempted human trafficking.[10] (FAP at 5-14). The only similar claims raised by Petitioner in his eight-claim SAP were Grounds Four and Ground Eight. In Ground Four of the SAP, Petitioner alleges that “lead investigator Naomi Hernandez” gave “false testimony” at trial. (SAP at 9-10.) This claim rests on the same legal theory as his claim in the FAP regarding “Naomi Hernandez's false testimony.” (FAP at 7). Though the false evidence claim in the SAP is more thoroughly explained and presents more testimonial detail supporting the claim, liberally construed, the Court finds that it is simply an attempt to set out “a corresponding factual episode” to the claim made in the earlier petition. See Ross v. Williams, 950 F.3d 1160, 1167-68 (9th Cir. 2020) (“[We] do not require [for relation-back] that the facts in the original and amended petitions be state in the same level of detail. Relation back may be appropriate if the later pleading ... restates the original claim with greater particularity, or amplifies the details of the transaction in in the preceding pleading.” (internal quotation marks and brackets omitted)). Thus, the Court finds that Ground Four of the SAP relates back to the corresponding false evidence claim in the FAP and, as such, is not time-barred. As for Ground Eight of the SAP, in which Petitioner claims that the trial court erred by failing to instruct the jury with the lesser included offense of attempted human trafficking, Respondent concedes that this claim relates back to the same instructional error claim made in the FAP and, as such, is timely filed. (Compare SAP, Part 2 at 79-81 with FAP at 5-6, 12-14). Additionally, Petitioner's claim in Ground One of the SAP that counsel was ineffective for failing to request such an instruction shares a “common core of operative facts” with the corresponding substantive claim made in the FAP. See Nguyen v. Curry, 736 F.3d 1287, 1296-97 (9th Cir. 2013) (determining that a claim that appellate counsel was ineffective for failing to raise double jeopardy related back to a timely raised substantive double jeopardy claim), abrogated on other grounds by Davila v. Davis, __U.S. __, 137 S. Ct. 2058 (2017); see also Mayle, 545 U.S. at 664 n.7 (finding relation-back appropriate where underlying facts in the new claim are the same as those in the original petition and only legal theory changes). So, too, does his claim that counsel was ineffective for failing to object to the lead investigator's allegedly false testimony. See Herrera v. Ramirez, 2020 WL 5848341, at *7 (D. Idaho Sept. 30, 2020) (“District courts following Mayle and Nguyen have held that ineffective assistance of trial counsel claims presented in a late amendment relate back to the substantive claims asserted in the original petition that underlie the ineffective assistance claims, and ‘vice versa.’ ”); but see Gonzales v. Ryan, 2014 WL 4476588, at *7 (D. Ariz. Sept. 10, 2014) (“[I]neffective assistance claims do not relate back to the underlying substantive claims.”). *12 The remaining claims of ineffective assistance in Ground One, as well as the entirety of the claims in Grounds Two, Three, Five, Six, and Seven clearly assert new grounds for relief supported by facts that differ in both time and type from those set forth in the earlier FAP. Mayle, 545 U.S. at 649. In Ground Two, Petitioner asserts that the prosecutor committed misconduct by intimidating his expert witness. In Ground Three, Petitioner claims that the lack of a financial investigation into the source of his income violated his due process rights and demonstrated ineffective assistance of counsel. In Ground Five, Petitioner contends that the state court erred in failing to dismiss the charges at the preliminary hearing for lack of evidence. In Ground Six, Petitioner asserts that an unreasonable delay in obtaining a warrant for his phone violated the Fourth Amendment. In Ground Seven, Petitioner claims that the delay in providing discovery and the prosecutor's motion to “wipe clean” the phone and hard drive from Petitioner's computer constituted a Brady violation. Petitioner makes no argument that these claims in the SAP share a common core of facts with the claims made in the FAP. Nor does the Court find any such commonality in the claims. Because the operative facts supporting these claims in the SAP are plainly distinct, there is no “relation back” to the earlier FAP and, as such, the claims are untimely under AEDPA's statute of limitations. B. Grounds One Through Five Are Procedurally Defaulted Respondent argues that Grounds One, Two, Three, Four, Five, and Eight are procedurally barred from consideration by this Court on their merits. (Ans. Mem. at 33-35). Federal courts “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Walker, 562 U.S. at 315 (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). The procedural default doctrine “bar[s] federal habeas [review] when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.” Coleman, 501 U.S. at 729-30; Hanson v. Mahoney, 433 F.3d 1107, 1113 (9th Cir. 2006). To constitute a procedural bar, the state's rule had to be independent and adequate at the time the petitioner purportedly failed to comply with it. Fields v. Calderon, 125 F.3d 757, 760 (9th Cir. 1997). A state procedural rule is considered an independent bar if it is not interwoven with federal law or dependent upon a federal constitutional ruling. Ake v. Oklahoma, 470 U.S. 68, 75 (1985); Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). A state procedural rule constitutes an adequate bar to federal court review if it was “firmly established and regularly followed” at the time the state court applied it. Ford v. Georgia, 498 U.S. 411, 423-24 (1991); King v. Lamarque, 464 F.3d 963, 965 (9th Cir. 2006). Procedural default is an affirmative defense, Gray v. Netherland, 518 U.S. 152, 165-66 (1996), “and the state has the burden of showing that the default constitutes an adequate and independent ground.” Insyxiengmay v. Morgan, 403 F.3d 657, 665-66 (9th Cir. 2005). However, “[o]nce the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner.” Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003). “The petitioner may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule.” King, 464 F.3d at 967 (internal quotation marks omitted). “Once a petitioner has demonstrated the inadequacy of a rule, the state bears the ultimate burden of proving the rule bars federal review.” Collier v. Bayer, 408 F.3d 1279, 1284 (9th Cir. 2005). Petitioner raised Grounds One, Two, Three, Four, Five, and Eight in a habeas corpus petition in the Orange County Superior Court. (Lodgment 7). In rejecting Ground Eight—i.e., that the trial court erred by failing to instruct on a lesser included offense of attempted human trafficking—the superior court found that the issue had been “considered and denied on direct appeal” and, therefore, it would not be “reconsidered,” citing In re Waltreus, 62 Cal.2d 218, 225 (1965). (Lodgment 8 at 2). A state court's “reliance on In re Waltreus does not ... bar federal court review.” Hill v. Roe, 321 F.3d 787, 789 (9th Cir. 2003); see also Ylst, 501 U.S. at 805 (holding that a Waltreus citation is neither a ruling on the merits nor a denial on procedural grounds and, therefore, has no bearing on a California prisoner's ability to raise a federal constitutional claim in federal court). Furthermore, Ylst requires this Court to look through the superior court's order on collateral review to the previous state decision examining the claim. 501 U.S. at 804; see also Forrest v. Vasquez, 75 F.3d 562, 564 (9th Cir. 1996) (holding a federal habeas court is permitted to “ ‘look through’ a denial based on Waltreus to previous state court decisions”). In this case, the California Court of Appeal had previously rejected the instructional error claim on the merits on direct appeal. Therefore, the Court finds that the claim is not procedurally defaulted and will consider the California Court of Appeal's reasoned opinion on the claim in determining whether Petitioner is entitled to habeas relief. *13 As for the Grounds One, Two, Three, Four, and Five, the Orange County Superior Court rejected the claims, in part, because “all of these issues” could have been raised on appeal, citing In re Sakarias, 35 Cal. 4th 140, 169 (2005).[11] (Lodgment 8 at 2). By citing to Sakarias, the Superior Court unequivocally invoked California's Dixon rule that, absent extraordinary circumstances, habeas relief will not be granted based on a claim that could have been, but was not, raised on direct review.[12] In re Dixon, 41 Cal. 2d 756, 759 (1970). A Dixon default is sufficient to bar a claim from federal habeas review under the procedural default doctrine. See Johnson v. Lee, 578 U.S. 605, 606 (2016) (noting applicability of California's Dixon bar in federal habeas proceedings); Moreno v. Valenzuela, 2017 WL 1534276, at *6 (E.D. Cal. Apr. 28, 2017) (finding claim procedurally defaulted due to Dixon bar). In addition, the state superior court found the claims were untimely because Petitioner failed to “explain and justify with specificity the three-year delay in seeking post-conviction collateral review of his claims,” citing In re Robbins, 18 Cal. 4th 770, 780 (1998) and In re Clark, 5 Cal.4th 750, 765 (1993). (Lodgment 8 at 2-3). California's timeliness bar (i.e., a Clark-Robbins denial) is an adequate and independent basis to preclude federal habeas review. See Walker, 562 U.S. at 317-21 (noting applicability of Clark-Robbins timeliness bar); see also Clark v. Chappell, 936 F.3d 944, 982 (9th Cir. 2019) (recognizing that California has placed “reasonable limits” on collateral attacks by way of habeas corpus, “includ[ing] procedural bars based on direct appeal (known as the Dixon rule) and on timeliness (known as the Clark rule)”). Nevertheless, even if the relevant state procedural rule is found to be independent and adequate, the federal courts will reach the merits of the claim if the prisoner can demonstrate: (1) cause for the default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; see also Martinez v. Ryan, 566 U.S. 1, 10 (2012). Here, however, Petitioner has made no attempt to demonstrate cause and prejudice from the default or that a fundamental miscarriage of justice will occur. Therefore, the Court finds that Grounds One, Two, Three, Four, and Five of the SAP are procedurally defaulted.[13] C. Petitioner's Claim Of Prosecutorial Misconduct In Ground Two Fails On The Merits[14] *14 In Ground Two, Petitioner asserts that the prosecutor committed misconduct by intimidating his expert witness, Robert Royce. (SAP at 7). He argues that Royce's testimony became less favorable after “numerous members of the Human Trafficking task force that were in the courtroom began staring at him” and “making distorting facial expressions.” (Traverse at 38). 1. State Court Decision Petitioner raised Ground Two in a habeas petition in the Orange County Superior Court. (Lodgment 7 at 7). The superior court denied the claim, in part, on the merits, as follows: [Petitioner] argues that late in defense witness Robert Royce's testimony “things began to shift.” Petitioner provides a letter from Mr. Royce stating that he made statements during his testimony that did not make sense, and that he was distracted from his testimony by numerous members of the Human Trafficking Task Force staring at him and making distorting facial expressions, which he believed was intended to interfere with his testimony.... Petitioner provides no evidence to suggest that the alleged prosecutorial misconduct was brought to the trial court's attention. Petitioner also does not provide evidence that indicates that the actions of any audience members could be attributed to the prosecutor, or that he was prejudiced by those actions. (Lodgment 8 at 3-4). 2. Federal Law and Analysis Federal habeas review of prosecutorial misconduct claims is limited to the narrow issue of whether the alleged misconduct violated due process. See Darden v. Wainwright, 477 U.S. 168, 181 (1986). “The relevant question is whether the prosecutors' [misconduct] so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974); see also Greer v. Miller, 483 U.S. 756, 765 (1987) (stating that prosecutorial misconduct must be “of sufficient significance to result in the denial of the defendant's right to a fair trial”). A prosecutor's misconduct is reviewed in the context of the entire trial record. Donnelly, 416 U.S. at 639-43; see also Smith v. Phillips, 455 U.S. 209, 219 (1982) (“[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.”). Thus, the relevant inquiry on habeas review is whether the prosecutor's actions were improper and, if so, whether they rendered the trial “fundamentally unfair.” Drayden v. White, 232 F.3d 704, 713 (9th Cir. 2000). Finally, even when prosecutorial misconduct rises to the level of a due process violation, federal habeas corpus relief is available only if that misconduct had a “substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); Shaw v. Terhune, 380 F.3d 473, 478 (9th Cir. 2004). Several months after Petitioner was convicted at trial, Robert Royce, who testified at the trial as a human trafficking expert, sent Petitioner a letter explaining why some of his testimony “didn't make any sense,” as pointed out by the prosecutor during his cross-examination of the witness. (SAP, Part 2 at 47). According to Royce, numerous law enforcement officers in the Human Trafficking Task Force “distract[ed]” him by “staring at [him] and even making distorting facial expressions.” (Id.). In the letter, Royce called the officers “a bunch of goons” and believed that “their true intention was to interfere, intimidate or dissuade [his] testimony.” (Id.). *15 Petitioner's claim that this letter alone demonstrates that his due process rights were violated is not persuasive. First, there is nothing in the record corroborating Royce's accusations. The defense made no objection to the presence of the task force members, the expert witness never indicated that he was having difficulty testifying, and the trial court apparently was not aware of any alleged interference or intimidation by audience members. (See 5 RT at 824-934). Royce's self-serving post-trial complaints about task force members' stares and facial gestures, made without corroboration nearly five months after his testimony and the jury's verdict, simply do not demonstrate that Petitioner's trial was unfair. As such, Petitioner's claim is wholly speculative and conclusory and fails to establish any misconduct that violated his due process rights. See Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (finding that conclusory allegations fall short of establishing a valid claim of a constitutional violation). Moreover, as the superior court noted in denying the claim, Petitioner has failed to demonstrate that any actions by task force audience members could be attributed to the prosecutor. In fact, Petitioner has not even demonstrated that the prosecutor was aware of any facial gestures that allegedly interfered with or intimidated the defense witness. See Gibbs v. Ryan, 2018 WL 4858724, at *3 (D. Ariz. Jul. 11, 2018) (denying prosecutorial misconduct claim that jury spectators coached a witness because “the prosecutor was not aware of what the spectators were doing”). Finally, Petitioner does not demonstrate any prejudice from the alleged task force behavior. Royce does not indicate in his letter how his testimony would have differed had he not been distracted by the audience members or what he failed to tell the jury because of their purported facial reactions. See Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001) (speculation as to what an expert might say “is insufficient to establish prejudice”); 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.”). Nor does Petitioner offer any credible evidence as to how the outcome of his trial was affected in light of the overwhelming evidence of his guilt. Accordingly, the state court reasonably rejected this claim of prosecutorial misconduct. D. Petitioner's Claim That The Prosecutor Committed Misconduct By Allowing A Witness To Give False Testimony Does Not Merit Relief In Ground Four, Petitioner argues that the prosecution's lead investigator, Naomi Hernandez, gave false testimony at trial. (SAP at 9-10). He contends that Hernandez lied about Petitioner “keeping” Jessica's son from Jessica to coerce her into prostitution. (Id. at 9). He also argues that Hernandez falsely testified that evidence, including a ledger sheet, came from Petitioner's cellphone. (Id. at 9-10). 1. State Court Decision Petitioner raised Ground Four in a habeas petition in the Orange County Superior Court. (Lodgment 7 at 9-10). The superior court denied the claim, in part, because Petitioner did not provide an adequate record “to allow the court to analyze the claim” and, thus, failed to “establish[ ] a prima facie case for relief.” (Lodgment 8 at 4-5). This constitutes a decision on the merits. See Kipp v. Davis, 971 F.3d 866, 878 (9th Cir. 2020) (“Because the state court adjudicated his ineffective assistance of counsel [ ] claim ‘on the merits for failure to state a prima facie case,’ we review under AEDPA deference.”); Phelps v. Alameida, 569 F.3d 1120, 1125 n.8 (9th Cir. 2009) (holding state court's rejection of claim for failure to state a prima facie case constitutes denial on the merits). The Court will conduct an independent review of the record to determine “what arguments or theories” could have supported the state court's decision and whether any “fairminded jurists” would find that those arguments or theories are inconsistent with Supreme Court holdings. Richter, 562 U.S. at 102; Kipp, 971 F.3d at 878. 2. Federal Law and Analysis *16 A conviction obtained by the knowing use of false evidence or perjured testimony is fundamentally unfair and violates a defendant's constitutional rights. United States v. Agurs, 427 U.S. 97, 103 (1976); see also Napue v. Illinois, 360 U.S. 264, 269-70 (1959) (“A lie is a lie, no matter what its subject, and, if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth.” (internal quotation marks omitted)). To merit habeas relief, a petitioner must show that the testimony was actually false, that the prosecutor knew or should have known that it was false, and that the falsehood was material to the case. Jackson v. Brown, 513 F.3d 1057, 1075-76 (9th Cir. 2008). A Napue violation is material if there is any reasonable likelihood that the false testimony could have affected the jury's decision. Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). Falsity is not established merely by showing that the witness made an earlier inconsistent statement or that the witness's testimony differs from that of another witness. See United States v. Zuno-Arce, 44 F.3d 1420, 1423 (9th Cir. 1995) (“Discrepancies in testimony ... could as easily flow from errors in recollection as from lies.”). At trial, Jessica testified that she had to ask permission from Petitioner to be able to see her son. (3 RT at 542). She stated that he “denied [her] a few times” from seeing her son, telling her that she needed to “keep on working and get more money.” (Id. at 542-43). Jessica testified that she was scared of Petitioner and he verbally berated her if she failed to earn enough money. (Id. at 543-45). She felt “stuck” and had to “work every day” just to see her child. (Id. at 546). Based on Jessica's statements, as well as other evidence collected during the investigation, Investigator Hernandez testified that in her expert opinion, Petitioner violated Jessica's personal liberty by engaging in a human trafficking relationship with her. (4 RT at 767). Hernandez noted that “Jessica did not have access to her child” whenever she wished. (Id. at 768). Jessica had to “ask for permission” to see her child and “earn her time” with her child by prostituting herself. (Id.). Therefore, Hernandez concluded Jessica “was not free to leave” because she would not have “left without her child.” (Id.). On cross-examination, Hernandez could not recall whether Jessica had initially told her that Petitioner “never kept her son from her.” (Id. at 786). After refreshing her recollection with her testimony at the preliminary hearing, Hernandez agreed that, at first, Jessica had said that Petitioner only kept her son from her when she was working. (Id. at 787-88). Petitioner argues that this proves Hernandez lied on the stand. It does not. Inconsistent statements standing alone do not prove a witness has lied, and much less so here, where a reasonable explanation existed as to why the witnesses' accounts wavered. It is entirely plausible—in fact, perhaps likely—that Jessica minimized Petitioner's conduct until she felt safe from any potential harm to her and her son. Moreover, Investigator Hernandez was free to believe Jessica's testimony at trial over any other contradictory statements Jessica had made in forming her opinion that Jessica was not truly free to leave Petitioner because of Petitioner's control of her son. In short, Petitioner has failed to demonstrate that Hernandez's expert opinion that Petitioner engaged in human trafficking was false. See Ollman v. Evans, 750 F.2d 970, 976 (D.C. Cir. 1984) (“[T]here is no such thing as a ‘false’ opinion.”). Petitioner also contends that Hernandez lied about how long it took for Petitioner to bring Jessica's son to Jessica after she called him. Hernandez testified that the police attempted to locate and secure Jessica's son by having Jessica call Petitioner and ask him to bring the child to her. (4 RT at 663-66). Hernandez testified that Jessica called Petitioner “a couple of times” around 1:00 a.m. because he did not answer the phone, and estimated that it took “at least an hour-an-a-half” before Petitioner arrived with Jessica's son. (Id. at 668). On cross-examination, Hernandez testified that Jessica first spoke with Petitioner at 2:30 a.m. and, nine minutes into the conversation, he agreed to bring her the child. (Id. at 782-83). Thereafter, Petitioner arrived at 4:00 a.m. to deliver Jessica's son to her. (Id. at 784). Although Hernandez's testimony on the timeline of events that evening was not entirely consistent, these are the type of “errors in recollection” that are to be expected and fail to demonstrate that a witness lied. Zuno-Arce, 44 F.3d at 1423; see also United States v. Croft, 124 F.3d 1109, 1119 (9th Cir. 1997) (“The fact that a witness may have made an earlier inconsistent statement, or that other witnesses have conflicting recollections of events, does not establish that the testimony offered at trial was false.”). *17 Finally, Petitioner claims that several images, including a ledger sheet, did not come from his phone. In support of this claim, he notes that Hernandez initially testified that she did not recall whether any ledger-type images were downloaded from Petitioner's phone. (4 RT at 708-09). Only after being shown photographs of the downloaded images did Hernandez testify that Petitioner's phone contained a ledger sheet showing the “amount of money the female made on a date” and whether the money had been “collected.” (Id. at 710-11). This exchange does not demonstrate that the photograph was “fraudulent” or that the image did not come from Petitioner's phone, as he claims. Rather, this was nothing more than the ordinary and proper refreshing of a witness's recollection as to a specific item among hundreds of images downloaded from Petitioner's electronic devices. Petitioner offers no evidence whatsoever that the image did not come from his phone. His unsupported claim that Hernandez lied provides no basis for relief. See Sanders v. Cullen, 873 F.3d 778, 801 (9th Cir. 2017) (affirming denial of alleged false testimony claim when petitioner “did not support the claim that [the witness] lied or that the prosecution knew his testimony was false”); Dows v. Wood, 211 F.3d 480, 486-87 (9th Cir. 2000) (factually unsupported argument provides no basis for federal habeas relief). In short, Petitioner has not demonstrated a Napue violation because Petitioner has failed to show Hernandez's testimony was actually false, that the prosecutor knew or should have known that it was false, or that any purported falsehood was material to the case. For these reasons, the state court reasonably rejected this claim and federal habeas relief is not warranted. E. Petitioner's Claim That The Trial Court Erroneously Denied His Motion To Dismiss The Human Trafficking Charges At The Preliminary Hearing Is Not Cognizable In Ground Five, Petitioner contends that the state court erred in failing to dismiss the human trafficking charges for lack of evidence at the preliminary hearing. (SAP at 11-12). He argues there were “several missing elements to the human trafficking charges” at the preliminary hearing that “mandates” the reversal of his subsequent conviction at trial. (Traverse at 52-53). 1. Background Prior to trial, Petitioner filed a motion pursuant to California Penal Code § 995 asking the court to dismiss the human trafficking charges against him because there was insufficient evidence presented at the preliminary hearing to establish probable cause that he coerced the victim into acts of prostitution. (See 1 CT at 219-27). The prosecution opposed the motion, (id. at 228-40), and, after hearing argument, the trial court denied the motion, finding “sufficient evidence” to support the “lower standard of the preliminary hearing.” (1 RT at 125). Petitioner claims this ruling was in error. 2. Federal Law and Analysis An application for a writ of habeas corpus by a state prisoner can be granted only for violations of the Constitution or laws of the United States. Engle v. Isaac, 456 U.S. 107, 119 (1982). There is no federal constitutional right to a preliminary hearing. See Gerstein v. Pugh, 420 U.S. 103, 119-20 (1975); see also Howard v. Cupp, 747 F.2d 510 (9th Cir. 1984) (finding it “well settled ... that there is no fundamental right to a preliminary hearing”). As such, alleged errors occurring at the preliminary hearing cannot form the basis of a federal habeas corpus claim. See Gilmore v. California, 364 F.2d 916, 918 n.5 (9th Cir. 1966) (noting defendant “filled his papers with factual assertions and legal citations that present no issue cognizable in habeas corpus, such as the sufficiency, credibility, and admissibility of testimony given at the preliminary hearing”); see also Alvarado v. Dexter, 2011 WL 2884760, at *21 (C.D. Cal. Mar. 2, 2011) (“Petitioner is in custody as a result of his conviction after a trial. Any improprieties in [the officer's] testimony at the preliminary hearing cannot provide a basis for habeas relief from Petitioner's post-conviction custody.”). Here, Petitioner's allegation of insufficient evidence at the preliminary hearing fails to state a cognizable federal claim on habeas corpus. The denial of a California Penal Code § 995 motion to dismiss charges at a preliminary hearing is a state law claim that is not cognizable in this Court. See Lopes v. Campbell, 408 F. App'x 13, 15 (9th Cir. 2010) (finding petitioner's claim that the trial court erroneously denied his motion under Cal. Penal Code § 995 “not cognizable on federal habeas review”); Davin v. Baca, 2008 WL 3049853, at *1 (C.D. Cal. Aug. 5, 2008) (finding claim that there was insufficient evidence presented at the preliminary hearing was not cognizable). Petitioner is in custody as a result of evidence presented at trial that caused his conviction and, as such, any evidentiary issues at his preliminary hearing cannot provide a basis for habeas relief. F. Petitioner's Fourth Amendment Illegal Search and Seizure Claim Is Not Cognizable *18 In Ground Six, Petitioner asserts that an unreasonable delay in obtaining a warrant for his phone violated the Fourth Amendment. (SAP at 13-17). He argues that the prosecution held the phone for 59 days before getting a search warrant, which transformed a lawful seizure into a violation of his right to possess the phone. (Id. at 14-15). Therefore, he contends that all evidence obtained from the phone should have been suppressed. (Traverse at 54-58). A Fourth Amendment claim is not cognizable in federal habeas corpus proceedings if a petitioner had a full and fair opportunity to litigate the claim in state court. Stone v. Powell, 428 U.S. 465, 481-82 (1976); see also Newman v. Wengler, 790 F.3d 876, 881 (9th Cir. 2015) (per curiam) (“The Stone v. Powell doctrine survives the passage of AEDPA.”). “The relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided.” Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996). Here, there is absolutely no evidence that Petitioner was prevented from raising his Fourth Amendment claim in state court. California Penal Code § 1538.5 provides criminal defendants with the right to litigate claims of illegal search and seizure. Gordon v. Duran, 895 F.2d 610, 613-14 (9th Cir.1990). Instead of filing a suppression motion in the trial court, however, Petitioner elected to file a motion to exclude the evidence from the phone on grounds that it was not turned over to the defense in a timely manner. (See 1 RT at 2-4, 24-26, 50-52). Although Petitioner's efforts to have the phone evidence excluded under discovery rules was ultimately unsuccessful, nothing prevented Petitioner from challenging the evidence as illegally seized under the Fourth Amendment. Petitioner has not suggested otherwise. The fact that Petitioner chose not to litigate the constitutionality of the search of his phone is “irrelevant to the operation of Stone v. Powell.” Wagner v. Diaz, 2015 WL 3563026, at *9 (E.D. Cal. May 28, 2015). Because Petitioner had an opportunity to litigate his Fourth Amendment claim in the state courts, his unlawful search and seizure claim is not cognizable in this federal habeas action. Ortiz-Sandoval, 81 F.3d at 899; Gordon, 895 F.2d at 613. G. Petitioner's Brady Violation Claim Does Not Merit Habeas Relief In Ground Seven, Petitioner claims that the delay in providing discovery and the prosecutor's motion to “wipe clean” the phone and hard drive from Petitioner's computer constituted a Brady violation. (SAP at 18-21). 1. Background Petitioner's trial was scheduled to begin in August 2015, approximately four months after the police seized his cellphone and computer. (1 RT at 1-2). Discovery from the two devices, which contained “thousands of pictures” on five CDs and two thumb drives, was turned over to the defense on July 24, 2015. (Id. at 2-6). On August 5, 2015, Petitioner's counsel argued that the late disclosure of voluminous evidence impacted the ability to find and interview potential witnesses to rebut the prosecution's evidence. (Id. at 50-53, 63). The court indicated that it would consider excluding evidence found on the phone and computer if the relevant witnesses could not be located and made available to the defense before they testified. (Id. at 53-54). The trial court noted, however, that the defense still had 10 or 11 days before the defense case was likely to begin. (Id. at 64). *19 Several days later, defense counsel indicated to the court that a potential witness had been located out of state and a subpoena would be necessary to secure her attendance. (Id. at 86-89). With the court's approval, the trial was continued until September 2015. (Id. at 90, 94-95). Thereafter, the trial was continued until October 2015, at which time defense counsel declared a conflict and he was replaced by a member of the public defender's office. (1 CT at 24, 27-28). Petitioner's trial did not ultimately commence until May 2016. (Id. at 40-45). After being convicted, Petitioner was sentenced in June 2016. (Id. at 72-76). More than two years later, in November 2018, Petitioner filed a motion for a return of his property in the Orange County Superior Court. (See SAP at 25). The district attorney's office did not oppose the return of the cellphone and computer if the memories of the devices were “wiped clean.” (Id.). The superior court granted Petitioner's request to return the property if he agreed to the conditions. (Id. at 26). Petitioner, however, asked the court to stay the order returning his property because he did not want any evidence on the electronic devices to be destroyed. (See SAP, Part 2 at 19). 2. Federal Law and Analysis The Due Process Clause requires the prosecution to disclose to the defense all material evidence in its possession that is favorable to the accused. Strickler v. Greene, 527 U.S. 263, 280 (1999); Brady v. Maryland, 373 U.S. 83, 87 (1963). “There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler, 527 U.S. at 281-82. The Supreme Court has never held that a late disclosure—as opposed to a complete failure to disclose—violates a defendant's constitutional rights under Brady. See United States v. Warren, 454 F.3d 752, 760 (7th Cir. 2006) (“Late disclosure does not itself constitute a Brady violation.”); Dotson v. Scribner, 619 F. Supp. 2d 866, 876 (C.D. Cal. 2008) (“Brady does not hold that a late disclosure is a violation of due process.”). In fact, courts have held that there is no violation as long as the disclosure happens in time for the defendant to use the evidence effectively at trial. See, e.g., United States v. Coppa, 267 F.3d 132, 142 (2d Cir. 2001) ( “[W]e have never interpreted due process of law as requiring more than that Brady material must be disclosed in time for its effective use at trial.”); United States v. Scarborough, 128 F.3d 1373, 1376 (10th Cir. 1997) (“As long as ultimate disclosure is made before it is too late for the defendant[ ] to make use of any benefits of the evidence, Due Process is satisfied.” (internal quotation marks and citation omitted)); United States v. Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988) (“Brady does not necessarily require that the prosecution turn over exculpatory material before trial. To escape the Brady sanction, disclosure must be made at a time when disclosure would be of value to the accused.” (internal quotation marks omitted)); LaMere v. Risley, 827 F.2d 622, 625 (9th Cir. 1987) (due process under Brady is met if the timing of disclosure gave defendant “an opportunity to make use of the disclosed material”). Here, the prosecutor's delay in providing discovery of the data collected from Petitioner's phone and computer did not violate Petitioner's due process rights under Brady. The evidence was provided to Petitioner and his defense counsel in July 2015, ten months before the start of his trial. Although the record indicates that defense counsel initially asked for discovery sanctions because the trial was scheduled to start in August 2015 and the provided discovery included thousands of photographs and documents, any problems with the timing of the disclosure were remedied by the trial being delayed to May 2016, which allowed Petitioner more than ample time to examine the evidence and locate appropriate witnesses. Petitioner makes no credible argument that he was unable to effectively use the evidence that was disclosed 10 months before trial. See United States v. Chibeast, 735 F. App'x 476, 477 (9th Cir. 2018) (“The record supports [the court's] finding that he received the documents in question before trial, and, thus, that there was no Brady violation.”) (unpublished); Grant v. Gastelo, 2019 WL 3308430, at *7 (C.D. Cal. June 7, 2019) (“[T]he late disclosure did not render Petitioner's trial fundamentally unfair, as Petitioner's trial counsel still had ample time to assess the evidence and prepare a response to it.”). *20 As for Petitioner's claim that the prosecutor is violating Brady by attempting to have the data on the phone and computer “wiped clean,” Petitioner fails to demonstrate that any of the evidence is exculpatory. Although Petitioner claims he “never saw” several of the photographs included in the discovery provided by the prosecution, he offers no evidence establishing that the inculpatory photographs were not collected from his electronic devices, and no explanation showing how the evidence otherwise undermines his guilt. See Gray v. Netherland, 518 U.S. 152, 168 (1996) (“There is no general constitutional right to discovery in a criminal case, and Brady, which addressed only exculpatory evidence, did not create one.”) (internal quotation marks and citation omitted); United States v. Munoz, 409 F. App'x 117, 120 (9th Cir. 2010) (“Those statements were inculpatory, so do not implicate Brady.”) (unpublished); Dotson, 619 F. Supp. 2d at 877 (“The late disclosure of inculpatory information is not a Brady violation, nor a due process violation.”). For these reasons, Petitioner fails to demonstrate that a Brady violation or other due process violation occurred by the late discovery of phone and computer records in his underlying criminal case. As such, federal habeas relief is not warranted on this claim. H. Petitioner's Instructional Error Claim Does Not Warrant Habeas Relief In Ground Eight, Petitioner argues that the failure to instruct the jury with the lesser included offense of attempted human trafficking violated his constitutional rights. (SAP, Part 2 at 79-81). He contends that he lacked the “intent” to engage in human trafficking and, had the jury been instructed with the lesser offense, there was a reasonable chance the outcome of the trial would have been different. (Id. at 80-81). 1. State Court Decision Petitioner raised Ground Eight on direct appeal in the California Court of Appeal. (Lodgment 4 at 10). The state appellate court denied the claim on the merits, as follows: Here, the evidence demonstrates [Petitioner] coerced Jessica to work as a prostitute by controlling when she could see her son. The jury could not have found that he only attempted to deprive Jessica of her liberty but was unsuccessful. Thus, there was no basis for an instruction on attempted human trafficking. Even assuming the trial court had been required to instruct the jury on attempted human trafficking, however, any resulting error was harmless. We conclude it is not reasonably probable that a result more favorable to [Petitioner] would have been reached had the court instructed the jury on attempted human trafficking. (Lodgment 4 at 10). 2. Federal Law and Analysis The United States Supreme Court has never held that a trial court's failure to instruct a jury on a lesser included offense in a noncapital case violates due process. Beck v. Alabama, 447 U.S. 625, 638, n.14 (1980); see also United States v. Torres-Flores, 502 F.3d 885, 888 n.3 (9th Cir. 2007) (“Beck left open whether the due process right extends to defendants in noncapital cases”); Turner v. Marshall, 63 F.3d 807, 819 (9th Cir. 1995) (“There is no settled rule of law on whether Beck applies to non-capital cases ....”), overruled on other grounds by Tolbert v. Page, 182 F.3d 677, 685 (9th Cir. 1999) (en banc). For that reason, as the Ninth Circuit has explained, “[f]ailure of a state court to instruct on a lesser offense fails to present a federal constitutional question and will not be considered in a federal habeas corpus proceeding.” James v. Reese, 546 F.2d 325, 327 (9th Cir. 1976). Because there is no Supreme Court authority holding that a defendant has a constitutional right to a jury instruction on a lesser included offense in a non-capital case, this claim necessarily fails. See Knowles v. Mirzayance, 556 U.S. 111, 122 (2009); Wright v. Van Patten, 552 U.S. 120, 123 (2008) (per curiam). *21 Nevertheless, “the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citations and internal quotation marks omitted). The Supreme Court has held that, as a general proposition, a defendant is entitled to “an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” Mathews v. United States, 485 U.S. 58, 63 (1988); see also Bradley v. Duncan, 315 F.3d 1091, 1098 (9th Cir. 2002) (“[T]he right to present a defense would be empty if it did not entail the further right to an instruction that allowed the jury to consider the defense.”) (internal quotation marks omitted); Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 2000) (as amended) (“It is well established that a criminal defendant is entitled to adequate instructions on the defense theory of the case.”); but see Marquez v. Gentry, 708 F. App'x 924, 925 (9th Cir. 2018) (holding the constitutional “right to present a complete defense under federal law does not extend to restrictions imposed on a defendant's ability to present an affirmative defense, but only the exclusion of evidence and the testimony of defense witnesses”). The failure to instruct on a particular defense theory is not error, however, unless “the theory is legally sound and evidence in the case makes it applicable.” Clark v. Brown, 450 F.3d 898, 904-05 (9th Cir. 2006) (as amended). In this instance, as the state court noted, there simply was no evidence to support a finding that Petitioner's actions amounted only to attempted human trafficking. California provides that a person is guilty of an attempted crime when he takes a “direct but ineffective step toward committing” a crime with the “inten[t] to commit the crime,” even if he ultimately fails to complete the crime because he was interrupted or abandoned his plan. People v. Sojka, 196 Cal. App. 4th 733, 738 (2011); People v. Herman, 97 Cal. App. 4th 1369, 1385 (2002). The evidence at trial was uncontradicted that Jessica worked for Petitioner as a prostitute for more than five months until police intervened. During this time, Petitioner kept the money Jessica made and controlled her personal liberties, including her ability to see her child. This evidence did not support a claim that Petitioner took steps toward but was unsuccessful in completing the crime of human trafficking. Further, Petitioner's claim that he lacked the intent to commit human trafficking would not support a criminal attempt charge because an attempt to commit a crime requires the specific intent to commit that crime. See Herman, 97 Cal. App. 4th at 1385. As such, instructing the jury on the crime of attempted human trafficking was not warranted. See United States v. Duran, 59 F.3d 938, 941 (9th Cir. 1995) (a defendant is entitled to have his theory of defense explained in the jury instructions only if it is supported by law and has some basis in the evidence); see also Hopper v. Evans, 456 U.S. 605, 611 (1982) (due process requires giving jury instruction “only when the evidence warrants such an instruction”). Accordingly, the state court reasonably rejected this claim of jury instructional error, and federal habeas relief is not warranted on this claim. I. Ineffective Assistance of Counsel In Ground One, Petitioner contends that trial counsel was ineffective for failing to request an instruction on the lesser included offense of attempted human trafficking, failing to object to the investigator's testimony, failing to admit the affidavit of a witness, failing to file a suppression motion, and failing to share evidence with Petitioner. (SAP at 2-6). In the same ground, Petitioner claims appellate counsel was ineffective for failing to raise the issue of the suppression motion. (SAP at 3). In Ground Three, Petitioner also claims that the lack of a financial investigation into the source of his income violated his due process rights and demonstrated ineffective assistance of counsel. (SAP at 8). 1. State Court Decision On collateral review, the Orange County Superior rejected Petitioner's claim that trial counsel was ineffective for failing to conduct a financial investigation into the source of Petitioner's income: *22 Petitioner claims that if a financial investigation had been done, he could have had the opportunity to produce exculpatory evidence that he had a legitimate business, which could have changed the jury's verdict. It is not clear who [P]etitioner believes should have conducted such an investigation. It is also unclear why [P]etitioner could not have presented evidence regarding any such legitimate business. (Lodgment 8 at 4). The remaining claims of ineffective assistance were rejected on procedural grounds. 2. Federal Law and Analysis The Sixth Amendment guarantees criminal defendants the effective assistance of counsel.” Yarborough v. Gentry, 540 U.S. 1, 4 (2003) (per curiam); see also Missouri v. Frye, 566 U.S. 134, 138 (2012) (“The right to counsel is the right to effective assistance of counsel.”). To succeed on an ineffective assistance of trial counsel claim, a petitioner must demonstrate both that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). “To establish deficient performance, a person challenging a conviction must show that counsel's representation fell below an objective standard of reasonableness.” Richter, 562 U.S. at 104 (internal quotation marks omitted). Scrutiny of counsel's performance must be “highly deferential,” and the petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered strategically sound. Strickland, 466 U.S. at 689; see also Yarborough, 540 U.S. at 6 (“The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.”); Bell v. Cone, 535 U.S. at 702 (“We cautioned in Strickland that a court must indulge a ‘strong presumption’ that counsel's conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight.”). Prejudice “focuses on the question whether counsel's deficient performance renders the results of the trial unreliable or the proceeding fundamentally unfair.” Williams v. Taylor, 529 U.S. 362, 393 n.17 (2000) (quoting Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)). That is, the petitioner must establish that there is 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. Furthermore, “[t]he likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at 112. A petitioner bears the burden of establishing both the deficient performance and prejudice components of an ineffective assistance claim. Williams, 529 U.S. at 390-91; Strickland, 466 U.S. at 687. However, the Court need not determine whether counsel's performance was deficient before examining the prejudice the alleged deficiencies caused the petitioner. See id. at 692 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.”). “[T]he right to effective assistance of counsel is not confined to trial, but extends also to the first appeal as of right.” Kimmelman v. Morrison, 477 U.S. 365, 378 n.2 (1986); Evitts v. Lucey, 469 U.S. 387, 396-97 (1985). The standard for establishing a prima facie claim of ineffective appellate counsel is the same as for trial counsel: a petitioner must show his appellate counsel was deficient and the deficient performance prejudiced him. Smith v. Robbins, 528 U.S. 259, 285 (2000). In other words, a defendant “must show that counsel's advice fell below an objective standard of reasonableness ... and that there is a reasonable probability that, but for counsel's unprofessional errors, [the petitioner] would have prevailed on appeal.” Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989). Appellate counsel has no constitutional duty to raise every issue when, in the attorney's judgment, the issue has little or no likelihood of success, Jones v. Barnes, 463 U.S. 745, 751-53 (1983), and has an ethical obligation to refrain from wasting the court's time on meritless arguments. McCoy v. Wisconsin, 486 U.S. 429, 436 (1988). *23 Petitioner faults trial counsel for failing to request an instruction on the lesser included offense of attempted human trafficking. (SAP at 2). As discussed previously, however, there simply was no evidence to support a finding that Petitioner's actions constituted only attempted human trafficking and, as such, he was not entitled to any such jury instruction. (See supra Section VI.H.2.) Thus, had counsel requested such an instruction, it would have been properly denied. Counsel was not ineffective for failing to file a meritless motion. Jones v. Smith, 231 F.3d 1227, 1239 n.8 (9th Cir. 2000) (finding an attorney's failure to make a meritless motion does not constitute ineffective assistance of counsel); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (“[T]he failure to take a futile action can never be deficient performance.”). Trial counsel's decision not to object to investigator Hernandez's testimony about Jessica's liberty being curtailed was not deficient for the same reasons. Despite Petitioner's arguments to the contrary, there is no evidence that Hernandez testified falsely at trial. (See supra Section VI.D.2). Accordingly, any objection by defense counsel would have been overruled. Failing to raise meritless objections does not constitute ineffective assistance. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (“[T]rial counsel cannot have been ineffective for failing to raise a meritless objection.”). Petitioner also faults counsel for failing to introduce the affidavit of Shaundra Bess. (SAP at 2). Petitioner contends that her affidavit was “exculpatory evidence” that “refut[ed] the prosecution's claims” at trial. (Traverse at 14). Petitioner has not, however, provided the Court with a copy of the affidavit or otherwise explained how the affidavit would have undermined the substantial evidence of his guilt. As such, any claim of prejudice to Petitioner from counsel's actions are entirely speculative. See United States v. Corona-Verbera, 509 F.3d 1105, 1113 (9th Cir. 2007) (finding defendant failed to show actual prejudice where he merely speculated as to what witnesses would have said and offered “no affidavits nor any non-speculative proof as to how he was prejudiced by the loss of his witnesses”). Nor has Petitioner explained how trial counsel would have gotten the affidavit admitted at trial even had he requested it. Ordinarily, affidavits and other hearsay materials are not admissible in a criminal trial. See Elkins v. Superior Court, 41 Cal. 4th 1337, 1354 (2007) (“It is well established, however, that declarations constitute hearsay and are inadmissible at trial, subject to specific statutory exceptions, unless the parties stipulate to the admission of the declarations or fail to enter a hearsay objection.”). Thus, this claim of ineffective assistance is far too speculative to warrant relief. Petitioner next contends that counsel was ineffective for failing to file a suppression motion on the ground that the warrant to search his phone was illegal because the police waited 59 days after seizing the phone to obtain it.[15] (SAP at 3-4). The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. Police may seize a suspect's phone “to prevent destruction of evidence while seeking a warrant.” Riley v. California, 573 U.S. 373, 388 (2014). An unreasonable delay between the seizure of an item and obtaining a search warrant may violate the defendant's Fourth Amendment rights; “The touchstone is reasonableness.” United States v. Sullivan, 797 F.3d 623, 633 (9th Cir. 2015). Courts must balance “the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” United States v. Place, 462 U.S. 696, 703 (1983). *24 Petitioner has not alleged any facts which suggest that his possessory interest in the phone during the 59-day period outweighed the government's interest in searching the phone and retaining it for evidence. First, during the entire 59-day period, Petitioner was in custody and could not have used his phone. See Sullivan, 797 F.3d at 633 (“Where individuals are incarcerated and cannot make use of seized property, their possessory interest in that property is reduced.”). Second, Petitioner offers no evidence that he asked for his cell phone to be returned before the government obtained the warrant. See United States v. Johns, 469 U.S. 478, 487 (1985) (finding defendants who “never sought return of the property” cannot argue that delay adversely affected Fourth Amendment rights). Third, courts have found similar and more lengthy delays in obtaining a warrant to search a defendant's phone to be reasonable. See United States v. Johnson, 875 F.3d 1265, 1276 (9th Cir. 2017) (one-year delay in obtaining warrant for defendant's seized phone was “not unreasonable” where defendant “never sought return of his phone while he was in continuous custody”); United States v. Marquez, 503 F. Supp. 3d 1002, 1009 (S.D. Cal. 2020) (government's delay of 60 days after seizure of defendant's cell phone before seeking search warrant was not unreasonable, considering that defendant's possessory interests was minimal as defendant never asked for the phone to be returned). Finally, the government clearly had a legitimate interest in searching the phone for evidence linking Petitioner to pimping activities involving the victim. Under these circumstances, there is no reasonable likelihood that a suppression motion would have been successful even had trial counsel filed one. “Counsel's failure to make a futile motion does not constitute ineffective assistance of counsel.” James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994). For this reason, Petitioner's related claim that appellate counsel was ineffective for failing to raise the issue on appeal is rejected. See Wildman, 261 F.3d at 840 (“[A]ppellate counsel's failure to raise issues on direct appeal does not constitute ineffective assistance when appeal would not have provided grounds for reversal.”); Turner v. Calderon, 281 F.3d 851, 872 (9th Cir. 2002) (holding that failure to raise “untenable issues” on appeal does not fall below Strickland standard). Petitioner alleges that counsel was ineffective for failing to “share” with him copies of the exhibits that the prosecution planned to introduce at trial. (SAP at 5). Even assuming counsel failed to show Petitioner the prosecution's evidence as alleged, and further assuming that such conduct was unreasonable, Petitioner cannot show prejudice. Petitioner has not shown how his defense would have benefitted from his review of the discovery.[16] Simply put, Petitioner cannot show that there was a reasonable probability of a more favorable result at trial had counsel reviewed the discovery with Petitioner prior to trial. See Strickland, 466 U.S. at 694. Finally, Petitioner claims that trial counsel was ineffective for failing to conduct a financial investigation into the source of his income, which would have shown he had a “legitimate business.” (SAP at 8). Petitioner, however, provides no evidence to support his claim of running a legitimate business. Nor does he explain how further investigation into his finances would have undermined the overwhelming testimonial and documentary evidence that he was operating as a pimp and coercing Jessica to prostitute herself for his financial gain. In short, this claim of ineffective assistance for failure to investigate is too vague, conclusory, and speculative to show that trial defense counsel acted deficiently or that Petitioner was prejudiced by counsel's inaction. See James, 24 F.3d at 26 (“Conclusory allegations [of ineffective assistance of counsel] which are not supported by a statement of specific facts do not warrant habeas relief”); Cooks v. Spalding, 660 F.2d 738, 740 (9th Cir. 1981) (per curiam) (holding mere speculation insufficient to demonstrate prejudice for ineffective assistance of counsel claim). *25 For these reasons, all of Petitioner's claims of ineffective assistance of counsel fail to warrant habeas relief. J. Evidentiary Hearing In his SAP and Traverse, Petitioner requests an evidentiary hearing to “prove his innocence” and demonstrate that law enforcement “planted evidence” to obtain a conviction. (SAP at 21; Traverse at 67). He also asks to further develop his claims to show what was “not presented to the California state courts.” (Traverse at 67). Section 2254(e)(2), which governs evidentiary hearings under AEDPA, provides in relevant part that when a habeas petitioner failed to develop the factual basis of a claim in state court, a federal district court may not hold an evidentiary hearing unless the claim relies on a new rule of constitutional law made retroactive on collateral review or is based on a factual predicate that could not have been previously discovered through the exercise of due diligence, and “the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2). However, if a state court adjudicated the prisoner's claim on the merits, the Supreme Court instructs that habeas review is “limited to the record that was before the state court that adjudicated the claim on the merits.” Pinholster, 563 U.S. at 181. “[E]vidence later introduced in federal court is irrelevant to § 2254(d)(1) review.” Id. at 184. Here, Petitioner's claims in Grounds Two, Three, Four, and Eight were adjudicated on the merits in state court. Accordingly, review of these claims is limited to the state court record. As for the remaining claims, an evidentiary hearing is unnecessary because those claims are all resolvable on the current record. See Cook v. Kernan, 948 F.3d 952, 971 (9th Cir. 2020) (“If the record contains a sufficient factual basis that ‘refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.’ ”) (quoting Schriro v. Landrigan, 550 U.S. 465, 474 (2007)); see also Downs v. Hoyt, 232 F.3d 1031, 1041 (9th Cir. 2000) (“[T]he fact that a hearing would be permitted does not mean that it is required. The district court retains discretion whether to hold one.”). Finally, Petitioner is not entitled to an evidentiary hearing to support a claim of actual innocence because he “fail[s] to show what more an evidentiary hearing might reveal of material import on his assertion of actual innocence.” See Gandarela v. Johnson, 286 F.3d 1080, 1087 (9th Cir. 2002) (finding “evidentiary hearing was unnecessary” where petitioner failed to explain how any “new” evidence supported his claim of actual innocence). Petitioner offers nothing more than unsupported, conclusory claims of innocence and false evidence that provide no basis for holding an evidentiary hearing. See Cervantes v. Biter, 2018 WL 7135659, at *11 n.27 (C.D. Cal. Oct. 29, 2018) (rejecting request for evidentiary hearing where petitioner failed to “provide[ ] any evidence supporting” his innocence); Herrera v. Sec'y of Corrections, 2018 WL 3424583, at *15 (C.D. Cal. Apr. 5, 2018) (finding unsupported and conclusory allegation of actual innocence does not warrant an evidentiary hearing). Accordingly, it is recommended that Petitioner's request for an evidentiary hearing be denied. VII. RECOMMENDATION *26 For the foregoing reasons, IT IS RECOMMENDED that the District Court issue an Order: (1) accepting this Report and Recommendation, (2) denying the Second Amended Petition for Writ of Habeas Corpus, and (3) directing that Judgment be entered dismissing this action with prejudice. Footnotes [1] Under the “mailbox rule,” a pleading filed by a pro se prisoner is deemed to be filed as of the date the prisoner delivered it to prison authorities for mailing to the court clerk, not the date on which the pleading may have been received by the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). The Court adopts the date Petitioner signed the Petition as this action's constructive filing date. (Pet. at 13) (consecutive pagination). [2] On August 23, 2021, Petitioner filed a Notice of Change of Address in which he informed the Court that he has been released on parole and is no longer incarcerated. (Dkt. No. 61 at 1). A § 2254 petitioner must show that he is “in custody” pursuant to the challenged state court judgment at the time his petition is filed. 28 U.S.C. § 2254(a); Maleng v. Cook, 490 U.S. 488, 490-91 (1989). However, “the petitioner's subsequent release from custody does not itself deprive the federal habeas court of its statutory jurisdiction.” Bailey v. Hill, 599 F.3d 976, 979 (9th Cir. 2010) (internal quotation marks and citation omitted). Specifically, a state prisoner “remains in ‘custody’ for purposes of habeas jurisdiction while she is on parole” and the “case is not moot because the adverse consequences of her criminal conviction remain.” Goldyn v. Hayes, 444 F.3d 1062, 1064 n.2 (9th Cir. 2006) (internal quotation marks and alterations omitted); see also Comstock v. Humphries, 786 F.3d 701, 704 n.1 (9th Cir. 2015) (“[P]ersons on parole are also ‘in custody’ for purposes of § 2254.”) (citing Jones v. Cunningham, 371 U.S. 236, 243 (1963)); but see Munoz v. Smith, __ F. 4th __, 2021 WL 5291755, at *1 (9th Cir. Nov. 15, 2021) (lifetime supervisory conditions imposed on released sex offender, including (1) a monthly fee to defray the costs of his supervision; (2) electronic monitoring; and (3) requirements that his parole officer must approve any residence and be kept apprised of his current address, did not “severely and immediately restrain the petitioner's physical liberty” and thus did not satisfy the habeas “in custody” requirement). Here, because Petitioner was “in custody” at the time his Petition was filed, his subsequent release on parole does not deprive this Court of jurisdiction over his Petition or render the Petition moot. [3] Page citations to Petitioner's filings such as the SAP, which includes non-sequential pages and many attached exhibits, refer to the CM/ECF-generated page numbers on the Court's docket. [4] The claims raised in the SAP do not include some of the claims raised in the original Petition or FAP. Rule 2(c)(1) of the Rules Governing Habeas Corpus Cases Under Section 2254 provides that a petition must “specify all the grounds for relief available to the petitioner.” Further, an amended petition supersedes the original petition. See Lacey v. Maricopa County, 693 F.3d 896, 907 n.1 (9th Cir. 2012) (noting the a First Amended Complaint “supersedes the original”); Sechrest v. Ignacio, 549 F.3d 789, 804 (9th Cir. 2008) (“The filing of a new petition cancels out and waives any claims from the old petition.”). Therefore, Petitioner's request in his Traverse that the Court consider the SAP to be a “supplement” to his earlier filings is rejected. (See Traverse at 63). [5] The Second Amended Petition consists of an 84-page Main Document, cited herein as the “SAP,” as well as an 85-page attachment, cited herein as “SAP Part 2.” (See Dkt. Nos. 27 and 27-1). [6] When referencing the state court record, consisting of 25 separate lodgments, the Court will cite to the original page numbers reflected in the documents rather than the CM/ECF-generated page numbers. [7] In Ground Four, Petitioner also asserts that the prosecutor's motion to destroy evidence on his phone and computer violated due process under Brady. (SAP at 10). This argument appears duplicative of his more developed Brady claim in Ground Seven and, therefore, the Court will consider it when examining Ground Seven. [8] This claim is mislabeled as “Ground Two” in the SAP. [9] In the interest of judicial economy, the Court has elected to bypass the exhaustion issue in Ground Six because the claim clearly fails on the merits even under a de novo standard. See Gales v. Kernan, 2017 WL 1377737, at *6 (C.D. Cal. Mar. 7, 2017) (declining to consider whether habeas claim was exhausted because the claim fails under de novo review). [10] The first three grounds for relief were raised in a single claim (Ground One). [11] The fact that the superior court alternately rejected the claims on their merits does not preclude the Court from finding that they are procedurally barred. Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); Comer v. Schriro, 480 F.3d 960, 964 n.6 (9th Cir. 2007). [12] The superior court did not cite Dixon, however; it cited Sakarias, which is an indirect way to cite the Dixon rule. See Sakarias, 35 Cal. 4th at 169 (“When the issue could have been, but was not, raised on appeal, the unjustified failure to present it on appeal generally precludes its consideration on habeas corpus. (In re Harris, supra, at p. 829, citing In re Dixon, supra, 41 Cal.2d at p. 759).”). [13] The Court will alternatively discuss the merits of these claims because they plainly fail to warrant habeas relief. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (“[C]ourts are empowered to, and in some cases should, reach the merits of habeas petitions if they are ... clearly not meritorious despite an asserted procedural bar.”). [14] For the sake of clarity, the Court has addressed the claims out of order, and will consider the ineffective assistance of counsel claims last. [15] Petitioner was arrested on April 19, 2015, and the police obtained a search warrant for the phone on June 16, 2015. (1 RT at 43-45). [16] Petitioner does say that he would have been able to identify the “photos [that] were planted by the investigator,” (SAP at 5), but, as previously discussed, Petitioner offers no evidentiary support for his claim that the photographs were not obtained from his cell phone.