govinfo:USCOURTS-casd-3_22-cv-00267-1

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
DIANA LOVEJOY, 
 Petitioner, 
v. 
MICHAEL PALLARES, Warden, 
Respondent. 

 
ORDER: (1) DENYING PETITION 
FOR WRIT OF HABEAS CORPUS 
AND (2) DENYING CERTIFICATE 
OF APPEALABILITY 
 
I. INTRODUCTION 
 Before the Court is a First Amended Petition for Writ of Habeas Corpus pursuant to 
28 U.S.C. § 2254 filed by Diana Lovejoy, (“Lovejoy” or “Petitioner”), a state prisoner 
who is represented by counsel . (ECF No. 48, hereafter “FAP .”) In the Petition, Lovejoy 
challenges her San Diego Superior Court conviction and sentence for conspiracy to commit 
murder and attempted murder in case number SCN363925. (See id.17–18.) The Court has 
reviewed the Petition (id.), the Answer and Memorandum of Points and Authorities in 
Support o f the Answer (ECF Nos. 50, 50 -1), the lodgments (ECF No. 51, et seq .), 
Petitioner’s Traverse (ECF No. 52), and all the supporting documents submitted by both 
parties. For the reasons discussed below, the Court DENIES the Petition and DENIES a 
certificate of appealability. 
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II. FACTUAL BACKGROUND 
The following statement of facts is taken from the California Court of Appeal 
opinion in People v. Lovejoy, et al.,1 No. D073477, 2020 WL 4332967, at *1 –6 (Cal. Ct. 
App. July 28, 2020). This Court gives deference to state court findings of fact and presumes 
them to be correct; Petitioner may rebut the presumption of correctness, but only by clear 
and convincing evidence. See 28 U.S.C. § 2254(e)(1); see also Parke v. Raley , 506 U.S. 
20, 35–36 (1992). 
Lovejoy and Mulvihill married in 2007 and had a son in 2012. Before 
their son ’s birth, they began having marital problems and tried marriage 
counseling and individual therapy. In or about June 2014, Lovejoy became 
employed. Mulvihill did not have a job at that time and was their son ’s 
primary caregiver, although they also had a nanny. 
 
In July 2014, Lovejoy obtained a temporary restraining order against 
Mulvihill, falsely claiming that he had sexually assaulted her and their son. 
Mulvihill moved out of the family home and thereafter usually slept in his car. 
After initially being prevent ed from seeing his son as a result of Lovejoy ’s 
claims, Mulvihill was later able to have supervised visits with him and 
eventually had unsupervised visits. In November 2015, Mulvihill was 
awarded 50 percent custody of their son after Lovejoy ’s accusations were 
determined to be unfounded. 
 
On June 26, 2016, after contentious marital dissolution proceedings, 
Lovejoy and Mulvihill entered into a marital settlement agreement. That 
agreement provided, inter alia, that Lovejoy would keep the family home and 
would pay Mulvihill a community property equalization payment of $120,000 
within 90 days of the execution of the agreement (i.e., by September 25, 
2016). That payment apparently was to be paid from either refinancing their 
community residence or the proceeds of the sale of a condominium unit 
separately owned by Lovejoy. 
 
On Christmas Day in 2015, Lovejoy met her aunt, Diana Clark, at a 
restaurant. Lovejoy asked Clark to help her find someone to kill Mulvihill. It 
/ / / / / 
 
1 Lovejoy’s direct appeal was consolidated with that of her co -defendant, Weldon 
McDavid. (See ECF No. 51-38 at 2.) 
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appeared to Clark that Lovejoy wanted Mulvihill dead and “had it all figured 
out.” Clark told Lovejoy that she did not know anyone who could help her. 
 
Lovejoy met McDavid in 2015 at the shooting range where he worked. 
He gave Lovejoy firearm training and self -defense lessons. They eventually 
began a sexual relationship and, beginning in November 2015, exchanged 
many phone calls and texts. At some point prior to August 15, 2016, Lovejoy 
and McDavid formed a plan for McDavid to lure Mulvihill to a secluded area 
and kill him. Lovejoy agreed to pay McDavid $1,000 initially, and an 
additional $1,000 after he killed Mulvihill. According to their plan, McDavid 
would call Mulvihill and tell him a story that would cause him to go to the 
secluded area where McDavid would be waiting for him. McDavid told 
Lovejoy to buy a Tracfone that he could use to call Mulvihill without being 
identified. On August 15, Lovejoy entered a Best Buy store and purchased a 
Tracfone. 
 
On August 31, 2016, McDavid performed reconnaissance at the 
secluded area where he planned to lure Mulvihill. On the evening of 
September 1, McDavid called Lovejoy, told her that he was ready to “get this 
over with,” and asked her to meet him at a park -and-ride lot in Carlsbad. 
Lovejoy met McDavid there, drove him to the secluded area and dropped him 
off. Per McDavid’s instructions, Lovejoy gave him some items belonging to 
her son (i.e., two towels) that he could place at the scene. McDavid thought 
that Mulvihill would recognize the items as belonging to his son and realize 
that the caller had access to his son. McDavid told Lovejoy that afterward, he 
would call her to pick him up. 
 
At the scene, McDavid used one of the towels that Lovejoy had given 
him to wipe himself after defecating. He placed the other towel at the base of 
a power pole. At about 10:30 p.m., McDavid used the Tracfone to call 
Mulvihill. McDavid told Mulvihill that McDavid was a criminal investigator 
hired by Lovejoy and that he had some documents that Mulvihill would want 
to see regarding custody of his son. When Mulvihill asked questions about the 
documents, McDavid told him that he would just have to see them and t hat 
McDavid would call back in a few minutes. Two minutes later, McDavid 
called back and told Mulvihill that he would leave the documents at a location 
where Mulvihill could find them. McDavid stated that he would call back 
again and hung up. Mulvihill cal led the Carlsbad Police Department ’s 
nonemergency number and told the dispatcher about the calls. When he asked 
whether the calls seemed odd, the dispatcher stated that they seemed a little 
unusual, but did not seem concerned. 
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McDavid called again and gave Mulvihill directions to the area where 
he said Mulvihill could find the documents taped to a power pole. Mulvihill 
was familiar with the area because he and Lovejoy had hiked and biked there 
before. McDavid told Mulvihill that this would be his “one chance” to see the 
documents. Because he could not risk having the cu stody case reopened, 
Mulvihill decided to go to the location to learn more about what was going 
on. Mulvihill was uncomfortable about going to the location alone, so he 
called his boss, Jason Kovach, who lived in a nearby apartment, and asked 
Kovach to accompany him. Kovach agreed and Mulvihill drove them to the 
designated location, which was about one mile from their homes. After exiting 
the car, Mulvihill carried a bright flashlight in his left hand and Kovach carried 
a baseball bat that Mulvihill had given him. Neither had a gun. 
 
Mulvihill and Kovach walked along the path toward the power pole, 
which was about 150 feet away. Because it was very dark, they could not see 
anything without Mulvihill’s flashlight. They saw a towel at the base of the 
power pole. Because Mulvihill could not see anything taped to the pole, he 
became suspicious and scanned the area with his flashlight. Hearing rustling 
in the bushes, Mulvihill shined his light in the direction of the noise and saw 
a person, McDavid, about 60 feet away, dressed in camouflage clothing. 
McDavid was lying prone on the ground and pointing a sniper rifle at 
Mulvihill through the bushes. Mulvihill said, “Hello?” twice and then either 
he or Kovach yelled “gun” or “run.” As he turned to run, Mulvih ill felt 
something hit him in the back. Mulvihill and Kovach heard shots being fired 
at them as they ran back to the car. They got into Mulvihill’s car and fled the 
scene. While driving away, Mulvihill realized that he had been shot, pulled 
over, and called 911. 
 
Police responded to Mulvihill’s 911 call and took him to a hospital. He 
had sustained entry and exit wounds from a gunshot. The entry wound was 
below his right armpit. A CT scan showed small metallic fragments 
throughout Mulvihill’s chest and active bleeding in his axilla. The axilla is a 
potentially lethal area because it contains major arteries, veins, and nerve 
structures, which, if injured, could cause a patient to bleed to death. Two bullet 
fragments were removed from his back. 
 
After shooting Mulvihill, McDavid ran down a path to a road, called 
Lovejoy, and had her pick him up. As Lovejoy drove them back to the park -
and-ride lot, McDavid told her that he had “messed up.” 
 
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Investigating the incident, police found a rifle round jacket on the 
sidewalk near the power pole. The jacket was consistent with having been 
fired from an AR-15. Two towels were also found at the scene, one of which 
had fecal matter on it. Test results sh owed that the fecal matter contained 
McDavid’s DNA. 
 
Police discovered that the Tracfone used to call Mulvihill was 
purchased at a Best Buy store on August 15, 2016. The store ’s surveillance 
video from that date showed Lovejoy purchasing the phone. She was wearing 
a salmon-colored shirt and a khaki -colored skirt at the time. Police searched 
Lovejoy’s home and found the shirt and skirt that she was wearing when she 
purchased the Tracfone. They also found towels that matched the towels 
found at the scene of the shooting. Lovejoy ’s computer showed that she had 
searched for information regarding moon phases. The sky is darkest when 
there is a new moon because no light emanates from the moon. On September 
1, 2016, the night of the shooting, there was a new moon. 
 
Police also searched McDavid ’s home and found numerous rifles, 
handguns, and upper and lower assemblies for AR -15’s. They found a 
complete upper assembly for an AR-15 hidden under foam and sleeping bags 
on a garage shelf. That assembly had a suppressor and brass catcher attached 
to it. A brass catcher catches expended cartridge casings before they fall to 
the ground. The brass catcher contained seven used shell casings and one 
unused round. In McDavid’s Jeep, they found a camouflage jacket and black 
pants that appeared to have dirt and plant material on them. 
 
An amended information charged Lovejoy and McDavid with one 
count of conspiracy to commit murder (§§ 182, subd. (a)(1), 187, subd. (a)) 
(count 1) and one count of premeditated attempted murder (§§ 664, 187, subd. 
(a), 189) (count 2). The amended informatio n further alleged that in 
committing each of those offenses, McDavid intentionally and personally 
discharged a firearm, causing great bodily injury (§ 12022.53, subd. (d)) and 
personally inflicted great bodily injury on Mulvihill (§ 12022.7, subd. (a)). It 
also alleged that in committing each of those offenses, Lovejoy was 
vicariously armed with a firearm (§ 12022, subd. (a)(1)). 
 
At their joint trial, the prosecution presented evidence substantially as 
described ante. In his defense, McDavid called several witnesses who testified 
that he was a skilled marksman, implying that if McDavid had intended to kill 
Mulvihill, he could have. In particular, McDavid presented the testimony of 
Barry Reder, McDavid ’s shooting student and friend, who testified that 
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McDavid could easily hit a target 100 yards away. McDavid also presented 
the testimony of Christopher Lazano, who stated that he knew McDavid from 
the Marine Corps when they were both shooting instructors at the School of 
Infantry at Camp Pendleton. Lazano believed that McDavid would not have 
any trouble hitting a target at center mass, even with ambient lighting. He 
testified that Marines are taught to never point a gun at anyone unless they 
intend to kill that person. 
 
McDavid also presented the testimony of Vincent Kyzer, an active duty 
Marine gunner, who described the requirements for becoming a competent 
shooter in the Marine Corps. Marines are trained to shoot at a target ’s center 
mass (i.e., chest) because most of the arteries that cause major damage are 
located there. It is more difficult to shoot at a moving target than a stationary 
target. Marines are trained to go into darkness 30 minutes in advance to allow 
their eyes to adjust to poor lighting. If a light is sh ined on a shooter by the 
enemy, the shooter likely would shoot at the last known location of the target’s 
center mass. If a shooter was planning to ambush an enemy, the shooter would 
place a marker at the location for the planned shooting and wait for the enemy 
to get close to that marker. Kyzer admitted that a power pole could serve as a 
marker for a shooter’s range. 
 
Kyzer testified that he knew McDavid from the Marine Corps and 
described him as a skilled, accurate, and expert rifleman while he was in the 
Marine Corps. Kyzer believed that McDavid would be “extremely accurate” 
using a rifle from a prone position and that, when McDavid was a Marine, he 
would never miss a target that was only 20 yards away. After McDavid left 
the Marine Corps, he became even more proficient in marksmanship and 
obtained instructor credentials. 
 
McDavid testified in his own defense, stating that at the time of his 
arrest, he was working as a firearms instructor and salesman at a shooting 
range. He was a rifle, pistol, and shotgun instructor for the NRA. He had been 
a firearms instructor for 17 yea rs, including while he was serving in the 
Marine Corps. He joined the Marine Corps in 1997 when he was 30 years old 
and left in 2009. While in the Marine Corps, he received firearms training and 
became a ninth award rifle expert and a seventh award pistol expert. Since his 
separation from the Marine Corps, his shooting skills had improved. 
 
McDavid testified that he met Lovejoy in 2015 when he was her 
shooting instructor at the shooting range at which he worked. Lovejoy told 
him that she was going through a divorce and was having custody issues with 
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Mulvihill. She told McDavid that Mulvihill used drugs and that, as a felon, 
illegally owned a firearm. She also told him that Mulvihill was molesting their 
son and had digitally penetrated her against her will. She stated that she had 
filed a police report regarding those incidents, but the police had done nothing. 
 
McDavid testified that in June or July 2016, he and Lovejoy began 
discussing strategies to acquire evidence against Mulvihill so that she could 
obtain full custody of their son. They planned to lure Mulvihill to a secluded 
area by having McDavid call him and tell him that McDavid was a private 
investigator hired by Lovejoy. McDavid would tell Mulvihill that he had 
evidence of child abuse committed by Mulvihill, which would be left at the 
base of a power pole for Mulvihill to retrieve. McDavid testified: “[A]nybody 
who’s not guilty of child abuse, in my mind, would not come out at night to 
meet someone or to pick up any evidence that they didn’t know where it came 
from.” McDavid said that he had planned to videotape Mulvihill retrieving 
the evidence in the dark and then set up a subsequent meeting at which he 
would try to sell Mulvihill a blank thumb drive that purportedly contained 
additional evidence of child abuse. Lovejoy was to pay McDavid $2,000 to 
gather that information on Mulvihill. McDavid testified that he and Lovejoy 
had never discussed that he would hurt or kill Mulvihill. 
 
McDavid testified that on August 31, 2016, he went to the secluded 
location and performed reconnaissance. On September 1, on returning home 
from a shooting competition in Chico Hills, he got into an argument with his 
wife. Angry and frustrated, McDavid called Lovejoy and told her, “Let’s just 
get this over with. So I can be done with this.” He told Lovejoy to meet him 
at the park-and-ride lot in Carlsbad. When she arrived, McDavid placed in her 
car a bag containing the AR -15 gun that he had used earlier that day at the 
competition. When Lovejoy asked him why h e brought the gun bag, he 
replied, “just in case.” McDavid testified that he never intended to kill 
Mulvihill, but brought his AR-15 because he knew that Mulvihill owned a gun 
and he (McDavid) needed to be prepared in case Mulvihill brought the gun. 
 
McDavid testified that in response to his request that Lovejoy bring 
something that Mulvihill would recognize as belonging to their son, she gave 
him two towels, which he planned to place at the base of the power pole. 
Lovejoy drove McDavid to the secluded area and dropped him off. McDavid 
told her to go home until he called after he got the information and needed to 
be picked up. Lovejoy paid him $1,000 upfront and would give him another 
$1,000 when he acquired all of the evidence against Mulvihill. 
 
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After arriving at the secluded area, McDavid called Mulvihill and used 
the private investigator story to lure him to the area. Because he had to 
defecate, McDavid did so and used one of the towels to wipe himself. He 
placed the other towel at the base of the power pole. McDavid then positioned 
himself 60 feet from the power pole and waited for Mulvihill to arrive. 
McDavid realized that he would not be able to videotape Mulvihill picking up 
the evidence because Mulvihill would notice the light from McDavid ’s cell 
phone as it was recording. 
 
About 20 minutes later, Mulvihill arrived with Kovach. Mulvihill was 
holding a flashlight and scanning the area with it as he and Kovach walked 
toward the power pole. McDavid testified that the flashlight gave Mulvihill a 
tactical advantage. Nevertheless, McDavid said that he could see Mulvihill 
sufficiently so that he could have shot him then, if he had wanted to. Mulvihill 
shined his flashlight directly onto McDavid and said, “hello.” McDavid did 
not move. According to McDavid, Mulvihill then said, “I ’ve got a gun.” 
McDavid decided to shoot at the flashlight to remove Mulvihill ’s tactical 
advantage. Although he could have killed Mulvihill by firing two shots at his 
center mass, McDavid testified that he decided not to do so because “killing 
is not always the answer.” McDavid testified that he did not intend to kill 
Mulvihill. However, when Mulvihill said he had a gun, McDavid feared for 
his life. McDavid shot at Mulvihill’s flashlight. McDavid then fired six shots 
into the air and stopped shooting after Mul vihill and Kovach ran away. 
McDavid believed that his shot hit the flashlight and did not realize until later 
that he had shot Mulvihill. 
 
McDavid testified that he would not miss a man-sized target if he tried 
to shoot it, even if the target was 100 yards away. If he wanted to kill a person 
who was 100 yards away, he could hit them at their center mass with no 
problem and there would be no r eason for him to wait until the person was 
only 60 feet away. 
 
Lovejoy did not present any evidence in her defense. 
 
In rebuttal, the prosecution presented the testimony of Carlsbad Police 
Department Sergeant Greg White, a firearms specialist. White testified that if 
McDavid were truly aiming at Mulvihill ’s flashlight, he would expect that 
McDavid may have hit Mulvihill’s hand, but not his armpit, because McDavid 
was such a skilled shooter. White believed that McDavid’s shot went toward 
Mulvihill’s center mass as McDavid intended, but it struck Mulvihill in his 
/ / / / / 
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armpit instead because Mulvihill rotated his body to run after seeing 
McDavid. 
 
(ECF No. 51-38 at 3–15.) 
III. PROCEDURAL HISTORY 
 On November 13, 2017, a jury found Petitioner guilty of conspiracy to commit 
murder (Cal. Penal Code § 182(a)(1)) and attempted murder (Cal. Penal Code §§ 664, 
187(a)(1)). (ECF No. 51 -5, Clerk’s Tr., vol. 2 at 378–79. The jury also found true that 
Lovejoy was vicariously armed with a firearm as to each count (Cal. Penal Code 
§ 12022(a)(1)) and that Lovejoy acted willfully, deliberately and with premedication (Cal. 
Penal Code § 189). ( ECF No. 51-5, Clerk’s Tr., vol. 2 at 378–79.) On January 31, 2018, 
the court sentenced Lovejoy to an indeterminate term of 25 years to life on count 1 and a 
consecutive one -year term for the related enhancement pursuant to Cal. Penal Code 
§ 12022(a)(1), for a total term of 26 years to life in prison. (ECF No. 51-7, Clerk’s Tr., vol. 
3 at 747 –48.) The court also imposed, but pursuant to Cal. Penal Code § 654 stayed 
execution of, an indeterminate term of 25 years to life on count 2 and related and the one-
year enhancement under Cal. Penal Code § 12022(a)(1). (ECF No. 51-7, Clerk’s Tr., vol. 
3 at 747–48.) 
 Lovejoy appealed her conviction to the California Court of Appeal, arguing (1) the 
prosecutor committed misconduct during closing argument, (2) she was denied her Sixth 
Amendment right to counsel, and (3) a recent change in California law required Lovejoy’s 
conviction for attempted murder to be reversed. ( See ECF 51-35.) On July 28, 2020, the 
appellate court affirmed Lovejoy ’s conviction and sentence in a reasoned opinion . (See 
ECF No. 51 -38.) Lovejoy then filed a petition for review with the California Supreme 
Court, raising the same claims she had in the appellate court. (ECF No. 51 -39.) The state 
supreme court denied the petition for review without comment or citation on September 
30, 2020. (ECF No. 51-40.) 
 On February 4, 2022, Lovejoy filed a Petition for Writ of Habeas Corpus in this 
Court, pursuant to 28 U.S.C. § 2254. (ECF No. 1. ) On the same day, Lovejoy also filed 
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Motion to Stay the Petition and Hold it in Abeyance. (ECF No. 2.) On August 18, 2022, 
the Court granted Lovejoy ’s stay motion to allow her to exhaust additional claims in the 
state courts. (ECF No. 9.) 
 In the meantime, the California Legislature extended relief to defendants convicted 
of attempted murder based on the natural and probable consequences doctrine. (Sen. Bill 
No. 775 (2021–2022 Reg. Sess.), ch. 551 § 1 , eff. Jan. 1, 2022 .) In light of the change in 
law, Lovejoy filed a petition for resentencing in San Diego Superior Court, pursuant to Cal. 
Penal Code § 1172.6,2 arguing the new law required her convictions to be set aside. The 
superior court denied the petition. 3 On September 20, 2022 , Lovejoy appealed the denial 
to the state appellate court, which affirmed the lower court ’s decision on May 24, 2024. 
See People v. Lovejoy, 101 Cal. App. 5th 860 (Cal. Ct. App. 2024 ). Lovejoy then filed a 
petition for review in the California Supreme Court which was denied without comment or 
citation on July 24, 2024. See People v. Lovejoy, No. S285447 (Cal. July 14, 2024).4 
 On December 24, 2024, Lovejoy filed a petition for writ of habeas corpus in the 
California Supreme Court, raising eleven claims. (ECF No. 51 -41.) The court denied the 
petition without comment or citation on May 14, 2025. (ECF No. 51-42.) 
 On May 15, 2025, this Court lifted the stay of Lovejoy’s federal habeas action (see 
ECF No. 44) and on July 25, 2025, Lovejoy filed a First Amended Petition and exhibits. 
 
2 Formerly Cal. Penal Code § 1170.95. 
 
3 Neither Petitioner nor Respondent lodged the petition or the superior court’s order 
denying the petition for resentencing as part of the federal habeas record but it is referenced 
in the published opinion of the appellate court affirming the superior court’s decision. See 
People v. Lovejoy, 101 Cal. App. 5th 860 (Cal. Ct. App. 2024). 
 
4 While the parties also failed to lodge this portion of the state court record, the docket 
can be found at the California Courts Case Information website. See 
https://appellatecases.courtinfo.ca.gov/search/case/ dockets.cfm?dist=0&doc_ 
id=3091756&doc_no=S285447&request_token=NiIwLSEnPkw6WyBFSSFdWEpIMEQ
0UDxTKyNOVz5SQCAgCg%3D%3D (visited May 8, 2026). 
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(ECF No s. 48 , 48 -1.) On September 24, 2025, Respondent filed an Answer and 
Memorandum of Points and Authorities in support thereof. (ECF Nos. 50, 50-1.) Lovejoy 
filed a Traverse on November 10, 2025. (ECF No. 52.) 
IV. SCOPE OF REVIEW 
 Lovejoy’s Petition is governed by the provisions of the Antiterrorism and Effective 
Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320 (1997). Under 
AEDPA, a habeas petition will not be granted unless th e adjudication: (1) resulted in a 
decision that was contrary to, or involved an unreasonable application of clearly established 
federal law; or (2) resulted in a decision that was based on an unreasonable determination 
of the facts in light of the evidence p resented at the state court proceeding. 28 U.S.C. 
§ 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002). 
 A federal court is not called upon to decide whether it agrees with the state court ’s 
determination; rather, the court applies an extraordinarily deferential review, inquiring only 
whether the state court’s decision was objectively unreasonable. See Yarborough v. Gentry, 
540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). I n order to 
grant relief under § 2254(d)(2), a federal court “must be convinced that an appellate panel, 
applying the normal standards of appellate review, could not reasonably conclude that the 
finding is supported by the record.” See Taylor v. Maddox , 366 F.3d 992, 1001 (9th Cir. 
2004). 
 A court may grant relief under the “contrary to” clause if the state court applied a 
rule different from the governing law set forth in Supreme Court cases, or if it decided a 
case differently than the Supreme Court on a set of materially indistinguishable facts. See 
Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant relief under the “unreasonable 
application” clause if the state court correctly identified the governing legal principle from 
Supreme Court decisions but unreasonably applied those de cisions to the facts of a 
particular case. Id. Additionally, the “unreasonable application” clause requires that the 
state court decision be more than incorrect or erroneous; to warrant habeas relief, the state 
court’s application of clearly established federal law must be “objectively unreasonable.” 
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See Lockyer v. Andrade, 538 U.S. 63, 75 (2003). “[A] federal habeas court may not issue 
the writ simply because that 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.” Williams v. Taylor, 529 U.S. 362, 411 
(2000). “A state court ’s determination that a claim lacks merit precludes federal habeas 
relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s 
decision.” Harrington v. Richter , 562 U.S. 86, 101 (2011) (quoting Yarborough v. 
Alvarado, 541 U.S. 652, 664 (2004)). 
 Where there is no reasoned decision from the state’s highest court, the Court “looks 
through” to the underlying appellate court decision and presumes it provides the basis for 
the higher court’s denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S. 797, 805–
06 (1991). If the dispositive state court order does not “furnish a basis for its reasoning,” 
federal habeas courts must conduct an independent review of the record to determine 
whether the state court’s decision is contrary to, or an unreasonable application of, clearly 
established Supreme Court law. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). 
However, a state court need not cite Supreme Court precedent when resolving a habeas 
corpus claim. See Early, 537 U.S. at 8. “[S]o long as neither the reasoning nor the result of 
the state -court decision contradicts [Supreme Court precedent,]” id., the state court 
decision will not be “contrary to” clearly established federal law. Id. Clearly established 
federal law, for purposes of § 2254(d), means “the governing principle or principles set 
forth by the Supreme Court at the time the state court renders its decision.” Andrade, 538 
U.S. at 72. 
V. DISCUSSION 
Lovejoy raises the following eleven claims in her FAP: 
(1) The prosecutor committed misconduct during closing arguments in violation of 
her right to due process; 
/ / / / / 
 
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(2) Trial counsel was ineffective in failing to present evidence during trial that 
Lovejoy could not benefit monetarily from the death of Mulvihill, in violation of her Sixth 
Amendment right to counsel; 
(3) A change in California state law requires Lovejoy’s conviction for attempted 
murder be set aside; 
(4) Trial counsel was ineffective in failing to timely request a curative instruction 
regarding the effect Mulvihill’s death would have on Lovejoy’s obligation to pay the 
divorce settlement; 
(5) Trial counsel was ineffective i n failing to get in writing the prosecutor’s 
agreement not to present financial gain as a possible motive; 
(6) Trial counsel was ineffective when he failed to timely object to prosecutorial 
misconduct during rebuttal argument; 
(7) Lovejoy’s right to due process was violated when the trial court “misapplied 
California Probate law” in denying Lovejoy’s request to correct the purportedly improper 
rebuttal argument; 
(8) Lovejoy’s right to due process was violated and she was deprived of a state -
created liberty interest when the trial court misapplied California probate law in denying 
defense counsel’s request for correction of the prosecutor’s closing argument; 
(9) Petitioner’s right to due process was violated when she was not considered for 
mental health diversions as opposed to a state prison sentence; 
(10) Lovejoy’s conviction for attempted murder has been rendered invalid under 
California state law and thus her conviction violates her right to due process; and 
(11) Lovejoy’s conviction for conspiracy to commit murder was rendered invalid 
under a new California state law and as such her conviction violates her right to due 
process. (See FAP at 4–8.) 
Petitioner has now withdrawn Ground Nine. (See id. at 7, 91; ECF No. 52 at 16). 
The Court, however, will reference the grounds for relief as originally enumerated in the 
FAP and group similar grounds together in the discussion below for the sake of clarity. 
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A. Prosecutorial Misconduct (Ground One) 
In her first ground for relief, Lovejoy argues her right to due process was violated 
when the prosecutor committed misconduct during closing arguments by referencing the 
$120,000 settlement Lovejoy was required to pay Mulvihill on September 25, 2016 as one 
possible motive for the crime. (See FAP at 37–70.) Respondent contends the state court’s 
denial of this claim was neither contrary to, nor an unreasonable application of, clearly 
established law. (See ECF No. 50-1 at 15–16.) 
1. State Court Decision 
Lovejoy raised this claim in her petition for review to the California Supreme Court, 
and it was denied without comment or citation. (See ECF No. 51-40.) This Court therefore 
looks through the supreme court’s silent denial to the opinion of the California Court of 
Appeal. See Ylst , 501 U.S. at 805–06. The appellate court summarized the factual 
background and then denied the claim on the merits as follows: 
During trial, there was evidence admitted showing that on June 26, 
2016, Lovejoy and Mulvihill entered into a marital settlement agreement as 
part of their divorce. Pursuant to the settlement agreement, Lovejoy was 
obligated to pay Mulvihill a community property equalization payment of 
$120,000 by September 25, 2016 (i.e., 90 days after th e date of the 
agreement), from either refinancing their community residence or from the 
proceeds of the sale of a condominium unit separately owned by Lovejoy. 
 
During the prosecutor ’s initial closing argument, the prosecutor 
discussed Lovejoy’s possible motives for wanting Mulvihill dead. First, the 
prosecutor discussed the marital acrimony between Lovejoy and Mulvihill 
that began in 2014 and Lovejoy ’s false accusations against Mulvihill that 
initially allowed her to obtain sole custody of their son and required Mulvihill 
to pay her child support. The prosecutor described how Mulvihill ultimately 
prevailed by refuting Lovejoy ’s false accusations and that Lovejoy w as 
thereafter required to share custody of their son with Mulvihill and pay him 
child support. 
 
The prosecutor also twice referred to Lovejoy’s $120,000 obligation in 
her initial closing, arguing first: “And the worst insult of it all is at the end of 
their divorce, she has to give him $120,000. [¶] We know that none of this 
was satisfactory to Ms. Lovejoy because she set about looking for someo ne 
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that would kill Mr. Mulvihill and get rid of all of her woes.” The prosecutor 
later posed to the jury the question whether Lovejoy knew that McDavid 
intended to kill Mulvihill and answered that question, arguing: “Well, of 
course. He’s doing it on her behalf.” The prosecutor then argued that McDavid 
had “nothing personal against Mr. Mulvihill. He’s doing it because—probably 
for 120,000 reasons he’s doing it and because of his sexual relationship with 
her.” 
 
During her initial closing argument, the prosecutor also generally 
described how the evidence showed that Lovejoy and McDavid had planned 
the killing of Mulvihill, found a secluded location, and used a “burner phone” 
to lure Mulvihill to the location where McDavid shot him. 
 
Lovejoy’s attorney did not object to any of the references that the 
prosecutor made to the $120,000 payment in her initial closing argument. 
 
In his closing argument, Lovejoy ’s counsel argued that Lovejoy and 
McDavid had no motive to kill Mulvihill because neither one had any 
significant financial pressures. Her counsel also argued that the testimony of 
Clark, Lovejoy’s aunt, showed that about three weeks before the shooting, 
Lovejoy was happy about her marital settlement agreement and how 
cooperative Mulvihill had been. Lovejoy ’s counsel also described how 
Lovejoy would have to pay Mulvihill the settlement amount in 90 days and 
noted that she ha d accepted an offer on the sale of her condominium that 
would close by the end of September. Lovejoy ’s counsel addressed 
CALCRIM No. 370 regarding motive as a factor for the jury’s consideration, 
arguing: “Having a motive may be a factor tending to show a defendant is 
guilty. Not having a motive may be a factor tending to show a defendant is 
not guilty.” He argued: “You, as jurors, need to look at the progression of 
things from December [2015] to September 2016. And when you look at the 
uncontradicted facts of everything that has gone on during that time, there is 
100 percent no motive to murder Mr. Mulvihill.” 
 
In rebuttal closing argument, the prosecutor responded to the argument 
by Lovejoy ’s counsel that Lovejoy and McDavid had no motive to kill 
Mulvihill, referring three times to Lovejoy ’s obligation to pay $120,000 to 
Mulvihill. First, the prosecutor argued that the evidence showed that Lovejoy 
was not, in fact, happy with the settlement agreement. The prosecutor 
reasoned that if Lovejoy were truly happy and the jury were to accept her 
version of events, she would not have hired McDavid to try to find evidence 
about Mulvihill molesting their son. The prosecutor argued: “It is still obvious 
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that she’s . . . not at all happy with the way the settlement is coming down. 
And there is urgency to do this crime now because you can’t do it right on the 
eve of the $120,000. So it’s got to be at least somewhat removed in time. And 
that’s why that date was selected.” 
 
Second, the prosecutor argued that McDavid ’s testimony that he 
spontaneously selected September 1, 2016, as the date to lure Mulvihill to the 
secluded location was not credible. She argued: “Really, why did you go there 
the day before? He testified that he went to the scene the day before. If this 
was a spontaneous thing, why did you go the day before?” The prosecutor 
answered her own question, arguing: “The $120,000 payment. He wants you 
to think is irrelevant? That is obviously not true.” 
 
Third, countering the argument by Lovejoy’s counsel that Lovejoy and 
McDavid had no motive to kill Mulvihill, the prosecutor argued: “No reason 
to kill[?] They had 120,000 reasons to kill.” Neither Lovejoy’s nor McDavid’s 
counsel objected to any of the remarks that the prosecutor made about the 
$120,000 payment during her rebuttal closing argument. 
 
On Thursday, November 9, 2017, jury deliberations began and 
continued for about one hour. Jury deliberations resumed the following 
Monday, November 13. Shortly after deliberations resumed, Lovejoy ’s 
counsel objected to the prosecutor ’s rebuttal closing argument that Lovejoy 
had a $120,000 motive to kill Mulvihill based on the marital settlement 
agreement. Stating that he had been taken by surprise by that argument, 
Lovejoy’s counsel asked the court to reopen the case so that he could present 
additional evidence, and requested that the court either take judicial notice 
that the settlement agreement was binding on all parties, or instruct the jury 
that the prosecutor’s argument concerning the $120,000 was not accurate or 
supported by law. He argued that because the marital settlement agreement 
was enforceable, Lovejoy “wasn’t in a position to gain that $120,000 back.” 
By so arguing, Lovejoy’s counsel was presumably making the point that even 
if Mulvihill died, Lovejoy nevertheless would be obligated to make the 
payment to Mulvihill’s estate. 
 
The court explained that, in its view, the money would have gone to 
their child if Mulvihill had died, but that Lovejoy would have had control of 
it as his mother. The court stated: “If [Lovejoy ’s] intent was to have 
[Mulvihill] killed, then that money which goes to Mr. Mulvihill’s estate goes 
to the child. And she ’s the child ’s mother and guardian, so she has control 
over that. [¶] ... [I]t ’s a distinction without a real difference in the idea of a 
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motive.... [I]t just would confuse the jury to bring in something that would not 
have a major impact on them.” The court therefore denied the relief requested 
by Lovejoy’s counsel. The jury returned its verdicts shortly thereafter, finding 
Lovejoy guilty on counts 1 and 2. 
 
Lovejoy filed a motion for new trial, asserting that the prosecutor had 
improperly argued in rebuttal closing a new theory of a monetary or “debt -
avoidance” motive by the defendants—a theory that, according to the motion, 
the prosecutor had represented pri or to trial that she would not raise. The 
prosecutor opposed the motion, arguing, inter alia, that she had simply argued 
in closing that Lovejoy did not want to give the money to Mulvihill because 
she despised him and therefore, new testimony by a family l aw attorney 
regarding the financial impact of the marital settlement agreement would not 
have changed anything. The court rejected Lovejoy ’s assertion that the 
prosecutor had represented that she would not assert the $120,000 payment, 
as required by the marital settlement agreement, as a motive. The court noted 
that the entire marital settlement agreement was in evidence, including its 
provision that Lovejoy was obligated to make the $120,000 equalization 
payment. The court rejected Lovejoy ’s assertion that the prosecutor had 
disavowed until her rebuttal closing argument that she would assert the 
$120,000 equalization payment as a motive, noting that the prosecutor had 
raised that issue prior to trial, presented the settlement agreement, including 
its $120,000 equalization payment provision, as evidence during the trial, and 
cross-examined McDavid about the $120,000 payment that Lovejoy was 
obligated to make to Mulvihill. Accordingly, the court denied Lovejoy ’s 
motion for new trial. 
 
Assuming arguendo that Lovejoy did not forfeit this claim by her 
counsel’s failure to timely object and request a curative admonition, we reject 
Lovejoy’s argument on appeal that the prosecutor argued one motive theory, 
“debt animosity,” in her initial closing argument and a different motive theory, 
“debt avoidance,” in her rebuttal closing, with respect to the $120,000 
equalization payment. [Footnote 11: Lovejoy does not challenge on appeal the 
prosecutor’s remarks in her initial closing arguments that, according to 
Lovejoy, suggested that Lovejoy had a “debt animosity” motive to kill 
Mulvihill, i.e., that she conspired and attempted to kill Mulvihill because “she 
was so angry at having to pay money to Mulvihill that she wanted him killed.” 
Rather, her contention on appeal is that the prosecutor changed her theory with 
respect to Lovejoy ’s motive for wanting Mulvihill dead from a “debt 
animosity” theory discussed in the prosecutor’s initial closing argument, to a 
“debt avoidance” theory, i.e., that Lovejoy would gain financially if Mulvihill 
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were dead because she would not have to pay him the $120,000, purportedly 
argued in the prosecutor ’s rebuttal closing argument (a theory that Lovejoy 
contends is unsupported factually or legally), thereby depriving Lovejoy ’s 
counsel of the opportunity to respond to the “debt avoidance” argument.] 
 
We glean from Lovejoy ’s briefing on appeal that the prosecutor ’s 
purported “debt animosity” motive theory, argued in her initial closing 
argument, was that because Lovejoy was angry that she had to pay the 
$120,000 equalization amount specifically to Mulvihill by the end of 
September 2016, she wanted Mulvihill killed before that date. The “debt 
avoidance” motive theory, purportedly argued in rebuttal closing argument, is 
that Lovejoy wanted Mulvihill dead because she wanted to avoid paying the 
$120,000 and instead, keep that money for herself, thereby having a motive 
of financial gain. 
 
Contrary to Lovejoy’s assertion on appeal, the prosecutor’s references 
in her rebuttal closing argument to the $120,000 payment, as quoted ante, do 
not show that the prosecutor changed her motive theory with respect to the 
$120,000 payment from a “debt animosity” motive to a “debt avoidance” 
motive. Rather, the references in the prosecutor ’s rebuttal argument to the 
$120,000 payment are consistent with the prosecutor ’s initial argument with 
respect to Lovejoy ’s motives. As the People assert, with respect to the 
$120,000 payment, the prosecutor consistently argued at trial that Lovejoy ’s 
having to make the $120,000 payment to Mulvihill provided a motive for her 
to want Mulvihill dead. As discussed ante, in her initial closing argument, the 
prosecutor referred to Lovejoy ’s anger about having to pay Mulvihill the 
$120,000, arguing: “And the worst insult of it all is at the end of their divorce, 
she has to give him $120,000. [¶] We know that none of this was satisfactory 
to Ms. Lovejoy because she set about looking for someone that would kill Mr. 
Mulvihill and get rid of all of her woes.” (Italics added.) In addressing 
McDavid’s motive to kill Mulvihill, the prosecutor again referred to the 
$120,000 amount, arguing: “He ’s doing it on her behalf” and “has nothing 
personal against Mr. Mulvihill. He’s doing it because—probably for 120,000 
reasons he’s doing it and because of his sexual relationship with her.” (Italics 
added.) 
 
In rebuttal closing argument, the prosecutor ’s references to the 
$120,000 amount did not vary from the prosecutor ’s theory argued in her 
initial closing argument. Countering the closing argument by Lovejoy ’s 
counsel that Lovejoy was happy with her marital settlement agreement with 
Mulvihill, the prosecutor in rebuttal closing argued that the evidence showed 
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that Lovejoy was not, in fact, happy with the settlement agreement. The 
prosecutor further argued that because Lovejoy was not happy with the 
agreement, “there is urgency to do this crime now because you can’t do it right 
on the eve of the $120,000 . So it ’s got to be at least somewhat removed in 
time. And that’s why that date was selected.” (Italics added.) In context, the 
prosecutor’s reference to the $120,000 payment addressed the timing of the 
attempted murder and not Lovejoy’s motive, directly. The prosecutor argued, 
in effect, that because Lovejoy was angry about having to pay Mulvihill the 
$120,000 amount and intended to kill him based on that anger, she had to kill 
him at a time when it would not so obviously connect her wi th the killing. 
Accordingly, that reference by the prosecutor to the $120,000 payment was 
consistent with her initial closing argument and does not demonstrate a change 
from a “debt animosity” motive theory to a “debt avoidance” motive theory, 
as Lovejoy maintains. 
 
The prosecutor later argued in rebuttal closing that McDavid ’s 
testimony that he had spontaneously selected September 1, 2016, as the date 
to lure Mulvihill to the secluded location was not credible, noting that the 
evidence showed that McDavid had gone to the secluded location on the day 
before the shooting. In par ticular, the prosecutor argued that the fact that 
McDavid went to the location on the day before the shooting, and “[t]he 
$120,000 payment ,” demonstrated that McDavid had not spontaneously 
picked September 1 as the date to shoot Mulvihill. (Italics added.) By so 
referring to the $120,000 payment, the prosecutor, in effect, incorporated into 
her rebuttal argument the comments that she made in her initial closing 
argument, discussed ante, in which she argued that McDavid intended to kill 
Mulvihill based on his relationship with Lovejoy. 
 
In the prosecutor’s third and final reference to the $120,000 amount in 
her rebuttal closing, the prosecutor again countered the argument by 
Lovejoy’s counsel that there was no motive for Lovejoy and McDavid to kill 
Mulvihill, arguing: “No reason to kill[?] They had 120,000 reasons to kill .” 
(Italics added.) Thus, the prosecutor argued in both her initial closing 
argument and in her rebuttal closing argument, that, in effect, because Lovejoy 
was angry about having to pay Mulvihill the $120,000 amount, she had 
“120,000 reasons to kill” him. At no point in her closing arguments did the 
prosecutor argue to the jury that if Mulvihill were killed, Lovejoy would have 
been able to keep the $120,000 for herself. 
 
Again, contrary to Lovejoy’s assertion, none of the above references by 
the prosecutor to the $120,000 payment demonstrates that the prosecutor 
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changed her theory regarding the $120,000 payment from her initial closing 
argument to her rebuttal closing, or that the prosecutor added a “debt 
avoidance” theory to a “debt animosity” theory. The trial judge, who was 
present through the entire trial and heard all of the evidence and arguments of 
counsel, rejected Lovejoy ’s argument that the prosecutor had unfairly 
surprised Lovejoy’s counsel at trial through her remarks about the $120,000 
payment made during her rebuttal closing. 
 
The prosecutor fairly responded to the argument by Lovejoy’s counsel 
that Lovejoy was happy with the martial settlement agreement and therefore, 
had no motive to kill Mulvihill, by arguing in her rebuttal closing that the 
evidence showed that Lovejoy, in fact, had a motive to kill Mulvihill, i.e., she 
was angry ab out having to pay Mulvihill the $120,000. ( Sassounian, supra, 
182 Cal.App.3d at p. 396 [prosecutor may fairly comment on the evidence]; 
Young, supra, 34 Cal.4th at p. 1192 [prosecutor may fairly respond to defense 
counsel’s arguments].) Because we must consider the prosecutor’s arguments 
in the context in which they are made (Gonzalez, supra, 51 Cal.3d at p. 1224, 
fn. 21), and view the prosecutor’s arguments as a whole, we cannot consider 
the prosecutor’s references to the $120,000 payment in isolation and instead, 
consider them as part of the prosecutor ’s entire closing argument. ( Dennis, 
supra, 17 Cal.4th at p. 522; Lucas, supra, 12 Cal.4th at p. 475.) Considering 
the prosecutor’s arguments as a whole, we conclude that her references in her 
rebuttal closing to the $120,000 payment are consistent with her comments in 
her initial closing and did not, as Lovejoy asserts, constitute a change in the 
prosecution’s theory regarding Lovejoy’s motive. [Footnote 12 omitted]. 
 
 
(ECF No. 51-38 at 3–13.) 
 2. Clearly Established Law 
Prosecutorial misconduct is cognizable on federal habeas corpus , but “the 
appropriate standard of review for such a claim . . . is the narrow one of due process, and 
not the broad exercise of supervisory power.” Darden v. Wainwright, 477 U.S. 168, 181 
(1986) (internal quotation marks omitted). A defendant ’s due process rights are violated 
only when a prosecutor ’s misconduct renders a trial fundamentally unfair. Id.; Smith v. 
Phillips, 455 U.S. 209, 219 (1982) (noting that “the touchstone of due process analysis in 
cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of 
the prosecutor”). 
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Regarding statements made during closing arguments, under Darden, the first issue 
is whether the prosecutor’s remarks were improper; if so, the next question is whether such 
conduct “infected the trial with unfairness.” Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 
2005). In determining if the conduct rendered the trial fundamentally unfair, courts must 
evaluate a prosecutorial misconduct claim by “examin ing the entire proceedings to 
determine whether the prosecutor’s remarks so infected the trial with unfairness as to make 
the resulting conviction a denial of due process.” Johnson v. Sublett, 63 F.3d 926, 929 (9th 
Cir. 1995) (internal quotation marks omitted). And e ven where a prosecutor ’s conduct 
renders a trial fundamentally unfair, federal habeas relief is in order only if the denial of 
due process based on prosecutorial misconduct had a “substantial and injurious effect or 
influence in determining the jury’s verdict.” Wood v. Ryan, 693 F.3d 1104, 1113 (9th Cir. 
2012) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993)). 
3. Analysis 
The state appellate court’s denial of Lovejoy’s prosecutorial misconduct claim was 
neither contrary to, nor an unreasonable application of, clearly established law. 5 First, as 
the appellate court found after considering the comments in context , the prosecutor’s 
references to the settlement during closing and rebuttal argument did not amount to 
improper argument . A prosecutor is permitted to argue reasonable inferences from the 
evidence. Duckett v. Godinez , 67 F.3d 734, 742 (9th Cir. 1995). Specifically, the Ninth 
Circuit has stated that during closing arguments, a prosecutor is permitted “wide latitude” 
to argue reasonable inferences from the evidence. Fields v. Brown, 431 F.3d 1186, 1206 
(9th Cir. 2005); Ceja v. Stewart , 97 F.3d 1246, 1253 –54 (9th Cir. 1996) (“Counsel are 
given latitude in the presentation of their closing arguments, and courts must allow the 
/ / / / / 
 
5 The Court notes Petitioner does not argue the appellate court’s decision was contrary to, 
or an unreasonable application of, clearly established federal law; but instead focuses on 
the purported error(s) of the trial court. (See e.g., FAP at 50–66.) 
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prosecution to strike hard blows based on the evidence presented and all reasonable 
inferences therefrom.”). 
Here, as the state appellate court found, the prosecutor’s references to the money 
flowed from reasonable inferences based on the evidence presented. The prosecutor noted 
Lovejoy and Mulvihill had been embroiled in a lengthy and highly acrimonious divorce. 
And she argued Lovejoy was unhappy with the settlement and resented , among other 
things, having to share custody of her son 50/50, having to pay $120,000 to Mulvihill, and 
having to pay Mulvihill child support . (See ECF No., Rep.’s Tr., vol. 14 51 -28 at 2011.) 
As the state appellate court also noted, the prosecutor never argued that Lovejoy’s 
obligation to pay the settlement would be summarily lifted if Mulvihill died before the 
payment was due. She argued Lovejoy did not want to pay the money to Mulvihill. (See 
id.) While the prosecutor’s references to the $120,000 settlement obligation during rebuttal 
argument may have been somewhat imprecise, a federal court should not presume that an 
ambiguous comment was intended to have its most damaging meaning or that the jury 
necessarily drew such a damaging interpretation. Donnelly, 416 U.S. at 647. (“A court 
should not lightly infer that a prosecutor intends an ambiguous remark to have its most 
damaging meaning or that a jury, sitting through lengthy exhortation, will draw that 
meaning from the plethora of less damaging interpretations.”). 
As noted above, to show a state court’s decision was based on an unreasonable 
application of clearly established law, a petitioner “must show that the state court’s ruling 
on the claim being presented in federal court was so lacking in justification that there was 
an error well understood and comprehended in existing law beyond any possibility for 
fairminded disagreement.” Harrington, 562 U.S. at 103. Lovejoy has failed to meet that 
high standard. In sum, the state appellate court’s conclusion that the prosecutor’s references 
to the $120,000 payment in rebuttal argument were not improper based on the evidence 
presented, was not an unreasonable application of clearly established law. 
Because the state court reasonably concluded there was no improper argument, the 
analysis could end here. But even assuming the prosecutor’s comments during rebuttal 
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argument were improper , Lovejoy would still not be entitled to federal habeas relief. 
“Improper argument does not, per se, violate a defendant ’s constitutional rights.” 
Thompson v. Borg, 74 F.3d 1571, 1576 (9th Cir. 1996) (quoting Jeffries v. Blodgett, 5 F.3d 
1180, 1191 (9th Cir. 1993 )). Instead, the alleged misconduct must be “of sufficient 
significance to result in the denial of the defendant ’s right to a fair trial.” Greer v. Miller, 
483 U.S. 756, 765 (1987) (quoting United States v. Bagley , 473 U.S. 667, 682 (1985)). 
Even if a prosecutor ’s argument is egregiously improper, a federal court cannot grant 
habeas relief unless “the prosecutors’ comments ‘so infected the trial with unfairness as to 
make the resulting conviction a denial of due process.’” Thompson, 74 F.3d at 1576 
(quoting Darden, 477 U.S. at 181). 
Petitioner as not shown the purported misconduct rendered her trial fundamentally 
unfair. As noted above, d etermining whether prosecutorial misconduct occurred during 
closing argument requires an examination of the entire proceedings so that the prosecutor’s 
remarks may be placed in proper context. Boyde v. California , 494 U.S. 370, 384 –85 
(1990); Allen v. Woodford, 395 F.3d 979, 1010 (9th Cir. 2005). Viewing the purportedly 
improper rebuttal comments in context, the prosecutor was responding to defense counsel’s 
argument during closing that Lovejoy had “100 percent no motive to kill ” Mulvihill and 
that she was “happy” with the divorce settlement . (ECF No. 51 -28, Rep. Tr., vol. 14 at 
2063, 2064–65.) The prosecutor stated that Lovejoy’s other actions suggested she was not 
happy with the divorce settlement, because of the payment, and a number of other reasons. 
She noted that Lovejoy had wanted sole custody of their son but the settlement called for 
50/50 custody. (Id. at 2010–11.) Lovejoy had gone as far as bringing false allegations of 
abuse against Mulvihill in an ultimately failed attempt to deprive Mulvihill of any 
visitation. (Id.) The prosecutor noted that if Lovejoy was “happy” with the situation, she 
would not have sought to pay McDavid $2,000 to allegedly dig up dirt on Mulvihill. (Id. 
at 2078–79.) While the prosecutor’s statement during rebuttal regarding “120,000 reasons” 
could be interpreted to suggest Lovejoy sought to save herself from having to make the 
settlement payment, in context of the argument as a whole, it was simply an argument that 
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evidence showed that Lovejoy was dissatisfied with the divorce proceedings in general, 
including the settlement. (See id. at 2092.) 
In addition, even assuming the argument was imprecise, the court instructed the jury 
that statements made by attorneys during opening and closing arguments are not evidence, 
and the trial judge specifically reminded the jurors of this just before both opening and 
closing arguments. (ECF No. 51-21, Rep. Tr., vol. 7 at 692; ECF No. 51-28, Rep. Tr., vol. 
14 at 1963, 2009; see also ECF No. 51-2, Clerk’s Tr., vol. 2 at 305, CALCRIM No. 222.) 
The jury is presumed to have followed these instructions. Weeks v. Angelone , 528 U.S. 
225, 234 (2000); Richardson v. Marsh , 481 U.S. 200, 206 (1987) ( noting “ the almost 
invariable assumption of the law that jurors follow their instructions”). Viewed in context 
of the two-week trial, the brief comments, included in over 45 pages of closing argument 
transcript, did not render Lovejoy’s trial fundamentally unfair. See Hall v. Whitley , 935 
F.2d 164, 165–66 (9th Cir. 1991) (per curiam) ( concluding a prosecutor’s comments did 
not render petitioner’s trial fundamentally unfair where the comments consisted of isolated 
moments in three-day trial and the trial court instructed that arguments were not evidence); 
Drayden v. White, 232 F.3d 704, 713 (9th Cir. 2000) (rejecting prosecutorial misconduct 
claim in part because court had instructed jury that attorneys ’ statements were not 
evidence) see also Harrell v. Addison, No. 3:21-cv-0255-RBM-AHG, 2022 WL 1292142, 
at *24 (S.D. Cal. Apr. 29, 2022) ( concluding prosecutor’s misstatement during closing 
argument did not deprive petitioner of fair trial when misstatement “was an isolated 
comment during a lengthy a closing argument,” which spanned forty -five pages of trial 
transcript); Gonzalez v. Guzman , No. 5:23 -cv-00334-HDV-KES, 2023 WL 7391687, at 
*16 (C.D. Cal. Sept. 12, 2023) (same when prosecutor’s improper comments consisted of 
“only five sentences” of closing argument that “spanned nineteen pages of Reporter ’s 
Transcript”), accepted by 2023 WL 7388879 (C.D. Cal. Nov. 8, 2023). Therefore, even 
assuming improper argument, it did not amount to a violation of due process. 
/ / / / / 
 
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Lastly, Lovejoy cannot show any purported misconduct had a “substantial and 
injurious effect or influence in determining the jury’s verdict.”6 Brecht, 507 U.S. at 63; see 
also see Fields v. Woodford , 309 F.3d 1095, 1109 (9th Cir. 2002) (“If prosecutorial 
misconduct is established, and it was constitutional error, we then apply the Brecht 
harmless error test.”). Under Brecht, the question is “whether a federal habeas court itself 
harbors grave doubt about the petitioner ’s verdict.” Brown v. Davenport , 596 U.S. 118, 
136 (2022). First, the Court notes that to the extent Petitioner points to media statements 
by a juror after trial, stating: “I believed the $120,000 was playing into it,” the Court may 
not consider such post-verdict comments by jurors. See Fields, 503 F.3d at 778 (stating 
that “juror testimony about the subjective effect of evidence on the particular juror or about 
the deliberative process may not” be considered by federal courts on habeas review). 
Moreover, given the strong evidence against Lovejoy, she cannot show any error 
had a substantially injurious effect on the jury’s verdict. Lovejoy’s aunt testified that 
Lovejoy had asked for her help in finding someone to kill Mulvihill. (ECF No. 51-23, Rep. 
Tr., vol. 9 at 1159–60, 1165–66.) Evidence showed that when her aunt failed to assist her, 
Lovejoy turned to McDavid. The jury saw photographs and video of Lovejoy purchasing 
a burner phone two weeks before the shooting. (ECF No. 51-21, Rep. Tr., vol. 7 at 767–
68, 776.) That same phone was used by McDavid to call Mulvihill the night of the shooting. 
(ECF No. 51-22, Rep. Tr., vol. 8 at 850; ECF No. 51-24, Rep. Tr., vol. 10 at 1312.) Lovejoy 
dropped McDavid off at the area where he planned to lure Mulvihill and she picked 
McDavid up nearby after the shooting. (ECF No. 51 -25, Rep. Tr., vol. 11 at 1584; ECF 
 
6 Lovejoy argues she was “prejudiced” by the prosecutor’s comments because there was a 
“reasonable likelihood that the jury construed or applied any of the complained —of 
remarks in an objectionable fashion.” (FAP at 70 (citing People v. Morales, 25 Cal. 4th 34, 
44 (Cal. 2001)). But that is not the standard on federal habeas the standard . See Bains v. 
Cambra, 204 F.3d 764, 977 (9th Cir. 2000) (holding that the federal court “should apply 
the Brecht standard when conducting their own independent harmless error review, 
regardless of what, if any, type of harmless error review was conducted by the state 
courts”). 
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No. 51-26, Rep. Tr., vol. 12 at 1643 –44.) When Lovejoy dropped McDavid off, he was 
carrying a bag containing his rifle. (ECF No. 51-25, Rep. Tr., vol. 11 at 1583–84.) Finally, 
a search of Lovejoy’s computer showed that prior to the shooting, she had searched for the 
next “new moon.” (ECF No. 51-24, Rep. Tr., vol. 10 at 1300–01.) The night of the shooting 
there was a new moon, making the night sky darker. (ECF No. 51-23, Rep. Tr., vol. 9 at 
1126.) Given the evidence , even assuming arguendo that the prosecutor’s comments in 
closing argument were improper, Lovejoy has not shown the comments had a “substantial 
and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 63. 
In sum, the Court finds the state appellate court’s denial of this claim was neither 
contrary to, nor an unreasonable application of clearly established federal law. See 28 
U.S.C. § 2254(d). Therefore, Lovejoy is not entitled to relief as to this claim. 
B. Failure to Correct Improper Argument (Grounds Seven and Eight) 
 In Grounds Seven and Eight , Petitioner raises similar claims to each other and to 
Ground One discussed above. In Ground Seven Lovejoy argues: 
Petitioner was denied her 14th Amendment right to Due Process and a 
fair trial when the trial court misapplied California probate law in denying 
Petitioner’s request to correct the prosecutor’s improper and incorrect closing 
argument. 
 
 
(FAP at 89.) And in Ground Eight, she contends: 
Petitioner was denied her 14th Amendment right to Due Process and a 
fair trial and deprived of a state created liberty interest when the trial court 
misapplied California probate law in refusing Petitioner’s request for 
correction of the prosecutor’s improper closing argument. 
 
 
(Id. at 90.) Essentially the only difference between the se two claims is the reference to a 
“state created liberty interest” in Ground Eight. In both grounds, however, Lovejoy appears 
to argue trial court’s refusal to reopen evidence after the jury began deliberations, provide 
additional jury instructions , or grant a motion for new trial based on the prosecutor’s 
purportedly improper argument, amounted to a denial of her right to due process. (Id. at 
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90–91.) But, as discussed above, the state appellate court reasonably concluded t he 
prosecutor’s argument was not improper. 
In the last reasoned state court decision, the appellate court briefly addressed th ese 
claims in a footnote, stating: 
Because, as we concluded ante, the prosecutor ’s theory regarding 
Lovejoy’s motive with respect to the $120,000 payment was consistent 
throughout her closing arguments, we need not, and do not, address the trial 
court’s reasoning for its denial during jury deliberations of Lovejoy ’s 
requested relief (e.g., reopening the case to permit defense counsel to present 
evidence on her lack of a financial gain motive) or the court ’s denial of her 
motion for new trial or the prosecutor’s arguments in opposing her requested 
relief and motion for new trial. Regardless of the trial court ’s reasons for its 
rulings during jury deliberations and in denying Lovejoy ’s motion for new 
trial, we conclude that the court correctly denied her requested relief because 
the prosecutor ’s references to the $120,000 payment were consistent 
throughout. (People v. Jones (2012) 54 Cal.4th 1, 50 [appellate court must 
affirm trial court’s correct ruling even if its reasons were incorrect].) Further, 
Lovejoy has not persuaded us that the trial court abused its discretion by not 
reopening the case during jury deliberations to allow her to present evidence 
of her purported lack of a financial gain motive. As noted, Lovejoy’s counsel 
argued in closing that Lovejoy and McDavid had no motive to kill Mulvihill 
because neither one had any significant financial pressures. The court could 
have concluded that Lovejoy ’s counsel ’s request was made too late in the 
proceedings (i.e., in the midst of jury deliberations), that she had not been 
diligent in presenting that evidence during trial, that the jury may be confused 
by that evidence and/or give it undue emphasis, and/or that the evidence that 
Lovejoy wanted to present would not have a signi ficant impact on the jury’s 
consideration of the case. ( People v. Jones (2003) 30 Cal.4th 1084, 1111; 
People v. Masters (2016) 62 Cal.4th 1019, 1069.) 
 
 
(ECF No. 51-38 at 65, fn 12.) 
In short, the appellate court reasonably found there was no need for the trial court to 
reopen evidence or instruct the jury on probate law because it had already reasonably 
concluded there was no improper argument. Furthermore, the denial of the motion for new 
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trial does not implicate a “state created liberty interest.”7 Therefore, because there was no 
improper argument to correct, Lovejoy cannot show her trial was rendered fundamentally 
unfair by the trial court’s refusal to reopen evidence, further instruct the jury after it had 
already begun deliberations, or grant a new trial. As such, the state court’s denial of these 
claims was neither contrary to, nor an unreasonable application of, clearly established law; 
nor was it based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). 
Lovejoy is not entitled to relief as to Grounds Seven and Eight. 
C. Ineffective Assistance of Counsel (Grounds Two, Four, Five, and Six) 
 Lovejoy raises several grounds for relief based on ineffective assistance of trial 
counsel. She argues counsel was ineffective in (1) failing to present evidence that Lovejoy 
would not benefit financially from the death of Mulvihill (Ground Two) ; (2) failing to 
promptly object to the prosecutor’s rebuttal argument (Ground Four); (3) failing to obtain 
“in writing” an agreement from the prosecutor that she did not intend to argue “financial 
motive” (Ground Five); and failing to request a curative jury instruction after the 
prosecutor’s comments during closing (Ground Six). (See FAP at 72–74, 86–88.) 
/ / / / / 
 
 
7 When “a State creates a liberty interest, the Due Process Clause requires fair procedures 
for its vindication— and federal courts will review the application of those constitutionally 
required procedures.” Swarthout v. Cooke , 562 U.S. 216, 220 (2011). California courts, 
however, have not held that the state has created a liberty interest from the rules governing 
a motion for new trial. See People v. Davis, 10 Cal.4th 463, 524 n.22 (1995) (rejecting as 
“unpersuasive” an argument that a criminal defendant’s entitlement to independent review 
as part of a motion for new trial creates a liberty interest); see also People v. Moreda, 118 
Cal.App.4th 507, 514–15 (2004) (rejecting a similar argument that there is a state-created 
liberty interest in having a new trial motion based on insufficiency of the evidence decided 
by the same judge who presided over the trial). “[A] state creates a protected liberty interest 
by placing substantive limitations on official discretion.” Olim v. Wakinekona , 461 U.S. 
238, 249 (1983). But California law does not require a trial court to reach any particular 
result in exercising its discretion in deciding a motion for new trial. See People v. Robarge, 
41 Cal.2d 628, 633 (1953). 
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 1. Clearly Established Law 
 It is clearly established that the Sixth Amendment guarantees criminal defendants 
the effective assistance of counsel. See Strickland v Washington, 466 U.S. 668 (1984). A 
claim of ineffective assistance of counsel has two elements: (1) “deficient performance”; 
and (2) “prejudice.” Id. at 700. “Deficient performance” is “representation f[alling] below 
an objective standard of reasonableness.” Id. at 688. Establishing deficient performance 
requires overcoming a “strong presumption” that counsel “rendered adequate assistance 
and made all significant decisions in the exercise of reasonable professional judgment.” Id. 
at 689–90. Further, a petitioner “must identify the acts or omissions o f counsel that are 
alleged not to have been the result of reasonable professional judgment.” Id. at 690. “The 
court must then determine whether, in light of all the circumstances, the identified acts or 
omissions were outside the range of professionally competent assistance.” Id. 
“Prejudice” is established by showing “a reasonable probability that, but for 
counsel’s unprofessional errors, the result of the proceeding would have been different.” 
Id. at 694; see also Lockhart v. Fretwell , 506 U.S. 364, 372 (1993) (deciding the 
“prejudice” component “focuses on the question whether counsel’s deficient performance 
renders the result of the trial unreliable or the proceeding fundamentally unfair”). It is 
unnecessary to address both Strickland elements if a petitioner makes an insufficient 
showing on one. Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness 
claim on the ground of lack of sufficient prejudice . . . that course should be followed.”); 
Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) (“Failure to satisfy either prong of the 
Strickland test obviates the need to consider the other.”). 
Where there has been a state court decision rejecting a Strickland claim, review is 
“doubly” deferential. Harrington, 562 U.S. at 105 (citing Knowles v. Mirzayance, 556 U.S. 
111, 123 –24 (2009)). “[E]ven a strong case for relief does not mean the state court’s 
contrary conclusion was unreasonable.” Harrington, 562 U.S. at 102. Relief is available 
only if “there is no possibility fairminded jurists could disagree” that the state court ’s 
application of Strickland was incorrect. Id. Moreover, since “[t]he Strickland standard is a 
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general one, . . . the range of reasonable applications is substantial.” Id. at 105 (citing 
Knowles, 556 U.S. at 123). 
 2. Failure to Present Evidence of Lack of Financial Motive (Ground Two) 
 Petitioner argues in Ground Two, that defense counsel was ineffective in failing to 
present evidence that Lovejoy would not benefit monetarily from Mulvihill’s death. 
Lovejoy raised this claim on direct appeal. Because the California Supreme Court denied 
Lovejoy’s petition for review without comment or citation (see ECF No. 51-39), this Court 
looks through to the reasoned opinion of the California Court of Appeal. See Ylst, 501 U.S. 
at 805–06. The appellate court rejected this claim, stating: 
Lovejoy alternatively argues that if the prosecutor did not err by 
referring in her rebuttal closing argument to the $120,000 payment, she 
nevertheless was denied her Sixth Amendment right to effective assistance of 
counsel because her trial counsel failed to present evidence in her defense case 
showing that she would not have gained, financially, if Mulvihill were killed. 
Lovejoy asserts that her primary defense theory at trial was that she did not 
have a motive to kill Mulvihill and her counsel had two experts in enforcement 
of judgments and probate law who could have testified that she could not have 
received any financial gain on the death of Mulvihill. In particular, she asserts 
that those experts could have testified that if Mulvihill had been killed, she 
nevertheless would have been obligated to pay the $120,000 amount to his 
estate and any inheritance her son received from Mulvihill ’s estate would 
likely have been under the control of a guardian or custodian other than her. 
Lovejoy argues that because her trial counsel failed to present that evidence, 
she was denied her right to effective assistance of counsel. 
 
A criminal defendant is constitutionally entitled to the effective 
assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; 
Strickland, supra, 466 U.S. at pp. 684 -685; People v. Pope (1979) 23 Cal.3d 
412, 422 ( Pope).) To establish a denial of the right to counsel, a defendant 
must show: (1) his or her counsel ’s performance was below an objective 
standard of reasonableness under prevailing professional norms; and (2) the 
deficient performance prejudiced the defendant. (Strickland, at pp. 687, 691-
692; People v. Ledesma (1987) 43 Cal.3d 171, 216–217 (Ledesma); Pope, at 
p. 425.) To demonstrate prejudice, a defendant must show that there is a 
reasonable probability that he or she would have received a more favorable 
result if his or her counsel’s performance had not been deficient. (Strickland, 
at pp. 693 -694; Ledesma, at pp. 217 -218.) “A reasonable probability is a 
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probability sufficient to undermine confidence in the outcome.” ( People v. 
Williams (1997) 16 Cal.4th 153, 215.) It is the defendant ’s burden on appeal 
to show that he or she was denied the effective assistance of counsel and is 
entitled to relief. (Ledesma, at p. 218.) 
 
“In evaluating a defendant’s claim of deficient performance by counsel, 
there is a ‘strong presumption that counsel ’s conduct falls within the wide 
range of reasonable professional assistance ’ [citations], and we accord great 
deference to counsel ’s tactical decisions. [Citations.] ... Accordingly, a 
reviewing court will reverse a conviction on the ground of inadequate counsel 
‘only if the record on appeal affirmatively discloses that counsel had no 
rational tactical purpose for his act or omission. ’” (People v. Frye (1998) 18 
Cal.4th 894, 979-980.) However, a court need not address the issue of whether 
a defendant’s counsel performed deficiently before it addresses the issue of 
whether the defendant was prejudiced by that purported deficient 
performance. “If it is easier to dispose of an ineffectiveness claim on the 
ground of a lack of sufficient prejudice, which we expect will often be so, that 
course should be followed.” (Strickland, supra, 466 U.S. at p. 697; see also In 
re Alvernaz (1992) 2 Cal.4th 924, 945.) 
 
Assuming arguendo that Lovejoy ’s counsel performed deficiently, as 
she asserts, we nevertheless conclude that she has not carried her burden on 
appeal to show that such deficient performance prejudiced her. ( Strickland, 
supra, 466 U.S. at pp. 687, 691 -692, 697; Ledesma, supra, 43 Cal.3d at pp. 
216-217; Pope, supra, 23 Cal.3d at p. 425.) Based on our review of the record, 
we conclude that it is not reasonably probable that Lovejoy would have 
obtained a more favorable result at trial if her counsel had presen ted the 
testimony of the two experts and/or other evidence showing that she would 
not have gained financially if Mulvihill were killed . [Footnote 13: In her 
opening brief, Lovejoy argues “Counsel could have called two experts in the 
field of enforcement of judgments and probate law and quickly disabused the 
jury of any notion that appellant could realize a financial gain by the death of 
her husband.” Her “two experts” apparently were Lauren Schmidt, Lovejoy’s 
family law attorney, and an unnamed “Wilson trus t attorney that my client 
had contacted.” The record on appeal does not contain a declaration by either 
expert regarding the nature and substance of the ir purported expert 
testimony.”] 
 
As the People assert, Lovejoy has not submitted declarations from the 
two experts demonstrating what their purported testimony would have been if 
they had been called to testify by her counsel. In any event, assuming that the 
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two experts would have persuasively testified that Lovejoy would not have 
gained financially from Mulvihill’s death, i.e., that she would not have been 
able to keep the $120,000 that she was required to pay him pursuant to the 
marital settlement agreement, we nevertheless conclude that it is not 
reasonably probable that she would have obtained a more favorable verdict if 
her counsel had presented that evidence. First, the jury was instructed w ith 
CALCRIM No. 370 that Lovejoy ’s motive to kill Mulvihill was not an 
element of the offenses charged against her. Second, the prosecutor presented 
evidence about, and argued the existence of, three separate possible motives 
that Lovejoy could have had that supported a reasonable inference by the jury 
that she intended to kill Mulvihill. In particular, the prosecutor argued that 
Lovejoy was angry because she had to share custody of her son with Mulvihill, 
she had to pay Mulvihill child support, and she had to pay Mulvihill a 
$120,000 equalization payment. The prosecutor did not argue that Lovejoy 
could avoid paying that amount if Mulvihill were killed. 
 
[Footnote 14: To the extent that Lovejoy cites postverdict comments by 
two jurors regarding the $120,000 payment, those comments are irrelevant 
and do not show that Lovejoy was prejudiced by her counsel ’s purported 
deficient performance. Although we doubt that those jurors ’ comments have 
been properly made a part of the record on appeal, we nevertheless conclude 
that those comments do not support the interpretation that Lovejoy suggests. 
One juror apparently told a reporter that Lovejoy “didn ’t want to give 
$120,000 to her husband” and another juror apparently stated she personally 
believed “the motive was the money” and “believed $120,000 was playing 
into it, but I also think that she just had enough.” While those comments 
demonstrate that these two jurors believed that Lovejoy was angry about 
having to pay $120,000 to Mulvihill, the comments are consistent with the 
prosecutor’s remarks about the $120,000 made during closing arguments and 
do not show that the jurors believed that Lovejoy would gain financial ly if 
Mulvihill were killed.] 
 
Finally, and most importantly, based on our independent review of the 
record, we conclude that the evidence of Lovejoy ’s guilt of the two offenses 
is overwhelming. As discussed ante, Lovejoy made false accusations against 
Mulvihill in order to obtain sole custody of her son. After those accusations 
were proven to be false and Mulvihill obtained shared custody of their son 
and child support from Lovejoy, Lovejoy asked Clark, her aunt, whether she 
knew anyone who could kill Mulvihill. When Clark told Lovejoy that she did 
not, Lovejoy recruited McDavid, her shooting instructor and sometime sexual 
partner, to lure Mulvihill to a secluded location at night and use his 
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sharpshooting skills to kill him. In executing their plan, Lovejoy researched 
the date on which there would be a new moon, purchased a TracFone for 
McDavid to use in calling Mulvihill that night, met McDavid at a parking lot 
and drove him to the secluded l ocation, and picked McDavid up after the 
shooting. Based on that compelling evidence showing Lovejoy ’s direct 
participation in recruiting McDavid to shoot Mulvihill, planning that shooting 
with McDavid, and assisting McDavid in executing their plan on the night of 
September 1, 2016, we conclude that it is not reasonably probable that 
Lovejoy would have obtained a more favorable result at trial if her counsel 
had presented evidence that she would not have been able to keep the 
$120,000 that she was required to pay Mulvihill if Mulvihill were killed. 
Because Lovejoy was not prejudiced by her counsel ’s purported deficient 
performance, we conclude that she was not denied her constitutional right to 
the effective assistance of counsel. ( Strickland, supra, 466 U.S . at pp. 687, 
691-692, 697; Ledesma, supra, 43 Cal.3d at pp. 216 -217; Pope, supra, 23 
Cal.3d at p. 425.) 
 
 
(ECF 51-38 at 65–70.) 
 The state court’s denial of the claim was not based on an unreasonable application 
of Strickland. As the appellate court noted, even assuming defense counsel’s failure to 
present such evidence amounted to a deficient performance, she cannot show prejudice. As 
discussed above, the case against Lovejoy was strong. Evidence showed longstanding 
acrimony between the couple, beginning with Lovejoy’s allegations that Mulvihill abused 
their son, and Lovejoy . These accusations initially led to Mulvihill being forced to leave 
the home and prevented from seeing his son. After a period of supervised visits, meetings 
with counselors and psychologists, extens ive drug testing , Lovejoy’s abuse accusations 
against Mulvihill were determined to be unfounded. (See e.g., ECF No 51-22, Rep.’s Tr., 
vol. 8 at 843 –844.) Mulvihill was ultimately awarded 50/50 custody and Lovejoy would 
have to begin paying child support to Mulvihill. (Id. at 848–49, 881.) Thus, even without 
the $120,000 equalization payment , evidence showed Lovejoy was unhappy about the 
divorce settlement. 
And crucially, as noted above, Lovejoy’s aunt testified that months before the 
shooting, Lovejoy had asked her if she knew someone who could kill Mulvihill. (ECF No. 
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51-23, Rep.’s Tr., vol. 9 at 1160, 1165.) In addition, just weeks before the shooting, 
Lovejoy purchased the TracFone McDavid used to call Mulvihill to lure him to the site of 
the shooting. (ECF No. 51-21, Rep.’s Tr., vol 7 at 753 –57, 765–67, 813.) Lovejoy drove 
McDavid to the area where the shooting took place and dropped him off. (ECF No. 51-25, 
Rep.’s Tr., vol. 11 at 1584.) And after the shooting, McDavid called Lovejoy and she 
picked McDavid up and drove him back to his car. (ECF No. 51-26, Rep.’s Tr., vol. 12 at 
1643–44.) A search of Lovejoy’s computer revealed that on August 6, 2016, ju st weeks 
before the shooting, she researched information about moon cycles and specifically 
searched for the when the next “new moon,” would occur. (ECF No. 51-24, Rep.’s Tr., vol. 
10 at 1300–01.) On the night of the shooting, September 1, 2026, there was a new moon, 
making the sky darker. (See ECF No. 51 -23, Rep.’s Tr., vol. 9 1126 .) Thus, given the 
strength of the evidence against her, even if counsel’s performance w ere deficient, the 
appellate court reasonably concluded Lovejoy failed to show prejudice. 
The state court’s denial of this claim was neither contrary to, nor an unreasonable 
application of Strickland; nor was it based on an unreasonable determination of the facts. 
See 28 U.S.C. § 2254(d). Accordingly, Lovejoy is not entitled to federal habeas relief as to 
this claim. 
3. Failure Request Jury Instruction (Ground Four) 
In Ground Four, Lovejoy argues trial counsel was ineffective in failing to request a 
jury instruction negating a financial gain motive for murder. (See FAP at 86.) Trial counsel 
sought such an instruction after jury deliberations had begun, and it was denied. Petitioner 
states that “counsel would have been entitled to such instructions if the request had been 
timely made,” (see id.) but offers no authority for such a proposition. 
Respondent argues this claim is unexhausted because Petitioner failed to raise it 
before the California Supreme Court . (See ECF No. 50-1 at 20–21.) But in Lovejoy’s 
petition for review to the California Supreme Court, she argued counsel failed to request a 
“pinpoint instruction” explaining that the settlement payment obligation would not be lifted 
in the event of Mulvihill’s death. (See ECF No. 51-39 at 15.) While the claim raised in the 
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petition for review is phrased more generally, the Court finds it was sufficient to give the 
state high court a fair opportunity to rule on the merits of the issue. See O’Sullivan v. 
Boerckel, 526 U.S. 838, 844 (1999) (requiring that state prisoners give state courts a “fair 
opportunity to act on their claims”). Thus, the claim is exhausted.8 
In any event, the claim fails on the merits. Where there is no reasoned state court 
decision on his issue, the Court must conduct an independent review of the record to 
determine whether the state court ’s decision was “o bjectively unreasonable.” Murray v. 
Schriro, 745 F.3d 984, 996 (9th Cir. 2014) (quoting Walker v. Martel, 709 F.3d 925, 939 
(9th Cir. 2013). “Crucially, this is not a de novo review of the constitutional question .” 
Walker, 709 F.3d at 939. “[E]ven a strong case for relief does not mean the state court ’s 
contrary conclusion was unreasonable.” Harrington, 562 U.S. at 102. 
Here, Petitioner has failed to show denial of the claim was objectively unreasonable 
under clearly established federal law. First, Petitioner appears to presume the trial court 
would have granted any request counsel made about instructing the jurors on lack of 
financial gain . But Petitioner fails to indicate what such an instruction should have 
included, and does not elaborate on the wholly conclusory statement that “ [defense] 
counsel would have been entitled to such instructions.” (See FAP at 86.) No evidence was 
presented at trial that the obligation to pay the settlement would be lifted if Mulvihill died 
prior to payment . Counsel’s failure to request such an instruction does not amount to a 
deficient performance because, as discussed above, the prosecutor’s argument was not 
improper.9 As such, Lovejoy cannot show deficient performance by defense counsel and 
 
8 Even assuming the claim was not fairly presented to the California Supreme Court, if 
Petitioner attempted to raise it there now, it would almost certainly be procedurally barred 
as untimely. Thus, the claim would be “technically” exhausted. See Gray v. Netherland , 
518 U.S. 152, 161 (1996) (noting that the exhaustion requirement may be technically 
satisfied notwithstanding a failure to present a claim to the state supreme court, “if it is 
clear that [the habeas petitioner’s] claims are now procedurally barred under [state] law”). 
 
9 Lovejoy makes much of the fact that when ruling on defense counsel’s request to reopen 
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likewise cannot show she was prejudiced. See Strickland, 466 U.S. at 689–90; see also 
United States v. Shetty, 76 F. App’x 842, 845 (9th Cir. 2003) (“[T]trial counsel’s failure to 
request an unnecessary instruction was not unreasonable or prejudicial.) 
The denial of the claim was not an unreasonable application of clearly established 
federal law, nor was it based on an unreasonable interpretation of the facts. Accordingly, 
she is not entitled to relief as to this claim. 
4. Failure to Memorialize Oral Agreement with Prosecutor (Ground Five) 
Next, Petitioner argues trial counsel was ineffective in failing to require in writing 
the prosecutor’s purported assurance that she would not argue “financial gain” as a motive. 
(FAP at 87.) Petitioner raised this claim in her habeas petition filed with t he California 
Supreme Court, (ECF No. 51 -41 at 21 –24) and the court denied the petition without 
comment or citation. (ECF No 51 -42.) Thus, this Court must conduct an independent 
review of the record to determine whether the state court ’s decision is contra ry to, or an 
unreasonable application of, clearly established Supreme Court law. See Himes, 336 F.3d 
at 853. 
Petitioner states that counsel “believed he had an oral agreement with the prosecutor 
assuring [him] the prosecution would not argue Petitioner had a financial gain motive to 
murder her ex -husband.” (FAP at 88.) Lovejoy acknowledges the prosecutor denied any 
such agreement existed. (See id.; see also ECF No. 51-29, Rep. Tr., vol. 15 at 2117 –18.) 
Petitioner offers no declaration from counsel or any other evidence showing the existence 
of an agreement much less the precise nature of any purported agreement. 
 
the case or further instruct the jury , the trial court, outside the presence of the jury, 
remarked that it seemed any settlement money would likely go to Mulvihill’s and 
Lovejoy’s son and thus, as a practical matter, Lovejoy may be able to have some control 
over the funds presuming she mainta ined full custody of her son. But this was all 
speculation. No evidence of this nature was presented to the jury. And the evidence 
regarding the $120,000 settlement was not sprung upon the defense. Indeed, the complete 
settlement agreement was introduced into evidence. (ECF No. 51-22, Rep’s Tr. vol. 8 at 
879–80.) 
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Even assuming an informal agreement existed, a mere failure to get it in writing does 
not amount to deficient performance. See Strickland , 466 U.S. at 689–90 (stating 
“assessment of attorney performance requires that every effort be made to eliminate the 
distorting effects of hindsight ”); Harrington, 562 U.S. at 105. In addition, as discussed 
above, Lovejoy cannot show failure to memorialize the alleged agreement was prejudicial 
because, as discussed above, the prosecutor did not improperly argue that Mulvihill’s death 
would result in Lovejoy being relieved of her obligation to pay the settlement. Therefore, 
the state court’s denial of this claim was neither based on an unreasonable application of 
clearly established law; nor was it based on an unreasonable determination of the facts. See 
28 U.S.C. § 2254(d). Lovejoy is not entitled to relief as to this claim. 
 5. Failure to Object During Rebuttal Argument (Ground Six) 
Finally, Lovejoy argues defense counsel was ineffective in failing to object during 
the prosecutor’s rebuttal argument. (FAP at 88. ) Because the California Supreme Court 
denied this claim without comment or citation, (see ECF No. 51-41 at 26, ECF No 51-42), 
this Court must conduct an independent review of the record to determine whether denial 
is contrary to, or an unreasonable application of, clearly established law. See Himes, 336 
F.3d at 853. 
Counsel’s performance cannot be deficient for failing to take futile action. See Rupe 
v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (stating “failure to take a futile action can 
never be deficient performance”). As discussed above, the state appellate court reasonably 
concluded there was no improper argument and therefore any failure to object was neither 
deficient performance, nor prejudicial. See James v. Borg, 24 F. 3d 20, 26 (9th Cir. 1994) 
(“Counsel’s failure to make a futile motion does not constitute ineffective assistance of 
counsel.”) Therefore, the state court’s denial of the claim was neither contrary to, nor an 
unreasonable application of clearly established law; nor was it based on an unreasonable 
determination of the facts. See 28 U.S.C. § 2254(d). Petitioner is thus not entitled to relief 
as to this claim. 
/ / / / / 
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D. Senate Bill Nos. 1437 and 775 (Grounds Three, Ten and Eleven) 
In Grounds Three, Ten, and Eleven, Lovejoy raises claims related to California 
Senate Bill Nos. 1437 (“SB 1437”) and 775 (“SB 775”) and the impact they may have had 
on her convictions. (See FAP at 76–86, 92–95.) 
The California Legislature enacted SB 1437, which took effect on January 1, 2019, 
to “‘amend the felony murder rule and the natural and probable consequences doctrine, as 
it relates to murder, to ensure that murder liability is not imposed on a person who is not 
the actual killer, did not act with the intent to kill, or was not a major parti cipant in the 
underlying felony who acted with reckless indifference to human life.’” People v. Martinez, 
31 Cal. App. 5th 719, 722 (Cal. App. 2019). Under SB 775, which took effect January 1, 
2022, these provisions were expanded to apply to persons with attempted murder or 
manslaughter convictions. See People v. Delgadillo , 14 Cal. 5th 216, 223 n.3 (2022), as 
modified (Feb. 15, 2023). 
1. California Senate Bill No. 1437 (Ground Three) 
In Ground Three, Lovejoy argues that California SB 1437 requires her conviction 
for attempted murder to be set aside. (See FAP at 76–86.) Respondent contends this claim 
is based on interpretation of state law and as such is not cognizable on federal habeas. (ECF 
No. 50-1 at 19–20.) 
The last reasoned opinion to address this claim is that of the California Court of 
Appeal. See Ylst, 501 U.S. at 805–06. The court denied the claim, concluding that, even 
assuming the jury was improperly instructed on the “natural and probable causes theory,” 
review of the “record clearly demonstrates that the jury found that Lovejoy intended to kill 
Mulvihill.” (ECF No. 51-38 at 73.) 
First, Respondent is correct that federal habeas relief is not available for errors 
relating solely to the interpretation or application of state law. See Lewis v. Jeffers , 497 
U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for errors of state 
law[.]”). A petitioner may seek federal habeas relief from a state court conviction or 
sentence “only on the ground that he is in custody in violation of the Constitution or laws 
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or treaties of the United States.” 28 U.S.C. § 2254(a); Swarthout v. Cooke, 562 U.S. 216, 
219 (2011) (per curiam). Thus, “ claims premised on Senate Bill No. 1437 are not 
cognizable on federal habeas review .” Ross v. State, No. 5:21-cv-1889-MEM-FPD, 2022 
WL 2204141, at *2 (C.D. Cal. Apr. 6, 2022) ; see also Young v. Cueva, No 20 -cv-8304-
CJC (E), 2021 WL 371752, at *3 –4 (C.D. Cal. Jan. 8, 2021) ( concluding petitioner’s 
challenge to his conviction and sentence based on Senate Bill No. 1437 failed to state 
cognizable claim on federal habeas review), accepted by, 2021 WL 784954 (C.D. Cal. Mar. 
1, 2021); Calderon v. Covello, No. 22-cv-03881 BLF (PR), 2023 WL 5420229, at *3 (N.D. 
Cal. Aug. 22, 2023) (finding the petitioner’s claim that he was entitled to resentencing 
under SB 1437 was not cognizable on federal habeas); Davis v. Munoz, No. 5:19-cv-00329-
JAK-SHK, 2019 WL 2424540, at *1 (C.D. Cal. May 2, 2019) ( stating that whether a 
petitioner is entitled to relief under SB 1437 is solely a matter of state law ), accepted by 
2019 WL 242410 (C.D. Cal. June 7, 2019). 
Second, even assuming the state court misapplied state law, such an error does not 
rise to the level of a federal due process violation unless the interpretation of state law was 
arbitrary or capricious. See Richmond v. Lewis , 506 U.S. 40, 50 (1992). “Federal courts 
will not review a state supreme court ’s interpretation of its own statute unless that 
interpretation is clearly untenable and amounts to a subterfuge to avoid federal review of a 
deprivation by the state of rights guaranteed by the Constitution.” Knapp v. Cardwell, 667 
F.2d 1253, 1260 (9th Cir. 1982). 
Here, the state appellate court reasonably concluded that the jury’s verdict shows it 
found she had the intent to kill and as such, any purported error in instructing them on the 
natural and probable causes theory was harmless. The trial court instructed the jury that in 
order to find Lovejoy guilty of conspiracy to commit murder ( count one), they must find 
she and McDavid agreed “to intentionally and unlawfully kill” and “at the time of the 
agreement the defendant and the other alleged member of the conspiracy intended that one 
or more of them would intentionally and unlawfully kill.” (ECF No. 51-2, Clerk’s Tr. at 
331; see also CALCRIM 563. ) The instruction also required the jury to find Lovejoy 
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“committed at least one of [several enumerated] overt acts to accomplish the killing.” Id. 
And the jury was specifically instructed that “[s]omeone who merely accompanies or 
associates with member of a conspiracy but who does not intend to commit the crime is not 
a member of the conspiracy.” (ECF No. 51-2, Clerk’s Tr. at 335 (emphasis added); see also 
CALCRIM 463.) Finally, in conjunction with the above, the jury was instructed on how to 
determine whether a defendant had acted with “intent” to commit murder as follows: 
 To prove that a defendant intended to commit the crime of murder the 
People must prove that: (1) The defendant intended to commit the act to cause 
the death of another person; (2) When the defendant formed the intent to kill, 
he or she had a state of mind called malice afterthought; AND (3) When the 
defendant formed the intent to kill, he or she had no lawful ex cuse or 
justification to kill. 
 
(ECF 51-2, Clerk’s Tr. at 336; see also CALCRIM 520.) Thus, as the state appellate court 
reasonably concluded, review of the instructions and the jury’s verdict as a whole make 
clear that Petitioner was not convicted under the natural and probable consequences theory. 
Therefore, the state court ’s determination that Petitioner was not eligible for relief 
under SB 1437 was not arbitrary or capricious . See Richmond, 506 U.S. at 50. Even 
assuming her claim were cognizable on federal habeas, Petitioner would not be entitled to 
federal habeas relief. 
 2. California Senate Bill Nos. 1437 and 775 (Grounds Ten and Eleven) 
 In Grounds Ten and Eleven, Lovejoy again argues the state court denied her due 
process and her convictions for attempted murder (Ground 10) and conspiracy to commit 
murder (Ground 11) are “invalid” under SB 1437 and SB 775. (FAP at 92–95.) She cites 
to Hicks v. Oklahoma, 447 U.S. 343 (1980) as support for both grounds . (Id. at 93, 95. ) 
Respondent contends both grounds should be denied because they fail to raise cognizable 
federal habeas claims. (See ECF No. 50-1 at 25–26.) 
 Lovejoy raised both of these claims in her petition for writ of habeas corpus filed 
with the California Supreme Court , which was denied without comment or citation. (See 
ECF Nos. 51-41, 51-42.) Because there is no reasoned opinion from a state court, this Court 
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must conduct an independent review of the record to determine whether the state court ’s 
decision is contrary to, or an unreasonable application of, clearly established Supreme 
Court law. See Himes, 336 F.3d at 853 (9th Cir. 2003).10 
 First, as discussed above, the allegation that the state courts did not comply with 
California Senate Bill No s. 1473 and 775, as a matter of California state law, is not 
cognizable on federal habeas. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (stating 
that mere errors in application of state law are not cognizable on habeas corpus); Rhoades 
v. Henry, 611 F.3d 1133, 1142 (9th Cir. 2010) ( noting violations of state sentencing law 
are not cognizable on federal habeas review) . Therefore, to the extent Petitioner seeks 
federal habeas relief on the ground s that she is entitled to resentencing under Cal. Penal 
Code § 1172.6 (previously numbered as Cal. Penal Code § 1170.95) pursuant to Senate 
Bill Nos. 775 and 1437, federal district courts have repeatedly held that “a state court ’s 
allegedly erroneous denial of resentencing” under Cal. Penal Code § 1172.6 “does not raise 
 
10 While the parties do not reference it, the Court takes judicial notice that in 2022 Lovejoy 
sought resentencing as to her attempted murder conviction in the San Diego County 
Superior Court Case No. SCN363925, based on the changes in California law set forth in 
Senate Bill Nos. 1437 and 775. See Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) 
(stating a district court “may take notice of proceedings in other courts, both within and 
without the federal judicial system, if those proceedings have a direct relation to matters at 
issue”). On August 26, 2022, the trial court denied Lovejoy relief and she appealed to the 
California Court of Appeal. See People v. Lovejoy, 101 Cal. App. 5th 860, 863 (Cal. App. 
2024). On May 2, 2024, the appellate court issued a published opinion, denying her relief. 
See id. The appellate court noted that “[f]ollowing the passage of Senate Bill 775 in 2022, 
it is now clear that defendants like Lovejoy convicted of attempted murder are potentially 
eligible for relief under section 1172.6 if the conviction could have been based on the 
natural and probable consequences doctrine.” Lovejoy, 101 Cal. App. 5th at 865. But the 
Court went on to conclude, again, that Lovejoy’s “factual theory cannot be squared with 
the instructions and the jury’s verdict. ” Id. at 866. The stated: “In short, because the jury 
necessarily found that Lovejoy personally possessed an intent to kill as part of a conspiracy 
to commit murder, she is ineligible for relief under section 1172.6. (People v. Allen (2023) 
97 Cal.App.5th 389, 393, 398, 315 Cal.Rptr.3d 323.) ” Id. at 870–71. Lovejoy filed a 
petition for review in the California Supreme Court and it was denied without comment or 
citation on July 24, 2024 in Case No. S285447. See id. at 871. 
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an issue cognizable on federal habeas review.” Walker v. California Supreme Ct., 
No. 22-cv-4638-CAS, 2022 WL 11337927, at *2 (C.D. Cal. Sept. 13, 2022) , report and 
recommendation adopted by 2022 WL 11269388 (C.D. Cal. Oct. 13, 2022); Calderon v. 
Covello, No. 22-cv-03881 BLF (PR), 2023 WL 5420229, at *3 (N.D. Cal. Aug. 22, 2023) 
(“Petitioner’s challenge to the state court’s denial of his resentencing petition under Penal 
Code § 1170.95 only involves the interpretation and application of state sentencing laws 
and does not give rise to a federal question cognizable on federal habeas review.”); see also 
McCavitt v. Covello, No. 2:22-cv-1926-KJM-KJN, 2022 WL 17813204, at *2 (E.D. Cal. 
Dec. 12, 2022) (“Petitioner fails to state a cognizable federal habeas claim because the 
California state courts applied state law, Senate Bill 1437, and determined that petitioner 
is not eligible for state law relief .”), adopted by 2023 WL 2602019 (E.D. Cal. Mar. 22, 
2023); Carter v. Montgomery, No. 20-cv1303-SB-PVC, 2021 WL 2044499, at *11 (C.D. 
Cal. Apr. 12, 2021) (“[A]ny claim of an entitlement to resentencing [under Senate Bill 
1437] is strictly a matter of state law to which this Court must defer”) , adopted by 2021 
WL 2042723 (C.D. Cal. May 13, 2021); see also Bradshaw v. Richey , 546 U.S. 74, 76 
(2006) (per curiam) (“[A] state court’s interpretation of state law . . . binds a federal court 
sitting in habeas corpus.”). 
 Petitioner argues these claims are more than a matter of state law because “the 
Fourteenth Amendment preserves against arbitrary deprivation by the state .” (FAP at 95; 
see also id. at 93.) She cites Hicks v. Oklahoma, 447 U.S. 343, 346 (1980). Beyond this 
conclusory assertion, however, Petitioner offers no basis to show that the state appellate 
court’s decision was arbitrary or capricious. A mere citation to Hicks does not transform 
her state law claims into an entitlement to federal habeas relief. See Langford v. Day, 110 
F.3d 1380,1389 (9th Cir. 1996) (stating a habeas petitioner “may not . . . transform a state-
law issue into a federal one merely by asserting a violation of due process ”); see also 
Stevenson v. Los Angeles Superior Ct., No. 19-cv-4622-CJC-JC, 2019 WL 2437001, at *4 
(C.D. Cal. June 10, 2019) 
(noting citation to Hicks “do[es] not transform [the petitioner’s] state law claims into a 
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federal entitlement by asserting a violation of due process ”); Doughton v. Montgomery , 
2021 WL 3186567, at *3 (E.D. Cal. July 28, 2021) (rejecting petitioner ’s attempt to 
transform his SB 1437 claim into a federal one) . Accordingly, Petitioner is not entitled to 
federal habeas relief as to Grounds Ten and Eleven. 
VI. CERTIFICATE OF APPEALABILITY 
The federal rules governing habeas cases brought by state prisoners require a district 
court that issues an order denying a habeas petition to either grant or deny a certificate of 
appealability. See Rules Governing § 2254 Cases, Rule 11(a). The district court may issue 
a certificate of appealability if the petitioner has made a substantial showing of the denial 
of a constitutional right.” 28 U.S.C. § 2253(c)(2). Under this standard, a petitioner must 
show that “reasonable jurists would find the district court’s assessment of the constitutional 
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, the Court 
finds Petitioner has failed to make “a substantial showing of the denial of a constitutional 
right,” and reasonable jurists would not find debatable this Court ’s assessment of her 
claims. See id. Accordingly, a certificate of appealability is DENIED. 
VII. CONCLUSION 
 Based on the foregoing, the Court DENIES the petition for writ of habeas corpus 
and DENIES a certificate of appealability. 
IT IS SO ORDERED. 
 
Dated: May 18, 2026 
 
 
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