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June 9, 2003


The opinion of the court was delivered by: Maxine M. Chesney, United States District Judge


Freddie Lee Roberson ("petitioner") is a California prisoner proceeding pro se, who filed this habeas corpus petition pursuant to 28 U.S.C. § 2254. After an initial review, the Court ordered respondent to show cause why the petition should not be granted based on petitioner's three claims. Respondent has filed an answer, along with a memorandum and exhibits. Although given time to do so, petitioner has not filed a traverse.


Six armed robberies occurred over a 12-day period in 1995 in San Pablo, California. During the course of the last of these robberies, Duk Soo Kwon was shot and killed.

Joseph Hernandez ("Hernandez") testified that he was alone at home at about 6:30 p.m. on February 14, 1995, at which time someone knocked on his door and asked if he had any marijuana for sale. When he answered in the negative, two men broke down his door and entered. Both men were dressed in black, with the thinner of the two wearing a ski mask and the larger man wearing a green, rubber Halloween mask and carrying a short-barreled shotgun. The intruders took a bag of marijuana, firecrackers, a box of bottle rockets, and several other items. They threatened to kill Hernandez, and the larger man struck Hernandez in the knee with the shotgun and pointed the gun at his head, saying, "I'm gonna blow this motherfucker's head off." A police officer testified that he and another officer saw two men sitting in a red or maroon car near Hernandez's house. When Hernandez told them that the robbers had just fled in the direction of the car, the officers went back, but the car was gone. The police found firecrackers and a ski hat lying on the ground where the car had been parked. Hernandez estimated that the smaller and shorter man was 16 to 19 years old, and that the larger man was 19 to 20 years old.*fn1

Darius Houston ("Houston"), the store clerk at People's Market in San Pablo, testified that at about 7:30 p.m. on February 16, 1995, two men entered the store. The one wearing a green Halloween mask approached the counter, while the other man, who had no mask, stayed back, brandished a gun and said, "You know what this is, you got 30 seconds." Houston handed over money to the masked man, and when the other clerk, Jaime Henning, hesitated, the gunman said, "I am not playing, bitch." About two weeks later, Houston identified petitioner in a photo line-up as the gunman. Henning did not make an identification. At trial Houston was unable to either identify or exclude petitioner. Houston also testified that on September 21, 1995, a woman brought him a letter at the market, warning him to remain quiet or something would happen to him. A handwriting expert testified that the handwriting in the letter matched petitioner's.

Jose Cazares ("Cazares") testified that at about 8:00 p.m. on February 19, 1995, a man pointed a dark revolver at him while he was working in his food truck, the Rancho Pistales Taco Wagon ("Rancho Pistales"), and demanded money. Cazares handed a basket of money to the gunman, who passed it to a second man standing beside him, after which both men fled. Sheriffs Deputy Laura Mittlestadt testified that Cazares flagged her down and that within seconds, she saw two men running down the street by which, according to Cazares, the robbers had fled. One of the men stopped, and Mittlestadt arrested him. This man was David Dixon ("Dixon"), petitioner's 17 year-old half-brother. Cazares identified him as the gunman.

Shellon Lambert ("Lambert"), the mother of petitioner and Dixon, testified that her sons had been at her house, located near Rancho Pistales, prior to the robbery. Petitioner stepped outside with Dixon, and she heard them conversing; one of them said, "I've got the gun." Sometime later that evening, petitioner returned to the house by himself and told Lambert that Dixon had been arrested for a robbery, but not to worry because Dixon did not have a gun.

Dixon testified that he was the gunman, and denied that petitioner had been involved. He admitted using a .38 caliber revolver that he had stolen in a burglary several days earlier, and that he had thrown the gun away while he was being chased. He wrote a letter to petitioner after his arrest, stating in part: "The police was posted the back of Perelli's. They was saying it was a black male at the store, Don't go to the store. The boss man said he gonna call the police. He said he remember you. We could of got away if we wasn't running. I turned around and your ass was gone."

Richard Phillips ("Phillips") testified that he observed Dixon's arrest, and that about 15 minutes earlier, he had seen Dixon and another man waiting outside Perelli's Market, across the street from Rancho Pistales. Phillips waited in his car while his son went into the market. When his son greeted Dixon by name, the other man, who was standing in the market's doorway, turned away and said "Oh shit." Phillips noticed a bulge at the man's waistline, which he later told his neighbor and the police resembled a gun. From a photo lineup, Phillips identified this individual as petitioner; he did not, however, identify petitioner at trial. John Anthony Hernandez also testified that he saw Dixon being arrested. He told the police that about 20 to 30 minutes thereafter a man approached him with a dark revolver in his waistband, stated he was looking for his brother, asked if anyone had been arrested and whether Hernandez had found any money. At trial, Hernandez denied making this statement to the police. Approximately a month after the incident, Hernandez was shown a photo lineup and identified petitioner as the man who approached him. At trial, however, he did not make a positive identification of petitioner, testifying only that he "thought" the person he had identified looked like the man who had approached him.

Ronald Gaines ("Gaines") testified that at around 8:40 p.m. on February 20, 1995, two men, one armed with a gun, entered Hambrick's Quarter Pounder ("Hambrick's) restaurant, where Gaines was working. The gunman wore a ski mask, stood in the doorway of the employee area, and demanded money. Gaines handed the money to the other man, who was wearing a green ski mask. Gaines told the police that he recognized the gunman from the neighborhood as someone he knew as "Mike."*fn2 He explained to the police that he recognized the gunman's voice and that when the gunman entered the employee area he pushed up his cap, at which point Gaines could see his face. Gaines also identified petitioner as the gunman from a photo lineup. Gaines recanted at trial and testified that he never saw the gunman's face and that he had been a "little tipsy" at work on the day of the robbery. Gaines testified at trial only after he had been served with a subpoena and an arrest warrant had issued. As he told both the police and the court clerk prior to testifying, he was scared to testify against petitioner.

Bobby King ("King") testified that at about 9:00 p.m. on February 25, 1995, he was waiting on a customer at Dunn's Liquor Store ("Dunn's") when he saw a masked man pointing what looked like a .38 caliber revolver with a dark barrel at him. The gunman said, "You know what time it is." A second masked man approached King at the register to collect the money. According to King, both men were wearing Halloween masks, one green and one red. At trial King identified a green mask found in petitioner's girlfriend's apartment as one of the masks.

Luis Cardenas testified that just before 7:30 p.m. on February 26, 1995, he was at Perelli's Market with his wife and children when two masked men entered, one brandishing a silver-plated revolver. The gunman stood at the doorway wearing a dark ski mask and said, "It's a robbery." The other man, who was wearing a green Halloween mask, approached the register. Duk Soo Kwon ("Kwon"), the owner of the store, came running down the aisle and yelled, "What's going on?" The gunman shot Kwon and screamed, "Get the money and let's go." The two perpetrators then fled. The first police officer to arrive at the scene testified that Kwon was dead when he arrived. An expert criminalist testified that Kwon's wife, who had been at the register, told them that one of the perpetrators may have been holding onto the frame of an outer security door. One of petitioner's fingerprints was found on that door frame.

On March 1, 1995, the police conducted a parole search of the home of petitioner's girlfriend, Charmaine Marie Gordon ("Gordon"), an apartment where petitioner regularly stayed. Officer Humberto Alvarez testified that he was covering the rear of the apartment building and could hear the other officers knock and announce their purpose. A few seconds later, a man without a shirt leaned out of a bedroom window and threw a plastic baggie containing three bullets. Two other bullets were on the ground near the baggie. When the officers entered the apartment, petitioner, who was wearing only a pair of boxer shorts, was observed exiting one of the upstairs bedrooms. In that bedroom, the police found a red ski mask, a blue knit cap, and a shotgun that Hernandez identified as having the same type of grip and color as the gun used by the men who robbed him. There was expert testimony that petitioner's fingerprints were on the shotgun and on two of the shells with which it was loaded. The screen on the bedroom window was loose, and the police found a loaded .38 caliber revolver lying in the grass in the adjoining yard about 21 feet from that window. In a closet in another bedroom, the officers found a black hood and green rubber Halloween mask, which, as noted above, King identified as the green mask worn in the Dunn's robbery. Hernandez testified that the mask was similar to the mask worn by one of his assailants. Mrs. Kwon told the police that the mask was similar to ...

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