Kevin COOPER, Petitioner-Appellant, v. Jill L. BROWN, Warden, California State Prison at San Quentin, Respondent-Appellee, 510 F.3d 870

Opinion by Judge RYMER: Concurrence by Judge McKEOWN. RYMER, Circuit Judge: Kevin Cooper appeals the district court’s denial of his third federal petition for a writ of habeas corpus. Sitting en banc, we held that Cooper made out a prima facie case that entitled him to file a second or successive application; authorized him to file it; and remanded for the district court to order that two tests be performed so that “the question of Mr. Cooper’s innocence can be answered once and for all.” Cooper v. Woodford, 358 F.3d 1117, 1124 (9th Cir.2004).

The two tests were a mitochondrial test of blond hairs found in one of the victim’s hands, and a test for the presence of the preservative agent EDTA on a bloody T-shirt that was not part of the prosecution’s case at trial but that Cooper specifically asked, on appeal, to have tested. On remand, the district court conducted the mitochondrial DNA testing on the hairs and EDTA testing on the T-shirt. The results do not show Cooper’s innocence. The court also held extensive evidentiary hearings at which forty-two witnesses testified with respect to all issues encompassed in Cooper’s third application.

In a 159-page ruling that comprehensively addresses each of the claims, then-Chief United States District Judge Marilyn L. Huff denied the petition on the merits and, alternatively, on the ground that Cooper’s claims in the successive petition are procedurally barred. Order Denying Successive Petition for Writ of Habeas Corpus (May 27, 2005) (Order) (attached as Appendix A).

Cooper sought, and we provisionally granted, a Certificate of Appealability (COA) on whether the district court abused its discretion by denying discovery, necessary forensic testing, evidentiary hearings, and a request to expand the record; whether he is entitled to relief on his claims of actual innocence, that the state contaminated or tampered with key evidence, that the state failed to disclose material exculpatory evidence in violation of Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that Josh Ryen’s testimony was unreliable; and whether he demonstrated multiple constitutional errors without which the jury would have returned a not guilty or non-capital verdict. We leave the COA in place, but we see no abuse of discretion in any respect and we agree with, and adopt, the district court’s analysis on each of the claims. Accordingly, we affirm.

I Cooper was convicted of the first-degree murders of Franklyn Douglas Ryen, Peggy Ryen, his wife, Jessica Ryen, their 10-year old daughter, and Christopher Hughes, an 11-year old neighborhood friend of Joshua Ryen, the Ryen’s 8-year old son who was brutally assaulted but lived. Following his conviction, Cooper was sentenced to death. Cooper escaped from the California Institute for Men (CIM), a state prison, on Thursday, June 2, 1983, and hid out in a vacant house (the Lease house) next door to the Ryens’ residence on Thursday night, all day Friday, and Friday night before the murders on Saturday night, June 4.

Using a hatchet or axe and a knife that came from the Lease house, Cooper hacked to death Doug, who had 37 separate wounds, Peggy, who had 32 separate wounds, Jessica, who had 46 wounds that included carving on her chest, and Christopher, who had 26 wounds. Cooper inflicted chopping wounds to the head, and stabbing wounds to the throat, of Joshua. Christopher’s father found the bodies late Sunday morning. The facts are set out in meticulous detail in the district court’s order. Order at 892-917; 954-61.

Suffice it to summarize here that Cooper admitted staying in the Lease house; a blood-stained khaki green button identical to buttons on field jackets issued at the state prison from which Cooper escaped was found on the rug at the Lease house; tests revealed the presence of blood in the Leases’ shower and bathroom sink; hair found in the bathroom sink was consistent with that of Jessica and Doug Ryen; a hatchet covered with dried blood and human ham that was found near the Ryens’ home was missing from the Lease house, and the sheath for the hatchet was found in the bedroom where Cooper had stayed; Cooper’s semen was found on a blanket in the closet of the Lease house; one drop of blood (A-41) that belongs to an African-American male, which Cooper is, was found on the wall of the Ryen hallway opposite where Jessica was found and post-trial DNA testing confirms that Cooper is the source of A-41; plant burrs found inside Jessica’s nightgown were similar to burrs from vegetation between the Lease house and the Ryen house, and to burrs found on a blanket inside the closet where Cooper slept at the Lease house, and in the Ryen station wagon, which was missing when the bodies were discovered but turned up, abandoned, in Long Beach; two partial shoe prints and one nearly complete one found in or near the Ryens’ house and in the Lease house were consistent both with Cooper’s shoe size and Pro-Keds Dude tennis shoes issued at CIM that Cooper did not deny having; a hand-rolled cigarette butt and “Role-Rite” tobacco provided to inmates at CIM was in the Ryens’ vehicle, and similar tobacco was in the bedroom of the Lease house; and a hair fragment found in the Ryen station wagon was consistent with Cooper’s pubic hair.

Cooper checked into a hotel in Tijuana about 4 o’clock on Sunday afternoon. The district court’s order likewise recounts the procedural history from Cooper’s February 19, 1985 conviction. Order at 15696-703. In sum: the judgment of conviction and sentence was affirmed by the California Supreme Court, which observed that the “sheer volume and consistency of the evidence is overwhelming,” People v. Cooper, 53 Cal.3d 771, 837, 281 Cal.Rptr. 90, 129, 809 P.2d 865 (1991), and the United States Supreme Court denied a petition for certiorari, Cooper v. California, 502 U.S. 1016, 112 S.Ct. 664, 116 L.Ed.2d 755 (1991).

Cooper’s first federal petition, subsequently amended and supplemented, was filed August 11, 1994, and denied August 25, 1997; we affirmed, Cooper v. Calderon, 255 F.3d 1104 (9th Cir.2001) (Cooper I); and his petition for a writ of certiorari was denied, 537 U.S. 861, 123 S.Ct. 238, 154 L.Ed.2d 100 (2002). Cooper filed a second federal petition on April 20, 1998, which we construed as an application for authorization to file a second or successive petition and denied. Cooper v. Calderon, 274 F.3d 1270 (9th Cir.2001) (Cooper II).

He sought to file another successor petition that involved DNA testing and tampering, which we denied, Cooper v. Calderon, No. 99-71430 (9th Cir. Feb. 14, 2003, April 7, 2003) (orders). Meanwhile, Cooper filed seven petitions in the California Supreme Court together with a writ of mandate and various motions, a habeas petition in the San Diego County Superior Court, and six other petitions for a writ of certiorari in the United States Supreme Court as well as two petitions for habeas corpus, each of which was denied.

Cooper’s February 2, 2004 petition to the California Supreme Court raised similar claims to those asserted in this application; that court denied all claims on the merits on February 5, 2004, and also denied as untimely those having to do with evidence tampering, failure to disclose exculpatory evidence, submission of false testimony to the jury, and offering Joshua Ryen’s unreliable testimony. On February 6, 2004, Cooper filed another application to file a successive application, which was initially denied, Cooper v.

Woodford, 357 F.3d 1019 (9th Cir.2004), withdrawn, 357 F.3d 1054 (9th Cir.2004), but was later granted after this court sua sponte decided to rehear the application en banc, Cooper v. Woodford, 357 F.3d 1054 (9th Cir.2004). En banc, we authorized Cooper’s third habeas petition to be filed, and stayed execution pending resolution of this application. Cooper, 358 F.3d at 1124 (Cooper III). The district court denied the petition and denied Cooper’s request for a COA. Judgment was entered on May 31, 2005.

When Cooper then filed a request for a COA in this court, we allowed the appeal to go forward conditioned upon further consideration once briefing was completed. The state asks that we withdraw the COA, but we decline to do so. 28 U.S.C. § 2253(c); Miller-El v. Cockrell, 537 U.S. 322, 335-37, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

This means that Cooper has leave to assert that even though the district court allowed the testing that we ordered, it abused its discretion in how the tests were conducted and in the scope of the evidentiary hearings that it held; and to appeal denial of claims one through four (actual innocence, contamination or tampering with evidence, Brady violations, and unreliability of Joshua Ryen testimony), and six through nine (unlawful destruction of bloody coveralls, ineffective assistance of counsel for failing to present evidence of another person’s confession, ineffective assistance of counsel in failing to connect the bloody coveralls to Lee Furrow, ineffective assistance of counsel in failing to introduce evidence that victims were clutching hair in their hands, and denial of constitutional rights by eumula-five law enforcement errors and misconduct) of his third petition.

II Standards of review under the Antiter-rorism and Effective Death Penalty Act of 1996 (AEDPA) are well-known and are fully set out in the district court’s order. See Order at 917-22. However, the framework for analyzing an actual innocence “gateway” claim under Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), remains unsettled. There is a question whether such a claim is governed by the Schlup standard itself, or by the AEDPA conditions for filing a second or successive application, 28 U.S.C. §§ 2244(b)(2)(B)(

i) and (ii). Cf. House v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 2078, 165 L.Ed.2d 1(analyzing a first habeas petition seeking consideration of defaulted claims based on a showing of actual innocence under Schlup rather than AEDPA). However, this need not detain us for Cooper fails to meet either standard. Beyond this, a district court’s decision to exclude expert testimony is reviewed for an abuse of discretion. Stilwell v.

Smith & Nephew, Inc., 482 F.3d 1187, 1191 (9th Cir.2007). “The trial court has wide discretion in determining whether particular scientific tests are reliable enough to permit expert testimony based upon their results.” United States v. Gil lespie, 852 F.2d 475, 480 (9th Cir.1988) (citations omitted). The determination whether an expert witness has sufficient qualifications to testify is reviewed for an abuse of discretion. United States v. Abonce-Barrera, 257 F.3d 959, 964(9th Cir.2001). We also review a district court’s decision to permit or deny discovery in habeas proceedings for an abuse of discretion.

Bittaker v. Woodford, 331 F.3d 715, 728 (9th Cir.2003) (en banc). Such discovery is available only “for good cause.” Hayes v. Woodford, 301 F.3d 1054, 1065 n. 6 (9th Cir.2002). “We review for an abuse of discretion the district court’s denial of an evidentiary hearing and the scope of an evidentiary hearing held.” Williams v. Woodford, 384 F.3d 567, 586 (9th Cir.2004).

Ill We first consider issues that relate to whether the district court abused its discretion as Cooper contends it did in denying discovery, failing to order forensic testing, limiting what he could show at evi-dentiary hearings, and refusing to expand the record on certain claims. Many of these issues are interwoven with the merits of claims one through four and six through nine, but Cooper raises discrete procedural challenges that we treat separately as best we can because, if the district court did not abuse its discretion in these procedural rulings, we agree with its other determinations.

Necessarily there is overlap; to the extent there is, and reference to the district court’s discussion on the merits is helpful to understanding its procedural rulings, we incorporate (without repeating) its analysis.

A Cooper complains that the district court denied the bulk of his discovery requests, but focuses on only three of them: his request for photographs and documentation of the examination and testing of the bloodstained T-shirt, blood drop A-41, and the cigarette butts V-12 and V-17; San Bernardino Sheriffs Department (SBSD) files reviewed by Deputy Derek Pacifico after Cooper filed his third habeas petition as part of an investigation into whether CIM Warden Midge Carroll had or had not contacted SBSD before trial with Brady information regarding shoeprint evidence; and his request for test data of Dr.

Gary Siuzdak, one of the EDTA testing experts selected by the court, when Siuz-dak withdrew his results after discovering EDTA contamination in his laboratory. Cooper offers only a sketchy explanation why denying these requests, without prejudice, abused the court’s discretion. We discern no basis for concluding that it did. The state produced materials relating to the post-conviction DNA testing in 2001 and these materials were also exhibits in the evidentiary hearing conducted by the district court. We cannot see how denying discovery as to these materials mattered at all.

Warden Carroll’s January 30, 2004 declaration stated that she had learned before trial — and had communicated to one of the lead detectives on the Cooper case — that the shoes CIM carried were not specially designed prison-issue shoes and were common shoes available to the general public through Sears and other such retail stores. Because the en banc court was persuaded that a Brady violation appeared to be indicated, see Cooper III, 358 F.3d at 1120-21, the district court set an evidentia-ry hearing to address Cooper’s claim that the prosecution failed to disclose Carroll’s information.

It heard testimony from Carroll; Lt. Donald Smith, a former investigator at CIM under Carroll; Don P. Luck, a former executive and sales manager for Stride Rite Corporation, the company that manufactured the Pro-Keds Dude tennis shoe; and Sandra Coke, the defense investigator who obtained declarations from Carroll, James Taylor, a CIM inmate who testified at trial that he gave Pro-Keds Dude tennis shoes to Cooper, and Detective Derek Pacifico of SBSD. Carroll’s files about Cooper’s escape and the murder investigation were also in evidence.

They are extremely detailed and include records of telephone conversations; however, they contain no indication that she spoke with the SBSD about tennis shoes worn by CIM inmates. In part for this reason, the court did not abuse its discretion in concluding that Cooper’s request for all SBSD files reviewed by Paci-fico was unjustified by the possibility that Pacifico’s review may have overlooked SBSD documents reflecting a communication that Carroll’s own detailed files do not show.

In addition, the prosecution’s theory was not that Pro-Keds Dude shoes were limited to prison inmates (the Stride Rite records introduced at trial showed distribution to other government institutions), but that there was a link between the imprints found at and near the Ryen house and in the Lease house to Cooper, who never denied having a pair of Pro-Keds Dude shoes. Contracts from Stride Rite that were in evidence at trial show that CIM purchased 1,390 Pro-Keds Dude shoes. Carroll herself had no personal knowledge whatsoever about the availability of the tennis shoes at CIM or elsewhere.

Thus, even if she had called SBSD as her declaration avers, all that she could have communicated was her belief that Pro-Keds Dude shoes weren’t available at CIM but were available at places like Sears — which is both mistaken and immaterial. Consequently, her communication could not have had any appreciable bearing on a Brady claim. Cf. Pham v. Terhune, 400 F.3d 740, 743 (9th Cir.2005) (noting that discovery under Rule 6(

a) should not be denied if it is essential to develop fully a petitioner’s claim). Finally, the court acted within its discretion in denying access to Dr. Siuzdak’s data. His EDTA test results did not reflect the expected results from the PBS buffer reagent blank control and so were unreliable. Contamination was not remarkable, as laboratories use EDTA in testing. As Suizdak’s results were unreliable, they could not be used to prove Cooper’s tampering claim.

B Cooper contends that the district court’s testing protocol for the bloody T-shirt was flawed in five respects: (1) while the court facially complied with the en banc order allowing only Cooper to select a stain from the T-shirt for limited anti-clotting agent testing, it refused to allow presumptive blood testing to determine whether the stain tested was even a blood stain; (2) it did not allow his experts, Dr. Peter DeForest and Dr. Kevin Ballard, to view the T-shirt as a first step in designing the protocol; (3) it accepted at face value Dr.

Gary Siuzdak’s retraction of his EDTA testing results; (4) it denied testing for anti-clotting agent migration; and (5) it denied testing for other anti-clotting agents such as citric acid that were used to preserve Cooper’s blood. He also maintains that while the district court facially complied with this court’s order to perform mitochondrial DNA testing to determine whether hairs at the crime scene belonged to a third party perpetrator, the testing ignored the recommendation of Dr. Edward Blake to evaluate unexamined groups of hair.

As a result, Cooper submits, a large group of hairs was never examined for anagen roots (roots that indicate the hair was pulled instead of having been cut or broken), and thus hairs in that group were never considered for testing. He also argues that the Cooper DNA against which the hairs were examined was contaminated and therefore could not prove that he was a possible source of the hairs. We disagree that the district court abused its discretion in conducting either test. The district court held a tutorial on mitochondrial DNA and EDTA testing at which experts for Cooper and the state testified.

At the tutorial, Cooper’s expert, Dr. Terry Melton, explained that mitochondrial testing cannot be used effectively to identify the source of hairs, but rather is primarily an exclusionary method as it determines only whether a hair shares maternal DNA with a particular individual. The court developed a protocol and ordered that ten hairs suitable for testing from Jessica’s hands be tested for mitochondrial DNA and that two hairs (one found on Doug Ryen’s hand and one on Chris Hughes’s arm) identified in 2001 as having anagen roots also be tested. Dr. DeForest, Cooper’s criminalist, selected the hairs.

Two proved to be animal hairs, and tests on the remaining hairs could not exclude Jessica, Peggy, Josh or their maternal relatives as donors. Therefore, the results of mitochondrial DNA tests did not indicate that these hairs were pulled out of the head of a third party perpetrator. With respect to testing the T-shirt for the purpose of determining whether the blood, previously associated with Cooper’s DNA, had been planted, the district court developed the EDTA protocol over a three-month period and after extensive input from counsel and the experts.

Upon the parties’ recommendation, the court also adopted a “control” method of testing in which the amount of EDTA detected in a stain would be compared to the amounts of EDTA found in various control swatches and from other non-stained portions of the T-shirt. Pursuant to the protocol, the stain was to be extracted by Dr. DeForest and shipped to Dr. Ballard and Dr. Suiz-dak for double-blind EDTA testing. After the test results were submitted, the parties proposed a protocol for DNA testing to determine whether the main stain fabric cut-out from the EDTA testing contained Cooper’s blood.

From the results of that testing, Cooper could not be excluded as a contributor of the DNA extracted from the cut-out, while Peggy Ryen, Jessica Ryen, Josh Ryen, Doug Ryen and Chris Hughes were each eliminated as a possible contributor. The court ultimately concluded that EDTA testing lacks sufficient indicia of reliability to be admissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). However, the court alternatively found that Dr.

Ballard’s results disprove Cooper’s theory of tampering because Cooper’s theory requires a high level of EDTA presence in the blood, but the EDTA level in the stain with blood was actually lower than that of most of the control areas. See Order at 933-50 (describing process and making EDTA findings).

Turning to Cooper’s contentions about testing of the T-shirt, we note at the outset that it is immaterial whether the EDTA tests were flawed or not because the district court had discretion to conclude that EDTA testing does not meet Daubert standards. “In Daubert, the Court set out four factors to be reviewed when applying Rule 702:(1) whether the theory or technique can be or has been tested, (2) whether the theory or technique has been subjected to peer review, (3) whether the error rate is known and standards exist controlling the operation of the technique, and (4) whether the theory or technique has gained general acceptance.” United States v.

Benavidez-Benavidez, 217 F.3d 720, 724 (9th Cir.2000). There is no evidence in the record that application of mass spectrometry to forensic analysis of blood evidence to determine EDTA levels can be or has been tested. The technique has been offered to courts only twice before; in one case, there was no challenge to the EDTA evidence and in the other, Dr. Ballard, as well as the EDTA testing that he was to perform, were rejected by the court. EDTA testing has not been subjected to peer review and there has been no discussion of forensic EDTA testing in scientific literature since a 1997

article that headlines the need for a better analytical method. In short, for reasons explained in detail by the district court, Order at 942^8, EDTA testing has not gained general acceptance in the scientific community. Regardless, Cooper fails to explain why additional inspection of the T-shirt was necessary, for an appropriate stain and controls were selected after 6G, the stain that was initially selected, proved unavailable because it had already been consumed. Dr.

DeForest did not participate in this selection because he had removed himself, but Cellmark — a laboratory that Cooper agreed was highly qualified — replaced him to conduct the extraction. No basis appears in the record to question selection of the stain that was used, and Cooper points to none on appeal. Dr. Maddox of Cellmark and the state’s expert, Steven Myers, selected an area between two stains designated “6J” and “6K,” each of which had earlier been found to be blood containing primarily - Cooper’s DNA. Nor does any reason appear why Dr.

Suizdak’s representations should not have been accepted at face value; the testing he was to undertake was double-blind, he is a well respected scientist, and he had no interest in the outcome. Cooper never asked for presumptive blood testing before the protocol was implemented, which is sufficient reason to reject his argument on appeal; in any event, as DNA analysis on the tested area later confirmed that Cooper could not be excluded as a contributor of the DNA extracted from the cut-out, there is no point to his complaining now about the lack of presumptive testing.

Likewise, Cooper articulated no concern before the test results were in about the possibility that EDTA could have migrated from the selected stain. Regardless, if his post-hoc migration theory were correct, it would be theoretically impossible to achieve meaningful results from further testing as there is no way to determine whether the background EDTA levels throughout the shirt are higher than normal for there is no “normal” base level of EDTA.

Finally, Cooper’s suggestion that testing for other anti-clotting agents such as citric acid should have been allowed is misplaced as the only occasion where his blood was preserved in a tube containing citric acid was when it was drawn by the San Quentin Prison, not by the SBSD, and the only blood sample of Cooper’s to which the SBSD had access was drawn into a tube containing EDTA as a preservative. Further testing on the T-shirt was, therefore, not required. Neither was the mitochondrial DNA testing deficient as Cooper argues. By way of background, Cooper’s forensic expert (Dr.

Blake) and Department of Justice criminalist Steven Myers spent six days in 2001 jointly conducting visual and microscopic examination of approximately 1000 hairs recovered from the victims’ bodies in order to identify hairs that had properties of hair pulled from the skin. Only hairs with anagen roots can be used to identify an assailant because only they, as contrasted with a cut or broken hair, can indicate that the victim may have pulled the perpetrator’s hair in a struggle. Three hairs meeting the experts’ criteria were identified, but nuclear DNA testing of these hairs yielded no human DNA.

Responsive to the en banc ruling, the district court allowed Cooper’s criminalist to select up to 10 hairs from those removed from Jessica’s hands for mitochondrial DNA testing. No anagen hairs were identified and the 10 hairs selected were tested along with the two remaining hairs subjected to nuclear DNA testing in 2001. The results show that Jessica, Peggy, and Josh Ryen could not be excluded as the source of the hairs in Jessica’s hands.

Cooper contends that the court turned its back on its “own expert’s” view that hair testing must be designed to ensure that it is complete and thorough, but the premise is faulty on two accounts. First, the expert referred to — Dr. Blake — was not the court’s expert, as Cooper characterizes him; he was Cooper’s expert in state court and has been throughout the federal proceedings, and did not become otherwise solely on account of his appointment by the court for the purpose of assuring adequate compensation. More importantly, Dr. Blake did not recommend that every hair be examined, as Cooper suggests.

To the contrary, Blake testified that “[t]he only reason to go through this process one more time is simply to be much more rigorous and detailed in the survey, should that be deemed to be a useful thing to do.” He never opined that it would be useful or reasonable. Cooper’s argument that his blood sample was contaminated is beside the point. The hairs were never examined to see if they came from Cooper, and there has never been any evidence or suggestion to that effect.

Rather, Cooper’s theory was that the hairs came from a third party, that is, from the real killer, and if this could be shown, then the presence of a third party at the scene would prove his innocence. That is why the en banc court ordered mitochondrial testing. See 358 F.3d at 1124 (noting that mitochondrial testing of the blond or light brown hair in Jessica Ryen’s hand, if favorable to Cooper, could positively identify Lee Furrow or perhaps others as the killer or killers). Thus, even if Cooper’s sample were contaminated, it is irrelevant.

C Cooper maintains that the district court refused to allow him to present evidence related to the three suspicious men in the Canyon Corral Bar. This is belied by the record. See Order at 961-69. He points to exclusion of A1 Warren, a bartender who was not present on the night of the murders, for whom his only proffer was that Warren was “presumably” privy to discussion of the incident.

Having heard from the bartender who was on duty (Edward Lelko), the manager, the waitress who served the three men drinks, two patrons who saw the three men, another waitress who was working that night, a bouncer, and others who frequented the Canyon Corral, the court had discretion to decline to hear another bar employee who was not percipient. Cooper also points to limited inquiry into witness tampering with Lance Stark.

Stark testified that before the evi-dentiary hearing, he was approached by an individual wearing a white, short sleeve shirt and driving a white, unmarked Ford Crown Victoria with a computer extending out from the dashboard on an arm, whom he believed to be a member of law enforcement and who made it clear that it would be in Stark’s best interest not to talk about the Cooper case.

However, the court had discretion to find that Cooper’s request for further inquiry would be a wild goose chase as Cooper had no license plate or other information that might lead to the driver, and to conclude that it would be unlikely to produce anything of probative value. Stark testified, so the incident did not inhibit him and even if it were law-enforcement related as he speculates, it would have no tendency to prove what happened at the Canyon Corral Bar.

Cooper also submits that the court improperly refused to allow him to examine Daniel Gregonis, the SBSD criminalist responsible for examining and testing several items of evidence including the bloodstained T-shirt, blood drop A-41, and the cigarette butts V-12 and V-17. However, Cooper was given an evidentiary hearing in state court in 2003 to present evidence of his tampering claims, and Gregonis testified and was examined by Cooper’s counsel. He had an opportunity to develop a record, and the district court was not obliged to provide another one.

The same is true to the extent Cooper contends that further testing is needed in general to show that these items, blood spots identified as the “UU Series,” and a blood sample drawn from him at the time of his arrest (W-2) were tampered with. Each claim is procedurally barred and, in addition, both the tampering with the UU Series claim and the planting of cigarette butts claim have been previously adjudicated. See, e.g., Cooper v. Calderon, No. 92-CV-427H at 41, 50-51.

As we have explained, it doesn’t matter to any of Cooper’s claims whether his blood sample (W-2) was contaminated or not; it wasn’t used for anything material. Cooper also insists that the fact that the size of one of the cigarettes (V-12) changed by 3 millimeters after having been unrolled for testing demonstrates tampering, but his position was rejected by the San Diego County Superior Court after an evidentiary hearing and Cooper has not overcome the deference due that determination under 28 U.S.C. § 2254(d).

The first measurement (4 mm) was of a “butt,” whereas the second measurement (7 mm) is one of two dimensions given for “burned paper in box 7x7 mm.” It is clear that the second measurement is of unrolled paper, whereas the first measurement is of the rolled butt. That the dimensions would be different is self-evident, and the difference in no way calls into question the state court’s finding or requires further inquiry at this stage.

Cooper continues to assert that the bloody T-shirt is connected to at least one of the perpetrators and that the district court limited the evidence he was allowed to develop and present to show tampering. This goes nowhere for reasons we have just explained. Nor did the district court abuse its discretion in not allowing Cooper to recall Dr. Ballard to clarify the reliability of his testing methods, to state that he could test for other anti-clotting agents, and to testify to the reliability of his laboratory; or to cross-examine experts with respect to anti-clotting agent testing; or to cross-examine Dr.

Suizdak and Dr. Lewis Maddox, who prepared the stain solutions for testing. To the extent relevant and helpful, ample opportunity for expert input and consultation was afforded. Cooper also faults the district court for refusing to permit him to pursue examination of informant Albert Anthony Ruiz, who testified at an evidentiary hearing on August 6, 2004, about what he might have heard from sources other than law enforcement in San Bernardino County.

The asserted relevance was to Cooper’s Brady claim that the prosecution failed to disclose evidence from Ruiz that law enforcement was ordered to plant evidence inculpating Cooper. We see no abuse of discretion, as Ruiz did not work for and had no dealings with SBSD and had no direct information about the investigation.

All that he could possibly have learned was secondhand public information recounted by Jim Parsons, a deputy with the Riverside County Sheriffs Department who submitted a declaration himself and who, in any event, had no involvement in the Cooper case or knowledge of it beyond what he read in the papers or saw on television. In light of this, the court committed no error in excluding information that was hearsay and speculation as well as immaterial to SBSD’s Brady obligations.

Cooper’s contention that the district court improperly refused to allow him to uncover and present evidence regarding daily logs and a blue shirt listed on the log for June 6, 1983, fails as no evidence contradicts the state’s submission that the log was available to Cooper before trial. Cooper’s counsel represented to the trial judge that he had the daily logs. The issue could, and should, have been pursued long before now. See Order at 994-97.

Cooper argues that he was precluded from fully exploring his tennis shoe claims by the court’s refusal to allow him to review the records Pacifico reviewed and to send written questions to Michael Newber-ry, who worked for Stride Rite Corporation and testified at trial that Stride Rite had a contract with CIM for Pro-Keds Dude tennis shoes that were not available in retail stores.

We have already explained why the court did not abuse its discretion in declining to order discovery into all the SBSD files reviewed by Pacifi-co, and Cooper makes no proffer why questions to Newberry would shed any light on the contracts which were, themselves, in evidence, or on distribution of the Pro-Keds Dude shoe as to which there is no substantial dispute — except for Carroll’s unfounded belief. Cooper also complains that he was not allowed to cross-examine Josh Ryen in connection with Claim Four, which asserts that Josh’s testimony at trial was altered and unreliable.

As the district court found, the facts and circumstances surrounding Josh Ryen’s statements and how they were presented to the jury have been known for twenty years. The jury heard two taped statements pursuant to the parties’ stipulation: a videotape of an interview on December 9, 1984 when Cooper’s counsel and the prosecutor questioned Josh under oath, and an audiotape of a December 1, 1983 interview with Dr. Lorna Forbes, Josh’s treating psychiatrist.

He did not identify an assailant in either one, but said on the one hand that three Hispanic workers visited the ranch the day of the murders, and on the other that he saw a single man with a “puff’ of hair standing over his mother. On April 22, 2005, the district court allowed Josh Ryen, along with Christopher Hughes’s parents, to make a statement about their views of the matter as victims.

Cooper argues that he should have been allowed an evi-dentiary hearing because the April 22, 2005 statement (during which Josh Ryen recalled a man with “bushy” hair) was a “third version” that further proves the manipulation, and unreliability, of the trial version. We disagree that the court abused its discretion. Even accepting Cooper’s position that Josh Ryen’s April 22, 2005 statement satisfies the requirements for an evidentiary hearing in § 2254(e)(2) because the latest version could not have been discovered earlier, § 2254(e)(2)(

B) nevertheless applies to bar relief as the jury knew that Josh Ryen had given somewhat inconsistent accounts yet convicted Cooper anyway. We cannot conclude that no reasonable juror would have convicted Cooper knowing that Josh Ryen now recalls a man with bushy hair. Finally, Cooper maintains that the district court purported to make credibility determinations of witnesses based solely on documents. Even if this weren’t allowed (which it is, in appropriate circumstances), he points to no instances where this happened.

Accordingly, there is no basis to remand for examination and more testing of the evidence, or additional evidentiary hearings, as Cooper urges.

IV The district court denied Cooper’s claim of actual innocence after detailing the DNA evidence that shows he is the donor of the DNA extracted from the drop of blood found in the hallway outside the Ryen master bedroom (A-41), saliva from the hand-rolled and manufactured cigarette butts (as used at CIM) found inside the abandoned Ryen station wagon, and blood smears on the T-shirt found near the Canyon Corral Bar (even though it was not used to establish Cooper’s guilt at trial); explaining why Cooper’s challenge to the DNA evidence is unavailing; reviewing prior court findings that document overwhelming evidence of guilt; and considering the testimony from forty-two witnesses and numerous exhibits introduced at evidentiary hearings held after remand.

Order at 950-84. Cooper argues the district court was incorrect in light of substantial evidence of third party perpetrators in the Canyon Corral Bar and Albert Anthony Ruiz’s testimony. That he didn’t do it, Cooper suggests, is bolstered by his showing of alternative suspects through the Kenneth Koon confession and information concerning Lee Furrow and his bloody coveralls. We disagree, for reasons stated by the district court. See Order at 980-82; 983-84.

We agree with the district court’s conclusion that all of Cooper’s challenges “have come back the same: there is overwhelming evidence that Petitioner is the person guilty of these murders.” Order at 15854. Considering all the evidence, new and old, Cooper has not shown that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. Schlup, 513 U.S. at 327, 115 S.Ct. 851; see House, 126 S.Ct. at 2076-78(explaining the Schlup standard). Thus, Cooper meets neither Schlup’s gateway nor AEDPA’s. It follows that Cooper has not met Herrera’s standard for actual innocence.

Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). V In discussing Cooper’s procedural challenges, we have already indicated why he is not entitled to relief on his claim that the state contaminated or tampered with the evidence with respect to examination and testing of the T-shirt and the blood spot (A-41). The T-shirt, of course, was not used as evidence against Cooper so it is difficult to see how it could have had any inculpatory effect. Post-conviction, however, it has become the center of attention.

See, e.g., Cooper III, 358 F.3d at 1124(ob-serving that this case centers on Cooper’s claim that he is innocent, and quoting his argument that with EDTA testing “ ‘the question of Mr. Cooper’s innocence can be answered once and for all’ ”); id. (Silver-man, C J, concurring in part and dissenting in part) (noting that “[everything comes down to the bloody t-shirt”). The San Diego County Superior Court took evidence on the tampering claim and found none, and the California Supreme Court denied Cooper’s petition for writ of mandate on the issue. EDTA testing turned up nothing to indicate tampering.

There was neither visible blood remaining on the paint chips comprising A-41 nor control areas around the blood sample for purposes of determining if there is a significant difference between the amounts of EDTA in the stain compared with areas surrounding it. Accordingly, for reasons it explained that are well-founded in the record, the district court concluded that A-41 is not able to be reliably tested for the presence of EDTA. Order at 948-50. This leaves in place the finding of the state court that no tampering occurred.

Cooper offers no convincing evidence why that finding is not correct and entitled to deference. To the extent his appeal extends beyond these items, we also agree with the district court’s analysis that Cooper’s claims of evidence tampering and withholding lack merit. See Order at 997-1000. Vi Cooper argues that the district court’s analysis of his Brady claims was contrary to clearly established federal law as set forth in Kyles v. Whitley, 514 U.S. 419, 435-36 & n. 10, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), in that it analyzed each Brady claim individually without analyzing their cumulative effect.

We agree with the district court’s analysis with regard to the state’s alleged withholding and manipulation of evidence related to.shoe-prints found in the Ryen home and hideout house, the bloody coveralls, the blue shirt, and the Canyon Corral Bar. As there is no individual Brady violation, there are no violations to cumulate.

Apart from what we have already discussed, the district court held an evidentia-ry hearing to evaluate Cooper’s claim that he discovered in 1998 a disposition report initialed “KS” that contradicted Deputy Frederick Eckley’s trial testimony that on his own, he had destroyed the coveralls that Diana Roper gave him. After considering the testimony of Eckley and Deputy Ken Schreckengost (the “KS” of “KS”) and evaluating their credibility, the court found that Eckley did act on his own in destroying the coveralls without discussing it with Schreckengost.

So, as the district court held, the disposition report does not cast doubt on Eckley’s testimony or undermine the prior findings and conclusions of the California Supreme Court or the district court’s own determination that the coveralls were not material exculpatory evidence in Cooper’s case. Order at 987-89. We are not firmly convinced this finding is wrong.

The district court rejected Cooper’s contention that the prosecution failed to disclose that a police officer was present at the Canyon Corral Bar on the night of the murders based on extensive testimony about what actually happened that night and what it viewed as the more credible version of those events. Cooper’s argument on appeal is insubstantial and leaves us without a firm conviction that the district court erred. As there was no police presence at the bar on the night of the murders, there was no evidence for the prosecution to suppress.

Cooper additionally alludes to the fact that Detective Timothy Wilson had information that three suspicious men were seen in the bar, which he passed on to the sergeant in charge of the Ryen/Hughes investigation but which the prosecution failed to disclose to Cooper. However, Cooper offers no suggestion why this information undermines confidence in the verdict. It was no secret that three strangers were at the bar. The district court found that the more credible version of events came from employees and patrons interviewed shortly after the murders who testified at trial.

In any event, none of the witnesses casts doubt on the physical evidence of Cooper’s guilt. As the court’s exhaustive recital of all the Canyon Corral evidence— both that adduced at trial and at the evi-dentiary hearing — shows, see Order at 961-69, rumors that Wilson picked up from word on the streets could not have been exculpatory, impeaching or material.

VII The district court noted that the jury heard two taped statements of Joshua Ryen, pursuant to stipulation, that benefited the defense because he did not identify his assailant, had earlier indicated that three Hispanic workers had been at the ranch, and was not on the stand to garner sympathy.

The court deferred to denial of Cooper’s constitutional claim on the merits by the California Supreme Court pursuant to 28 U.S.C. § 2254(d), and found that Cooper had not demonstrated that, but for constitutional error, no reasonable juror would have found him guilty if Josh Ryen had been subjected to testifying at trial. Order at 999-1001. We agree.

VIII Cooper’s initial briefing posits that he is entitled to relief on his claim that SBSD unlawfully destroyed the bloody coveralls, and on his claims that trial counsel rendered ineffective assistance in failing to present evidence of another person’s confession to the murders, failing to connect the bloody coveralls to Lee Furrow, and failing to introduce evidence that victims were clutching hair in their hands. He pursues none of these claims in reply. Each has been adjudicated previously in one forum or another. And we are in accord with the district court’s treatment of all these claims.

See Order at 980-85. IX Our conclusion that Cooper prevails on none of his claims moots his last submission, that his conviction and sentence were infected by multiple constitutional errors without which the jury would have returned a not guilty or non-capital verdict. As the district court, and all state courts, have repeatedly found, evidence of Cooper’s guilt was overwhelming. The tests that he asked for to show his innocence “once and for all” show nothing of the sort. AFFIRMED.

APPENDIX A Order Denying Successive Petition for Writ of Habeas Corpus (May 27, 2005) United States District Court Southern District of California KEVIN COOPER, CAPITAL CASE Petitioner, vs. JILL L. BROWN, Acting Warden, San Quentin State Prison, Respondent. CASE NO. 04-CV-656 H Related cases 98-CV-818-H, 92-CV-427-H Order Denying Successive Petition for Writ of Habeas Corpus Petitioner Kevin Cooper, a California state prisoner, brings this successive petition for writ of habeas corpus petition pursuant to 28 U.S.C. § 2254.

He challenges his capital conviction for the first-degree murders of Franklyn Douglas Ryen (“Doug”), Peggy Ryen, his wife, Jessica Ryen, their 10-year-old daughter, and Christopher Hughes, an 11-year-old neighborhood friend, and the attempted murder of Joshua Ryen, the 8-year-old son of Doug and Peggy Ryen.

Petitioner’s successive petition challenges post-conviction DNA test results that confirm that Petitioner is responsible for the Ryen/Hughes murders. (DOJ Physical Evidence Report dated July 2, 2002; Supplemental DOJ Physical Evidence Exam Report dated Sept. 24, 2002.) These DNA tests were done pursuant to a Joint DNA Forensic Testing Agreement (“Joint DNA Agreement”) entered on May 10, 2001.

Those results provide strong evidence of Petitioner’s DNA from blood inside the Ryen residence (one in 310 billion), from saliva on two cigarette butts recovered from the stolen Ryen station wagon (one in 19 billion and one in 110 million), and from a T-shirt found on the side of a road that contained Petitioner’s blood (one in 110 million) and victim Doug Ryen’s blood (one in 1.3 trillion). (Supplemental DOJ Physical Evidence Exam Report dated Sept. 24, 2002.) In addition to the DNA evidence inculpating Petitioner, DNA profiles of blood taken from a hatchet that was taken from the house where Petitioner hid after his escape from prison matched that of several of the victims including Doug and Jessica Ryen and Chris Hughes. (Supplemental DOJ Physical Evidence Exam Report dated Sept. 24, 2002.) On February 9, 2004, the Ninth Circuit granted Petitioner’s request to file a successive petition for writ of habeas corpus in federal court and remanded the successive petition to this Court.

Cooper v. Woodford, 358 F.3d 1117 (9th Cir.2004). The Ninth Circuit stated that Petitioner’s guilt may be resolved through two scientific tests: (1) mitochondrial DNA testing of hairs found on the victims and (2) testing of the T-shirt for ethylene-diamine tetraacedic acid (“EDTA”) blood preservative. Id. at 1123-24.

Having conducted mitochondrial DNA testing and EDTA testing, reviewed the parties’ papers, heard testimony from forty-two witnesses, reviewed numerous exhibits, considered the prior record, and listened to the parties’ oral arguments, this Court DENIES the successive petition for writ of habeas corpus. PROCEDURAL HISTORY On February 19, 1985, Petitioner was convicted of four counts of first-degree murder (Cal.Penal Code § 187(a)) of Doug Ryen, his wife Peggy Ryen, their 10-year-old daughter Jessica Ryen and a neighborhood friend, 11-year-old Christopher Hughes.

Petitioner was also convicted of attempted murder in the first degree (CaLPenal Code §§ 664,187(a), 12022.7) of the Ryens’ eight-year-old son Joshua, the severely wounded sole survivor. Petitioner also pled guilty to escape from a state prison. (CaLPenal Code § 4530(b).) The jury found true an allegation of the special circumstance of multiple murders, (CaLPe-nal Code § 190.2(a)(3)), as well as the allegation that Petitioner intentionally inflicted great bodily injury on the sole survivor, Joshua Ryen (CaLPenal Code § 12022.7). The jury determined the penalty as death.

On May 15, 1985, the trial court sentenced him to death. On May 6, 1991, the California Supreme Court affirmed the judgment of conviction and sentence of death. People v. Kevin Cooper, 53 Cal.3d 771, 281 Cal.Rptr. 90, 809 P.2d 865 (1991). On June 26, 1991, the California Supreme Court denied Petitioner’s petition for rehearing and issued its remittitur. On December 16, 1991, the United States Supreme Court denied Petitioner’s first petition for writ of certiorari. Cooper v. California, 502 U.S. 1016, 112 S.Ct. 664, 116 L.Ed.2d 755 (1991).

On March 24, 1992, Petitioner requested appointment of counsel and a stay of execution from this Court. On March 26, 1992, the first in a series of stays of execution was issued by this Court. Cooper v. Calderon, Case No. 92-CV-427 (“Cooper I”). On August 11, 1994, Petitioner filed his first petition for writ of habeas corpus in this Court. Cooper I, 92-CV-427. On April 12, 1996, Petitioner filed an amended petition for writ of habeas corpus in this Court. Cooper I, 92-CV-427, Doc. No. 123. On June 20, 1997, Petitioner filed a supplemental petition for writ of habeas corpus with this Court.

On August 25, 1997, following an evidentiary hearing, this Court denied Petitioner’s first federal petition for writ of habeas corpus. Cooper I, 92-CV-427, Doc. No. 165. On September 16, 1997, Petitioner filed a motion and objections to the entry of judgment in this Court. Cooper I, 92-CV-427, Doc. No. 202. The Court denied Petitioner’s motion on November 7, 1997. Cooper I, 92-CV-427, Doc. No. 208. On April 4,1996, Petitioner filed his first of seven state petitions for writ of habeas corpus in the California Supreme Court. In re Cooper, Case No. S052741.

The California Supreme Court denied the first petition for writ of habeas corpus on February 19, 1997. (Answer, Ex. 1.) On March 12, 1997, Petitioner filed a motion to recall the remittitur in the direct appeal in the California Supreme Court. People v. Cooper, Case No. S004687.

The California Supreme Court denied Petitioner’s motion to recall the remittitur on March 26, 1997. (Answer, Ex. 2.) On September 12, 1997, Petitioner filed his second state petition for writ of habeas corpus in the California Supreme Court. (Answer, Ex. 3.) On September 30, 1997, Petitioner filed his second motion to recall the remittitur in the California Supreme Court, which was denied October 15, 1997. (Answer, Ex. 4.) On April 26, 1998, during the pendency of his appeal to the Ninth Circuit Court of Appeals from this Court’s denial of his first federal habeas petition, Petitioner filed a second petition for writ of certiorari in the United States Supreme Court in case number 97-8837 regarding this Court’s denial of his first federal petition for writ of habeas corpus.

On June 26, 1998, the United States Supreme Court denied the petition. Cooper v. Calderon, 524 U.S. 963, 118 S.Ct. 2392, 141 L.Ed.2d 757 (1998). On April 30, 1998, Petitioner filed a second federal petition for writ of habeas corpus in this Court. See Cooper v. Calderon, Case No. 98-CV-818 (“Cooper II ”). On June 15, 1998, this Court dismissed Petitioner’s second petition for writ of ha-beas corpus for lack of jurisdiction and as impermissibly successive under 28 U.S.C. 2244(b)(1). Cooper II, 98-CV-818, Doc. No. 3.

On June 25, 1998, Petitioner filed a motion in this Court to alter or amend the judgment dismissing his second federal petition for writ of habeas corpus. This Court denied the motion on June 30, 1998. Cooper II, 98-CV-818, Doc. No. 6. On December 23, 1998, Petitioner filed his third state petition for writ of habeas corpus in the California Supreme Court. In re Cooper, Case No. S075527. On March 15, 1999, Petitioner filed a supplemental petition for writ of habeas corpus in the California Supreme Court in his third state habeas proceeding. In re Cooper, Case No. S075527.

On March 26, 1999, while his third state habeas petition was still pending, Petitioner filed a fourth state habeas corpus petition in the California Supreme Court. In re Cooper, Case No. S077408. On April 14, 1999, the California Supreme Court denied Petitioner’s third and fourth state petitions for writ of habeas corpus. (Answer, Exs.5, 6.) On May 7, 1999, Petitioner filed a motion for clarification of rulings regarding his third state petition for writ of habeas corpus.

The motion was denied on May 12, 1999. (Answer, Ex. 7.) On July 9, 1999, Petitioner filed a third petition for writ of certiorari in the United States Supreme Court in case number 99-5303, challenging the denial of his third state habeas petition by the California Supreme Court. The United States Supreme Court denied the petition on October 4, 1999. Cooper v. California, 528 U.S. 897, 120 S.Ct. 229, 145 L.Ed.2d 192 (1999). The Ninth Circuit affirmed the Court’s denial of Petitioner’s first federal habeas petition on July 9, 2001. Cooper v.

Calderon, 255 F.3d 1104 (9th Cir.2001), cert. denied, 537 U.S. 861, 123 S.Ct. 238, 154 L.Ed.2d 100 (2002). On August 29, 2001, Petitioner filed a petition for rehearing and rehearing en banc. On January 8, 2002, the Ninth Circuit denied the petition. On December 21, 2001, the Ninth Circuit denied Petitioner’s request for authorization to file a second petition for writ of habeas corpus. Cooper v. Calderon, 274 F.3d 1270(9th Cir.2001). On February 4, 2002, Petitioner filed a petition for rehearing and rehearing en banc from the denial of authorization to file a second petition.

The Ninth Circuit denied Petitioner’s request on October 18, 2002. Cooper v. Calderon, 308 F.3d 1020 (9th Cir.2002), cert. denied, 538 U.S. 984, 123 S.Ct. 1793, 155 L.Ed.2d 677 (2003). On November 21, 2002, the Ninth Circuit denied Petitioner’s motion to reconsider or vacate the order denying his motion to stay the mandate pending the filing of a petition for writ of certiorari and request for en banc review regarding the denial of authorization to file a second federal habeas petition. Cooper v. Calderon, Case No. 98-99023.

On April 18, 2002, Petitioner filed his fourth petition for writ of certiorari in the United States Supreme Court in case number 01-10742. This fourth petition challenged the Ninth Circuit’s affirmance of this Court’s denial of Petitioner’s first federal petition for writ of habeas corpus. See Cooper, 255 F.3d 1104. On October 7, 2002, the United States Supreme Court denied the petition. Cooper v. Calderon, 537 U.S. 861, 123 S.Ct. 238, 154 L.Ed.2d 100 (2002). On February 11, 2003, Petitioner filed another petition for writ of habeas corpus in the United States Supreme Court in case number 02-9051.

See Cooper, 274 F.3d at 1272. The United States Supreme Court denied the additional petition for writ of habeas corpus on April 21, 2003. In re Cooper, 538 U.S. 976, 123 S.Ct. 1793, 155 L.Ed.2d 696 (2003). On February 14, 2003, the Ninth Circuit denied Petitioner’s authorization to file a third federal petition for writ of federal petition for writ of habeas corpus in the District Court. Cooper v. Calderon, Case No. 99-71430.

On April 7, 2003, the Ninth Circuit denied Petitioner’s petition for rehearing and rehearing en banc from the denial of authorization to file a third federal petition for writ of habeas corpus. On February 20, 2003, Petitioner filed a fifth petition for writ of certiorari in the United States Supreme Court in case number 02-9050, regarding the Ninth Circuit’s denial of authorization to file a second federal habeas petition in this Court. On April 21, 2003, the United States Supreme Court denied the petition. Cooper v. Calderon, 538 U.S. 984, 123 S.Ct. 1793, 155 L.Ed.2d 677 (2003).

On May 15, 2003, Petitioner filed his second petition for writ of habeas corpus in the United States Supreme Court in case number 02-10760. The United States Supreme Court denied the petition on October 6, 2003. In re Cooper, 540 U.S. 808, 124 S.Ct. 92, 157 L.Ed.2d 254 (2003). On June 13, 2003, the San Diego County Superior Court denied Petitioner’s petition for writ of habeas corpus. (Answer, Ex. 8.) On October 22, 2002, Petitioner filed a motion seeking post-conviction mitochondrial DNA testing of hairs.

On June 16, 2003, Petitioner filed a motion for post-conviction testing of a T-shirt to show evidence tampering by law enforcement personnel. (Answer, Ex. 9.) The Honorable William H. Kennedy of the San Diego County Superior Court held an evidentiary hearing on Petitioner’s claim of evidence tampering and request for mitochondrial DNA testing on June 23-25, 2003.

Following this post-conviction evidentiary hearing, the San Diego County Superior Court denied Petitioner’s motions relating to evidence tampering and post-conviction DNA testing. (Answer, Ex. 9.) On June 24, 2003, Petitioner filed his fifth state petition for writ of habeas corpus in the California Supreme Court. On October 22, 2003, the California Supreme Court denied the petition. (Answer, Ex. 10.) On July 22, 2003, Petitioner filed a petition for writ of mandate in the California Supreme Court, relating to the denial of his post-conviction DNA motion. Cooper v. Superior Court, Case No. S117675.

The California Supreme Court denied the motion on October 22, 2003. (Answer, Ex. 11.) On September 2, 2003, Petitioner filed a third motion to recall the remittitur in the California Supreme Court. People v. Cooper, Case No. S004687. On October 22, 2003, the California Supreme Court denied the motion. (Answer, Ex. 12.) On December 17, 2003, the California Superior Court issued an execution date of February 10, 2004.(See Cal.Crim.

Case No. 72787 filed Dec. 17, 2003.) On January 20, 2004, Petitioner filed his sixth petition for writ of certiorari in the United States Supreme Court, in case number 03-8513, challenging the California Supreme Court’s denial of his fifth state petition for writ of habeas corpus and an application for a stay. Cooper v. California The United States Supreme Court denied the petition and the application for a stay on February 9, 2004. Cooper v. California, 540 U.S. 1172, 124 S.Ct. 1197, 157 L.Ed.2d 1225 (2004). On January 22, 2004, this Court held a telephonic status conference to set an expedited briefing

schedule to allow for meaningful appellate review prior to the impending execution. Petitioner’s counsel represented that the filings would not be done in the Southern District of California. Nevertheless, the Court urged the parties to proceed in an expeditious manner to permit an orderly and reasoned review of the issues.

On February 2, 2004, Petitioner filed a complaint in the United States District Court for the Northern District of California, pursuant to 42 U.S.C. § 1983, seeking a temporary restraining order, preliminary injunction, and expedited discovery on a claim that California’s use of lethal injection violates the Eighth Amendment. Cooper v. Rimmer, Case No. 04-436. On February 6, 2004, the Honorable Jeremy Fogel, United States District Court Judge, issued an order denying the motions for temporary restraining order, preliminary injunction, and expedited discovery.

On February 8, 2004, the Ninth Circuit panel affirmed the district court’s order. Cooper v. Rimmer, 358 F.3d 655 (9th Cir.2004). On February 2, 2004, Petitioner filed his sixth petition for writ of habeas corpus and an emergency application for a stay of execution in the California Supreme Court. In re Cooper, Case No. S122389. The California Supreme Court denied the petition on the merits on February 5, 2004. (Answer, Ex. 13.) On February 5, 2004, Petitioner filed a sixth volume of exhibits with the California Supreme Court in support of his sixth state habeas petition after the denial of his sixth petition.

On February 6, 2004, the California Supreme Court deemed the submission a seventh state habeas corpus petition. In re Cooper, Case No. S122507. The California Supreme Court denied the seventh state habeas petition on the merits on February 9, 2004. (Answer, Ex. 14.) On February 6, 2004, Petitioner filed an application for authorization to file a successive petition for writ of habeas corpus in the Ninth Circuit Court of Appeals. Cooper v. Woodford, Case No. 04-70578. On February 8, 2004, a three-judge panel denied Petitioner’s application for authorization to file a successive petition.

On February 7, 2004, Petitioner filed his seventh petition for writ of certiorari with the United States Supreme Court. Cooper v. California, 03-8773. The United States Supreme Court denied Petitioner’s petition and application for stay on February 9, 2004. Cooper v. California, 540 U.S. 1172, 124 S.Ct. 1198, 157 L.Ed.2d 1225 (2004). On February 9, 2004, the Ninth Circuit sua sponte agreed to hear Petitioner’s application en banc. Cooper v. Woodford, 357 F.3d 1019 (9th Cir.2004).

On February 9, 2004, the en banc Ninth Circuit granted Petitioner authorization to file his third habeas corpus petition with this Court. Cooper v. Woodford, 358 F.3d 1117 (9th Cir.2004). On March 19, 2004, Respondent filed a petition for writ of certiorari with the United States Supreme Court, challenging the jurisdiction of the en banc court to grant authorization to file a successive petition in this Court. This petition for cer-tiorari was denied on May 17, 2004. Goughnour v. Cooper, Case No. 03-1328.

On March 2, 2004, the mandate of the Ninth Circuit issued to this Court regarding the authorization to file a successive habeas petition. On April 2, 2004, Petitioner filed his third petition for writ of habeas corpus with this Court. Between April 2, 2004 and April 1, 2005, the Court ordered mitochondrial DNA testing, EDTA testing, heard testimony from forty-two witnesses, and reviewed numerous exhibits and extensive briefing.

On April 22, 2005, the Court heard final argument on the successive petition and denied the petition on the merits, and alternatively, denied the petition on procedural grounds as reflected in this order.

FACTS Petitioner was sentenced to death for the “massacre of a mother, father, daughter, and houseguest in the sanctity of their home, and the attempted murder of the young son, the only person to survive.” Cooper, 53 Cal.3d at 793, 281 Cal.Rptr. 90, 809 P.2d 865. “The jury convicted Cooper of hacking to death Franklyn Douglas Ryen (Doug) and Peggy Ryen, their 10-year-old daughter Jessica, and an 11-year-old houseguest, Christopher Hughes (Chris), inside the Ryen home near the California Institute for Men (CIM), a state prison in Chino. Eight-year-old Joshua Ryen (Josh), although severely injured, survived.

Two days before this execution of the innocent, defendant had escaped from CIM.” Cooper, 53 Cal.3d at 794, 281 Cal.Rptr. 90, 809 P.2d 865. The California Supreme Court noted the “sheer volume and consistency of the evidence is overwhelming.” Cooper, 53 Cal.3d at 837, 281 Cal.Rptr. 90, 809 P.2d 865. After escaping from CIM prison on June 2, 1983, Petitioner hid in a vacant house owned by Larry Lease and brothers Roger and Kermit Lang (“hideout house”) for two-and-one-half days before entering the Ryen house.

Cooper, 53 Cal.3d at 795-801, 281 Cal.Rptr. 90, 809 P.2d 865; Cooper, 255 F.3d at 1107-08; Cooper I, 92-CV-427, Aug. 25, 1997 Order at 2-3; (see also 87 RT 2959-62, 2967-70, 2991.) The hideout house whs next door to the Ryen house, just 126 yards away. (4/22/05 Reporters’ Transcript of Evidentiary Hearing (“HRT”) 60; Cooper, 53 Cal.3d at 795, 281 Cal.Rptr. 90, 809 P.2d 865.); Cooper, 255 F.3d at 1107; Cooper I, 92-CV-427, Aug. 25, 1997 Order at 2, 22, 23. At the time of these attacks, Petitioner was an escapee of both CIM, where he escaped by foot on June 2, 1983, and from custody in Pennsylvania.

Cooper, 53 Cal.3d at 876, 281 Cal.Rptr. 34, 809 P.2d 809. In Pennsylvania, Petitioner kidnapped, raped, assaulted, and stole a car from a teenage girl who interrupted him while he was committing yet another residential burglary. Cooper, 53 Cal.3d at 840, 281 Cal.Rptr. 90, 809 P.2d 865; Cooper I, 92-CV-427, Aug. 25, 1997 Order at 48. He threatened to kill the victim during the attack. He had escaped from custody in Pennsylvania numerous times so that his escape from CIM was his twelfth escape. Cooper I, 92-CV-427, Aug. 25, 1997 Order at 22.

Prior to his arrival in California, Petitioner had also been arrested, charged, and convicted several times of theft-related offenses. Cooper, 53 Cal.3d at 802, 840, 841, 281 Cal.Rptr. 90, 809 P.2d 865; Cooper I, 92-CV-427, Aug. 25, 1997 Order at 25. In California, Petitioner was arrested, charged, and sentenced to state prison for two counts of residential burglary in Los Angeles County. Cooper I, 53 Cal.3d at 802, 281 Cal.Rptr. 90, 809 P.2d 865.

Petitioner lied about his identity, background, and criminal history by using the false name of David Trautman. (92-CV-427, Third Supplemental NOL filed Jan. 23, 2004, Ex. 44, Case No. A-386448). Following his burglary conviction, Petitioner was designated to CIM on April 29, 1983, still using the false name of David Traut-man. On June 1, he was transferred to a minimum-security portion of the prison from which he subsequently escaped. (85 Trial Reporters’ Transcript (“RT”) 2596-97.) On June 2,1983 Petitioner arrived at the hideout house.

Petitioner’s own testimony and the physical evidence, including fingerprints, confirmed that Petitioner was at the hideout house next to the Ryen house at the time of the murders. (87 RT 2959-62, 2967-70, 2991.) The hideout house was down the hill and nearest to the Ryen house.

One of the murder weapons, a hatchet covered with dried blood and human hair, came from the hideout house where Petitioner hid. (87 RT 3004, 3072; 90 RT 3796-97.) Witnesses identified the hatchet as the one missing from the hideout house after the killing. (87 RT 3004, 3072.) A local citizen discovered the hatchet on June 5, 1983 on the side of English Road, the only paved road leading from the Ryen home out of the immediate area.^ (89 RT 3519; 90 RT 3791.) The hatchet was covered by bloodstains; its head was covered by dried blood and human hairs. (90 RT 3797.) Some of the hairs were consistent with those of Doug and Josh Ryen. (96 RT 5015-16.) Dr.

Irving Root, who performed the autopsies, concluded that the hatchet could have inflicted the chopping wounds suffered by the victims. (90 RT 3870.) Post-conviction DNA testing confirmed that the blood came from the murder victims. (Supplemental DOJ Physical Evidence Exam Report dated Sept. 24, 2002.) The hatchet had been kept in a sheath by the fireplace in the hideout house. (86 RT 2685, 2715, 2878-79, 3004.) On June 7, two employees of the owner of the hideout house, Richard Sibbitt and Perry Burc-ham, discovered the sheath to the hatchet lying on the floor near the bedroom where Petitioner slept.

The bedroom had been previously occupied by Kathleen Bilbia, who lived in the hideout house in May. (86 RT 2859-60.) Bilbia recalled seeing it by the fireplace when she was cleaning the house. (86 RT 2685.) The sheath was not on the floor when Bilbia vacated the room. (86 RT 2677, 3004-05.) Buck knifes, an eleven-inch hunting knife, and ice picks were missing from the hideout house. (86 RT 2860; 87 RT 3002-04.) The hunting knife could have inflicted the remaining injuries. (91 RT 3957.) A strap fitting one of the missing buck knives was found on the floor by the Bilbia bedroom closet where Petitioner slept. (87 RT 3073.) The victims died from numerous chopping and stabbing injuries from a hatchet. (90 RT 3835.) Doug Ryen suffered at least thirty-seven separate wounds. (90 RT 3835-71.) Two separate chop injuries fractured his skull. (90 RT 3838-39.) Five chop wounds to Mr.

Ryen’s skull were in a “tight pattern,” indicating his skull was stationary when the blows were delivered. (90 RT 3841.) The blows appear to have been administered in rapid succession, within a second or two, as Mr. Ryen was kneeling by the side of the bed. (90 RT 3841.) One blow administered to Mr. Ryen’s skull was consistent with being struck by the blunt side of a hatchet, causing a depressed skull fracture, where the bone was pushed into his head. (90 RT 3849.) Mr. Ryen sustained numerous stabbing injuries. (90 RT 3852-68.) Mr.

Ryen’s right middle finger was amputated by a chopping blow. (90 RT 3846.) His severed finger was on the floor inside the Ryen bedroom closet. (90 RT 3381-82.) He sustained another chopping injury to his right ring finger. (90 RT 3846.) Another chop wound cut clear through the bone of his right forearm. (90 RT 3837.) One stab wound penetrated his sternum entering his heart. (90 RT 3853-55.) One stab wound punctured his lung and cut one of his ribs. (90 RT 3861.) There was a slicing injury to the right side of Mr. Ryen’s cheek. Before he died, Mr.

Ryen was stabbed on the left side of his neck, severing his carotid artery and cutting his trachea. (90 RT 3858.) Mr. Ryen also sustained deep incisions into his right thigh, his left leg and his buttocks area. (90 RT 3866, 3868.) Peggy Ryen suffered thirty-two separate identified wounds. (90 RT 3872-96.) Mrs. Ryen was five feet, eight inches tall and weighed 140 pounds. (90 RT 3924.) A series of three chopping wounds to the right side of Mrs.

Ryen’s head were consistent with having been administered while she was standing. (90 RT 3874.) Two chopping wounds nearly formed an upside down “V” on her forehead. (90 RT 3872.) One triangular defect in her skull, inflicted before death, was consistent with having been made by the tip of the hatchet. (90 RT 3874-75.) Mrs. Ryen sustained a chopping wound at the midline of the back of her head. (90 RT 3876.) Mrs. Ryen had a defensive wound to her right thumb. (90 RT 3878.) Mrs.

Ryen also suffered wounds to her chest, stomach, breast, and neck areas. (90 RT 3882-94.) Jessica Ryen suffered forty-six separate identified wounds, consisting of a combination of chopping and stabbing or incision wounds. (90 RT 3896-23.) Jessica was four feet, eleven inches tall, and weighed eighty pounds. (90 RT 3924.) Two wounds were from a single blow that formed a “V” in her forehead. (90 RT 3896-97.) A chopping blow to the right side of her nose and cheek fractured her jaw.

A chopping injury to the top of Jessica’s head resulted in a fracture. (90 RT 3898.) A wound to Jessica’s lower left back was consistent with the knife being drawn across her back and then inserted into her back. The bruising associated with the wound showed that it was one of the earlier wounds suffered by Jessica. (90 RT 3908-09.) Jessica suffered a stab wound to her neck. The wound resulted in massive bleeding.

Unconsciousness from the wound would have occurred in as little as thirty to sixty seconds, and would have been fatal in a couple of minutes. (90 RT 3903-04.) Three stab wounds to Jessica’s chest were in close proximity to each other, suggesting the wounds were delivered in rapid succession. The wounds were consistent with having been delivered while Jessica was in the position in which she died. (90 RT 3905-06.) Jessica suffered a grouping of twenty separate carving injuries on her chest. Some were associated with slight bleeding, but most apparently occurred after Jessica had stopped bleeding.

The injuries were consistent with an ice pick, a nail, or an awl having been used. These injuries were primarily inflicted while Jessica was in the position in which she died. (90 RT 3910-12.) Plant burrs were found inside Jessica Ryen’s nightgown that were similar to the burrs on the blanket inside the closet where Petitioner slept, (106 RT 7678-81), burrs from the vegetation between the hideout house and the Ryen house, and in the car.

Chris Hughes suffered twenty-five separate identifiable wounds. (90 RT 3924-45.) Chris was four feet, eleven inches tall, and weighed eighty-six pounds. (90 RT 3924.) A chopping wound to his right wrist went through the bone of his forearm, almost severing his hand from his wrist. (90 RT 3925.) A chopping wound almost amputated his right second finger, leaving the finger attached to the hand by only a small portion of skin. (90 RT 3926.) Chris also suffered a chopping injury to his right hand.

The injuries were consistent with Chris placing his hand by the right side of his head in an effort to protect his head. (90 RT 3926-27). Chris suffered six parallel chopping wounds with fractures down the side of his head, extending from the front to the back of his head.

There was little bleeding associated with the series of chopping wounds, indicating that Chris was dying or already dead when they were administered. (90 RT 3927-28.) Chris suffered a chopping or incision wound that fractured the facial bones and cut his nose. (90 RT 3929.) Chris suffered a chopping injury to the top of his head, and stab wounds to his chest, back, head and arms. (91 RT 3932-36, 3939-40.) Chris suffered two postmortem wounds in his right armpit area, from a “pushing” action of the knife. (91 RT 3943-44.) Josh’s injuries included a hatchet wound to the top of his head, a stab wound to his throat, and a hatchet wound near his left ear. (Trial Exs. 478-81, 699, 706A-H, 709, 726, 727; 88 RT 3354-56.) Dr.

Root, who performed the autopsies, believed the injuries could have been inflicted quickly, within one minute for each of the victims. (91 RT 3957-58.) He opined each victim would have died within minutes after being attacked. (91 RT 3959-61.) All of the victims had a moderate amount of food in the stomach, indicating that death probably occurred about one to three hours after they had eaten last. (91 RT 3961-62.) Prior to the murders, the Ryens and Chris Hughes attended an annual barbecue, on June 4, 1983, at the home of George Blade in Los Serranos, a few miles from the Ryen home in Chino. (88 RT 3177, 3179, 3181.) Chris had received permission from his parents to spend the night with the Ryens. (88 RT 3188.) They left the Blade residence to drive to the Ryen home sometime around 9:00 p.m. (88 RT 3182.) The Ryens’ neighbor, Larry Lease, saw the Ryen truck returning sometime between 9:00 and 9:30 p.m. (86 RT 2757-58, 2780.) Except for Josh, they were never seen alive again.

Cooper, 53 Cal.3d at 794, 281 Cal.Rptr. 90, 809 P.2d 865. The next morning, June 5, 1983, Chris’ mother, Mary Ann Hughes, became concerned when he did not come home. (88 RT 3189-90.) She called the Ryen residence a number of times, but only heard busy signals. (88 RT 3190.) Shortly after 9:00 a.m., Mrs. Hughes went to the Ryen home. (88 RT 3190.) She noted the barn was closed and it did not look like the horses had been fed. She only saw the Ryens’ truck at the house. (88 RT 3190-91.) At about 11:30 a.m., Mr.

Hughes went to the Ryen home to investigate. (88 RT 3191.) He noticed the Ryen truck, but did not see their station wagon. (88 RT 3195, 3202-03.) Mr. Hughes went to the kitchen door, looked inside, tried the door, but it was locked.

The Ryens were in the habit of leaving their doors unlocked when they were at home. (88 RT 3194.) He continued around the outside of the house until he reached the sliding-glass door leading into the Ryen master bedroom. (88 RT 3197.) He looked inside the sliding glass door and saw the body of his son, Chris, the unclothed bodies of Doug and Peggy Ryen, and Josh Ryen laying on the floor between his mother and Chris. (88 RT 3198-99.) Of the four people he could see, only Josh appeared to be alive. (88 RT 3199.) Mr. Hughes frantically tried to open the sliding door. (88 RT 3200, 3203.) Josh looked up as Mr.

Hughes shook the sliding glass door. Mr. Hughes asked Josh if he could open the door. (88 RT 3199.) Mr. Hughes rushed to the kitchen door, kicked it in, and entered. (88 RT 3204.) As he approached the master bedroom, he found Jessica on the floor in the hallway, also apparently dead. (88 RT 3205.) In the bedroom, Mr. Hughes touched the body of his son. It was cold and stiff. (88 RT 3205.) Mr. Hughes asked Josh who had done it. (88 RT 3205.) Josh appeared stunned; he tried to talk but could only move his lips. (88 RT 3205-06.) Mr. Hughes tried to use a telephone in the house, but it did not work.

He drove to a neighbor’s house, seeking help. (88 RT 3206-07.) The police arrived shortly. (88 RT 3211-12.) Doug, Peggy, Chris, and Jessica were dead. The first three were in the master bedroom and Jessica was on the floor in the hallway that leads into the master bedroom. (88 RT 3214-18.) Josh was on his side in a fetal position. His eyes were open, but he was unable to speak or move. (88 RT 3221, 3258.) He had difficulty breathing.

Josh’s neck wound was not bleeding at the time and paramedics tried unsuccessfully to find a pulse in Josh, symptoms consistent with severe shock. (88 RT 3313-17.) Josh was flown by helicopter to Loma Linda University Hospital. (88 RT 3321.) Josh had a limited memory of the attack. During the night of the murder, Josh woke up by a scream. (95 RT 4955-56.) He walked down the hall, stopping at the laundry room. Josh saw Jessica lying right by the bedroom door in the hallway. (95 RT 4956-58.) When he saw Jessica, he saw a “shadow or something” by the bathroom. It was dark.

Josh could not see what the shadow was or what it was doing. (95 RT 4969-70.) There were no sounds from his parents and Josh could not see them. (95 RT 4958-59.) The next thing he remembered was “[j]ust waking up” surrounded by the bodies of his parents. (95 RT 4959-62.) Josh’s first memory after waking up was Mr.

Hughes asking him if he could open the sliding glass door to the master bedroom. (95 RT 4962.) Kathleen Bilbia, an employee of Larry Lease, had been living in the hideout house in May, and she had used the bedroom Petitioner later slept in (the “Bilbia bedroom”). (86 RT 2665.) She moved out of the house during May. By May 27, most of her belongings had been removed. (86 RT 2665.) On May 30 and June 1, Ms. Bilbia vacuumed and cleaned portions of the house, including the bathroom she had used.

She cleaned the countertop, sinks, showers, and shower doors in the Bilbia bathroom. (86 RT 2666-68.) Petitioner slept in the closet of the bedroom nearest the garage where Ms.

Bilbia used to sleep. (86 RT 2693-94; 97 RT 5284-85.) The window by the hideout house fireplace provided a view of the Ryen house. (86 RT 2693-94; 97 RT 5284-85.) The hideout house had two telephones: one in the Bilbia bedroom and another in the kitchen. (86 RT 2669-70.) Petitioner admitted that he called Yolanda Jackson and Diane Williams from the hideout house and asked for their help, but they declined. (97 RT 5404-07; 86 RT 2792.) Telephone records and Ms. Jackson’s testimony showed that two calls were made from the hideout house to the Los Angeles area telephone number of Yolanda Jackson.

The first call lasted 110 minutes beginning on June 3 at 12:17 a.m., and the second call lasted four minutes beginning at 2:26 a.m. the same morning. (87 RT 2898-2900, 86 RT 2790; 2794; 86 RT 2790.) Two calls were also made from the hideout house to Diane Williams in Pittsburgh, Pennsylvania.

The first call lasted three minutes beginning on June 3 at 11:46 a.m., and the second lasted thirty-four minutes beginning on June 4 at 7:53 p.m. (87 RT 2896-2901; Trial Ex. 82.) Petitioner admitted that he called Diane Williams at about 8 p.m. on Saturday, June 4, 1983, the night of the murders. (97 RT 5435.) Diane Williams told Petitioner she did not have any money for him. (97 RT 5435-36.) Petitioner decided to leave the hideout house after the phone call. “This final call was only an hour or so before the Ryens and Chris Hughes left the Blade house for their unsuspected rendezvous with death.” Cooper, 53

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