text:
Science Kits
Is your homeschool science class in need of something fun? Why not add some fun science experiments? Get your kids excited about science with this huge list of super fun science kits for kids.
Our Sick Science kit made the top of the list at Imagination Soup! http://www.stevespanglerscience.com/collections/sick-science/fast-physics-sick-science.html
Top 11 DIY Science Kits for Kids - a list to keep for rainy days like today. Many interesting science experiments even for small kids. #kids #diy #science
DIY rain clouds : Science activity for preschool kids, Toby & Roo :: daily inspiration for stylish parents and their kids!
Is your child interested in science experiments? You have to take a look at these DIY science kits for kids. Best 11 homemade science kits to keep the kids busy. Fun activity for preschoolers, kindergartners and elementary school kids. | at Non Toy Gifts
Thanks Karen, we have much of this stuff in the classroom already so that is great!
Fun Roald Dahl inspired fine motor control activity ideas. Includes Willy Wonka play dough, Mr Twit's wormy spaghetti and lots more.
DIY Gift: Science Kit for Kids! (with FREE download!!) | Preschool Powol Packets
Top 11 DIY Science Kits for Kids - a list to keep for rainy days. Many interesting science experiments even for small kids.
Excellent revision mats for B2.


text:
Logitech vs NCIX
Start a new comparison
LogitechGadgets and Accessories
Customers like
- Mike and sunshine in the customer care 2
- Gamer mouse 1
- Trackball m570 1
Customers don't like
- Lack of support4
- Lousy after purchase service4
- Treatment by customer service3
- Abandoned product2
- Utter lack of support2
Products by Logitech
No items
NCIXGadgets and Accessories
Customers like
- Deals 1
- Price 1
- Sales 1
Customers don't like
- Customer care2
- Customer service2
Products by NCIX
No items
A company's rating is calculated using a mathematical algorithm that evaluates the information in its profile. The algorithm parameters are: users' rating, number of resolved issues, number of company's responses etc. The algorithm is subject to change in future.
Be first to start a discussion.
See also:
Companies are selected automatically by the algorithm.

subset: commoncrawl


text:
'Game Of Thrones': The Best And Worst Of 'Breaker Of Chains'
After last week's incredible and shocking episode of Game of Thrones, it was expected that the next chapter would be a bit of a cool down. The aftermath of one of the most satisfying deaths in television history should have been more chaotic, with people scrambling to find their place in this new order. However, most the characters seemed to be pretty blasé about the death of their king. It would have been interesting to see one episode of total disorder before everyone got to fixing the kingdom. Still, the episode had its fair share of good and bad moments. Here are the best and worst parts of "Breaker of Chains:"
Best: Sansa and Littlefinger
Immediately after Joffrey's purple corpse took its last breath, Sansa was whisked away about Ser Dontos, the former knight who Sansa saved from Joffrey's cruelty. The image of Sansa in a small row boat in the fog, heading to a mysterious destination, was breathtaking. The ship peeking out of the fog is one of the most stunning images the series has ever done. Even if you aren't a book reader, you probably could have guessed that it was Littlefinger who was arranging her escape. However, the reveal was filmed in a way that made for a bit of anticipation. I cannot wait to see this duo in action in the coming weeks. With Littlefinger as the Seven Kingdom's number one know-it-all as her mentor, I can see Sansa transforming into quite the amazing character.
Worst: Stannis Takes Credit For Joffrey's Death
Bitch, you didn't do sh!t. Just because Melisandre burnt some slugs and said some names doesn't mean that everybody with motive to want Joffrey dead suddenly got to working. Although we still don't know for sure who ordered and pulled off Joffrey's execution, I can say for certain that Stannis's boring ass had nothing to do with it.
Best: Tommen gets a Lesson
With Joffrey dead, an aged-up Tommen is the next in line to be king. Since he's underage, he won't actually be in power until his 18th birthday. In the meantime, Tywin Lannister has plenty of time to mold him into an obedient king. Tommen, being the non-Satan spawn of Cersei, is a much more amenable version of a Lannister king than Joffrey could ever be. Tywin begins the process of turning him into the perfect mouthpiece for his power grab by teaching him a bit about history, which in turn gives us a bit of insight into the former rulers of Kings Landing. In the guise of a history lesson, Tywin illustrates that kings who were pious, just, and strong all ended up dead. Wisdom, he tells Tommen, is the most important virtue. And true wisdom is doing whatever grandpa says. The entire scene was extremely satisfying. Tywin Lannister knows what he's doing.
Worst: Oberyn the Prince of Sexposition
When Oberyn was first introduced this season, his first scene revolved around his quest for the perfect prostitute. In the second episode he marveled at flexible models and winked at Loras Tyrell. This is a character who is the first look at the kingdom of Dorne and the famous Martell family. The Martell's were in power when the Targaryens ruled the throne because Oberyn's sister was married to the king. His family's anger at the Lannisters is one of the reasons that the kingdom has been fractured. Oberyn should be a complicated character who is consumed with thoughts of revenge and power. Instead he's relegated to sexposition scenes that add nothing to the character or the overall mythos of the show. We get it. He likes men, women, and sex. Can we move on yet? Now that Tywin has offered him a place on the small council in exchange for being a judge in Tyrion's trial, hopefully he'll have more to do.
Best: Tyrion and His Faithful Servant
Tyrion is two weeks away from his trial and it already looks like hope if all lost. He's allowed to call witness's on his behalf but his options are very limited. Sansa is gone. (I loved that he didn't suspect her for a second. He knows that he's being framed and that her disappearance is just a part of that. I will miss that pairing a lot.) And to make matters worse, all of his closest allies as being threatened. Bronn is apparently being interrogated and Podrick was offered his knighthood to lie about the poison. Tyrion's only hope is his brother, Jamie.
Speaking of Podrick, the poor kid is so close to getting murdered. Podrick's loyalty to Tyrion forced him to deny the offer of knighthood. Tyrion practically begs him to betray him or at least disappear before his untimely death. Hopefully he'll escape unscathed. If anybody in this stupid town deserves it, it's him.
Worst: Jamie Rapes Cersei
This does not happen in the books and is massively out of character. In the books, they do have sex next to Joffrey's body. As disgusting as that is, there was no reason to change Jamie's character so drastically. Bad change overall.
Best: Arya and the Hound Comedy Duo
Arya and the Hound come across a pro-Tully household and take up their generous offer for food. The Hound, being a full-blooded bastard, insults them any chance he gets, leaving Arya responsible for apologizes for his every grunt. When he steals from the man, she says "You're the worst sh!t in the seven kingdoms." This pairing is comedy gold.
Worst: Sam and Tilly
They got two scenes! Why? They make me miss Bran.
Other Musings:
- Littlefinger: "You're safe with me. Sailing home." It sounds like a threat.
- Another change from the book is that it takes Cersei all of three seconds to start the search for Sansa. You'd think she'd be less clear headed since her dead son's body is literally in her arms, but Cersei can never give up the chance to find a way to mess with Sansa's life.
- Margery and Oleana have a pretty great, if short, scene together. "One of my husbands preferred the company of men. The other enjoyed torturing animals… I must be cursed."
- Jamie says he's going to protect Tommen. Awww.
- "You're a hateful woman. Why would the Gods make me love a hateful woman?" Jamie, you're not that great either.
- Shireen teaches Davos to read. So compelling.
- Tywim mentions the offscreen Greyjoy rebellion and Dany having 3 dragons.
- "I'm gonna eat your dead mom…" F***ing wildlings.
- Daario kills a guy in a total Indiana Jones rip-off moment. Also, Dany frees some slaves. Same old, same old.


text:
Edina Realty
- Online survey: Increasingly, homebuyers are first-timersThe Columbian
- A surprisingly high number of first-timers now buying homessmdailyjournal.com
- Why the housing market looks promising for young buyerscsmonitor.com
- Surprisingly high number of first-timers buying homestriblive.com
- More first-timers than expected are now buying homes, survey indicates - Tue, 18 Oct 2016 PSTThe Spokesman-Review
- Property taxes on the rise for most in St. PaulStar Tribune
- Twin Cities builders turn attention from apartments to new homesStar TribuneIsanti
- Twin Cities housing market isn't booming for more expensive homesStar Tribune
- Heads up, home buyers: Minn. has new rules for inspection contingenciesStar Tribune
- A new marker in the housing craze: Most Twin Cities sellers are getting more than they askStar TribuneTangletown
- Lake home sales on upswing, with deals to be hadStar Tribune
- Kirby Puckett's Wisconsin getaway 'cabin' for sale for $1MStar TribuneRoseville
- In Twin Cities, some home sellers won't make a deal until they find a new place themselvesStar Tribune
- Homegazing: 1920s brick home in St. Paul blends period character with modern amenitiesStar Tribune
- 2 worlds, 1 neighborhood: Families, X-rated biz coexist in North LoopStar TribuneMexico
- Experts predict another strong year for the downtown housing marketjournalmpls.com
- Twin Cities real estate market tilted toward sellers last monthStar Tribune
Frequent names
Newstral's extraction of names of people and organisations from the world's news is completely automated. If you do not want your name to appear here, please contact us. We will be happy to look at your request.


text:
Play Video
12 Pics of the TSA Hard at Work
Posted by Fortey on Apr. 23, 2012
This week Odin will be showing you how build Cloud's Fusion Sword from Fina...
Who will come out on top as the best Star Wars character of all time?? Our ...
It's like every other cartoon!
Posted by Fortey on Apr. 23, 2012


text: Olivias Accommodation offers accommodation in Apia. The guest house has a barbecue and views of the garden. Olivias Accommodation is situated next door to a sports centre. It is 10 minutes' walk from local shops, and 20 minutes' drive from Faleolo International Airport. Guests can enjoy a meal at the restaurant or a drink at the bar, situated next door to the property. All rooms are air-conditioned and feature a private bathroom and garden views. There is a shared kitchen and a shared lounge at the property.


text:
Current Team News
now browsing by category
Dallas 31, Washington 26: Not Even the Redskins Can Derail the Streak
Sweeps are not exactly uncommon in the series between the Cowboys and Redskins. Dallas managed to sweep Washington in both 2011 and 2013, so it has not been that long.
It just seems, however, that when one team is having an especially great season, the other will come along and wreak havoc.
Washington lost one game in a strike-shortened 1982 season and eventually won Super Bowl XVII. The team to beat the Redskins? Dallas.
The Redskins won another Super Bowl after the 1991 season, going 14-2 in the process. One of the two losses was to the….Dallas Cowboys.
The Cowboys, of course, had their own dynasty, winning Super Bowl titles in 1992, 1993, and 1995. During those three seasons, the Cowboys lost a total of 14 games. Four of those losses came against the Redskins.
(Of course, I did not mention the 1977 season or the strike-shortened 1987 season when one of the teams swept the other. What I am addressing doesn't always happen.)
This isn't to say the Cowboys are necessarily on their way to a Super Bowl appearance or Super Bowl title, but if there was one team that could derail a Dallas streak, it would be Washington.
Didn't happen.
The Cowboys took a lead on the opening drive of the game and never trailed. Washington managed to make it a game in the fourth quarter, but the Cowboys did what they have done throughout most of the season—take control of the ball at the end.
Ezekiel Elliott scored on a four-yard touchdown run in the first quarter, and the Dallas defense held the Redskins to field goals. The Cowboys scored a second touchdown on a ten-yard pass from Dak Prescott to Terrance Williams, and Dallas led 17-6 at the half.
Washington twice closed the gap to five points in the fourth quarter, only to watch the Cowboys respond with touchdowns. Washington scored with less than two minutes to narrow the gap to five points for a third time, but an onside kick attempt failed, and Dallas ran out the clock.
Elliott rushed for 97 yards with two touchdowns. Prescott only threw 24 passes on the day, completing 17 for 195 yards with the one touchdown.
The defense was not bad until the fourth quarter. Kirk Cousins completed 41 of 53 passes for 449 yards and three touchdowns. The Dallas secondary completely broke down on a 67-yard touchdown pass from Cousins to DeSean Jackson.
Thankfully, the Dallas offense responded once again, driving 53 yards on the ensuing drive.
The Cowboys play again in one week when they travel to Minnesota to face the Vikings.
Know Your Dallas Cowboys, One Decade Later
So ten years ago tonight, curiosity got the better of me, and this blog suddenly existed. The vague idea? Run a Cowboys blog that would post some occasional trivia questions and answers.
Occasional trivia questions resulted in more than 2,100 posts. No, this isn't the best blog. It tends to be quirky, and I put it on life support during the offseasons, but it's still here.
In light of this anniversary, here is a look back at blogging about the Cowboys during the past ten years.
What was available on the Internet in 2006?
It wasn't as if the Internet was in its infancy in 2006. Blogs were nothing new, as were forums.
However, only a handful of Cowboys blogs existed. Blogging the Boys was getting much bigger, and some other larger network sites came along in the years that followed.
On the other hand, many of the blogs and forums have come and gone in ten years.
The main Cowboys site wasn't great, but it had a large fan base. I posted quite a bit in the Classic Cowboys section then, but I'm not a huge fan of the current site and do not post much on there.
What did the site originally look like?
Pretty damn ugly. You can see it on Internet Archive.
Yeah, that is ugly. I mean, fugly.
What is fugly?
Oh, you know what fugly means. Do I need to write f'ing ugly?
Alright, I know what fugly means. Go to hell.
How many people have visited the site since 2006?
My original counter no longer functions, but the total number is about 1,500,000. I don't pay attention to detailed stats.
Are those unique visitors? Because I don't see too many unique visitors around here. Hell, we may be the only ones to read this.
No, they're not unique visitors. I have just made sure I get on here 100,000 times a year to boost my stats. Idiot.
Have you made money on this site?
Just enough to pay the hosting fees.
There was a time when some companies would pay several hundred dollars for me to post links in articles and my sidebar, but with Google's changing algorithms, that money is no longer available. The few ads I run barely cover the costs to run the site.
If you paid attention to detailed stats, don't you think your ad revenue could increase?
Shut up.
What is your most popular post or series?
Probably the greatest by jersey number series in 2008. That one had a pretty good following. The other series didn't do quite as well.
Yeah, you should have retired this thing back then.
We're going to fight, jackass.
Highlight of the past ten years?
Covering the playoff win over the Eagles after the 2009 season. We had waited a long time for that one.
Low points of the past ten years?
Any playoff loss. And this blog post.
Related articles
Quote Trivia: Not the Right Thing
Below is a quote from Tex Schramm.
"I'm still not sure if we're doing the right thing by playing this game."
During which season did Schramm make this comment, and what was the context?
While you're pondering that one..
Most know that the Cowboys signed Alfred Morris to a two-year contract worth $3.5 million contract.
In four seasons in Washington, Morris rushed for 4713 yards and 29 touchdowns.
He did especially well against Dallas. In eight games, Morris rushed for a total of 710 yards. This included three games where he rushed for more than 100 yards and one game where he rushed for 200.
The other player signed was defensive end Benson Mayowa, who played in Oakland in 2014 and 2015 after spending one year in Seattle. The Raiders never faced the Cowboys while Mayowa played there. He has recorded a total of two sacks during his NFL career.
Mock drafts have the Cowboys taking any of a number of players at #4. A few names:
Joey Bosa, DE, Ohio State (Todd McShay, ESPN, among many others)
Jalen Ramsey, DE, Florida State (Bleacher Report)
Myles Jack, LB, UCLA (Sports Illustrated)
Drafting a Tight End in the Second Round and Expecting a Different Result
Overused quote of the afternoon:
Insanity: doing the same thing over and over again and expecting different results.
Well-respected DMN columnist Rick Gosselin on Monday noted that Cowboys use of a second-round pick to take Gavon Escobar is already haunting the team. I would much rather take a week off from worrying about the Cowboys' decision-making about anything, but this one just bugs me.
Here's one reason: the 2006 NFL Draft.
Here's a second: the 2008 NFL Draft.
Let's review.
In 2006, the Cowboys missed the playoffs for a second consecutive season. The aura surrounding Bill Parcells was much less impressive, but the Cowboys could make some strides with another solid draft.
The team needed help in its secondary, especially at the safety position. It needed a receiver, given that it had two over the age of 32 (Terry Glenn and Terrell Owens).
Let's stress this point: Tight end was not a need.
The team's first pick was linebacker Bobby Carpenter. Not a good start, but that's a story for a different day.
With their second pick, the Cowboys could have had safety Bernard Pollard. Or cornerback Tim Jennings. Or a returner named Devin Hester, who helped the Bears to the Super Bowl as a rookie.
Instead, Dallas took tight end Anthony Fasano with the 53rd overall pick. He was supposed to complement Jason Witten, but the Cowboys barely used him.
Two years later, the Cowboys traded Fasano and Akin Ayodele to the Miami Dolphins for a 4th round pick. Yes, the Cowboys traded a second-rounder from 2006, along with a starting linebacker, in exchange for one 4th round pick.
The result: Fasano caught 177 passes for 2104 yards and 23 touchdowns for the Dolphins over the next five years. Ayodele wasn't great, but he started 18 games for Miami.
Dallas took that 4th round pick in 2008 and traded it to Oakland for a 4th rounder and a 7th rounder. Oakland used the pick to take Tyvon Branch, who has started 63 games.
I honestly can't even summarize what happened after that. The Cowboys kept trading picks for more picks and more picks in deals with Cleveland and Jacksonville. The result: the Cowboys wound up with running back Tashard Choice, who lasted just over two years in Dallas.
Before the Cowboys showed their expertise in trading picks for picks and more picks, the Cowboys had a second-round pick in 2008 that they did not trade away.
The Cowboys needs in 2008? Offensive line. Safety. Wide receiver. Perhaps even another running back.
Let's stress this point: Tight end was not a need.
The Cowboys, however, decided to take a tight end, Martellus Bennett. Yes, there was some theory that Bennett would be more like a receiver. But as everyone probably already knows, Bennett did less and less in his four years in Dallas, winding up with 846 receiving yards and 4 touchdowns in 4 years. In less than 2 full seasons since leaving Dallas, he has caught 9 touchdown passes.
Who did the Cowboys pass up to take Bennett? Cornerback Terrell Thomas, who started 34 games in his first three seasons with the Giants. Safety Charles Godfrey, who has started 74 games with the Panthers. Running back Jamaal Charles, who is just a bit better than Felix Jones, the Cowboys' first-round pick in 2008. Guard Jeremy Zuttah, who has started 69 games with Tampa Bay.
No, these are not big-time names, but any one of them would have been more valuable to the Cowboys than Fasano and Bennett were.
By the time Bennett left after the 2011 season, the Cowboys had wasted two second-round picks and STILL had needs in their secondary, and on their offensive line, and at the receiver position.
So we come to the 2013 NFL Draft. The Cowboys still had not resolved their problems at safety. The team still needed offensive line help. The team needed defensive line help.
Let's stress this point: Tight end was not a need.
And so what do the Cowboys do with their second-round pick?
Take another tight end! And as Gosselin's piece points out, the team knew Escobar could not block, so when he proved to be less effective as a receiver, the team had to know it had wasted yet another second-round pick on a tight end.
It's perhaps a bit early to say how good the players taken after Escobar will be, but several teams found starters in the second and third rounds. And yes, the Cowboys found a gem in Terrance Williams, but that does not excuse wasting a pick on another tight end.
It is what it is (and I hate that phrase): insane.
Related articles
Photo Trivia: Cowboys Rocked by the Saints in 2006
I asked this in a post from yesterday, but here is more about the unknown fullback who scored three times against the Cowboys in 2006.
The Saints would eventually head to the NFC Championship Game in 2006 thanks to stars such as Drew Brees, Deuce McAllister, Reggie Bush, and Marques Colston. Heading into this game, both teams were 8-4 and riding hot streaks.
The Cowboys had to figure out how to slow down these skill players to have any chance to beat New Orleans.
The problem was that when the Saints got down inside the 5 on more than one occasion, the Cowboys forgot to cover the fullback. This fullback scored twice in the first half and yet another time in the third quarter. The Saints won in a blowout, 42-17.
Here's a puzzle with the player:
provided by flash-gear.com
Related articles
How Jerry Used to Respond to Dumb Losses and Mediocre Seasons
Can't quite forget these facts—
His defense allowed a receiver to gain 329 yards due largely to a pathetic defensive scheme. His team still had a 99% chance to win with just over a minute to play but found yet another way to lose a game. His team is now 4-4, and his head coach has not shown that he is any better than mediocre.
So how does Jerry Jones make the news this week following the loss? By saying that a cornerback who has not played in Dallas since 1999 (Deion Sanders) would be able to stop the receiver (Calvin Johnson) who gained the 329 receiving yards.
(Oh, and he later said he was "disappointed" in the team's 4-4 start.)
During Deion's last season in Dallas in 1999, the Cowboys only managed to finish with an 8-8 record. The Cowboys had lost Michael Irvin, and Troy Aikman had to make due with Rocket Ismail (not really a #1 receiver) and the likes of Ernie Mills, Jason Tucker, Jeff Odgen, and Chris Brazzell.
Thanks to parity in the NFC in 1999, though, the Cowboys snuck into the playoffs as a wildcard. The Cowboys traveled to Minnesota but could not hold on to a first-half lead in a 27-10 loss.
Two days later, Jerry fired head coach Chan Gailey, who had not returned the team to prominence.
Here's a summary of Jerry firing Gailey:
Team owner and general manager Jerry Jones spent most of Tuesday morning and early afternoon alone in his Valley Ranch office. Late in the afternoon, he went to Mr. Gailey 's office, where the head coach was meeting with assistants.
Mr. Jones stressed that he had no criticism of Mr. Gailey the person. He praised the coach's integrity and diligence but pointed to the Cowboys' offensive struggles as the reason for the move.
Mr. Gailey , 48, was the franchise's fourth coach, hired in February 1998 to succeed Barry Switzer. Mr. Gailey 's record was 18-16 in two seasons, including two playoff losses.
"This decision that I had to make today was about football," said Mr. Jones, who declined to give a timetable for naming a replacement. "It was not about egos. It was not about friendships gone awry."
It was, in a nutshell, about a Cowboys offense that started strongly each of the last two seasons but waned in November and particularly December.
It was about a team that was the NFL's most-penalized this season. It was about a team that started this season 3-0 but lost its final eight road games en route to an 8-9 finish, including Sunday's 27-10 playoff loss at Minnesota.
Was it a product of an aging team wearing down, one that sorely missed injured wide receiver Michael Irvin? Or was it an offense that failed to use the talents of established stars such as quarterback Troy Aikman, running back Emmitt Smith and offensive lineman Larry Allen?
Mr. Jones sounded like a man who clearly faulted the system more than the players.
"They tried their hearts out," he said. "They worked at it to try to make it productive. We just aren't as productive offensively as we need to be, and we haven't been the last two years."
It's easy to say that Jason Garrett has had less to work with than Gailey did, but that is hardly the case. Troy Aikman in 1999 was near the end of his career, and Emmitt Smith was hardly a dominant runner. The offensive line still had Larry Allen and a young Flozell Adams, but Mark Stepnoski and Erik Williams where nowhere near the linemen they had been six or seven years earlier. The defense was good but not dominant as it was during the Super Bowl years.
The coach who replaced Gailey was Dave Campo, who inherited a mess. The team had to survive salary-cap hell without first-round draft picks sent to Seattle in a trade for receiver Joey Galloway.
Campo's teams were never better than 5-11. In his final season, the team had a two-game winning streak and hosted San Francisco at home. Dallas took a 27-17 fourth-quarter lead but could not stop the 49ers, who scored their final 14 points with less than six minutes remaining. Terrell Owens' eight-yard touchdown reception sealed the win for San Francisco.
Jerry was ticked:
A visibly angry Jerry Jones stormed out of the locker room following San Francisco's 31-27 win over the Cowboys on Sunday afternoon before a crowd of 64,097 at Texas Stadium.
The Cowboys' owner was in no mood to answer questions.
"That was a stupid [expletive] ballgame," Jones said from a stairwell in the stadium's bowels. "The players played well enough to win. We [expletive] it up."
Then he turned and stalked off.
So was Jones talking about defensive coordinator Mike Zimmer's scheme that left seldom-used cornerback Dwayne Goodrich covering Terrell Owens – widely considered the game's best receiver – with 15 seconds left, even though he was supposed to have safety help?
Or was he talking about coach Dave Campo's decision to let Billy Cundiff attempt a 47-yard field goal that would have given Dallas a 30-24 lead with 2:16 left? Cundiff is 3-of-8 beyond 40 yards this season.
Or was he fed up with yet another key breakdown by special teams coach Joe Avezzano's unit, which allowed a 42-yard kickoff return that helped San Francisco regain momentum after Dallas grabbed a 27-17 lead?
This much is clear: The Cowboys blew a 10-point lead in the final 6:56 and wasted an opportunity to win three consecutive games for the first time since the start of the 1999 season, a span of 58 games.
The Cowboys have had only three two-game winning streaks since 2000, when Campo became coach.
Campo's coaching future is in jeopardy again.
The loss to the Lions last Sunday was far worse than the 2002 loss to the 49ers. The Cowboys under Garrett have found several ways to lose games the team should have won.
Jerry's reaction? Go to fantasy land and consider whether Deion could cover Megatron.
Related articles
Thank Goodness for the Turnovers
Since the merger in 1970, no Dallas team has ever finished a season ranked below 23rd in the league in yards allowed.
The one team that finished 23rd (out of 32 teams) was the 2010 squad. That was the team that began the season with Wade Phillips as head coach and wound up with Jason Garrett as an interim.
The current team is ranked dead last in the league in yards allowed. Through eight games, the Cowboys have allowed 3380 yards, or 422.5 yards per game.
Perspective: the 2013 Cowboys have given up more yards in eight games than the Super Bowl Champion 1977 Cowboys gave up in 14 games (3213 yards, or 229.5 yards per game).
Yes, that was 1977. But in 1992, another great Super Bowl year, the Cowboys gave up 3931 yards, or 245.7 yards per game over 16 games.
No Dallas team has ever come close to giving up 422.5 yards per game over an entire season.
The 1963 team gave up 380.4 yards per game in 14 games.
The 1962 team gave up 370.2 yards per game in 14 games.
The 1960 team gave up 364.3 yards per game in 12 games.
The 2010 team gave up 351.8 yards per game in 16 games.
Combined win-loss of those seasons: 15-39-2.
There are, of course, differences between the 2013 season thus far and those bad seasons from the past.
The first difference is that the NFC East is pathetic in 2013. While Dallas ranks 32nd in yards allowed, the Giants are only 23rd, the Redskins are 25th, and the Eagles are 31st.
Of course, three of the Cowboys' four wins have come against those division opponents. The other win came against the St. Louis Rams, who rank 22nd in yards allowed.
The second difference is that the Cowboys have managed to cause turnovers. Dallas and Seattle lead the NFC with turnover ratios of +9. The Giants (-12), Redskins (-2), and Eagles (-1) each have negative ratios.
I will admit I was excited about the move to the 4-3 defense. I also thought the Tampa 2 defense could work here.
Um. No.
* * *
Tony Romo is on pace to throw for more than 4400 yards and 36 touchdowns. If he reaches 36 TDs, it will match his career high set in 2007.
Yes, those were better days.
* * *
DeMarco Murray is no longer on pace to surpass the 1,000-yard mark. He has been stuck at 426 since his injury in week 6.
The Cowboys have had one back surpass 1,000 yards since Emmitt Smith last accomplished the feat in 2001. That was Julius Jones in 2006.
* * *
The team is now on pace to score 460 points this year. That would rank second in franchise history behind the 479 points scored by the 1983 Cowboys.
Related articles
Dallas Cowboys Friday Photo Trivia: Name This Player
The Dallas Cowboys participated in their first NFL draft in 1961. The team's first pick turned out to be a legend, as the Cowboys selected defensive tackle Bob Lilly.
The second-round pick was born in Schulenburg, Texas and played at Texas Tech. The Cowboys took this player in the second round of the draft, but he chose to play for the Dallas Texans, who took him in the first round of the AFL draft. He enjoyed a ten-year career with the Texans and the Kansas City Chiefs, including some years playing center.
Who is this player? Complete the puzzle below, and you will see a picture of him as well as the answer.
provided by flash-gear.com
Most Obscure Player of 1978: Larry Brinson
The 1978 Dallas Cowboys featured several running backs that many (with memories of the 1970s) would remember. This list includes not only Tony Dorsett and Robert Newhouse, but also Scott Laidlaw, Preston Pearson, and Doug Dennison.
The team did not have great candidates for the Most Obscure Player Award, so we're going with one of the lesser-known running backs.
Option #1 was Alois Blackwell, with his 9 carries for 37 yards in 1978.
Option #2, our winner, was Larry Brinson.
Brinson joined the Cowboys as an undrafted free agent in 1977. He saw action in all 14 games in 1977 but was cut during training camp in 1978.
He rejoined the Cowboys and saw action in 10 games in 1978. He only carried the ball 18 times but he scored two touchdowns in mop-up work against the Redskins (a 37-10 win) and the Jets (a 30-7 win).
He made it on the stat sheet for Super Bowls XII and XIII as a kick returner. Against the Steelers, he averaged 20.5 on two returns.
He played three years in Dallas and one in Seattle. After leaving the NFL, he became a college running backs coach. He has served on the coaching staffs at Arkansas, Clemson, Rice, Kentucky, and Kansas.


text:
Post Content
Marc Breslow
Director of Transportation and Buildings Policy, Executive Office of Energy and Environmental Affairs
As we head into the summer driving season, you can cut your gas costs by a quarter or more, and emit less pollution, by "smart driving" – maintain your car well, keep to the speed limit, accelerate less, and idle only when necessary. Every gallon of gas emits about 20 pounds of carbon dioxide, the main cause of global warming.
The U.S. energy (DOE) and environmental (EPA) agencies estimate that you can cut gas use 8% to 9% through good maintenance practices. These include using the recommended grade of oil, tuning your engine and replacing air filters at the proper times, and keeping your tires inflated correctly. Just having the right tire pressure can save up to 3% of your gas. You can also save on gas by buying tires that have higher efficiency. While at present there is no central source for finding such tires, some manufacturers have models that they market as being high efficiency – search for them on the web.
For the greatest savings, follow the example of the office supply chain Staples, which reports that it has cut diesel fuel use on its nationwide fleet of delivery trucks by more than 25%, through limiting their speed and acceleration and minimizing idling time. The graph shows how miles per gallon (MPG) varies with speed – you get the best MPG between around 40 to 60 miles per hour, with gas use increasing rapidly at higher speeds. Accelerating quickly and braking hard also uses a lot of gas. Driving more gently will save you money.
A few other easy ways to improve MPG:
• Don't store extra weight in your car.
• Remove unused roof or rear racks.
• When using air conditioning, use the "recycle inside air" setting, so that the car does not have to continually cool hot outside air.
• Don't keep the car running (idling) unnecessarily.
The Mass. Department of Transportation's (MassDOT) Smart Driving brochure is here.
If you're in the market for a new or used car, remember that MPG varies widely, even for similarly-sized cars.
Of course you can also save gas by getting around through other means than one person in a car. Information on carpools and vanpools is available through MassDOT's MassRIDES program. Or, check out Info on public transit for the Boston metro area , regional transit systems throughout the state, and bicycle trails.
Recent Posts
National Energy Efficiency Day posted on Oct 5
In honor of National Energy Efficiency Day, DOER would like to highlight some of the programs and initiatives that have helped make Massachusetts the most energy efficient state in the nation for the sixth year in a row. Mass Save, a utility run-ratepayer funded program, offers a …Continue Reading National Energy Efficiency Day
Massachusetts Named Most Energy Efficient State for Sixth Consecutive Year posted on Oct 5
Shares Top Spot with California on American Council for an Energy-Efficient Economy Scorecard BOSTON – September 27, 2016 –The Baker-Polito Administration today announced that the Commonwealth has been named the most energy efficient state in the nation by the American Council for an Energy-Efficient Economy (ACEEE) …Continue Reading Massachusetts Named Most Energy Efficient State for Sixth Consecutive Year
Baker-Polito Administration Announces $14 Million for Energy Resiliency Grant Program posted on Oct 5
Grants Available to Critical Care Facilities Requiring Back-Up Clean Energy Power Generation HOLYOKE – September 22, 2016 –The Baker-Polito Administration today announced $14 million in grant opportunities for energy resiliency projects at critical care facilities across Massachusetts. The grants are the latest round of theCommunity Clean …Continue Reading Baker-Polito Administration Announces $14 Million for Energy Resiliency Grant Program


text:
Think you've heard "baby daddy/mama" drama? Think Again. In Texas, a miss Mia Washington cheated on her man and then had twins – resulting in a double conception. That's right—twin boys with different dads. Real life beats a novela anyday. {NYDN}
Are you a coloured girl who smokes? First, stop–or at least try (and that means YOU Osita!), and then read this article about the effects of Nicotine on those of us with melanin to spare. {NYT}
In Somalia—public amputations for theft and petty crimes are on the rise. Remind me never to "sample" at the market there. {BBC}
With all of the wallet draining goodies on-hand at Target and a fancy ad campaign, it still can't beat the machine known as Wal-Mart. {FT}
Check out The Guardian's David Smith as he dotes on the similarities of Africa and America in Letters From Africa. Cape Town is like 'Frisco? Word! {Guardian}
My beloved taco-trucks are feeling the heat from local health officials around the country. I miss Cali…where else could you get a fresh plate of mole' y Jarritos Tamarind at 4am..for like $3? {LAT}
Hey Ladies! I'm Back…freshly tanned and still full. It's amazing how hungry you can get at an all-inclusive hotel….but hamburgers and rum at 3am are not the move—just a piece of advice.
Last 5 posts by Shannon Washington
- Travel Bites: Airbnb's New Look, The Best Time To Travel & More! - November 29th, 2016
- Travel Bites: The New Luxe AirBnb, A VAT Breakdown & More! - November 21st, 2016
- The Travel Bag: Skin's Best Bets - October 24th, 2016
- 3 Luxe for Less Caribbean Getaways for Fall! - August 29th, 2016
- Carnival Virgin? What To Know Before You Go! - August 14th, 2016


text:
THE BRONX - Family and friends greeted members of a Bronx church at LaGuardia Airport Wednesday after they returned home from a relief mission in Haiti.
The four men, who belong to the Infinity New York Church, spent 10 days in the quake-ravaged island nation handing out supplies, feeding the hungry and transporting the injured and dying to hospitals.
"The people of Haiti gave me so much hope," says Al Taylor, pastor of Infinity Church.


text:
Moscow's iconic television and radio tower has turned 45.
Moscow's iconic television and radio tower has turned 45.
A plane, operated by the Lamia Corporation airline, was carrying 81 people including the Brazilian Chapecoense Real football team when it crashed on November 29 in northwestern Colombia. According to official reports, six people were hospitalized after surviving the crash.
Following the 9/11 terrorist attack the US declared a "war on terror," which included the invasion of a number of Middle East countries. Check out Sputnik's infographic to learn more.
Most US citizens believe that the country's electoral system needs to be reformed, while 45 percent would prefer to see the "One Person, One Vote" scheme used, TNS UK pollster revealed in a survey for Sputnik.
Voting for the 45th president of the United States began Tuesday at 6 am EST (11:00 GMT) with polling stations opening their doors in Northeastern states, including Vermont, New Hampshire, New York, Virginia, Connecticut, Maine and New Jersey.
Syrian army, aided by local militia force, managed to liberate about half of eastern Aleppo during last two weeks.
North Dakota authorities now say they will move away from a key bridge near the Dakota Access protest encampment December 4 if protesters will agree to some basic parameters of their occupation of the land. North Dakota law enforcement also said they will not be "moving on that camp" in the near future.
President-elect Donald Trump's campaign manager Kellyanne Conway told CNN's State of the Union program that she believes the race would have been closer had Democratic candidate Hillary Clinton chosen Bernie Sanders as her running mate.
Commenting on the success of the Syrian army in Aleppo, the US' diplomatic impasse and Russia's role in the settlement of the conflict, French political scientist Bruno Tertrais suggests that it was Washington which "voluntarily left the field" and "gave way to Russia" there, making Moscow an "unavoidable" player in deciding the ongoing crisis.
Fifty years ago a burial ceremony held near the Kremlin wall marked the creation of one of the most famous WWII memorials in all of Russia – the Tomb of the Unknown Soldier.
Australian man engaged a kangaroo in hand-to-hand combat in order to protect his dog.
The fact of registration and authorization of users on Sputnik websites via users' account or accounts on social networks indicates acceptance of these rules.
Users are obliged abide by national and international laws. Users are obliged to speak respectfully to the other participants in the discussion, readers and individuals referenced in the posts.
The websites' administration has the right to delete comments made in languages other than the language of the majority of the websites' content.
In all language versions of the sputniknews.com websites any comments posted can be edited.
A user comment will be deleted if it:
The administration has the right to block a user's access to the page or delete a user's account without notice if the user is in violation of these rules or if behavior indicating said violation is detected.
Users can initiate the recovery of their account / unlock access by contacting the moderators at email@example.com
The letter must contain:
If the moderators deem it possible to restore the account / unlock access, it will be done.
In the case of repeated violations of the rules above resulting in a second block of a user's account, access cannot be restored.
To contact the team of moderators, write to email@example.com


text:
Home /
Our Sources / About Us
/ FAQs /
Advanced Search
Not what you're
looking for? Try an advanced search.
Official citation and/or docket number and footnotes (if any) for this case available with purchase.
Learn more about what you receive with purchase of this case.
February 10, 2011
MICHAEL V. LUJAN, PETITIONER,v.WARDEN JAMES YATES, RESPONDENT.
Petitioner, Michael Lujan, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of thirty-years to life plus fifty-three years following his conviction by a jury of five counts of lewd and lascivious acts upon a child under the age of fourteen years and one count of aggravated sexual assault. Petitioner raises several claims in his federal habeas petition; specifically: (1) ineffective assistance of trial counsel ("Claim I"); (2) ineffective assistance of counsel who represented Petitioner during the motion for a new trial proceedings ("Claim II"); and (3) the trial court erred in sentencing Petitioner to the upper-term ("Claim III"). For the following reasons, the habeas petition should be denied.
II. FACTUAL AND PROCEDURAL BACKGROUND*fn1 Defendant had two children with Sherri, the victim and "little Michael." Defendant and Sherri were never married, and were not living together during the events at issue.
On January 17, 1999, defendant agreed to take Sherri to visit her youngest child's father at Folsom State Prison, and to baby-sit the victim and her brother while Sherri was visiting. Defendant picked up Sherri around 7:00 or 8:00 a.m. They stopped to get gas, then went to the prison. [FN 3] When defendant left Sherri at the prison, it was with the understanding that she would call him at his sister's house at 3:00 p.m, or he would automatically return at 3:00 p.m. to take her home. When Sherri exited the prison at 3:00 p.m. defendant was not there. She called both defendant's sisters, but was unable to reach him at either place. She ultimately located defendant and he arrived at the prison around 4:00 or 5:00 p.m. Sherri noticed her daughter, who was five years old, was unusually quiet on the way home and that she was dressed in different clothes than she had been wearing that morning. [FN 3] The parties agreed it took approximately 30 minutes to get from Sacramento to the prison.
After Sherri and her daughter arrived home around 5:30 p.m., the daughter went into the bathroom where Sherri's niece, Angela, was styling her hair. Sherri overheard her daughter tell Angela that her stomach hurt. Angela asked the victim why her stomach hurt, and the victim told Angela to shut the door. A few minutes later, Angela came storming out of the bathroom, yelling at Sherri that she was "sick" for letting her daughter go with defendant. Angela told Sherri what the victim had told her.
Sherri spoke to her daughter, who refused to say anything at first for fear she would get in trouble. Eventually, the victim told Sherri that while her brother was asleep on the couch, defendant put her on the bed, lay on top of her, and kissed her neck. He rubbed pink lotion on her, then lay on top of her and "tried to hump her." The victim said after it was over defendant made her take a bath and change her clothes.
Sherri called the police, who took a statement from the victim. The victim described sexual intercourse with her father, and described her father's ejaculation. She said her father wanted her to orally copulate him, but she refused. She also described defendant rubbing lotion on her, including her "private part" and said defendant licked her "private part." Defendant also tried to stick his tongue in her mouth. Defendant told his daughter not to tell anyone what had happened or he would hurt her, and he made her take a bath.
A nurse practitioner conducted a sexual assault exam on the victim. The victim consistently recounted the event to the nurse. The nurse found a small laceration above the victim's urethra, and generalized redness inside the labia. Petechia is common where a child has been fondled, however the victim also had a skin condition called lichen sclerosis, which makes skin friable. Because of the lichen sclerosis, the nurse could not conclude that the abrasion and the petechia were consistent with sexual assault. Several days later, a social worker interviewed the victim at the Multi-Disciplinary Interview Center (MDIC). The victim's story remained consistent. The victim told the social worker her father said he would "knock the hell out of [her]" if she told anyone what happened.
The victim was nine years old at the time of trial. Although her memory of the molestation was not as good, she testified she remembered her dad touching his privates to her privates and moving back and forth, licking her, and asking her to lick him. She testified she had told the truth at the MDIC.
The victim's underwear and a rape kit containing vulvar swabs and [sic] were sent to the laboratory for analysis. Sperm heads were detected on one of the vulvar swabs. Spermatozoa were also found on the crotch area of the victim's underwear, but no sperm were found on a control slide from another area of the underwear. A DNA analysis was performed on the sperm from the victim's underwear. The sperm was consistent with defendant's DNA.
The defense theory was that defendant had not had time on the day in question to molest his daughter, and that the sperm had transferred to the victim's underwear in the wash.
Gina, defendant's sister, testified defendant came by her house on the day in question around 10:00 or 10:30 a.m. He left after receiving a page around 11:00 a.m. He left the victim and her brother with Gina. When defendant returned to pick up the children, he had Sherri with him. Gina also testified she remembered the day because it was a school day and her daughter stayed home from school that day. In fact, January 17, 1999, was a Sunday.
Two other witnesses gave an accounting of defendant's and the victim's whereabouts that was inconsistent with Gina's testimony. Bonnie Kirby, defendant's ex-girlfriend, testified that on the date in question, she was living with Griselda Monroy. Kirby left for work around 9:30 in the morning and left her mother, Anita Chinn, to baby-sit her daughter. Kirby called home shortly after 12:00 p.m. While she was speaking to her mother, Kirby could hear defendant, the victim, and Monroy in the background. She called back again around 3:10 and again around 5:00 p.m. She did not hear defendant in the background either of those times.
Monroy testified that she was at home with Chinn and Kirby's daughter on January 17, 1999. At about 10:30 or 11:00 a.m, she paged defendant to ask him to take her to run some errands. He arrived at her apartment about 40 minutes later with the victim and her brother. Defendant and Monroy left the children with Chinn while they ran errands and purchased marijuana. They returned back to the apartment around 1:30 or 2:00 p.m. Defendant left with the children around 3:00 p.m.
Defendant's sister, Marjorie, testified the victim recanted and said she had lied about her father. Sherri testified the victim would tell defendant's family he had not molested her, and tell Sherri's family he had molested her. The victim also asked Sherri if she and defendant would get back together if the allegations were not true, and Sherri told her yes just to "shut her up."
Defendant presented evidence at trial of a study showing a small number of sperm can be transferred from garment to garment in the wash. The People's expert opined that the number of sperm head on the victim's underwear in this case was much greater than the number observed in the study, leading him to conclude that the sperm on the victim's underwear had not been transferred by washing.
Defendant stipulated to a 1986 conviction for rape.
Defendant was charged with five violations of section 288, subdivision (b), lewd and lascivious acts upon a child under the age of 14. He was also charged with violating section 269, aggravated sexual assault committed by force against a child under the age of 14 and more than 10 years younger than defendant. Counts one through five were non-specific as to the acts committed. The trial court gave a unanimity instruction. The prosecution argued agreement that any of the following touchings occurred would be sufficient to convict defendant of violating section 288, subdivision (b): (1) taking off the victim's clothes; (2) kissing her on the neck or mouth; (3) putting lotion on her; (4) orally copulating her; or (5) putting his penis in her genitalia.
After the jury returned its verdict of guilty on all six counts, defendant made a motion for new trial on the ground his trial counsel provided inadequate representation. Defendant argued, inter alia, that his trial counsel had failed to hire an investigator for a period of 29 months, during which time Anita Chinn died, having never been interviewed.
The trial court denied the motion for a new trial, and on the issue of the Anita Chinn testimony stated that there was no evidence anyone knew Chinn, who was in her fifties, was about to die. The trial court stated there was no certainty Chinn's testimony would have materially benefitted defendant because the fact that Chinn was baby-sitting the victim was already in evidence through the testimony of Monroy and Kirby. (Slip Op. at p. 2-7 (footnote omitted).)
Petitioner filed an appeal to the California Court of Appeal, Third
Appellate District raising the claims he raises in his amended federal
habeas petition amongst others. That court denied Petitioner's claims
that he raises in this amended federal habeas petition.*fn2
Petitioner then filed a petition for review in the California
Supreme Court. The California Supreme Court denied the petition for
review on May 11, 2005 and stated the following: "Petition for review
denied without prejudice to any relief to which defendant might be
entitled after this court determines in People v. Black, S126182, and
People v. Towne, S125667, the effect of Blakely v. Washington, (2004)
-- U.S. --, 124 S.Ct. 2531, on California law." (Resp't's Lodged Doc.
Petitioner filed a federal habeas petition on April 14, 2006. Respondent subsequently filed a motion to dismiss since Petitioner's federal habeas petition was "mixed" as it included both exhausted and unexhausted claims. On March 20, 2007, Magistrate Judge Brennan recommended that Respondent's motion to dismiss for lack of exhaustion be granted.
On April 24, 2007, Petitioner filed an amended habeas petition. On May 8, 2007, District Judge Karlton adopted Magistrate Judge Brennan's findings and recommendations dismissing Petitioner's originally-filed federal habeas petition. On June 18, 2008, District Judge Karlton vacated the May 8, 2007 entry of judgment and referred the matter back to Magistrate Judge Brennan for further proceedings on Petitioner's April 24, 2007 amended federal habeas petition.
Subsequently, Respondent filed a motion to dismiss Petitioner's amended habeas petition as untimely. The motion to dismiss was ultimately denied by District Judge Karlton. (Dkt. No. 43.) Respondent answered the amended habeas petition on February 11, 2010. Petitioner filed a traverse on March 22, 2010. The matter was reassigned to the undersigned on January 25, 2011 by Chief Judge Ishii. It is now ripe for adjudication.
III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the state court proceedings unless the state court's 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 state court. See 28 U.S.C. 2254(d).
As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrande, 538 U.S. 63, 71 (2003) ((quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").
The first step in applying AEDPA's standards is to "identify the state court decision that is appropriate for our review." See Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). When more than one court adjudicated Petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). The last reasoned decision is from the California Court of Appeal in its January 27, 2005 decision. As previously stated, Petitioner raised all of the claims he raises in this federal habeas petition in his state habeas petition to the California Supreme Court which provided no reasoning for its denial.
IV. ANALYSIS OF PETITIONER'S CLAIMS A. Claim I
In Claim I of Petitioner's amended federal habeas petition, he argues that trial counsel was ineffective. Petitioner's arguments within Claim I fall into two categories. First, Petitioner asserts that trial counsel was ineffective in failing to investigate the case for twenty-nine months. During this delay, Petitioner asserts that he lost the chance to get testimony from a key witness, Ms. Anita Chinn, who passed away during this time period. Second, Petitioner argues that trial counsel was ineffective by failing to obtain and introduce key documentary evidence during trial. The California Court of Appeal analyzed these arguments on direct appeal and stated the following:
Defendant argues his trial counsel, Emmett Mahle, unreasonably delayed in investigating his case. He argues that as a result of the delay, Anita Chinn died before she could be interviewed and Folsom's Prison's visitor records were destroyed before they could be obtained.
Mahle was appointed to represent defendant in May 1999. Mahle did not obtain the services of an investigator until October 1, 2001. When asked by defendant's subsequently appointed counsel why he waited so long to appoint an investigator, Mahle replied merely that his investigator "had plenty of time, eleven months, to complete tasks assigned to him before the case went to jury trial." We agree that Mahle's failure to hire an investigator for a period of 29 months "fell below an objective standard of reasonableness under prevailing professional norms . . . ." (People v. Kelly, supra, 1 Cal.4th at p. 520.) There could have been no benefit to waiting to investigate the case, and by waiting counsel risked witnesses forgetting relevant facts or dying before a statement could be obtained. However, there is not a reasonable probability that but for Mahle's error, the result would have been different. Defendant argues Mahle's failure to investigate resulted in the loss of Chinn's testimony. There is not a reasonable probability that Chinn's testimony would have changed the result of the trial. At most, Chinn's testimony would have merely bolstered the testimony of Kirby and Monroy. Both Kirby and Monroy gave testimony placing defendant at Kirby's apartment on the afternoon of January 17.
Assuming the jury believed Monroy and Kirby, the jury could nevertheless have concluded, as the prosecution argued, that defendant had time to molest his daughter. If the jury believed Monroy and Kirby, it necessarily had to discount the testimony of defendant's sister, Gina, who claimed the victim was with her. This leaves two large gaps in time when defendant could have accomplished the molestation. Defendant dropped Sherri off at the prison between 7:30 and 8:30 a.m., allowing 30 minutes to drive to the prison. Allowing another 30 minutes to drive home, defendant and the children could have returned home between 8:30 and 9:30. Monroy testified defendant did not arrive at her apartment until approximately 40 minutes after she paged him around 10:30 or 11:00 a.m. This leaves a period of two to three hours for which defendant's actions are unaccounted. In the afternoon, Monroy testified she and defendant returned to her apartment after running errands between 1:30 and 2:00 p.m. They then smoked marijuana for 15 or 20 minutes, and defendant stayed another half hour before he left with the children. This means defendant could have left as early as 2:15 p.m. Sherri testified defendant picked her up around 4:00 or 5:00 p.m. This leaves another period of over two hours for which defendant's actions are unaccounted. Chinn's testimony would not have resolved this problem with the alibi defense. Defendant also argues Mahle's delay in investigating the case resulted in Folsom Prison's visitor records being destroyed before defendant could obtain them. He argues the visitor records would have established when he dropped off Sherri and when he picked her up.
The time defendant dropped off Sherri was not at issue, as Sherri's testimony that defendant picked her up at her house between 7:00 and 8:00 a.m. was undisputed. In the afternoon, Sherri testified she went outside to the parking lot at 3:00 p.m. She waited 10 to 15 minutes or longer, then went back inside to use the phone. After about an hour she reached defendant.
There is no evidence that Sherri would have had to sign a visitor's log to use the telephone, and it is not clear from the record that she waited inside until defendant picked her up. Thus, it is sheer speculation that the visitor records would have she any light on the time defendant arrived to pick her up. Certainly, defendant has not shown a reasonable probability that introduction of the records would have changed the result of his trial . . . .
Defendant asserts Mahle was incompetent because he failed to obtain telephone and pager records that would have documented his whereabouts during the day in question. Defendant's mere assertion does not meet his burden of showing a reasonable probability that the result of the trial would have been different. Defendant makes no showing as to the actual contents of the phone records.
We conclude that although Mahle's representation fell below an objective standard of reasonableness, there was no prejudice. (Slip Op. at p. 8-11.)
The Sixth Amendment guarantees effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated the test for demonstrating ineffective assistance of counsel. First, the petitioner must show that considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. See id. at 688. Petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. See id. at 690. The federal court must then determine whether in light of all the circumstances, the identified acts or omissions were outside the range of professional competent assistance. See id.
Second, a petitioner must affirmatively prove prejudice. See id. at 693. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine the confidence in the outcome." Id. A reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by defendant as a result of the alleged deficiencies . . . [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (citing Strickland, 466 U.S. at 597).
In this case, it is easier to dispose of Petitioner's ineffectiveness arguments with respect to trial counsel on the ground of a lack of sufficient prejudice. Petitioner failed to show that his counsel's delay in investigating the matter would have changed the outcome of the proceedings to a reasonable probability. With respect to the delay and the ultimate untimely death of Ms. Chinn, it is at best unclear what additional information if any she would have added to the defense. Ms. Chinn babysat the Petitioner's two children (the victim and little Michael) while Petitioner and Ms. Monroy were running errands. However, as noted by the California Court of Appeal, there remained significant gaps of time during the course of the day which gave Petitioner the opportunity to commit the crime. Petitioner does not show that the testimony of Ms. Chinn would have added any additional information not provided by Ms. Monroy, and certainly not to a reasonable probability to change the outcome of the trial. Petitioner failed to show that the California Court of Appeal's decision on this argument was an objectively unreasonable application of clearly established federal law. Petitioner is not entitled to federal habeas relief based on his ineffective assistance counsel argument regarding the twenty-nine month delay in which time Ms. Chinn passed away.
Next, Petitioner argues that trial counsel's delay caused the Folsom Prison's visitor records log to be destroyed before Petitioner could obtain them. Petitioner asserts that "[e]vidence of Folsom's visitor' logs would have ben powerful proof of [his] innocence, since it would have established when he dropped Martinez-Bruno off at the prison and when he picked her up, which was critical to his alibi defense." (Pet'r's Am. Pet. at p. 34.) As with Petitioner's prior ineffective assistance argument, he failed to show to a reasonable probability that the outcome of the proceeding would have been different had his counsel not delayed and gotten these records. The California Court of Appeal's decision was not an objectively unreasonable application of clearly established federal law. As it noted, it would be sheer speculation that the visitor logs would have resulted in a more exact time when Petitioner picked Sherri up at the prison. Furthermore, as previously noted, there remained gaps of time during the day where the molestation still could have taken place. Under these circumstances, Petitioner failed to show that he was prejudiced. Petitioner is not entitled to federal habeas relief on this argument as well.
Next, Petitioner argues that trial counsel was ineffective for failing to investigate and introduce evidence of telephone and pager records. Petitioner asserts that these records "would have documented [Petitioner's] whereabouts at various points from about 10:30 or 11:00 a.m. until he left to pick up Martinez-Bruno up at Folsom." (Id. at p. 33.) Specifically, Petitioner states that these records: would have documented (1) the page Monroy sent [Petitioner] about 10:30 or 11:00 a.m. (RT 1397); (2) the page [Petitioner] received at Carrillo's home at about 11:00 a.m. (RT 893); (3) the telephone call [Petitioner] made to Monroy 20 minutes after he received her page (RT 1398); (4) the telephone calls Kirby made from her office to her home shortly after noon and at around 3:10 or 3:15 p.m. (RT 968-969, 981-983); (5) the page [Petitioner] received at Kirby's home between about 2:30 and 3:00 p.m. (RT 1412); (6) the telephone call [Petitioner] made from Kirby's home after receiving that page (RT 1412); (7) the collect telephone calls Martinez-Bruno made from prison to her mother, grandmother, sister, and [Petitioner's] sisters (RT 342-343); (8) the second collect telephone call made to her mother's home, during which she spoke to [Petitioner] (RT 343-344).
(Id.) Once again, Petitioner has failed to show to a reasonable probability that the outcome of the trial would have been different had trial counsel investigated and obtained these phone and pager records. Petitioner does not present these records. It is at best unclear what these records would have added to the defense in light of the testimony that was already produced at trial regarding Petitioner's whereabouts on the day of the molestation. Under these circumstances, Petitioner failed to show prejudice to warrant federal habeas relief on this ineffective assistance of counsel argument. Because Petitioner failed to show that he was prejudiced under the Strickland standard, the California Court of Appeal decision rejecting this ineffective assistance argument was not an objectively unreasonable application of clearly established federal law.
In his Petition and in his traverse, Petitioner appears to argue for the first time that Mr. Mahle was ineffective for failing to call Dr. Crawford as a witness during trial. (See Pet'r's Am. Pet. at p. 5 and Pet'r's Traverse at p. 4.) Petitioner's asserts that Dr. Crawford's testimony would have impacted Petitioner's claim of innocence. (See id.) This ineffective assistance of counsel argument was not raised by Petitioner to the California Supreme Court on direct appeal. Thus, it may be unexhausted. However, even though the claim may be unexhausted, a federal habeas court can deny an unexhausted claim on the merits so long as it is deemed not "colorable."
See Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). Petitioner does not come forward with what Dr. Crawford's testimony would have been. Thus he has not shown to a reasonable probability that the outcome of the proceeding would have been different had Dr. Crawford been called as a witness. Therefore, this argument does not raise a "colorable" ineffective assistance of counsel claim. Petitioner failed to show that he was prejudiced by any purported ineffectiveness by trial counsel.
B. Claim II
In Claim II of Petitioner's amended federal habeas petition, Petitioner asserts his counsel on his new trial motion (Mr. Bradley Holmes) was ineffective. Petitioner argues that Mr. Holmes failed to argue during the motion for a new trial that Mr. Mahle's ineffective assistance of counsel at trial caused Petitioner to suffer prejudice. (See Pet'r's Am. Pet. at p. 4.) Petitioner also attaches a portion of his state court habeas petition to his amended federal habeas petition. Among the pages that Petitioner included within that attachment was Petitioner's argument before the state courts that Mr. Holmes was also ineffective for conceding the prejudice and DNA issue, confusing various facts and issues, presenting inadmissible documentation and failing to argue that trial counsel was ineffective for failing to obtain the prison's visitor logs as well as the telephone and pager records. (See id. at p. 38.) Construing the pro se federal habeas petition liberally, these additional arguments will be considered as well. The California Court of Appeal analyzed these arguments on direct appeal and stated the following:
After Mahle asked to be relieved from the case because of a breakdown in communication with defendant, the trial court appointed Bradley Holmes to represent defendant. Holmes filed and argued a motion for a new trial, and defendant now argues he was not adequately represented by Holmes with respect to the motion for new trial.
Defendant first argues Holmes's representation was deficient because he did not argue defendant was prejudiced by Mahle's performance. In light of our holding that there was no prejudice, Holmes cannot be said to have been deficient for failing to make such an argument.
In any event, the record indicates Holmes argued both that he needed to put Mahle on the stand in order to prove prejudice and that defendant had been prejudiced. Holmes urged the trial court to put Mahle on the stand and argued, "I think I can perhaps establish some prejudice through the testimony of Mr. Mahle . . . ." Holmes also argued defendant was prejudiced by Mahle's failure to preserve Chinn's testimony because her testimony would have shown there was no time for defendant to have done the acts charged.
Defendant argues Holmes "conceded all three factors that convinced the court there was no prejudice . . . ." Defendant claims Holmes conceded the victim's credibility, the DNA evidence, and that defendant had an hour to molest the victim after he lift [sic] Kirby's apartment. We find no concessions in the record.
Holmes acknowledged that child molestation cases are difficult because the jury loves the victim and hates the defense, but Holmes then pointed out that it was the defense counsel's responsibility to make sure defendant had a fair trial and that every attempt had been made to investigate the case thoroughly. This did not amount to conceding the victim's credibility.
Defendant claims Holmes "conceded" the DNA issue by arguing the washing machine transfer theory was "pathetic" and "almost laughable." However, Holmes went on to argue that a more plausible theory would have been that the victim was wearing panties that had been in contact with her dad's underwear in the clothes hamper. This was not a concession of the DNA issue. Defendant asserts Holmes agreed with the court that defendant had time to molest his daughter before he left to pick up Sherri in the afternoon. However, this was part of Holmes's argument that Mahle should have called defendant as a witness to close the time gaps. There was no concession of the issue of prejudice in Holmes's argument.
Defendant argues Holmes made damaging arguments, such as the following statement regarding Chinn's death. "They should have realized the importance of this witness. [¶] And, you know, two years go by, two-and-a-half years go by. Pretty soon, this lady dies. We all die. She could have died fifteen minutes after this happened, two years later. She could have lived to 103. We never know that. The point is, if they had done this in proper order --" Defendant does not explain why this argument was prejudicial. In any event it was made for the obvious tactical purpose of arguing Mahle had an obligation to investigate the case in a timely manner because witnesses can die at any time.
Defendant argues Holmes talked about defendant's sister, Gina's testimony, but erroneously attributed it to defendant's other sister, Marjorie. Defendant fails to explain how this prejudiced him. Holmes did not have the benefit of sitting through the trial, but the trial judge did. We can assume that the trial judge knew which sister Holmes was talking about.
Defendant claims Holmes's argument that Mahle should have put defendant on the stand to account for his actions between leaving Monroy's apartment and picking up Sherri was "incoherent, factually incorrect, misleading, and contradicted by his subsequent argument . . . ." Again, defendant fails to show how he was prejudiced by Holmes's argument. The trial court was aware of the evidence. Furthermore, the trial court appeared to understand that Holmes was arguing Mahle should have put defendant on the stand to fill in the gaps of time, because it pointed out to Holmes that Mahle had a good reason for not putting defendant on the stand: "He has a number of impeachable priors."
Defendant complains that many of the documents Holmes offered in support of the new trial motion were inadmissible. The first such document was a memorandum summarizing a telephone conversation between Holmes's investigator and Marjorie, in which Marjorie expressed that she had been unprepared to testify. The trial court apparently considered the memorandum, even though it recognized the document was unsworn, because it found, "[w]hether additional preparation of witnesses would have affected their memories in court is pure guesswork." The trial court considered, and dismissed, the argument regarding the preparation of witnesses, and the unsworn statements were not prejudicial to defendant.
Holmes also submitted two e-mails written by the DNA counsel, Robert Blasier, regarding Blasier's concern over Mahle's delay in working up the case. Defendant fails to show how the submission of these inadmissible documents prejudiced him. The trial court apparently considered the evidence because in ruling on the new trial motion, the court stated:
"[T]he fact that Mr. Mahle remained as trial counsel, despite his heavy case load, does not, in the Court's view, establish ineffective assistance.
There were many legitimate reasons shown by the file why the matter came to trial so long after the defendant's arrest and prosecution, and defendant waived time and asked to do so.
The defense attorneys, not one, but two of them, were, indeed, very busy, but their mutual reputations for legal advocacy kept them in great demand. Defendant had the benefits of an experienced, seasoned, aggressive two-person defense team, and no prejudice has been shown by the various contingencies of the defendant of the prosecution in this case."
Finally, defendant argues Holmes was ineffective in failing to argue Mahle's failure to obtain and introduce Folsom Prison visitor logs and telephone pager records. As we have determined, this did not constitute ineffective assistance on Mahle's part. (Slip Op. at p. 11-15.)
Upon reviewing the record, the California Court of Appeal's decision on Petitioner's various ineffective assistance of counsel arguments against Mr. Holmes was not an objectively unreasonable application of clearly established federal law. It analyzed Petitioner's arguments and found that Mr. Holmes' performance was not constitutionally deficient for some of the arguments and/or that Petitioner failed to show to a reasonable probability that the outcome of the new trial motion would have been different for others arguments.
For example, as explained by the California Court of Appeal, Mr. Holmes did attempt to argue that Petitioner was prejudiced by Mr. Mahle's performance at trial. He specifically sought to have Mr. Mahle take the stand during the new trial proceedings and argued forcefully that Petitioner was prejudiced by Mr. Mahle's inaction thereby causing Petitioner to lose Ms. Chinn's testimony upon her untimely death. (See Reporter's Tr. 1854-55.) Furthermore, as noted by the California Court of Appeal in its decision, Petitioner failed to show that he was prejudiced by Mr. Mahle's performance as trial counsel, therefore, Mr. Holmes purported failure to argue prejudice could not have been prejudicial to Petitioner as well.
Additionally, upon reviewing the record Mr. Holmes did not concede the victim's credibility nor did he concede the DNA issue. Furthermore, the fact that Mr. Holmes mistook Petitioner's sister Marjorie for Gina in arguing for the new trial did not prejudice Petitioner. Petitioner failed to show to a reasonable probability that Mr. Holmes' mistake would have resulted to a reasonable probability that the outcome of the new trial motion would have been different. Petitioner also failed to show that he was prejudiced by Mr. Holmes purported introduction of inadmissible documentary evidence during the motion for a new trial hearing. As confirmed in the record, the judge apparently considered these unsworn and/or purportedly inadmissible documents, yet still rejected Petitioner's motion for a new trial. Finally, as explained by the California Court of Appeal and in supra Part IV.A, Petitioner failed to show that he was prejudiced by Mr. Mahle's failure to obtain and introduce the prisoner visitor logs and telephone/pager records. Therefore, Petitioner cannot show that he was prejudiced for Mr. Holmes' failure to make this argument in the motion for a new trial proceedings. Accordingly, Petitioner's ineffective assistance of counsel arguments within Claim II do not warrant federal habeas relief.
C. Claim III
Finally, Petitioner argues that the trial judge erred by sentencing Petitioner to the upper-term. (See Pet'r's Am. Pet. at p. 5("Judge exceeding sentence to max-upper term.").) In his traverse, Petitioner states that, "[t]he trial court did in fact improperly sentence Petitioner to the upper term based on his prior criminal history." (Pet'r's Traverse at p. 1-2.) It appears as if Petitioner's argument within his amended federal habeas petition is that the trial judge's sentence violated Blakely v. Washington, 542 U.S. 296 (2004). The California Court of Appeal analyzed this argument on direct appeal and stated the following:
[D]efendant argues the imposition of upper terms for counts 1, 3, 16and 4, and consecutive terms for counts 1, 3, 4, and 6 violated his Fifth, Sixth and Fourteenth Amendment rights as set forth in Apprendi v. New Jersey, (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) and Blakely v. Washington (2004) 524 U.S. __ [159L.Ed.2d 403] (Blakely).)
In Apprendi, the United States Supreme Court held "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at p. 490 [at p. 455].) Apprendi was decided in 2000, before defendant's sentencing hearing in 2003. Following Apprendi, and after defendant's sentencing hearing, the United States Supreme Court decided Blakely, and explained that the statutory maximum for Apprendi purposes "is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." (Blakely, supra 524 U.S. at p. __ [at pp. 413-414.] Here, the trial court gave the following reasons for imposing the upper term: "[I]t seems to me, if anyone deserves the upper term doubled and a serious response to the charges committed by this defendant against his own daughter, it's this one. He has a record that goes on for pages . . . since he was age 20. [¶] Virtually, he's gone through the Penal Code in terms of various crimes, the most [egregious], of course, was . . . rape in concert of a woman, followed by . . . physical assault upon her . . . ." Later, the trial court stated, "I have selected [the] upper term only because of the aggravating circumstances in this case, which are the defendant's substantial prison history, the fact that the victim was vulnerable, the fact that the offense indicated a high degree of cruelty, viciousness, and callousness, and the fact that the defendant's prior performance on both probation and parole have been unsatisfactory." Defendant argues the aggravating circumstances were based on judicial rather than jury factfinding, and therefore violate his constitutional rights under Apprendi and Blakely.
The trial court did not commit reversible error. A court may rely on a single aggravating factor as a basis for imposing an upper term sentence if that factor outweighs any circumstances in mitigation. (People v. Osband (1996) 13 Cal.4th 622, 728; People v. Brown (2000) 83 Cal.App.4th 1037, 1043.) Here, there were no circumstances in mitigation.
The rule set forth in Apprendi and Blakely does not apply to a prior conviction used to increase the penalty for a crime. (Blakely, supra, 524 U.S. at p. __ [159 L.Ed.2d at p. 412]; Apprendi, supra, 530 U.S. at pp. 487-488, 490 [147 L.Ed.2d at pp. 454, 455.) Here, the court was most disturbed by defendant's prior convictions, singling them out for censure, and after listing defendant's history of convictions declaring, "[t]his is not a middle of the road case . . . ." "When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper." (People v. Price (1991) 1 Cal.4th 324, 492.) Given the trial court's emphasis on defendant's record of prior convictions, a fact the court properly considered under Apprendi and Blakely, there is no reasonable probability the trial court would have chosen a lesser sentence had it known the other reasons it considered were improper. (Slip Op. at p. 15-18.)
As explained by the California Court of Appeal in its decision, in Apprendi, the United States Supreme Court held that "any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." 530 U.S. at 490. In Blakely, the Supreme Court held that "the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." 542 U.S. at 303 (emphasis in original). Next, in Cunningham v. California, 549 U.S. 270, 293 (2007), the Supreme Court found that under California law, the middle, not the upper term, is the relevant "statutory maximum" for Apprendi purposes, and therefore a defendant is entitled to a jury finding before being sentenced to an upper term."
In this case, the trial judge weighed various aggravating factors in deciding whether to sentence Petitioner to the upper term (there were no mitigating factors). Among the things that the trial judge stated in imposing the upper term was Petitioner's prior criminal history (see, e.g., Reporter's Tr. at 1887.), petitioner's substantial prison history, the fact that the victim was vulnerable, that the crime involved a high degree of cruelty, viciousness, and callousness, and the fact that the defendant's prior performances on probation and parole were unsatisfactory. With respect to Petitioner's prior criminal history, the judge explained that:
[I]f anyone deserved the upper term . . . it's this one. He has a 18record that goes on for pages, uh, since he was age 20. [¶] Virtually, he's gone through the Penal Code in terms of various crimes, the most agregious [sic], of course, was which the rape in concert of a woman, followed by, uh, an assault by the defendant, physical assault upon her, hurting her after he had raped her, along with several others. That's probably the worst of the bunch, but there are domestic violence convictions, uh, burglary convictions, receiving stolen property convictions, auto theft, uh a cornucopia of Penal Code violations, felonies and misdemeanors, throughout defendant's history.(Id.)
In this case, Petitioner's upper term sentence is erroneous under Cunningham. Specifically, some of the factors used by the trial judge in imposing the upper term were not reflected by the jury's verdict or admitted by the Petitioner.
The Petitioner did waive a jury trial on his prior convictions. The probation report supplied to the sentencing judge included Petitioner's prior criminal convictions which included vehicle theft, burglary, receiving stolen property, possession of stolen property, forcible rape, possession of narcotics and domestic violence. (See Clerk's Tr. at p. 360-62.)
Blakely and Apprendi sentencing errors are subject to harmless error analysis. See Washington v. Recuenco, 548 U.S. 212, 221 (2006). Under California law, only one aggravating factor is necessary to set the upper term as the maximum term. See People v. Cruz, 38 Cal. App. 4th 427, 433, 45 Cal. Rptr. 2d 148 (1995). Therefore, any Apprendi/Blakely error will be found harmless if it is not prejudicial as to just one of the aggravating factors at issue. See Butler v. Curry, 528 F.3d 624, 648 (9th Cir. 2008). Accordingly, because any Apprendi/Blakely error with regard to Petitioner's numerous prior adult convictions finding is harmless, and California law only requires one aggravating factor to impose the upper term, the state court' imposition of the upper term on Petitioner's convictions was not improper as it relied in part on Petitioner's prior convictions in sentencing Petitioner to the upper term. See, e.g., Wilkins v. Strickland, Civ. No. 07-621, 2009 WL 257077, at *21 (E.D. Cal. Feb. 3, 2009). Petitioner is not entitled to federal habeas relief on Claim III.
Petitioner raises a series of claims in his traverse which was filed on March 22, 2010 that were not included in his amended federal habeas petition. For example, Petitioner argues that his trial counsel erred in failing to bifurcate his prior crimes and that the evidence in the case was contaminated as there was a defective chain of custody. (See Pet'r's Traverse at p. 2, 3.) Because Petitioner only raises these issues in his traverse and not his petition itself, they will not be considered. See Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1066 n.5 (9th Cir. 2003); Carcoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) ("A Traverse is not the proper pleading to raise additional grounds for relief.").
VI. REQUEST FOR AN EVIDENTIARY HEARING Finally, Petitioner requests an evidentiary hearing on his Claims. (See Pet'r's Traverse atp. 5.) A court presented with a request for an evidentiary hearing must first determine whether a factual basis exists in the record to support petitioner's claims, and if not, whether an evidentiary hearing "might be appropriate." Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999); see also Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir. 2005). A petitioner requesting an evidentiary hearing must also demonstrate that he has presented a "colorable claim for relief." Earp, 431 F.3d at 1167 (citations omitted). To show that a claim is "colorable," a petitioner is "required to allege specific facts which, if true, would entitle him to relief." Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998) (internal quotation marks and citation omitted). In this case, an evidentiary hearing is not warranted for the reasons stated in supra Part IV. Petitioner failed to demonstrate that he has a colorable claim for federal habeas relief. Thus, his request will be denied.
Accordingly, IT IS HEREBY ORDERED that Petitioner's request for an evidentiary hearing is DENIED.
For all of the foregoing reasons, IT IS RECOMMENDED that the petition for writ ofhabeas corpus be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within seven days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In any objections he elects to file, Petitioner may address whether a certificate of appealability should issue in the event he elects to file an appeal from the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).
Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.
Official citation and/or docket number and footnotes (if any) for this case available with purchase.
Learn more about what you receive with purchase of this case.
LRC, Inc. About Us


text:
Last day to enter #justmeandblu19 Apr
What happens when you put a world-famous photographer and four of the most unique, authentic, and downright cool people into a room?
An epic photoshoot, that's what.
The best part about it… YOU could be next! All you have to do is find us on Twitter @blunationUK and show off you're individuality by tweeting us your dream photoshoot and use #justmeandblu. If you win, we'll make it happen. In LA.
That's right, you and a friend would also get a 5 day, all expenses paid trip to Los Angeles!
Meet Luke Day, Mary Charteris, Damien O'Brien and Sarah Harding
Four of the UK's most creative individuals, each with a desire to show the world exactly who they are. We partnered with legendary celebrity and fashion photographer Michel Comte to take their portraits.
Luke Day
If you accused Luke of peacocking, you wouldn't be wrong. As the Editor of GQ Style and winner of Stylist of the Year, Luke is used to helping other people shake their tail feathers. This time it was his turn.
Mary Charteris
21 screens, one totally unique woman. As a model, musician and all-round powerhouse, Mary is used to being in the limelight for all of her creative skills. The many facets of her talent and personality, plastered onto a wall of TVs. Just cool.
Damien O'Brien
Prepare to be amazed, we certainly were! Doves out of caps, cards from thin air, Damien is a modern magician with attitude. His photographs celebrate his mind-blowing art.
Sarah Harding
Last but not least, the beautiful Sarah Harding. Sarah was one fifth of world famous pop group Girls Aloud, and has gone on from strength to strength since then. She's a badass chick on a badass motorbike. Enough said.
So, how would you show yourself to the world? Find us @blunationUK and tell us using #JustMeAndblu