United States District Court, D. Arizona
REPORT AND RECOMMENDATION
BRUCE G. MacDONALD, Magistrate Judge.
Currently pending before the Court is Petitioner Lyndall Dwaine Thompson's pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) ("Petition") (Doc. 1). Respondents have filed an Answer to Petition for Writ of Habeas Corpus ("Answer") (Doc. 11). Petitioner filed his Traverse (Doc. 13). The Petition is ripe for adjudication.
Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,  this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Petition (Doc. 1).
I. FACTUAL AND PROCEDURAL BACKGROUND
The Arizona Superior Court, Pima County stated the facts as follows:
The charges in the Petitioner's case stem from the following incident. On June 29, 2007, the Petitioner and his brother Clark got into an argument which erupted into a fist fight. The Petitioner was carrying two handguns a.45 and a 9mm when the fight began. Before the fight ensued, the Petitioner removed the handguns from his person and tossed them aside or dropped them so that they could not be used during the fight. Clark pinned the Petitioner to the ground during the fight and was getting the better of the Petitioner when the Petitioner managed to escape from beneath Clark and run inside his trailer home. The Petitioner claimed that during the fight Clark repeatedly threatened to kill him and that after running inside, he feared that Clark now had access to the handguns which were still outside. Based on these fears the Petitioner retrieved his SKS rifle and he went back outside carrying the rifle. When the Petitioner emerged from the trailer with the SKS rifle he saw Clark nearby, walking in the other direction. The Petitioner then chambered a round of ammunition in the rifle and as he did so, he claimed that Clark turned abruptly to confront him once again. The Petitioner claimed that he could not see Clark's hands because his view was blocked by a nearby parked vehicle. As Clark turned, he began approaching the Petitioner at a rapid pace. The Petitioner claims that at that point he shot Clark several times, emptying the magazine of the SKS. The Petitioner claimed he then threw down the rifle and ran back inside his trailer to retrieve his cellular phone before he fled on foot.
The Petitioner fled to a nearby intersection where he flagged down a passing driver. The Petitioner called 911 and asked the driver to tell the 911 operator that he had just shot his brother. Police arrived and took the Petitioner into custody. Deputies Almarez and Sutton and Sergeant James arrived at the scene of the shooting and conducted a search for any victims. The deputies cleared the Petitioner's trailer and though they found no victims there, they did find a malfunctioned 9mm handgun with a live round of ammunition "stovepiped" in the ejection part of the weapon. The deputies then proceeded to clear the remainder of the property whereupon the discovered the Petitioner's brother lying shot to death on a path between the two trailer homes. There were several spent shell casings and a spent shotgun shell lying nearby. Deputy Sutton's report states that an SKS rifle and a.45 caliber handgun were found next to each other near the north side of the Petitioner's trailer home. Later, when Deputy Sutton was interviewed by Defense Counsel he claimed that he did not actually discover the weapons and that he could not remember if they were found on the ground, but that he believed they were found by a uniformed officer atop the engine compartment of a vehicle parked on the property. None of the reports from officers at the scene indicate whether the weapons were actually discovered atop the vehicle or whether they were placed there after being discovered on the ground. At trial, Detective Copeland testified that the weapons were discovered on the engine compartment of the vehicle by uniformed officers who initially responded to the scene. Detective Pruess also testified that the weapons were found on the vehicle.
Meanwhile, the Petitioner was read his Miranda  rights and transported to the Green Valley substation for questioning. The Petitioner agreed to waive his right to remain silent based on the condition that the detectives answer any questions that he might have. The Petitioner made it clear that he would terminate the interview if the detectives failed to answer any of his questions. The detectives agreed to this arrangement. Specifically, the following exchange took place:
DETECTIVE COPELAND: (Reading Miranda rights) Do you understand these rights?
PETITIONER: I understand those rights and I'll act as my own attorney. When I ask you a question, I'll need your answer or we'll stop the interview. Fair is fair.
DETECTIVE COPELAND: Okay. So, so you're.
PETITIONER: You can ask me anything you want, I'm my own lawyer. I'll represent myself. I'll ask you anything I want, if you stop answering questions for me, then I'll stop answering questions for you.
DETECTIVE COPELAND: Okay.
PETITIONER: Fair is fair.
DETECTIVE COPELAND: Fair is fair. [Footnote omitted]
During the interrogation, the Petitioner asked the detectives about his brother and the detectives led the Petitioner to believe that his brother was still alive and that one [of] the handguns he had discarded before the flight had been fired. The Petitioner made several incriminating statements which were used against him at trial. After the Petitioner was informed that his brother was dead, he terminated the interview and refused to answer any more questions.
Answer (Doc. 11), In Chambers Ruling, Re: Petition for Post-Conviction Relief 8/3/2010 (Exh. "E") at 1-3.
On July 10, 2007, a grand jury indicted the Petitioner on one count of first degree murder for the shooting death of his brother Clark Duval. Id., Exh. "E" at 1; see also Answer (Doc. 11), Ct. App. Mem. Decision 9/24/2009 (Exh. "C") at ¶ 1. On April 11, 2008, a jury found Petitioner not-guilty of first degree murder, but found him guilty of the lesser-included offense of second degree murder, a class two felony. Answer (Doc. 11), Exh. "C" at ¶ 1, Exh. "E" at 1. On July 14, 2008, Petitioner was sentenced to the presumptive term of sixteen years imprisonment. Id., Exh. "C" at ¶ 1, Exh. "E" at 1.
A. Direct Appeal
On March 2, 2009, counsel for Petitioner filed an Anders  brief with the Arizona Court of Appeals. Answer (Doc. 11), Appellant's Opening Br. 3/2/2009 (Exh. "G"). Subsequently, Petitioner filed two pro se supplemental appellate briefs. Answer (Doc. 11), Appellant's Pro Se Suppl. Br. 7/17/2009 (Exh. "I") & Appellant's Pro Se Suppl. Br. 7/8/2009 (Exh. "M"). Petitioner initially alleged six (6) claims for relief, including that (1) "because of the irreconcilable conflict and friction' between him and his attorney of record, the trial court abused its discretion in refusing to replace trial counsel[;]" (2) "because he was prevented from participating in an effective and amicable manner with his trial counsel, he was deprived of the opportunity and right to put forth mitigating factors into the record of testimony and complete and full disclosure[;]" (3) because of the conflict between Petitioner and counsel "request after request for interview and investigation concerning family, friends, associates and witnesses went entirely unheeded or considered[, ]" preventing Petitioner for establishing mitigating factors and "conditions of historical background and motives of conduct[;]" (4) prosecutorial misconduct by the State "because it engaged in presenting facts and various misstatements about Appellant during the trial and sentencing that were prejudicial[;]" (5) "all officers of the honorable court did not participate in or take action to insure or represent a profound attitude of fairness[;]" and (6) based on the conflict between Petitioner and counsel "he was not given proper nor full and complete full disclosure of evidence[.]" Answer (Doc. 11), Exh. "M" at 2-3. The majority of Petitioner's first supplemental brief focused on the trial court's alleged failure to replace his attorney despite the "irreconcilable conflict" between them. See id., Exh. "M." Petitioner's second supplemental brief alleged that (1) "the trial court abused its discretion by not allowing attorney [sic] and Public Defender's Office [sic] to withdraw wholly and completely and the court's failure to acknowledge a gross conflict of interest and denial, summarily, of the Appellant's due process[;]" (2) Petitioner was "denied his right to pre-trial and hearing that would put forth mitigating factors and circumstances reflecting his nature and associations surrounding all trial issues and alleged events... [including] knowledge of a right to preliminary hearings, to include mitigation hearings and hearing of discovery[;]" and (3) the "denial of due process did not allow [Petitioner] to present mitigating testimony for the record nor for the jury's review." Id., Exh. "I" at 3-4. The majority of Petitioner's second supplemental brief focused on the alleged denial of a preliminary hearing. See id., Exh. "I."
On September 24, 2009, the Arizona Court of Appeals affirmed Petitioner's convictions. See Answer (Doc. 11), Ariz.Ct.App. Mem. Decision 9/24/2009 (Exh. "C"). As an initial matter the appellate court "note[d] that most of the arguments Thompson has attempted to assert in his first supplemental brief appear to have been copied from the pleadings of other defendants." Id., Exh. "C" at 3. The court went on to state that "[a]s such, they are generally unclear and unsupported by the record on appeal." Id. "To the extent Thompson intended to challenge Skitzki's conduct at trial, his arguments constitute claims of ineffective assistance of counsel, " which the Arizona Court of Appeals recognized must be brought in a post-conviction relief proceeding pursuant to Rule 32, Arizona Rules of Criminal Procedure, and that it therefore could not consider on appeal. Id., Exh. "C" at 4. The court further "reject[ed] Thompson's argument that his due process rights were violated because he was charged by indictment following a grand jury proceeding rather than by information following a preliminary hearing." Id., Exh. "C" at 5. In assessing this claim, the court of appeals recognized that "[i]n Arizona, a defendant may be charged by indictment, issued by a grand jury upon its finding that probable cause exists to believe the defendant committed the alleged offense, or by information, filed after a finding of probable cause is made by the court." Answer (Doc. 11), Exh. "C" at 5 (citing Ariz. Const. art. II, § 30; Ariz. R. Crim. P. 5.1, 13.1(c)). "The use of either procedure satisfies the requirements of due process." Id., Exh. "C" at 5 (citing State v. Neese, 126 Ariz. 499, 502-03, 616 P.2d 959, 962-63 (Ct. App. 1980)).
Petitioner did not seek review of this decision with the Arizona Supreme Court. Petition (Doc. 1) at 4.
B. Initial Post-Conviction Relief Proceeding
On October 2, 2009, Petitioner filed his Notice of Intent to File for Post-Conviction Relief ("PCR"). Answer (Doc. 11), Not. of Intent to File for PCR 10/2/2009 (Exh. "D"). On April 14, 2010, Petitioner filed his Petition for Post Conviction Relief. Answer (Doc. 11), Pet. for PCR (Exh. "L"). Petitioner claimed that his trial counsel was ineffective for failing "to file a motion to suppress the Defendant's statement based on it having been unconstitutionally obtained." Id., Exh. "L" at 12. In furtherance of this argument, Petitioner alleged that he "agreed to answer questions only if the detectives promised to answer his questions" and that "but for the detective's [sic] promise that the interview would proceed on a quid pro quo basis, the Defendant would have exercised his 5th Amendment right to remain silent." Id., Exh. "L" at 13-14. Petitioner further argued that the detectives "breach" of their agreement, invalidated Petitioner's Miranda  waiver. Id., Exh. "L" at 20. Petitioner claimed that based upon the detectives' alleged "breach, " counsel's "failure to file a motion to suppress Defendant's statement constitutes deficient performance[.]" Id., Exh. "L" at 15. Petitioner also claimed ineffective assistance of counsel, because trial counsel failed "to request additional disclosure to determine who actually located the weapons and the specific location where the weapons were found." Answer (Doc. 11), Exh. "L" at 23. Petitioner asserted that "[a]bsent disclosure of that information, counsel should have moved in limine to prevent the State from soliciting testimony that the weapons were found on the vehicle[.]" Id. Finally, Petitioner argued that trial counsel was ineffective for failing to create a record specifying which portions of Defendant's statement were redacted from the transcripts and compact discs that were "provided to the jury." Id., Exh. "L" at 24-25.
On August 3, 2010, the trial court denied Petitioner's post-conviction relief ("PCR") petition. See Answer (Doc. 11), Exh. "E." The trial court stated that "[i]n order for a petitioner to raise a colorable ineffective assistance of counsel claim, he must show that counsel's performance fell below objectively reasonable standards, and that this poor performance prejudiced him." Id. at 4 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227 (1985); State v. Jackson, 209 Ariz. 13, 14, 97 P.3d 113, 114 (2005)). In considering whether trial counsel was ineffective for failing to file a motion to suppress Petitioner's allegedly unconstitutionally obtained statements, the trial court first addressed the voluntariness of Petitioner's statement. Answer (Doc. 11), Exh. "E" at 5-6. The trial court noted that the record showed "that the Petitioner conditioned his willingness to answer the detective's [sic] questions on their assent to answer any questions he might have of them and the detectives agreed to this arrangement." Id., Exh. "E" at 6. The trial court further noted that "the record also reveals that it was Petitioner who solicited this arrangement with the police." Id. As such, the trial court found that the police did not promise a "benefit or leniency that would render the Petitioner's statement involuntary." Id. The trial court further found that trial counsel's "failure to seek suppression of the Petitioner's statements was a matter of trial strategy" and that trial counsel's actions were reasonable.
The trial court analyzed Petitioner's claim of ineffective assistance of counsel due to an alleged failure "to seek additional disclosure regarding the weapons evidence and failed to preclude testimony as to the exact location of the discovery of the weapons." Answer (Doc. 11), Exh. "E" at 7. The trial court delineated counsel's duty as follows:
[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.
Id., Exh. "E" at 7 (quoting Strickland v. Washington, 466 U.S. 668, 691 (1984)) (alterations in original). Upon review of the record and the pleadings, the trial court found that all witnesses "consistently claimed and testified that the weapons were discovered atop the car." Answer (Doc. 11), Exh. "E" at 8. As such, the trial court found counsel's decision not to seek suppression was reasonable and a matter of trial strategy. Alternatively, the trial court noted that "even if Trial Counsel's actions were unreasonable, the Petitioner ha[d] failed to demonstrate any prejudice[, ] and [his] claim that the weapons testimony affected the outcome of his case [was] speculative." Id.
Regarding trial counsel's alleged ineffectiveness for failing to make a record regarding the redaction of Petitioner's derogatory statements about illegal aliens, the trial court stated that "[t]here is no Arizona authority to support the proposition that a hearing cannot be waived and the matter submitted by stipulation of counsel[.]" Answer (Doc. 11), Exh. "E" at 8 (quoting State v. Contreras, 112 Ariz. 358, 359, 542 P.2d 17, 18 (1975)). Furthermore, "in Arizona, courts encourage stipulations to narrow the facts and promote judicial economy.'" Id., Exh. "E" at 8 (quoting State v. Allen, 223 Ariz. 125, ¶ 11, 220 P.3d 245, 247 (2009). The trial court determined that even if trial counsel's actions were unreasonable, "Petitioner has failed to demonstrate any prejudice and his claims are speculative." Id., Exh. "E" at 9. As such, the trial court denied relief.
On August 16, 2010, Petitioner filed his Petition for Review to Arizona Court of appeals. See Pet. for Review to Ariz.Ct.App. 8/16/2010 (Doc. 1-4) at 11. On February 8, 2011, the Arizona Court of Appeals granted review, but denied relief. Ariz.Ct.App. Mem. Decision 2/8/2011 (Doc. 1-4) at 33. The court of appeals considered Petitioner's claims of ineffective assistance of counsel due to (1) an alleged failure to move to suppress Thompson's statements to police as involuntary, and (2) an alleged failure to move for additional disclosure regarding who had located the weapons and where they had been found. Id. at 34. The court of appeals further noted that "Thompson also claimed in his petition below that the redaction of [his] statement was improper under the circumstances.' He does not mention this argument on review and we therefore do not address it." Id. at 34 n. 1. The court of appeals stated that "[i]n the context of an ineffective assistance of counsel claim like the one before us, ... a petitioner bears the burden to show counsel's deficient performance prejudiced him-that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" Id. at 36 (quoting Strickland, 466 U.S. at 687). The court of appeals went on to "agree with the trial court that Thompson ha[d] not met that standard." Id. Moreover the court of appeals also found that the trial court "correctly rejected Thompson's other claims in a thorough and well-reasoned minute entry." Id. As such it saw "no purpose in repeating or embellishing the court's rulings on those claims..., and therefore adopt[ed] them." Id. (citing State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (Ct. App. 1993)).
On March 4, 2011, Petitioner sought review of the denial of his PCR petition by the Arizona Supreme Court. Pet. for Review to Ariz. Supreme Ct. 3/4/2011 (Doc. 1-4) at 38. On June 8, 2011, the Arizona Supreme Court denied review. Ariz. Supreme Ct. ME 6/8/2011 (Doc. 1-4) at 54.
C. Second Post-Conviction Relief Proceeding
On October 27, 2011, Petitioner filed his Notice of Post-Conviction Relief. Not. of PCR 10/27/2011 (Doc. 1-4 at 60). Based upon newly discovered evidence, a significant change in the law, actual innocence, and that his failure to file a timely PCR notice was not his fault, Petitioner claimed (1) a Brady violation based upon the State's alleged failure to disclose a complete transcript of Petitioner's own statement to police; (2) the State's alleged failure to disclose evidence "led directly to Extrinsic Collateral Fraud" in violation of his due process rights; (3) false evidence was used to obtain a conviction against him, as a result of the allegedly shortened version of the transcript of his police interview relied on by the State; (4) state court errors denied Petitioner a fair trial; (5) spoliation of evidence due to the alleged alteration of Petitioner's interview transcript; (6) fraudulent concealment based upon the State's alleged failure to disclose the complete transcript of Petitioner's interview; (7) a fundamental miscarriage of justice based upon the alleged alteration of the transcript of Petitioner's statement to police; and (8) that the jury instructions were inconsistent with S.B. 1449. Notice of PCR 10/27/2011 (Doc. 1-4) at 60-87.
On January 6, 2012, the trial court denied Petitioner second PCR petition. In Chambers Ruling, Re: Pet. for PCR 1/6/2012 (Doc. 1-5) 23-26. The trial court analyzed Petitioner's claims regarding alleged inconsistencies in the transcripts of his police interview under the standard of newly discovered evidence. Id. at 23. The trial court observed that "Petitioner's argument is severely flawed[, ]" noting that "Exhibit is A is in fact the Pima County Public Defender's transcription of Thompson's interview with police created on July 3, 2007[, ] [which] was created, maintained, and possessed by Petitioner and his counsel since July 3, 2007." Id. The trial court further noted that "Exhibit B is in fact the Pima County Attorney's transcription of the same interview, but was created on July 7, 2007... [and] not within the sole possession of the State and... available to Petitioner at the time of trial." Id. The Court found that "only the CD audio recording of the interview was admitted, not the transcript[, ] [and] [t]he CD contains the accurate and unredacted statements made by Petitioner without the concern of conflicting transcripts." Id. at 23-24. The trial court analyzed Petitioner's claim regarding allegedly improper jury instructions as one for ineffective assistance of counsel. In Chambers Ruling, Re: Pet. for PCR 1/6/2012 (Doc. 1-5) at 25. The trial court found that "Petitioner ha[d] failed to identify the statute at issue which would require the alternate jury instruction[, ] that a review of SB 1449 was unhelpful, and that in light of Petitioner's admission to shooting the victim in this case, "[a] jury instruction defining assault as being without physical contact is irrelevant[.]" Id.
On February 6, 2012, Petitioner filed a Petition for Review (Doc. 1-5) at 40-73. See also Answer (Doc. 11), Pet. for Review 2/6/2012 (Exh. "N"). Subsequently, on February 10, 2012, Petitioner filed a Notice of Filing Petition for Review. (Doc. 1-5) at 28. On May 30, 2012, the Arizona Court of Appeals granted review, but denied relief. See Ariz.Ct.App. Mem. Decision (Doc. 1-5) at 76-80. Regarding the transcripts of Petitioner's police interview, the court of appeals found that "only the audio recording of the statements was played for the jury; the redacted version of the state's transcript was used during testimony[, ] but was not admitted into evidence." Id. at 78. The appellate court further found that "the transcript Thompson claimed the state had failed to disclose to him was actually the transcript prepared by the Public Defender's office, exhibit A to Thompson's petition." Id. Additionally, any redaction had occurred due to Petitioner's desire not to have the jury "hear anything about his having individuals suspected of being undocumented immigrants at gunpoint on his property." Id. Ultimately, both transcripts were marked as exhibits during trial, but not admitted. Id. at 78-79. The court of appeals found that Petitioner had "failed to establish the [trial] court abused its discretion when it summarily dismissed his notice/petition." Ariz.Ct.App. Mem. Decision (Doc. 1-5) at 79. The appellate court also found that the trial court properly addressed the timeliness of the State's response to Petitioner's second PCR petition. Id. As such, the Arizona Court of Appeals found that "[i]n all other respects, in its well-reasoned minute entry the trial court clearly identified and correctly resolved the claims Thompson had raised... [and] we adopt that ruling." Id. at 79-80.
On September 13, 2012, the Arizona Supreme Court denied review. Answer (Doc. 11), Ariz. Supreme Ct. ME 9/13/2012 (Exh. "K").
D. The Instant Habeas Proceeding
On October 18, 2012, Petitioner filed his Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1). Petitioner claims eight (8) grounds for relief, with some issues including multiple subparts. First, Petitioner alleges ineffective assistance of trial counsel due to an alleged failure "to move to suppress petitioners [sic] unconstitutionally obtained statement this violated petitioners [sic] Right to Counsel and Right to Due Process of the Law[.]" Petition (Doc. 1) at 6. Petitioner further alleges that the trial court erred in not finding his statement to police to be coerced. Id. Second, Petitioner alleges ineffective assistance of trial counsel based on an alleged "fail[ure] to move for additional disclosure as to who found the SKS &.45 cal. weapons this precluded testimony as to the exact location of discovery of weapons." Id. at 7. Petitioner further alleges that counsel "failed to conduct reasonable pre-trial investigation" in violation of his right to counsel and due process. Id. Third, Petitioner claims that "[t]he State failed to disclose Brady" evidence (23) pages of Mr. Thompson's statement in possession of Pima County Sheriff's Office and investigative agencies which the State had access to... in violat[ion] [of] petitioners [sic] right to Due Process of the Law[.]" Id. at 8. Fourth, Petitioner asserts that "[t]he State failed to disclose evidence favorable to the accused as defense requested disclosure under Rule 15.1 & 15.1(b)... [in violation of] the petitioner's Rights to Due Process of the Law[.]" Petition (Doc. 1) at 9. Fifth, Petitioner alleges that "[f]alse evidence [was] used to convict... [in violation of] petitioners [sic] right to a fair trial, [and] rights to due process of the law." Id. at 10. As with Grounds Three and Four, this relates to the redacted transcription relied on by the State during trial. See id. at 8-10. Sixth, Petitioner claims that "State Court Errors Denied Defendant a Fair Trial as defendants [sic] conviction resulted from state court errors[.]" Id. at 11. This ground for relief includes "supporting facts" which appear to be either ways in which the trial court erred or possibly additional claims. See id. These include: (a) 18 U.S.C. §§ 1001, 1021 & 1622; (b) 18 U.S.C. § 1506; (c) Rules of Evidence 1002 & 106; (d) Federal Rules of Criminal Procedure 26.2(f)(2); (e) twenty-three (23) "pages of the July 8, 2007 [transcript] required to be released the same time the [ninety-four] (94) pages were released[;]" (f) "the Court was supposed to do the redaction and seal the entire statement[;]" (g) "any part of the statement should be considered contemporaneously with it[;]" (h) "139, 140 & 141 was never as of yet released to petitioner[;]" (i) spoliation "because it was harmful to prosecution's case[;]" (j) "Petitioner meets all (5) criteria of fraudulent concealment[;]" and (k) a reference to pages 9-18 of Petitioner's October 27, 2011 PCR petition. Petition (Doc. 1) at 11. Seventh, Petitioner alleges that "[t]he State denied the defense the right to reciprocal discovery... [in violation of] the petitioners [sic] rights to due process of the law[.]" Id. at 12. This again relates to the differing transcriptions of Petitioner's statements to police. See id. Eighth, Petitioner alleges "[o]utside influences upon the jury raise the presumption of prejudice that imposes a heavy burden on the State to overcome by showing that these influences were harmless to the petitioner." Id. at 13. Petitioner is referring to the redacted transcript relied on by the State during his trial and provided to the jury during its case in chief. See id. On January 22, 2013, Respondents filed their Answer (Doc. 11), and on February 7, 2013, Petitioner filed his Traverse (Doc. 13).
II. STANDARD OF REVIEW
A. In General
The federal courts shall "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws of treaties of the United States. " 28 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus by a person in state custody:
shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d); see also Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). Correcting errors of state law is not the province of federal habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991). Ultimately, "[t]he statute's design is to further the principles of comity, finality, and federalism.'" Panetti v. Quarterman, 551 U.S. 930, 945, 127 S.Ct. 2842, 2854, 168 L.Ed.2d 662 (2007) (quoting Miller-El v. Cockrell, 537 U.S. 322');"> 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)). Furthermore, this standard is difficult to meet and highly deferential "for evaluating state-court rulings, [and] which demands that state-court decisions be given the benefit of the doubt." Pinholster, 131 S.Ct. at 1398 (citations and internal quotation marks omitted).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 110 Stat. 1214, mandates the standards for federal habeas review. See 28 U.S.C. § 2254. The "AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Burt v. Titlow, ___ U.S. ___, 134 S.Ct. 10, 16, 187 L.Ed.2d 348 (2013). Federal courts reviewing a petition for habeas corpus must "presume the correctness of state courts' factual findings unless applicants rebut this presumption with clear and convincing evidence.'" Schriro v. Landrigan, 550 U.S. 465, 473-74, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007) (citing 28 U.S.C. § 2254(e)(1)). Moreover, on habeas review, the federal courts must consider whether the state court's determination was unreasonable, not merely incorrect. Id., 550 U.S. at 473, 127 S.Ct. at 1939; Gulbrandson v. Ryan, 738 F.3d 976, 987 (9th Cir. 2013). Such a determination is unreasonable where a state court properly identifies the governing legal principles delineated by the Supreme Court, but when the court applies the principles to the facts before it, arrives at a different result. See Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Casey v. Moore, 386 F.3d 896, 905 (9th Cir. ...