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Sanders v. Cullen

United States Court of Appeals, Ninth Circuit

October 13, 2017

Ricardo Rene Sanders, Petitioner-Appellant,
Vince Cullen, Acting Warden, Respondent-Appellee.

          Argued and Submitted May 11, 2017 Pasadena, California

         Appeal from the United States District Court for the Central District D.C. No. 2:96-cv-07429-JFW of California John F. Walter, District Judge, Presiding

          Verna J. Wefald (argued), Pasadena, California; William J. Genego, Santa Monica, California; for Petitioner-Appellant.

          Dana Muhammad Ali (argued), Michael J. Wise, and A. Scott Hayward, Deputy Attorneys General; Lance E. Winters, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Office of the Attorney General, Los Angeles, California; for Respondent-Appellee.

          Before: Morgan Christen, Jacqueline H. Nguyen, and Paul J. Watford, Circuit Judges.

         SUMMARY [*]

         Habeas Corpus / Death Penalty

         The panel affirmed the district court's denial of Ricardo Rene Sanders's habeas corpus petition challenging his conviction and death sentence for four counts of first-degree murder.

         The panel held that because Sanders failed to prove that any of four eyewitnesses provided material, false testimony or that the prosecution knew they committed perjury, the state court's rejection of Sanders's claims under Mooney v. Holohan, 294 U.S. 103 (1935), and Napue v. Illinois, 360 U.S. 264 (1959), relating to those eyewitnesses was neither contrary to clearly established federal law nor objectively unreasonable. The panel held that the state court reasonably denied Sanders's Mooney-Napue claims relating to two non-eyewitnesses.

         The panel held that the state court reasonably denied Sanders's claims that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose material, exculpatory impeachment evidence about five trial witnesses.

         The panel held that the state court reasonably denied Sanders's claims relating to the exposure of two eyewitnesses, who provided in-court identifications of Sanders, to a gag photograph of Sanders and a codefendant holding fake guns. The panel wrote that assuming that the eyewitnesses' exposure to the photograph was exculpatory evidence that was not disclosed, Sanders did not demonstrate that it was material under Brady because the eyewitnesses identified Sanders at a lineup before they saw the photo.

         Regarding Sanders's claim that he was entitled to relief under Mesarosh v. United States, 352 U.S. 1 (1956), which applies in those rare situations where the credibility of a key government witness has been wholly discredited by the witness's commission of perjury in other cases involving substantially similar subject matter, the panel held that the state court could have reasonably distinguished this case from Mesarosh.

         The panel held that the state court reasonably denied Sanders's claim that the prosecution failed to preserve a witness's lineup card in bad faith.

         The panel held that the state court reasonably denied Sanders's claim under Massiah v. United States, 377 U.S. 201 (1964), that the prosecution planted a witness next to Sanders in a jailhouse van after Sanders's preliminary hearing in order to obtain an incriminating statement in violation of his Sixth Amendment right to counsel.

         Regarding Sanders's claim that counsel was ineffective for failing to move to suppress a lineup, the panel held that the state court could have reasonably determined that defense counsel did not render deficient performance by failing to file a motion that was unlikely to succeed.

         The panel concluded that because Sanders did not show that there were multiple deficiencies in his guilt-phase trial, cumulative error does not require reversal of his convictions.



         Ricardo Rene Sanders appeals from the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Sanders was convicted of four counts of first-degree murder in 1982 stemming from his involvement in a robbery at a Bob's Big Boy restaurant in December 1980. He is currently on death row in California.

         The witnesses against Sanders at trial included four eyewitnesses and two informants. Sanders did not present an alibi; instead, he argued that the eyewitnesses incorrectly identified him as one of the gunmen and the police arrested the wrong person. Sanders's trial counsel attacked the accuracy of the eyewitness identifications and the informants' credibility through vigorous cross-examination. In his federal habeas petition, Sanders continues to attack both.

         Sanders's petition argues that the prosecution knowingly used perjured testimony from witnesses at his trial in violation of Mooney v. Holohan, 294 U.S. 103 (1935), and Napue v. Illinois, 360 U.S. 264 (1959), and that the State failed to disclose material, exculpatory information as required by Brady v. Maryland, 373 U.S. 83 (1963). Sanders also argues that the prosecution improperly influenced two in-court identifications, failed to preserve exculpatory evidence and planted a jailhouse informant in a van with Sanders to obtain an incriminating statement from him. Finally, Sanders raises one ineffective assistance of counsel claim for the failure to move to suppress eyewitness identifications made at a lineup shortly after the crime occurred. Because we conclude that the California Supreme Court's resolution of Sanders's claims was not contrary to clearly established federal law nor based on an unreasonable determination of the facts, we affirm the district court's denial of the petition for a writ of habeas corpus.


         I. Facts

         At around 2 a.m. on December 14, 1980, there was an armed robbery at Bob's Big Boy restaurant on La Cienega Boulevard in Los Angeles, California.[1] Two customers and nine employees were inside when two men forced their way into the restaurant, just as it was closing. Four of these individuals died as a result of injuries suffered during the course of the robbery. Four of the surviving witnesses identified Sanders at trial: Tami Rogoway, one of the customers; Michael Malloy, the night manager; Rhonda Robinson, a waitress;[2] and Ismael Luna, a busboy.[3]

         Night manager Malloy was in the office preparing to count money from the cash register when the cook, Derwin Logan, told Malloy that the two remaining customers wanted to be let out. As the door opened, two robbers shoved their way inside. The robbers did not wear masks or otherwise cover their faces. The taller of the two men (allegedly Sanders) said, "It's a jack. It's a stickup." He grabbed the keys and the shorter robber (allegedly codefendant Franklin Freeman Jr.) hit one of the employees on the head with the butt of his shotgun.

         The taller robber took Malloy, Rogoway, Logan, and David Burrell, the other customer, to the back of the restaurant and ordered them to lie on the floor in a hallway outside of a walk-in freezer and the office. He asked for the manager and Malloy stood up. The taller robber ordered Malloy to give him the money in the safe, which amounted to roughly $1, 300. Some of the coins were wrapped in Bank of America coin wrappers.

         The taller robber then told Malloy, Rogoway, Logan, and Burrell to "get up off the floor . . . We are going to the back. You're going to get hurt." He directed them into the freezer, where the employee who had been hit with the rifle was lying on the floor unconscious. The rest of the employees were waiting there as well. The taller robber said: "I want watches, wallets, and jewelry." Malloy gathered the items in a bucket, and handed it to the taller robber. No one resisted, but some people pleaded for the robbers not to hurt them. The robbers ordered everyone to turn around to face the wall and kneel. The two men then fired their guns into the backs of the group until they ran out of ammunition. Then they closed the freezer door and left.

         Inside the freezer people lay piled on top of each other and on the floor. One of the customers and two employees were dead. Ismael's father, Cesario Luna, who was also a restaurant employee, died several months later from complications related to a bullet wound in his brain. Night manager Malloy was shot in the right eye, which he lost. Rogoway, the other customer, suffered shotgun injuries to her back and spine, resulting in numbness on her right side and the periodic inability to walk. Two other employees sustained serious injuries, including Dionne Irvin, a waitress. The three remaining victims-Ismael Luna, Robinson, and Logan-were physically unharmed.

         A. The Initial Investigation

         Later that day, the police showed many of the eyewitnesses photographs from the West Los Angeles Division CRASH book, [4] which contained photographs of suspected gang members in the West Los Angeles area. The book did not include photos of Sanders or codefendant Freeman. Rogoway, Robinson, and Logan all selected photograph No. 132 as the taller robber. Photograph No. 132 depicted a man named David Hall, a person who bore a striking resemblance to Sanders according to the state trial court.

         On the morning after the robbery, the police interviewed several Bob's Big Boy employees who were not at the restaurant during the robbery the night before. The employees suggested that a former waitress, codefendant Carletha Stewart, may have been involved in the crime. Stewart and Sanders were dating at the time of the robbery and Freeman was Stewart's cousin. None of the employees mentioned Sanders or Freeman as possible suspects.

         Brenda Givens, a waitress at Bob's Big Boy, worked with Stewart at the restaurant for several months. Givens provided a statement to the police about an encounter she had with Stewart in September 1980, when she ran into Stewart while visiting her boyfriend at Los Angeles County Jail.[5]

         According to Givens, Stewart said that it was a "good thing" that the two women ran into each other "because they gonna rob Bob's Big Boy tonight." Stewart told Givens that she did not want Givens to get hurt, but did not say who specifically was going to rob the restaurant. At Sanders's trial, Givens testified that two men were at the jail with Stewart on the day Stewart warned her about the robbery, but the men were not present for the conversation. Givens testified that she told the police about the two men when she was interviewed on December 14, but the men were not mentioned in her signed statement.[6]

         On the same day Givens saw Stewart at the jail, she reported for her evening shift at Bob's Big Boy and told four managers about her conversation with Stewart. Store manager Kim Clark and night manager Rodell Mitchell were among the managers to whom Givens reported. According to Givens, Stewart came to the restaurant that night with another man at around 11:30 p.m. Givens later learned the man's name was Andre Gilcrest.

         Givens testified that Stewart called her after leaving the restaurant with Gilcrest that evening. She asked what time Givens would be leaving and how many employees remained in the restaurant, and Givens answered that she did not know. Givens recalled staying until after the restaurant closed at 2 a.m. and remembered that Stewart knocked on the front door and window shortly after closing while employees were cleaning their assigned stations. The door was locked and Mitchell did not open the door. Stewart left before Givens went home.[7]

         B. Andre Gilcrest Implicated Sanders Shortly After the Crime

         Within days after the December 14 robbery, several other individuals came forward with information implicating Sanders. On December 20, 1980, Andre Gilcrest went to the Los Angeles Police Department (LAPD) and gave a statement implicating Sanders, Stewart, and Freeman. Gilcrest was Stewart's ex-boyfriend and he had been romantically involved with her on and off for about five years. According to Gilcrest, he went with Stewart to Bob's Big Boy sometime before the robbery. Gilcrest could not recall the precise date of this nighttime visit, but, like Givens, he recalled that there had been another murder a few blocks away that night.

         Gilcrest was given immunity and testified at Sanders's trial. He testified that before he and Stewart went to the restaurant on September 27, Stewart told him that Sanders and Freeman were going to rob Bob's Big Boy that night. Gilcrest described going with Stewart to the restaurant between 11:30 p.m. and 12:30 a.m. to drink coffee because Stewart wanted to see how many people were working. Gilcrest testified that while they were there Stewart asked the waitresses which managers were working and how many people were still there. They left about fifteen minutes before closing and went to Stewart's house. Gilcrest believed that the robbery would take place after they left, and he testified that he saw Sanders and Freeman at Stewart's house later that night. Gilcrest saw Stewart talking to Sanders and Freeman in a blue Cadillac, and also saw Sanders show Stewart a sawed-off, short-barrel shotgun. According to Gilcrest, Freeman also had a short-barrel shotgun braced against his leg. Gilcrest testified that after Sanders and Freeman left, Stewart said that they had gone to rob Bob's Big Boy. When they did not return within an hour, Stewart told Gilcrest that she was going to Bob's Big Boy to find them. According to Gilcrest, Stewart did not find them at the restaurant, but Sanders called Stewart later that night to report that they did not go through with the robbery because the manager did not come out. Gilcrest and Stewart did not discuss the robbery again.

         Gilcrest heard about the December 14 robbery at Bob's Big Boy the day after the crime and he told his younger brother about what had happened when he went to the restaurant with Stewart on September 27. The brother told their mother, and she confronted Gilcrest with the ultimatum that she would call the police if Gilcrest did not come forward. Gilcrest contacted the police roughly two days later.

         C. Sanders's Arrest

         On December 22, 1980, roughly one week after the crime, the police arrested Sanders, Stewart, and Freeman. Sanders testified at a pretrial motions hearing that he did not resist, but police officers kicked and beat him with a shotgun during the course of the arrest. At trial the parties stipulated that X-rays of Sanders's chest taken on December 24, 1980, showed three fractured ribs and subcutaneous emphysema, which is a type of swelling below the skin.

         The police also executed search warrants at Sanders's, Stewart's, and Freeman's residences. They found a sawed-off shotgun, a full-length shotgun, and shotgun shells in Sanders's bedroom, and additional shotgun rounds and an empty holster in his father's bedroom. The police found another shotgun at Freeman's father's house, but the State's ballistics expert acknowledged that he could not connect any of the guns or ammunition to the Bob's Big Boy robbery. At Stewart's residence, the police found $90 in $1 bills and rolls of coins in Bank of America wrappers. The money was not conclusively linked to the crime, and no jewelry or other personal property belonging to the victims was found.

         D. The December 23, 1980 Lineup

         The LAPD held a lineup that included Sanders and Freeman on December 23, 1980, the day after their arrest. The lineup consisted of two lines: Lines 3 and 4.[8] Sanders was Number 4 in Line 3 and Freeman was Number 3 in Line 4. The other men in Sanders's line were of similar height, weight, build, and complexion to Sanders. They all had some facial hair. Sanders was the only one in his line with a Jheri curl hairstyle, but the suspects had similar length hair. Sanders was also the only person not wearing shoes. His feet were not visible in the videotape of the lineup. All of the men in the lineup were wearing long-sleeve shirts under their prison uniforms and Sanders's injuries from the alleged police beating were not visible. Sanders was not represented by counsel at the lineup because counsel was not appointed until his arraignment, which took place the following day.

         Three eyewitness employees attended the live lineup held December 23: Logan, Robinson, and Ismael Luna. Logan made an identification from each line, but selected neither Sanders nor Freeman. Robinson selected Sanders from Line 3, and wrote "positive" next to her identification on the lineup card, but she also noted that "No. 6 sounds like the robbers." Luna tentatively selected Sanders from Line 3.

         Night manager Malloy viewed a videotape of the lineup on December 23 because he arrived late. He selected Sanders from Line 3, and wrote that he was "positive" about his choice in the remarks section of the lineup card. At trial, Malloy remembered writing "positive" on the card, but he also testified that the handwriting on the card did not look like his.

         Rogoway and Irvin were both injured in the robbery and unable to attend the December 23 lineup, but they watched the videotape of it on January 2, 1981 after they were discharged. Rogoway's and Irvin's lineup cards were lost sometime after February 1981 and Rogoway gave conflicting testimony at Sanders's preliminary hearing and trial with respect to whether she selected anyone from the lineup. At the preliminary hearing, Rogoway testified that she did not choose anyone, but at trial she watched the videotape again and stated that she selected Sanders on January 2. After watching the videotape at trial, she said she was "pretty certain" about the identification when she selected Sanders on January 2. Irvin also selected Sanders after viewing the videotape, but she did not testify at trial because the court declared her incompetent to do so.

         E. Bruce Woods Implicated Stewart After the Arrest

         In late December, Bruce Woods came forward with information after seeing a newspaper article about the robbery. Woods was in county jail on a pending burglary charge. According to Woods, he was riding in a car with Stewart and a mutual friend in August 1980, when Stewart asked the friend if he would like to make some money by robbing Bob's Big Boy. The friend replied, "Are you crazy?" and the conversation ended. Woods explained that he met Stewart through the mutual friend and had seen her five or six times before this conversation took place.

         F. Information and Preliminary Hearing

         Sanders, Stewart, and Freeman were charged with four counts of first-degree murder, six counts of robbery, two counts of attempted robbery, seven counts of assault with a deadly weapon, and one count of conspiracy to commit robbery.[9] The State alleged that the defendants committed the murders under the special circumstances of multiple murder and felony-murder robbery.

         All seven surviving eyewitnesses testified at Sanders's and Stewart's joint preliminary hearing held over the course of five days on March 20 and March 23-26, 1981.[10] The prosecution asked five of the eyewitnesses-Malloy, Rogoway, Robinson, Luna, and Logan-to identify Sanders in court. Sanders was seated behind a blackboard while the witnesses testified. The blackboard was removed at the end of each witness's testimony, and the witnesses were asked whether they recognized Sanders. Malloy unequivocally said that he recognized Sanders as the taller robber. Rogoway also testified that she could positively identify Sanders as the taller robber.

         Robinson, Luna, and Logan were far less certain. Robinson could not identify Sanders. She testified that she did not know whether Sanders was one of the robbers nor whether he even looked like the person she selected at the December 23 lineup. Luna similarly testified that Sanders did not "seem to be" one of the robbers, and that he was "not really sure" whether Sanders was the man he selected. Logan testified that Sanders was "a very good likeness, " but he "couldn't identify him positively."[11]

         Givens, Mitchell, Gilcrest, and Woods all testified about their interactions with Stewart leading up to the robbery. Gilcrest positively identified Sanders, but the others were not asked to do so. Woods testified over the course of two days while still in custody for the pending burglary charge. On March 20, Woods and Sanders were transported back to jail in the same van even though Woods was in protective custody and was supposed to be kept away from Sanders. Woods had not met Sanders before the van ride.

         Roughly one week after the preliminary hearing, Woods informed two officers that Sanders had threatened him in the van. Woods recounted the threat in his testimony at Sanders's trial, describing that Sanders told him not to testify against the defendants because Stewart was young, and because, if convicted, Sanders would get "the gas." Woods also testified that Sanders indicated "they" knew where Woods lived, and that Woods's family would "get involved" if Woods talked.

         G. Sanders's Trial

         The three codefendants were tried separately. Sanders's trial was held first, beginning in May 1982 and lasting for roughly three months. The case was prosecuted by Deputy District Attorney Harvey Giss. Sanders was represented by Leslie Abramson.

         The State's case consisted primarily of eyewitness accounts; testimony from Givens, Mitchell, and Gilcrest about the events of September 27, 1980; Bruce Woods's testimony about his August 1980 encounter with Stewart and their mutual friend; and the physical evidence found at Sanders's and Stewart's homes. Four eyewitnesses identified Sanders at trial with varying degrees of certainty. Malloy was the State's first witness, and he identified Sanders as the taller robber without hesitation. Rogoway also identified Sanders as the taller robber. Robinson identified Sanders as one of the robbers, but admitted that she was unable to identify him at the preliminary hearing. When Luna was asked if there was anyone in the courtroom who was present on the night of the robbery, he answered "I think he's there in front of that lady, " and pointed to Sanders.

         The defense attacked Gilcrest's and Woods's credibility and the accuracy of the eyewitness identifications, pointing out inconsistencies in their testimony and emphasizing the lack of physical evidence from the crime scene. Defense counsel also questioned the evidence found at Sanders's and Stewart's homes because it was not conclusively linked to the crime.

         After deliberating for four days, the jury convicted Sanders of all charges. The penalty phase started on August 25, 1982 and lasted for four days. After two-and-a-half days of deliberations, the jury recommended a death sentence. The court imposed a death sentence on December 3, 1982.[12]

         II. Post-Trial Jailhouse-Informant Scandal

         A. The Scandal

         Six years after Sanders's trial, a scandal erupted in Los Angeles surrounding the use of jailhouse informants in criminal prosecutions. In October 1988, Leslie White demonstrated to the Los Angeles Sheriff's Department how he and other informants had obtained information "about defendants they had never met" to fabricate claims that they heard confessions while in jail. Gonzalez v. Wong, 667 F.3d 965, 1004 (9th Cir. 2011) (W. Fletcher, J., concurring in part). White explained that he was one of several prisoners who gave bogus testimony about such confessions in order to get better deals in their own cases, and for other privileges. Id. at 1005 (9th Cir. 2011). A grand jury was empaneled to look into the improper use of informant testimony by the Los Angeles County District Attorney's Office. Id. The grand jury issued a 150-page report painting "a harrowing picture of the role of jailhouse informants in the Los Angeles County criminal justice system during this period" and noted the "appalling number of instances of perjury or other falsifications to law enforcement" by informants. Id. at 1005-06. The report found that informants were given numerous benefits for their fabricated confessions, such as being transferred to jails perceived to be more desirable. Id. at 1007.

         The District Attorney's Office reviewed all cases from the previous ten years in which: (1) a jailhouse informant testified as a witness for the State "at a preliminary hearing or trial to admissions or confessions made by a defendant to the informant while the informant and the defendant were in custody together;" or (2) Leslie White testified as a witness for the State on any subject matter. Leslie White did not testify at Sanders's trial, but he was romantically linked to one of the eyewitnesses who did, Tami Rogoway.

         B. Leslie White's Connection to Eyewitness Tami Rogoway

         Roughly one month before jury selection started for Sanders's trial, Deputy District Attorney Giss testified at a discovery hearing about a connection between Tami Rogoway and Leslie White. Giss testified that White forwarded a letter that had been written by a prospective defense witness and prison inmate, Richard Quine. The letter was addressed to Quine's girlfriend, Gina Gutierrez. Gutierrez was Rogoway's friend and it was through these mutual acquaintances that Rogoway met White. In his letter, Quine offered himself as a fake informant against codefendant Freeman. In relevant part, the letter stated:

I need you [Gina] to tell Tami that I can help her out on putting Freeman away . . . . Ask her if she is going to court on him still, and if so, all she has to do is tell me about his case, then call the D.A. and tell him she knows someone that Freeman told he did what he is in jail for . . . .

Giss testified that White told him about Quine's offer to give false testimony about five months before the discovery hearing, and that the prosecution planned to produce a tape recording of its follow up interview with White because the interview might be relevant to defense efforts to impeach Tami Rogoway. Defense counsel Abramson expressed concern that White might have tampered with witnesses. Giss responded, under oath, "Leslie White was never used as an agent of the police, " and the prosecution "never made a deal with him, never offered anything, never asked for anything."

         The state trial court ruled that defense counsel could only question Tami Rogoway about Richard Quine, Leslie White, and the letter offering false testimony against Freeman if Quine was first called to testify. Neither Quine nor White were called. On May 15, 1982, roughly two weeks after Sanders's trial started, White signed an affidavit stating that: (1) he had no knowledge adverse to the defense in the Bob's Big Boy case; (2) he received no statements about the case from Sanders or Freeman; (3) everything he knew about the case he learned from his ex-girlfriend Tami Rogoway; (4) he had not been asked by the prosecution to solicit information from Sanders or Freeman; and (5) he was not "an informant in any capacity." Police notes from a contemporaneous interview with White indicate he told the police that both Sanders and Freeman approached him in prison and asked him to testify that Rogoway said she did not know who shot her on the night of the robbery. White's May 15, 1982 affidavit made no mention of Sanders and Freeman approaching White in prison.

         On March 13, 1989, White testified as a defense expert on the use of jailhouse informants in an unrelated state court case, People v. Marshall.[13] In that testimony, White claimed that in 1981 a Deputy District Attorney who was not involved with the Bob's Big Boy case arranged for White to be transferred from Chino State Prison to Long Beach City Jail, where White was released on regular weekend furloughs. Furlough orders-signed by a judge not involved in the Bob's Big Boy case-corroborate that White was released from jail repeatedly for long weekends between October and December 1981.

         In the Marshall case, White testified that he gave information to the prosecution in the Bob's Big Boy case during the period he was receiving furloughs. He characterized his involvement as "basically behind the scenes in the sense [that Giss] was asking me to do certain things on the street and in jail I was doing - - I would collect the results." White also testified in the Marshall case that he was romantically involved with one of the eyewitnesses in the Bob's Big Boy prosecution, that Deputy District Attorney Giss knew that White was "having sexual relations" with Rogoway, and that over the course of his three month relationship with Rogoway, he told her false information from other jailhouse informants that was detrimental to Sanders and Freeman, but he did not know what Rogoway did with the information.

         On August 8, 1989, White again testified about his relationship with Rogoway, this time before the grand jury investigating the jailhouse-informant scandal. He stated that his relationship with Rogoway started before his furloughs from the Long Beach City Jail, that he met Rogoway through Gutierrez and Quine, and that he corresponded with Rogoway while he was at Chino State Prison. White claimed that after he was transferred to Long Beach City Jail, he was allowed to have contact visits with Rogoway. He also testified that Giss was aware of the situation, and that Giss told him "to keep [his] mouth shut about the relationship." According to White, Giss asked him to find out anything he could related to Quine or other defense witnesses, and asked White for any letters Quine sent to Gutierrez.

         III. Procedural History

         In September 1995, while Sanders's case was pending on automatic appeal, Sanders filed a state habeas corpus petition in the California Supreme Court. The California Supreme Court affirmed Sanders's conviction and death sentence in November 1995. People v. Sanders, 905 P.2d 420 (Cal. 1995). In February 1996, the California Supreme Court summarily denied Sanders's state habeas petition on the merits, and Sanders's conviction became final on October 7, 1996, when the United States Supreme Court denied his petition for writ of certiorari. See Sanders v. California, 519 U.S. 838 (1996).

         Sanders timely filed a federal habeas petition in the Central District of California raising forty-five claims. In 1998 and 1999, the district court dismissed roughly half his claims in response to dispositive motions filed by the State. None of the claims dismissed in those orders are before this court on appeal.

         In December 1999, Sanders filed a motion for an evidentiary hearing on seventeen of the eighteen claims that are at issue in this appeal.[14] The district court denied Sanders's motion for an evidentiary hearing and ruled that the seventeen claims before this court did not have a "colorable basis." In January 2002, Sanders filed a motion to vacate the order denying his request for an evidentiary hearing or, alternatively, to reconsider. The parties had fully briefed this motion by May 23, 2002, but the case was transferred several times and the district court did not rule on it until October 20, 2009. The motion was denied. On May 6, 2010, the district court denied Sanders's federal habeas petition in its entirety, issued a final judgment, and denied a certificate of appealability as to all claims.

         Sanders timely appealed and this court granted a certificate of appealability on eighteen claims pertaining to Sanders's guilt-phase trial. We have jurisdiction under 28 U.S.C. § 1291.


         We review de novo the district court's denial of Sanders's habeas corpus petition. Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 2014). The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs his petition. Under AEDPA, a federal court may grant a writ of habeas corpus only if the state court's decision on the merits:

(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 Glebe v. Frost, 135 S.Ct. 429, 430 (2014). As contemplated by AEDPA, "clearly established Federal law . . . is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, ...

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