Richter v. Hickman ( 2008 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    JOSHUA RICHTER,                      
    Petitioner-Appellant,
    No. 06-15614
    v.
          D.C. No.
    R. Q. HICKMAN, Warden; CAL A.            CV-01-00643-JKS
    TERHUNE; ERNIE ROE,
    Respondents-Appellees.
    
    CHRISTIAN BRANSCOMBE,                
    Petitioner-Appellant,        No. 06-15776
    v.
          D.C. No.
    CV-01-00643-JKS
    R. Q. HICKMAN, Warden; CAL A.
    TERHUNE; ERNIE ROE,                         OPINION
    Respondents-Appellees.
    
    Appeal from the United States District Court
    for the Eastern District of California
    James K. Singleton, Chief District Judge, Presiding
    Argued and Submitted
    October 15, 2007—San Francisco, California
    Filed April 9, 2008
    Before: Robert R. Beezer, Stephen S. Trott, and
    N. Randy Smith, Circuit Judges.
    Opinion by Judge Beezer
    3657
    RICHTER v. HICKMAN                   3661
    COUNSEL
    Cliff Gardner, Oakland, California, for petitioner-appellant
    Joshua Richter.
    Ann C. McClintock, Assistant Federal Defender, Sacra-
    mento, California, for petitioner-appellant Christian Bran-
    scombe.
    Harry Joseph Colombo, Deputy Attorney General, and John
    G. McLean, Supervising Deputy Attorney General, Sacra-
    mento, California, for the respondents-appellees.
    OPINION
    BEEZER, Circuit Judge:
    Appellants in these two consolidated cases were jointly
    convicted of murder, attempted murder, robbery and burglary
    in California state court. They were sentenced to life in prison
    without the possibility of parole. In the present action, they
    appeal the district court’s denial of writs of habeas corpus.
    Appellants allege that they received ineffective assistance of
    counsel at trial in violation of Strickland v. Washington, 
    466 U.S. 668
    (1984). Appellants further allege that the prosecu-
    tion suppressed exculpatory evidence at trial in violation of
    Brady v. Maryland, 
    373 U.S. 83
    (1963). Appellant Christian
    Branscombe (“Branscombe”) argues that his trial counsel
    failed to engage in “meaningful adversarial testing” in viola-
    3662                  RICHTER v. HICKMAN
    tion of United States v. Cronic, 
    466 U.S. 648
    (1984). Appel-
    lant Joshua Richter (“Richter”) alleges that the trial court vio-
    lated his Eighth Amendment right to a jury trial and
    Fourteenth Amendment right to due process by providing an
    incorrect or inaccurate answer to a question of law posed by
    the jury to the trial court. We affirm the district court’s denial
    of appellants’ habeas petitions.
    I
    Joshua Gunner Johnson (“Johnson”), a friend of Richter
    and acquaintance of Branscombe, lived in a house in Sacra-
    mento. On the evening of December 19, 1994, Richter and
    Branscombe drove to Johnson’s house so that Richter could
    pay Johnson some money he owed him and buy some mari-
    juana from him. Richter and Branscombe were waiting in
    their car in Johnson’s driveway when Johnson returned home,
    accompanied by Patrick Klein (“Klein”) and another individ-
    ual. Johnson did not recognize the car, and approached the car
    with his .380 caliber Mac-12 handgun drawn. Upon recogniz-
    ing the petitioners, Johnson put the Mac-12 away. Johnson,
    Klein, Richter and Branscombe went into the house, where
    they socialized for several hours. While they talked, Bran-
    scombe cleaned a .32 caliber handgun that he had recently
    acquired from either Johnson or Johnson’s housemate. Richter
    and Branscombe left Johnson’s residence shortly after
    2:30 a.m. on December 20, 1994. Klein decided to stay the
    night.
    At trial, appellants and appellee State of California (“the
    State”) presented different accounts of the ensuing events.
    The State presented evidence that after Richter and Bran-
    scombe left, Johnson went to sleep in his bedroom and Klein
    lay down on the couch in the living room. Johnson woke up
    early in the morning to find Richter and Branscombe in his
    bedroom, likely attempting to steal Johnson’s gun safe, which
    was allegedly located in Johnson’s bedroom closet. Bran-
    scombe shot Johnson, and Johnson later heard gunshots com-
    RICHTER v. HICKMAN                   3663
    ing from another room. Johnson found Klein lying on the
    couch bleeding and discovered that his Mac-12 was missing,
    along with a hip sack that contained $6000 in cash.
    Richter and Branscombe presented evidence that they
    returned to Johnson’s residence around 4:00 a.m. so they
    could give Johnson’s housemate certain belongings and
    wages, and so that Branscombe could return the .32 caliber
    handgun. Richter stayed in his truck while Branscombe was
    let into the house by Klein. Shortly thereafter, Richter heard
    gunshots. He headed toward the house and heard more yelling
    and gunshots as he approached the front door. Richter saw
    Klein lying in the doorway to Johnson’s bedroom, and found
    Branscombe “totally freaked out” standing in the middle of
    the bedroom holding a firearm. Branscombe told Richter that
    Johnson and Klein had fired at him and tried to kill him.
    Branscombe picked up the Mac-12 from the floor and told
    Richter that Johnson or Klein had fired it and had tried to
    shoot him with it. Branscombe then ran outside and tried to
    start the truck. Richter panicked and ran back out to the truck.
    Richter and Branscombe drove away.
    Soon after the shootings, Johnson made a 911 call to police.
    Before police arrived six minutes later, Johnson testified that
    he made a phone call to his girlfriend’s father and took two
    trips through the house and into the yard to hide his marijuana
    plants. The police arrived at the house six minutes after John-
    son’s 911 call. Upon arrival, they encountered a “hysterical”
    Johnson, who had blood on his cheeks, shirt, hands and right
    shoulder. The police saw Klein lying on top of a sleeping bag
    on the living room couch, near death.
    A subsequent investigation found two spent .32 casings in
    the bedroom where Johnson said he had been shot. The inves-
    tigators found blood on the bed where Johnson said he had
    been shot, and a pool of blood in the doorway to Johnson’s
    bedroom. Investigators determined that Klein had been shot
    twice, by a .22 and a .32 caliber bullet. They also found a
    3664                  RICHTER v. HICKMAN
    spent .32 and a spent .22 casing in the living room near the
    couch where Klein was lying. Later, while searching Richter’s
    residence, investigators found Johnson’s gun safe haphazardly
    laying on its back. Investigators found a .380 casing in Rich-
    ter’s vehicle which they determined had been ejected from
    Johnson’s Mac-12.
    The weapons used to kill Klein and injure Johnson were
    never found, but investigators examined the bullets fired and
    casings ejected at the scene. The .22 bullet removed from
    Klein was a CCI Stinger. The bullet had markings consistent
    with being ejected from a High Standard Sport King, although
    investigators could not rule out the possibility that the bullet
    had been fired from a different .22 caliber firearm. Investiga-
    tors also found a CCI Stinger brand .22 caliber casing in John-
    son’s living room, near the couch where Klein was found by
    the police. The casing had markings consistent with (but not
    exclusive to) having been fired from a High Standard Sport
    King. While searching Richter’s residence, investigators
    found a magazine loaded with CCI Stinger brand .22 car-
    tridges. The magazine was identical in size and shape to High
    Standard magazines designed specifically for a Sport King.
    An investigator successfully fired a laboratory exemplar High
    Standard Sport King using the magazine found in Richter’s
    residence.
    A California Superior Court jury found Richter and Bran-
    scombe guilty of all charges after a trial lasting over three
    weeks. Following their convictions, Richter and Branscombe
    appealed to the California Court of Appeal, which affirmed
    the judgments of the trial court. Appellants filed a petition for
    review in the Supreme Court of California, which was denied.
    Appellants sought writs of habeas corpus in the California
    Supreme Court, which denied their petitions. Appellants
    timely petitioned for writs of habeas corpus in the United
    States District Court for the Eastern District of California,
    which denied the petitions. Appellants sought certificates of
    appealability from this court, which were granted.
    RICHTER v. HICKMAN                          3665
    II
    Under the Antiterrorism and Effective Death Penalty Act of
    1996 (“AEDPA”), we may not grant a habeas corpus petition
    unless the state court decision “was contrary to, or involved
    an unreasonable application of, clearly established Federal
    law, as determined by the Supreme Court of the United States,”1
    or “was based on an unreasonable determination of the facts
    in light of the evidence presented in the State court proceed-
    ing.” 28 U.S.C. § 2254(d). When reviewing a state court’s
    summary denial of a habeas petition, we “look through” the
    summary disposition to the last reasoned state court decision.
    Plascencia v. Alameida, 
    467 F.3d 1190
    , 1198 (9th Cir. 2006).
    When no state court has explained its reasoning on a particu-
    lar claim, we conduct “an independent review of the record to
    determine whether the state court’s decision was objectively
    unreasonable.” Sass v. Cal. Bd. of Prison Terms, 
    461 F.3d 1123
    , 1127 (9th Cir. 2006).
    We review a district court’s decision to grant or deny a writ
    of habeas corpus de novo. Lewis v. Mayle, 
    391 F.3d 989
    , 995
    (9th Cir. 2004). We review the district court’s findings of fact
    for clear error. Bonin v. Calderon, 
    59 F.3d 815
    , 823 (9th Cir.
    1995).
    III
    Appellants argue that they were denied effective assistance
    of trial counsel as guaranteed by the Sixth Amendment. Under
    Strickland, petitioners claiming ineffective assistance of coun-
    1
    A state court decision is “contrary to” clearly established federal law
    if the state court arrives at a conclusion opposite to that of the Supreme
    Court of the United States on a question of law, or decides the case differ-
    ently than the Supreme Court on a set of materially indistinguishable facts.
    Williams v. Taylor, 
    529 U.S. 362
    , 405 (2000). A state court decision is an
    “unreasonable application of” clearly established federal law if the state
    court identified the correct governing legal rule but unreasonably applied
    it to the facts at hand. 
    Id. at 407.
    3666                  RICHTER v. HICKMAN
    sel must show both cause and prejudice to prevail on their
    
    claim. 466 U.S. at 687
    .
    To show cause, petitioners must demonstrate that counsel’s
    performance at trial was objectively unreasonable, i.e., “out-
    side the wide range of professionally competent assistance.”
    
    Id. at 688,
    690. Judicial scrutiny of counsel’s performance
    “must be highly deferential.” 
    Id. at 689.
    Counsel is “strongly
    presumed to have rendered adequate assistance.” 
    Id. at 690.
    Courts reviewing counsel’s performance “evaluate the con-
    duct from counsel’s perspective at the time,” to “eliminate the
    distorting effects of hindsight.” 
    Id. at 689.
    Strategic choices
    made by counsel after thorough investigation are “virtually
    unchallengeable.” 
    Id. at 690.
    A decision not to investigate
    must be assessed for reasonableness, applying a heavy mea-
    sure of deference to counsel’s judgments. 
    Id. at 691.
    To show prejudice, petitioners must demonstrate there is a
    “reasonable probability that, but for counsel’s unprofessional
    errors, the result of the proceeding would have been differ-
    ent.” 
    Id. at 694.
    “When a defendant challenges a conviction,
    the question is whether there is a reasonable probability that,
    absent the errors, the factfinder would have had a reasonable
    doubt respecting guilt.” 
    Id. at 695.
    A
    Appellants first argue that trial counsel rendered ineffective
    assistance under Strickland by (1) failing to develop and pre-
    sent testimony from firearms evidence experts, (2) failing to
    develop and present expert testimony to contradict the state’s
    serology evidence and (3) failing to develop and present testi-
    mony from pathology experts. Appellants now submit decla-
    rations from experts in each of these three areas to support
    their assertion that they were prejudiced as a result of their
    counsel’s failings.
    We need not decide whether appellants’ trial counsel acted
    unreasonably in failing to consult and present experts in fire-
    RICHTER v. HICKMAN                  3667
    arms evidence, serology and pathology. Even assuming that
    trial counsels’ failure to consult and present such experts was
    unreasonable, appellants do not show that such failure preju-
    diced their case.
    1.    Firearms Evidence
    Appellants argue that their counsel rendered ineffective
    assistance by failing to develop and present expert testimony
    demonstrating that Johnson’s Mac-12 firearm was prone to
    jamming.
    At trial, the defense argued that Johnson attempted to shoot
    Branscombe with his Mac-12, but the weapon jammed
    because an empty shell failed to eject. Evidence that the Mac-
    12 had jammed would have bolstered the defense’s case by
    providing a non-incriminating explanation for why Klein had
    been hit by both a .32 caliber and a .22 caliber bullet. Accord-
    ing to the defense’s theory at trial, after Johnson’s Mac-12
    jammed, he grabbed his .22 handgun. While trying to shoot
    Branscombe with the .22 as Branscombe struggled with
    Klein, Johnson missed and hit Klein instead. Branscombe
    then fired his .32 at both Klein and Johnson in self-defense.
    The theory also provides the defense with an explanation for
    why an empty shell from the Mac-12 was found in Richter’s
    vehicle: the shell failed to eject when Johnson fired the hand-
    gun at Branscombe, but ejected when Richter and Bran-
    scombe examined it after leaving the scene of the shootings.
    At trial, the State’s criminalist, Robert Garbutt (“Garbutt”),
    testified that he test-fired Johnson’s Mac-12 three times with-
    out a misfire. On cross-examination, Garbutt testified that
    modifications Johnson made to the Mac-12 could cause it to
    “malfunction or fail to fire.” Garbutt also testified that he did
    not know whether these modifications would specifically
    cause a failure to eject the shell. Garbutt’s testimony provided
    some support for the theory that Johnson accidentally shot
    Klein with a .22 bullet, but failed to explain why an empty
    3668                  RICHTER v. HICKMAN
    shell, rather than an unfired bullet, was found in Richter’s
    vehicle.
    Appellants now submit a declaration of an expert in fire-
    arms evidence who would have testified that the type of alter-
    ations made to Johnson’s Mac-12 “can cause the gun to fail
    to eject a spent cartridge.”
    [1] Appellants’ counsel’s failure to have such an expert tes-
    tify at trial did not prejudice their case. Even had the jury
    heard the proffered expert’s testimony that the Mac-12 could
    jam, there is no reasonable probability that the jury would
    have accepted appellants’ theory that the Mac-12 did jam in
    this case. The proffered expert offers no opinion on the actual
    likelihood that such a modification would cause the weapon
    to jam. Garbutt, the State’s own expert, admitted at trial that
    the modifications to Johnson’s Mac-12 could possibly cause
    it to fail to fire, but found that the weapon successfully fired
    each of the three times that he tested it. To accept the appel-
    lants’ theory, the jury would have had to find that (1) the
    Mac-12 malfunctioned when Johnson tried to fire it at Bran-
    scombe, even though it functioned normally when tested later,
    (2) the .22 caliber bullet in Klein’s body came from a differ-
    ent firearm belonging to Johnson instead of one belonging to
    Richter, (3) the bullet from Johnson’s .22 caliber hit Klein
    even though Johnson was attempting to shoot Branscombe,
    (4) Johnson would attempt to fire two different firearms at
    Branscombe, even though Branscombe had been a social
    guest in Johnson’s house just hours before, (5) Klein would
    attack or threaten Branscombe in a manner justifying Bran-
    scombe’s shooting of Klein in self-defense, even though
    Klein had been the person who let Branscombe into the house
    minutes earlier and (6) it is mere coincidence that investiga-
    tors found a magazine in Richter’s residence full of .22 CCI
    Stinger cartridges—the same type as the casing found in
    Johnson’s living room.
    [2] The totality of the evidence presented at trial weighs
    strongly against appellants’ theory that the Mac-12 jammed
    RICHTER v. HICKMAN                    3669
    and that Branscombe fired at Klein in self-defense. There is
    no reasonable probability that the jury would have changed its
    verdict had they heard additional testimony stating that the
    Mac-12 could possibly malfunction in some manner.
    2.   Serology
    Appellants argue that their counsel rendered ineffective
    assistance by failing to develop and present expert testimony
    regarding the source of the pool of blood in the doorway to
    Johnson’s bedroom. If the pool of blood included blood from
    Klein, it would indicate that Klein had probably been killed
    near the doorway, instead of on the living room couch. This
    would contradict Johnson’s testimony that Klein had been
    shot on the living room couch, and would instead support the
    defense’s theory that Johnson had moved Klein to the couch
    after the shootings. This would also support the defense’s the-
    ory that Klein had been shot by an errant bullet from John-
    son’s .22 caliber as Klein struggled with Branscombe in the
    vicinity of the bedroom door.
    At trial, the State’s serology expert testified that evidence
    taken from a sample of blood in the doorway confirmed that
    the blood tested came exclusively from Johnson. Appellants
    now submit the declarations of two serology experts stating
    that they “could not exclude” the possibility that the blood
    sample contained a mixture of Johnson’s and Klein’s blood.
    [3] There is no reasonable probability that the jury would
    have rendered a different verdict had defendants’ proffered
    serology experts testified at trial. The serology experts’ testi-
    mony, even if believed, would not significantly weaken the
    State’s case. All the testimony says is that it is possible that
    the blood sample taken from the bedroom doorway might be
    a mixture of Klein and Johnson’s blood, instead of being
    exclusively Johnson’s blood. Because these expert reports do
    not foreclose the likelihood that the blood from the blood
    sample came exclusively from Johnson, they do not impeach
    3670                  RICHTER v. HICKMAN
    Johnson’s testimony that the blood came from him alone. The
    expert reports also do nothing to contradict the weight of the
    evidence presented at trial that supported the State’s theory of
    the case.
    3.   Pathology
    Appellants argue that their counsel rendered ineffective
    assistance by failing to consult a pathology expert and present
    testimony from such an expert at trial. Appellants argue that
    a pathology expert could have determined whether Johnson’s
    wounds were severe enough for Johnson to have been the
    only source of the large pool of blood on the floor. Appellants
    now proffer a declaration from a pathology expert stating that
    “it is highly unlikely that the blood pool found in the doorway
    between the bedroom and living room was caused by Mr.
    Johnson’s wounds.” The expert’s rationale for this conclusion
    is that Johnson was not bleeding enough, and did not remain
    in the doorway long enough, to be the sole contributor to the
    blood pool.
    [4] The lack of testimony from the pathology expert at trial
    did not prejudice the appellants. The reasons the expert pro-
    vided in reaching his conclusion are flawed and are partially
    contradicted by the record.
    First, the expert states that it is unlikely that Johnson had
    been bleeding significantly from his shoulder and cheek
    wounds. The expert bases his conclusion upon the fact that
    one of the policemen responding to Johnson’s 911 call “did
    not notice that Mr. Johnson was injured until . . . several min-
    utes after first contacting Mr. Johnson” inside the house. This
    statement of fact, while technically correct, distorts the
    record. The policeman in question, deputy Michael Wright
    (“Wright”), testified that, immediately upon entering the
    house, he noticed that Johnson had blood on him. Wright
    stated that he noticed blood “on both [of Johnson’s] cheeks,
    blood covering his shirt, . . . blood on his hands, and . . . on
    RICHTER v. HICKMAN                    3671
    his right shoulder.” Wright did not confirm that Johnson’s
    blood came from Johnson’s own wounds until several minutes
    later. It appears from Wright’s testimony that there was so
    much blood on and around Johnson’s cheek that Wright did
    not notice Johnson had been shot in the cheek until Johnson
    wiped the blood off. Wright’s testimony contradicts, rather
    than supports, the defense expert’s conclusion that Johnson
    was not bleeding enough to be the sole contributor to the
    blood pool.
    Second, the expert states that the amount of blood likely to
    result from a shoulder wound would likely be minimal. This
    statement fails to undermine the State’s case. The statement
    does not address the quantity of blood that could be produced
    by a bullet wound in the cheek. The statement is speculative,
    and is contradicted by Wright’s eyewitness testimony at trial.
    [5] Third, the expert states that it is unlikely Johnson was
    standing in the doorway long enough to create the pool of
    blood. This observation adds little beyond what a lay jury is
    qualified to observe. The expert does not provide any medical
    or scientific basis for his conclusion. There is not a reasonable
    probability that the expert’s testimony, based upon the same
    observations that the jury was qualified to make, would have
    affected the jury’s verdict.
    4.   Aggregate Impact of the Proffered Testimony
    [6] Strickland requires us to assess the aggregate impact of
    counsel’s alleged failures when evaluating whether such
    alleged failures prejudiced the 
    defendants. 466 U.S. at 695-96
    .
    The proffered testimony from the experts in firearms evi-
    dence, serology and pathology, considered in the aggregate,
    does not demonstrate prejudice. The testimony is not compel-
    ling enough to conclude that there is a reasonable probability
    that the jury would have reached a different verdict had they
    heard the testimony.
    3672                  RICHTER v. HICKMAN
    B
    [7] Appellants next argue that their counsel rendered inef-
    fective assistance by failing to consult and present an expert
    on bloodstain pattern interpretation. We are unconvinced that
    trial counsels’ failure to consult an expert on bloodstain pat-
    tern interpretation falls outside the wide range of profession-
    ally competent assistance. See 
    Strickland, 466 U.S. at 690
    .
    Before trial, it was not unreasonable for counsel to fail to
    understand that an expert in bloodstain pattern interpretation
    —someone who could testify as to “blood into blood pat-
    terns” and “satellite drops” that result from blood falling from
    a certain height—would be valuable to his case. Counsel
    highly experienced in trying cases involving bloodstain evi-
    dence might well have understood the value of such an expert,
    but the Sixth Amendment does not guarantee defendants a
    right to highly experienced counsel. See 
    id. at 688,
    690.
    Richter’s defense counsel, Mark Axup (“Axup”) stated that
    he was surprised by the State’s decision at trial to call a detec-
    tive as an expert on blood spatter evidence. The detective,
    Robert Bell (“Bell”), had investigated the homicide of Klein.
    Defense counsel had expected Bell to testify, but not as an
    expert in bloodstain pattern interpretation. The State made a
    last-minute decision to ask Bell to testify about the blood
    spatter evidence.
    By the time Bell had testified, the trial was well underway
    and Axup later stated that defense counsel had little to no time
    to delve into the specifics of bloodstain pattern science. Given
    the circumstances, it was reasonable for counsel to not spend
    time attempting to locate and consult potential rebuttal
    experts, particularly since it was not clear that such an expert
    would disagree with the opinion of the State’s expert. Defense
    counsel’s failure to call an expert on bloodstain pattern inter-
    pretation did not fall below the low threshold of performance
    required by Strickland.
    RICHTER v. HICKMAN                     3673
    C
    [8] Richter argues that Axup provided ineffective assis-
    tance by failing to call several lay witnesses to testify at trial.
    Richter argues that the testimony of these witnesses would
    have supported Richter’s claim that Johnson’s gun safe was
    legitimately in Richter’s residence at the time of the shoot-
    ings. If the jury believed this claim, Richter and Branscombe
    could not have entered Johnson’s house with the motive to
    steal the safe.
    Axup called one witness at trial, Stephanie Edwards
    (“Edwards”), to support Richter’s claim. Edwards testified
    that she saw the gun safe inside Richter’s residence on several
    occasions, including two days before the shootings. Johnson
    testified at trial that he had kept his safe at Richter’s residence
    for one or two weeks, but that he had moved the safe to his
    house at the end of November or the beginning of December.
    Scott Brown testified that he had helped Johnson move the
    safe from Richter’s residence to Johnson’s house during the
    first or second week of December.
    The district court found that Axup made a tactical decision
    not to call the additional witnesses in question. This finding
    is not clearly erroneous. Axup testified in his 2004 deposition
    that he believed the State’s cross-examination of these addi-
    tional witnesses would harm their credibility, and that calling
    the witnesses would not be in the best interest of his client.
    The fact that, nearly nine years after trial, Axup could not
    recall the exact reasons why he believed that the witnesses
    were not credible does not mean that Axup had no basis for
    his decision at the time he made it. Axup had already called
    one witness who testified that the safe was in Richter’s resi-
    dence before the shootings. Axup’s tactical decision not to
    call the other lay witnesses was not unreasonable. See Strick-
    
    land, 466 U.S. at 690
    (stating that strategic choices made by
    counsel after thorough investigation are “virtually unchal-
    lengeable”).
    3674                  RICHTER v. HICKMAN
    D
    [9] Richter argues that Axup provided ineffective assis-
    tance of counsel by not investigating whether it was possible
    to retrieve a fragment of floorboard with a bullet hole in it.
    The floorboard came from Johnson’s bedroom. Johnson testi-
    fied that he made the hole when he accidentally fired his .22
    caliber firearm while cleaning it a couple of weeks before the
    shootings. During trial, the prosecutor sent Investigator Brian
    Maloney (“Maloney”) to investigate the bullet hole. Maloney
    photographed the hole with a measuring device next to it, and
    then cut out the piece of floorboard with the hole in it in an
    attempt to find the bullet. The floorboard fell into the crawl
    space beneath the house. Maloney testified at trial that the
    crawl space was inaccessible, and therefore he could not
    retrieve the floorboard. Maloney testified that he believed the
    hole was consistent with the size of a .22 caliber bullet.
    After trial, Richter’s father discovered that the crawl space
    was accessible. He retrieved the floorboard and gave it to
    Axup, who gave it to a firearms evidence expert, James Aiello
    (“Aiello”), for testing. Aiello determined that the hole was
    probably caused by a .380 caliber firearm, rather than a .22
    caliber. This conclusion, if known at trial, would have given
    some support to the defense’s theory that Johnson fired the
    .380 caliber Mac-12 at Branscombe on the night of the shoot-
    ing. It also would have contradicted Johnson’s testimony that
    he created the hole while cleaning his .22 caliber.
    Axup’s decision not to attempt to recover the floorboard
    was reasonable given the circumstances. Maloney testified
    under oath at trial that the floorboard was inaccessible, and
    Axup had no reason to disbelieve him. Given Maloney’s testi-
    mony that the hole was consistent in size with one created by
    a .22 caliber bullet, Axup could reasonably believe that, even
    were it possible to retrieve the floorboard, the evidence would
    be inculpatory, not exculpatory. Further, Maloney did not cut
    out the floorboard until a week after the start of trial. Consid-
    RICHTER v. HICKMAN                         3675
    ering the considerable time pressures during this trial and
    Maloney’s testimony that the floorboard was inaccessible,
    Axup’s decision not to search for the floorboard was reason-
    able.
    IV
    Appellants argue that the prosecution suppressed exculpa-
    tory evidence at trial in violation of Brady v. Maryland, 
    373 U.S. 83
    (1963). Appellants allege that the Brady violation
    occurred when Maloney lost the floorboard containing the
    bullet hole in the crawl space and incorrectly testified that
    there was no possible way to retrieve it.
    [10] It is well-established under Brady and its progeny that
    the State violates due process when it suppresses or fails to
    disclose material exculpatory evidence. See Illinois v. Fisher,
    
    540 U.S. 544
    , 547 (2004); 
    Brady, 373 U.S. at 87
    . The
    Supreme Court limited Brady’s reach in California v. Trom-
    betta, 
    467 U.S. 479
    (1984) and Arizona v. Youngblood, 
    488 U.S. 51
    (1988). Trombetta holds that, for the Brady standard
    to apply, “evidence must . . . possess an exculpatory value
    that was apparent before the evidence was 
    destroyed.” 467 U.S. at 489
    (emphasis added); see also 
    Youngblood, 488 U.S. at 56
    n.*. Youngblood holds that the State’s failure to preserve
    “potentially useful” evidence does not constitute a due pro-
    cess violation unless the defendant can show bad faith on the
    part of the 
    police. 488 U.S. at 58
    ; see also United States v.
    Estrada, 
    453 F.3d 1208
    , 1212 (9th Cir. 2006) (drawing a dis-
    tinction between “potentially exculpatory” and “apparently
    exculpatory” evidence).
    Trombetta and Youngblood both involve evidence that the
    police permanently lost or destroyed before its inculpatory or
    exculpatory value could be conclusively determined. In both
    cases, the police had no reason to believe that the evidence
    would be exculpatory at the time the evidence was destroyed.2
    2
    In Trombetta, the Supreme Court determined that the State did not vio-
    late due process when it failed to preserve samples of respondents’ breath
    3676                      RICHTER v. HICKMAN
    Here, similar to Trombetta and Youngblood, Maloney and the
    prosecutor did not believe that the floorboard would be excul-
    patory evidence at the time that it fell into the crawl space
    beneath the house. In contrast to Trombetta and Youngblood,
    however, the evidence at issue here was recovered after trial
    and was found to have exculpatory value.
    [11] We have not yet specifically addressed whether the
    rules announced by the Supreme Court in Trombetta and
    Youngblood apply in the unusual factual situation presented
    here. By their own terms, Trombetta and Youngblood apply in
    situations where, as here, the police did not believe evidence
    to have exculpatory value when it was lost or misplaced, even
    if the evidence is later recovered and determined to be excul-
    patory.
    [12] The Supreme Court made clear in Trombetta and
    Youngblood that the dispositive issue for due process pur-
    poses is the state of mind of police or prosecutors at the time
    the evidence is lost or destroyed. See 
    Youngblood, 488 U.S. at 56
    n.*; 
    Trombetta, 467 U.S. at 488-89
    .3 The Supreme Court
    in cases where respondents were convicted of drunk 
    driving. 467 U.S. at 491
    . The respondents claimed that, had the breath samples been preserved,
    they would have been able to impeach the incriminating test results. 
    Id. at 483.
    The Court held in Youngblood that the failure of the police to pre-
    serve semen on clothing that could have potentially exculpated the defen-
    dant of sexual assault charges did not violate due 
    process. 488 U.S. at 58
    .
    The defendant alleged that he had been misidentified as the perpetrator. 
    Id. at 54.
    The Court held that, absent a showing of bad faith, police do not
    violate due process when they fail to disclose or preserve “evidentiary
    material of which no more can be said than that it could have been sub-
    jected to tests, the results of which might have exonerated the defendant.”
    
    Id. at 57.
       3
    In Youngblood, for example, the Supreme Court focused specifically
    on the police officers’ state of mind at the time the evidence was lost:
    “Here, respondent has not shown that the police knew the semen samples
    would have exculpated him when they failed to . . . refrigerate the boy’s
    clothing; this evidence was simply an avenue of investigation that might
    have led in any number of 
    directions.” 488 U.S. at 56
    n.* (emphasis
    added).
    RICHTER v. HICKMAN                    3677
    reached this conclusion based upon their stated “unwilling-
    ness to read the . . . Due Process Clause as imposing on the
    police an undifferentiated and absolute duty to retain and to
    preserve all material that might be of conceivable evidentiary
    significance in a particular prosecution.” 
    Youngblood, 488 U.S. at 58
    (citation omitted). The Supreme Court did not
    approve a constitutional standard where acceptable manage-
    ment of evidence by law enforcement could retroactively be
    found unconstitutional if, after trial and conviction, a defen-
    dant shows that the evidence would have been exculpatory.
    The post-trial retrieval of the floorboard does not entitle
    appellants to a retroactive determination that Maloney vio-
    lated appellants’ due process rights by inadvertently losing or
    misplacing the evidence.
    [13] Applying the Trombetta-Youngblood rule here, we
    find no evidence in the record of bad faith on the part of
    Maloney or the prosecution. Maloney testified that he
    believed the floorboard to be in an inaccessible location after
    he cut it out of the floor in Johnson’s residence. The prosecu-
    tion fully disclosed the nature and location of the evidence. At
    worst, Maloney’s actions could be described as negligent.
    Appellants were not denied due process of law, and the state
    court’s denial of habeas relief on this ground was not an
    unreasonable application of federal law.
    V
    [14] Branscombe argues that his trial counsel, Thomas
    Dixon (“Dixon”), failed to subject the prosecution’s case to
    meaningful adversarial testing in violation of United States v.
    Cronic, 
    466 U.S. 648
    (1984). In Cronic, the Supreme Court
    identified three situations where the Court does not require a
    showing of prejudice to establish a violation of the Sixth
    Amendment right to counsel. See 
    id. at 658-61.
    These situa-
    tions include (1) where there has been a complete denial of
    counsel at a critical stage of trial, (2) where counsel “entirely
    fails to subject the prosecution’s case to meaningful adver-
    3678                     RICHTER v. HICKMAN
    sarial testing” and (3) where “surrounding circumstances
    made it . . . unlikely that any lawyer could provide effective
    assistance.” 
    Id. at 659-61.
    The Supreme Court later empha-
    sized that Cronic’s exception for failing to test the prosecu-
    tion’s case applies only when the attorney’s failure to do so
    is complete. Bell v. Cone, 
    535 U.S. 685
    , 697 (2002). An attor-
    ney’s failure to oppose the prosecution at specific points dur-
    ing the trial does not rise to the level of a Cronic violation.
    See 
    id. Rather, the
    attorney’s failure must implicate the pro-
    ceeding as a whole. United States v. Thomas, 
    417 F.3d 1053
    ,
    1057 (9th Cir. 2005) (citing 
    Bell, 535 U.S. at 697
    ).
    [15] Branscombe argues that Dixon’s lack of investigation
    and preparation for trial resulted in a failure to subject the
    prosecution’s case to meaningful adversarial testing. We are
    not persuaded that Dixon’s lackluster preparation for trial
    resulted in a complete failure to contest the prosecution’s
    case. To the contrary, the record shows that Dixon engaged in
    adversarial testing on numerous occasions throughout trial. As
    the district court and the state appellate court noted, Dixon
    cross examined most of the witnesses, successfully moved to
    suppress statements and strike testimony, successfully moved
    to exclude evidence and had a witness perform a demonstra-
    tion. Dixon also asked several questions of Richter at trial to
    support the theory that Branscombe had returned to Johnson’s
    house to give Johnson a firearm, and had fired the weapon in
    self-defense. Dixon’s participation at trial demonstrates that
    he did not entirely fail to subject the prosecution’s case to
    meaningful adversarial testing.4
    4
    We agree with the State that Branscombe’s Cronic claim is unex-
    hausted. Branscombe did not present to the California state courts the
    “substantial equivalent” of the claim presented in federal court. Lopez v.
    Schriro, 
    491 F.3d 1029
    , 1040 (9th Cir. 2007). The factual basis for Bran-
    scombe’s current Cronic claim rests primairly upon new evidence that the
    California state courts did not have the opportunity to consider on direct
    review. The State did not expressly waive its exhaustion defense before
    the district court. The State may therefore raise the defense here, even
    RICHTER v. HICKMAN                        3679
    VI
    Richter alleges that the trial court violated his Eighth and
    Fourteenth Amendment rights by providing an incorrect or
    inaccurate answer to a request for clarification that the jury
    submitted to the trial court during deliberations. The jury
    requested the following clarification from the trial court: “If
    a defendant is found to have aided & abetted in [robbery], is
    he guilty of all charges (or can you find him guilty of lesser
    charges) as found for the other defendant.” The trial court
    responded “yes” (i.e., that the defendant is guilty of all
    charges), over defense counsel’s objections. Richter argues
    that this response was an incorrect statement of California
    law, that this error violated Richter’s rights to a jury trial and
    to due process of law and that a writ of habeas corpus must
    issue as a result.
    To obtain habeas relief following an erroneous response to
    a jury’s request for clarification, a petitioner must show that
    (1) the response was an incorrect or inaccurate application of
    state law, (2) constitutional error resulted and (3) the error
    was not harmless. See Morris v. Woodford, 
    273 F.3d 826
    , 833
    (9th Cir. 2001). To determine whether constitutional error
    occurred, we ask “whether there is a reasonable likelihood
    that the jury has applied the challenged instruction in a way
    that violates the Constitution.” Estelle v. McGuire, 
    502 U.S. 62
    , 72 (1991) (internal quotations and citation omitted). In
    other words, constitutional error occurs when (1) there is a
    reasonable likelihood that the jury understood the trial judge’s
    response to a request for clarification as stating a certain rule
    of law, (2) that rule, as potentially understood by the jury, was
    though the district court did not address the exhaustion issue. See 28
    U.S.C. § 2254(b)(3). We deny Branscombe’s unexhausted petition on the
    merits. See 28 U.S.C. § 2254(b)(2). For the reasons stated above, we find
    it perfectly clear that Branscombe does not raise even a colorable Cronic
    claim. See Cassett v. Stewart, 
    406 F.3d 614
    , 623-24 (9th Cir. 2005).
    3680                  RICHTER v. HICKMAN
    incorrect or inaccurate and (3) the rule, so understood, was
    unconstitutional as applied to the defendant. See Calderon v.
    Coleman, 
    525 U.S. 141
    , 147 (1998). In attempting to deter-
    mine what the jury understood the response to mean, the
    response “may not be judged in artificial isolation, but must
    be considered in the context of the instructions as a whole and
    the trial record.” 
    Estelle, 502 U.S. at 72
    (internal quotations
    and citation omitted).
    To determine whether the error was harmless, we consider
    whether the error had a “substantial and injurious effect or
    influence on the jury’s verdict.” 
    Calderon, 525 U.S. at 147
    .
    “If we are in grave doubt as to whether the error had such an
    effect, the petitioner is entitled to the writ.” Morris v. Wood-
    ford, 
    273 F.3d 826
    , 833 (9th Cir. 2001) (internal quotations
    and citation omitted).
    [16] The trial court’s response to the jury’s request for clar-
    ification could be interpreted as an inaccurate statement of
    California law. The jury’s request and the trial court’s answer
    (referred to hereafter as the “colloquy”) created an ambiguity.
    The most natural reading of the colloquy is that it correctly
    states California’s felony murder rule: when a defendant aids
    and abets a robbery, and someone is killed during the robbery,
    the defendant is guilty of both robbery and murder, even if his
    accomplice does the killing. See People v. Washington, 
    402 P.2d 130
    , 134 (Cal. 1965). But the colloquy goes further. It
    permits the jury to conclude that a defendant who aids and
    abets a robbery-murder must be found guilty of robbery and
    murder even if he does not begin to aid or abet the robbery
    until after the murder has already occurred. This interpretation
    of the colloquy results in an incorrect statement of California
    law. California permits a defendant who aids and abets a rob-
    bery to be found guilty of felony murder only if he began his
    aiding and abetting before the commission of the killing. See
    People v. Pulido, 
    936 P.2d 1235
    , 1236 (Cal. 1997).
    [17] Constitutional error did not result because it is not rea-
    sonably likely that the jury interpreted the colloquy in a man-
    RICHTER v. HICKMAN                   3681
    ner that misstates the law. In phrasing the request for
    clarification the way they did, it is unlikely that the jury was
    attempting to determine whether someone who began to aid
    and abet a robbery only after a murder had been committed
    must be found guilty of the murder. If the jury were intending
    to pose such a question to the judge, they likely would have
    done so in a more direct manner. The manner in which the
    question was phrased strongly suggests that the jury was ask-
    ing for a clarification of the felony murder rule for accom-
    plices, as described above. Given the question that the jury
    was posing to the trial judge, it is not reasonably likely that
    the jury understood the response to mean anything more than
    a straightforward and accurate statement of California’s fel-
    ony murder rule.
    Even if the trial court did commit constitutional error, the
    error was harmless. For the error to have an injurious effect
    or influence in determining the jury’s verdict, the jury must
    have believed that Branscombe committed robbery and mur-
    dered Klein, but that Richter did not begin to aid or abet the
    robbery until after the murder occurred. To believe this, the
    jury would have to have found, based on the facts presented
    to them at trial, that (1) Richter had no intention of robbing
    Johnson (or of helping Branscombe rob Johnson) when he
    and Branscombe drove to Johnson’s house around 4:00 that
    morning, (2) Branscombe, unbeknownst to Richter, decided to
    rob Johnson and shoot Klein, (3) after Klein was shot, Richter
    decided to aid and abet Branscombe in committing the rob-
    bery. Neither the State nor the defendants argued such a the-
    ory of the case. Such a conclusion would go against
    significant evidence presented at trial, including the evidence
    showing that Richter owned the same type of bullets used to
    shoot Klein. This conclusion would also be inconsistent with
    the testimony of both Richter and Johnson. It is unlikely that
    any member of the jury arrived at this conclusion.
    [18] Because the trial court did not commit constitutional
    error, and because any error would have been harmless, Rich-
    ter is not entitled to a writ of habeas corpus on this claim.
    3682                RICHTER v. HICKMAN
    VII
    We affirm the district court’s denial of Richter and Bran-
    scombe’s petitions for writs of habeas corpus.
    AFFIRMED.