Petitioner is a state prisoner, proceeding with1 counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2013 conviction for first degree murder. Petitioner was sentenced to life without the possibility of parole, plus a consecutive twenty-five years to life for the use of a firearm. Petitioner claims that (1) his constitutional due process rights were violated when the police overbore his will by making implied promises by telling him he had an "opportunity" to "help himself," and by impliedly threatening his family; (2) his constitutional rights to due process and a fair trial were violated when the trial court permitted the introduction of evidence of petitioner's fetish for women's underwear; (3) the trial court abused its discretion in denying petitioner's motion for mistrial andthat the prosecutor committed misconduct in eliciting testimony of a detective concerning a canine search; (4) the trial court failed to instruct the jury with CALCRIM No. 224 as required; (5) petitioner's constitutional rights were violated when the jury requested and received readback of witness testimony outside his presence; and (6) counsel provided ineffective assistance during pretrial, trial and sentencing proceedings. After careful review of the record, this court concludes that the petition should be denied.
On October 2, 2013, a jury found petitioner guilty of first degree murder (Cal. Pen. Code, § 187); the jury also found the special circumstances of kidnapping (Cal. Pen. Code, § 190.2(a)(17)(B)) and personal use or discharge of a firearm allegation (Cal. Pen. Code, §§ 12022.53(d)) to be true. (ECF No. 30-3 at 217-219.) On November 4, 2013, petitioner was sentenced to life without the possibility of parole for the first degree murder, followed by a consecutive term of twenty-five years to life in state prison for the discharge of a firearm during commission of the murder. (ECF No. 30-4 at 95-96.)
Petitioner appealed the conviction to the California Court of Appeal, Third Appellate District. The Court of Appeal affirmed the conviction on January 27, 2017. (ECF No. 30-17.)
Petitioner filed a petition for review in the California Supreme Court, which was denied on April 12, 2017. (ECF No. 19.)
Thereafter, on September 27, 2017, petitioner filed a petition for writ of habeas corpus in the San Joaquin County Superior Court. (ECF No. 30-20.) That court denied the petition on October 18, 2017. (ECF No. 20-21.)
On November 9, 2017, petitioner filed a petition for writ of habeas corpus with the Third District Court of Appeal. (ECF No. 30-22.) The state intermediate appellate court denied the petition on November 16, 2017. (ECF No. 30-23.)
Petitioner then filed a petition for writ of habeas corpus with the California Supreme Court on January 2, 2018. (ECF No. 30-24.) The state's highest court denied the petition on March 21, 2018. (ECF No. 30-25.)
Petitioner filed the instant petition on May 7, 2018. (ECF No. 1.)
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:
On July 19, 2011, 23-year-old Dalene Carlson moved to Stockton from Idaho to find a job and go to school. [Fn. 2 omitted.] Dalene lived with her aunt in Stockton.
Shortly after arriving in Stockton, Dalene began dating Jacob Evangelisti. By early August, Dalene appeared to have lost interest in Jacob and had turned her affections toward James Cosens. James had been friends with defendant for 17 years, and at all relevant times herein lived with defendant, who lived with his grandmother and mother. Dalene, defendant, James, and Jacob regularly frequented Finnegan's Bar in Stockton.
At approximately 10:00 p.m. on August 6, 2011, Dalene left her aunt's house to go to Finnegan's Bar with a friend. Dalene's friend drove her to the bar, but the two separated after they arrived. Dalene's friend assumed that he would drive Dalene home, but Dalene later informed him that she had a ride home. She did not say with whom. Her friend never saw her again.
Jacob arrived at Finnegan's Bar about 30 minutes before Dalene. The two spoke briefly, and Jacob gave Dalene some money for drinks. When Jacob left the bar, he telephoned Dalene, who told him that she had left with defendant to grab a bottle and go back to his house to "take shots." Jacob did not believe her and texted defendant, "Is Dalene with you?" Defendant responded in the negative and said he was at the hospital with his son.
After arriving at Finnegan's Bar, Dalene texted James and told him that she wanted him to go to Finnegan's Bar. He responded that he could not go because he was with his "brother" Christian.
At 12:05 a.m. that morning, August 7, 2011, Dalene texted James, "Im crashing at jasons on the couch." James responded, "Lmao wow ok." Dalene then texted, "U wann join?" James declined. At 12:46 a.m. Dalene texted James, "We're getting a bottle of jaeger i think," and James responded, "Lmfao ... he tryin to get u wasted lmfao ... really have fun wit that."
Shortly after 1:00 a.m., defendant texted Dalene, "Ready." She responded, "Yep," and defendant replied, "Lets go then." A few minutes later, defendant texted Dalene, "Go to the car."
At 1:28 a.m., James texted Dalene, "I am sorry but u just told me u wernt goin home wit a guy and then say ur goin home wit jason who wants u pretty bad ... and i am over here thinkin bout u." James told Dalene "not to get drunk to where u do something stupid ... i dont want u drunk hookin up wit him ... that would hurt." Dalene and James continued to exchange text messages until 2:15 a.m.
At about 5:00 a.m., Jacob spoke to Dalene, who told him she did not want to be at defendant's house anymore. At 5:02 a.m., Dalene texted Jacob, "Im comiin home," and he responded "K." A few minutes later, she texted him, "I wuv u," and he replied, "I love you dalene." At 6:31 a.m., Jacob texted Dalene, "?" She did not respond.
At 8:23 a.m., James texted Dalene, "U ok?" She did not respond. At 9:22 a.m., James texted her, "I just wana say good morning and I hope ur ok u stopped textin me lasnight hope u didn't do anything dumb ... missutons ... text me when ur alive lol." At9:25 a.m., James received the following text from Dalene's phone, "No." James responded, "No? No wat" and "I am lost." James continued to text Dalene for the next hour but did not receive a response. Finally, at 10:27, James texted Dalene, "Do u not wana talk to me.. Is that wat the no was for? Please tell me." At 10:29 a.m., he received the following response, "i do." James then asked, "So wat happened last night? Tell me the truth," and received the following response, "When." James replied, "When you went home wit jason," and received the following response, "I didnt go with him went with johny." At 11:17 a.m., James received a text from Dalene's phone stating that she was walking home from Country Club Boulevard in Stockton, which would have been a 30-45 minute walk. The last text from Dalene's phone was sent at 11:25 a.m., while she supposedly was walking home.
Dalene's aunt began calling her after 3:30 a.m. on August 7, 2011. She called her every hour but got no answer. She also texted and left voice mail messages but never got a response. At approximately 11:30 p.m. that night, Dalene's aunt contacted the Stockton Police and reported Dalene missing.
On the evening of August 7, 2011, after learning that Dalene had not returned home, James went to Finnegan's Bar and viewed surveillance video taken in and around the bar to determine who Dalene left with that morning. He recognized Dalene and defendant on the videotapes, both individually in the bar and together outside the bar. Dalene was last seen on the videotape from Finnegan's Bar at 1:15 a.m. on August 7, 2011. Surveillance footage from the Stockton Food-4-Less showed defendant and Dalene at the store early that morning, and a receipt for the same Food-4-Less found in defendant's garage showed a purchase of Jäegermeister and two Monster Energy drinks at 1:28 a.m. on August 7, 2011.
On August 9, 2011, defendant was interviewed at his home by Detectives Larry Lane and James Knief of the Stockton Police Department. Defendant told the detectives that he was with Dalene at Finnegan's Bar on the night of August 6, 2011, until early the next morning. He offered her a ride home, but she declined. He left thebar around 1:00 a.m. after receiving a message from his grandmother informing him that his son was sick. He said his last contact with Dalene was at 1:10 a.m. on August 7, 2011, when he texted her about a ride.
Following defendant's arrest on August 14, 2011, defendant was interviewed by Detective Knief and Detective Bradley Burrell. The interview was videotaped and played for the jury. Defendant initially told the detectives the same story he told Detective Lane, namely that he left the bar alone around 1:00 a.m. after receiving a text from his grandmother informing him that his son was ill. Later, he admitted leaving the bar with Dalene, buying a bottle of Jäegermeister at Food-4-Less, and taking her back to his house, where they consumed the entire bottle and had sex. [FN. 3 omitted.] Defendant explained that after they had sex, Dalene became upset, said "it" should not have happened, and started to walk home. Defendant got in his grandmother's car and picked her up at the corner near his house. Just before they reached Charter Way, near where Dalene lived, Dalene either got out or attempted to get out of the car. Thereafter, defendant drove south to Modesto with Dalene in the car. Dalene was "irate" and demanded to be let out of the car
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