The opinion of the court was delivered by: MARTIN JENKINS, District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Antoine Little ("petitioner"), a California prisoner, filed
this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254.
The Court ordered respondent to show cause why the petition
should not be granted on the basis of petitioner's cognizable
claims. Respondent filed an answer accompanied by a memorandum
and exhibits contending that the petition should be denied.
Petitioner filed a traverse.
This case concerns the robbery of a Round Table pizza
restaurant. William Little ("William") and petitioner, along with
their codefendant, Terence Tyson ("Tyson"), were tried together
for the crimes charged as a result of the robbery.
At trial, Jose Martinez ("Martinez") testified that he worked
at the Round Table pizza restaurant on South White Road in San
Jose. At about 11:30 p.m., on February 8, 1996, five people were present in the restaurant; it was about one-half hour after
the restaurant had closed. At this time, a black man entered the
restaurant, looked at Martinez and his supervisor, laughed, and
said he wanted to use the telephone. Martinez said that the
restaurant was closed and that the man would have to leave.
Subsequently, Martinez went out the back door to empty the
garbage and saw a large brown car, like an LTD, parked near the
back door. As Martinez reached down to pick up the garbage, he
felt a gun on his right ear. When he turned his head, he saw a 9
mm. gun, held by a black man. Four other men subsequently
appeared. The gunman told Martinez not to move, and asked him how
many people were inside the restaurant. Martinez said that there
were between three and five people inside, that the manager had
already left, and that there was only $30 in the cash register.
Martinez identified one of the men holding a gun as Tyson.
Four of the men entered the restaurant, with the fifth
remaining outside with Martinez. The man with the gun put the gun
in Martinez's mouth, told Martinez to look down and be still.
About six minutes later, the four robbers ran out, stating that
they had the money. The man who had held Martinez at gunpoint
jumped into the car and pulled it around. The others got into the
car and it sped away. Martinez returned to the restaurant and
called 911. When the police arrived at the scene, Martinez told
them that five black men had robbed the restaurant, fled in a
brown car, and described for the officers the direction the
robbers had gone.
San Jose Police Officer Richard Gonzalez was on patrol at the
time of the robbery. He received a dispatch of a brown Ford LTD
with five black men. Gonzalez spotted a brown Thunderbird, and
saw two black men in the front seat, and two or more bent over in
the back seat. When Gonzalez activated his lights, the car
initially slowed but then accelerated and ultimately crashed into
some shrubs and a mailbox. Two black men jumped out and ran, and
as the car rolled backward, three more black men jumped out. One
of the men ran away, but then ran back toward the officer's car.
Gonzalez illuminated him with a spotlight, and later identified
him as Tyson. Tyson was wearing only his T-shirt and underwear.
Officer Gonzalez subsequently searched the car, and found a
black weight belt with the words "William Little" on it. He also
found William Little's driver's license, a semi-automatic .38 caliber pistol, and a large bag of cash later identified by Lanay
Stearns, the shift supervisor at Round Table. On the roadway near
the car, Gonzalez found a .38 caliber six-shot revolver. San Jose
police officers testified that no fingerprints were found on the
guns or ammunition, or on the suspect car matching any of the
Edward Rico testified that he was a manager for Pacific Bell,
and lived nearby at 3460 Clover Oak in San Jose. On the same
morning of the robbery, he heard sirens and noise. When he got
up, he saw a face in the yard lit by a light from a passing
police car. Rico yelled for the man to leave the yard and then
called 911. When police responded, the man was gone. Soon after,
Rico's dog started growling toward the backyard. Rico let his dog
out and the person appeared, saying not to shoot. Rico told his
dog to sit, and called 911 again. Police responded once more and
arrested the man, who turned out to be petitioner. Officer
Gonzalez found a pair of gloves in the driveway.
San Jose Police Officer James Sims helped set up the perimeter
around the Round Table restaurant. He saw a man walking down the
street in a white T-shirt, underwear and socks, whom he
identified as Tyson. San Jose Police Sergeant Tony Colon also
arrived at the restaurant. He picked up Martinez, and drove him
for a show-up identification procedure, while advising Martinez
that the individuals he would see would not necessarily be
suspects. Martinez identified petitioner, Tyson, and another
suspect named Floyd Purdy as participating in the robbery. When
Martinez identified Tyson, Tyson was wearing only undershorts and
a T-shirt. However, Martinez identified Tyson as the one who had
been wearing a gray sweatshirt. Also, when Martinez spotted the
Thunderbird being towed away, he spontaneously blurted out that
was the car used in the robbery.
George Zellner lived near the Round Table restaurant with his
wife and daughter. Between 11 p.m. and midnight on the night of
the robbery, he saw a person walking in his backyard. When he
called to the person, the person jumped over his fence. When
Zellner saw police cars in front of his house, he told them about
the individual and then went back to bed. Later two officers with
a canine awoke him, and he took them to his backyard. San Jose
Police Officer Lew Smith of the canine unit was one of the
officers who went into the backyard of the Zellner house. His dog
alerted on a shed in the backyard. The door flew off the shed,
and the dog entered. After he heard a man screaming, Officer
Smith called off the dog, and two other officers yelled at the
man to get his hands up. Officer Smith identified William Little as the man in the shed.
David Brooks ("Brooks") testified that he was a friend of
William's. Brooks identified exhibit 5, a black .38 caliber
automatic pistol as his gun. The last time he had seen the gun it
was on the floor of William's Thunderbird. He had placed it there
because he and William had intended to go to a shooting range.
San Jose Policeman Mark Heller testified that he transported
petitioner to the station. The officer testified that the police
radio was on, and there may have been broadcast discussion about
the robbery. The officer also stated that he might have informed
petitioner that he was under arrest for the armed robbery.
According the Heller, while in the car, petitioner asked, "How
many people did they catch?" Several minutes later, petitioner
asked Heller, "How much money was taken?"
At the station, petitioner was taken to the photo room at the
processing center and read his Miranda rights. Petitioner
waived his rights, and appeared to be giving a statement freely
and voluntarily. Officer Heller prefaced his first question by
saying that petitioner had been identified as a robbery suspect.
The officer then asked petitioner if he was there. Petitioner
smiled, and replied, "I can't say." Officer Heller asked no
further questions because he believed it would have been futile.
Officer Heller continued to pre-process petitioner, walking back
and forth into the room where petitioner was present. Petitioner
had "plenty of time" to make any additional statements.
Fernando Maciel ("Maciel") was called to testify about a
different robbery at a Round Table pizza parlor nearby that had
occurred four days previously, on February 4, 1996. Maciel
testified that he was a supervisor, and that he had helped close
the restaurant at about 11 p.m. As he was counting the till, he
felt someone next to him. He looked and saw a black male with a
gun pointed at Maciel's hip. The individual told him to give him
all the money and to be calm. While the man took the money from
the register, Maciel saw a second black man with a ski mask going
into the office. Maciel also saw a third robber in the store. As
the robbers left, they told Maciel to get down and count to 300.
Maciel did and then called 911.
On February 12, police brought a 16-photo spread to Maciel, and
Maciel picked petitioner out of the spread, stating that he was
75 to 80 percent sure of his identification. Maciel stated that
he had glanced at petitioner repeatedly while petitioner was
getting the money over a period of three to five minutes. At trial, Maciel stated he was only 50 percent sure
of the identification because of the lapse of time.
John Silvers ("Silvers"), age 19, was working with Maciel at
the time of the robbery on February 4, 1996. He was taking out
the garbage through the rear door at closing time, and three
black men entered as he was opening the door. As Silvers said,
"Hi," one of the men pulled a gun, and Silvers was pulled by the
shirt and told that it was a stick-up. The individuals took him
aside and asked him for information about the number of employees
present, the alarm, and the cash registers. A revolver was
pointed at Silvers's throat. After three or four minutes, the
group walked Silvers into the restaurant, and told him to tell
everyone present to lie on the floor. Silvers complied. After the
robbery, Silvers recalled that as they left, the robbers said,
"Thank you for shopping at Round Table," and then instructed
those persons present to count to 300. Silvers was subsequently
shown a 16-photo lineup by police, but he picked none of the
defendants. However, at trial, he testified that petitioner
"looks close to" one of the robbers although "I can't be 100
At trial, Martinez originally identified Tyson as the
individual who had come into the restaurant asking to use the
telephone. Martinez later testified that he was mistaken, and
that it was William Little who had entered the store to ask for
the telephone. Martinez testified that the individual who held
the gun to his ear outside the store was not present in court.
Martinez did identify Tyson as one of the robbers who entered the
restaurant, and stated that he saw Tyson holding a gun. According
to Martinez, another one of the men was wearing a stocking mask,
was light-skinned, and had pudgy cheeks. Martinez identified this
individual as petitioner.
Maretris Eley ("Eley") testified that she had known William for
about 10 months, and was his girlfriend. On the night of the
crime, she paged William at about 11:15 p.m., and at about 11:30
p.m., they talked on the telephone for about 10 minutes. At about
11:45, she again paged William, but received no call back. She
testified that she had never talked to William about the case.
William testified that he was the stepbrother of petitioner, as
the two shared the same mother. On the night of the robbery, he planned to go to a shooting range
with his friend Brooks. Brooks accidentally left his handgun in
William's car. Between 9:30 and 9:45, William was paged by
petitioner and went to petitioner's house. He then drove
petitioner to a video game arcade. When they left, at about 11
p.m., they gave a ride to two individuals, one called "Big
Country" and the other one unnamed. They drove around looking for
a KFC restaurant in the same plaza as the Round Table pizza
restaurant. When they arrived, they discovered that the KFC was
About that time, Eley paged William. He wanted to call her back
and the Round Table pizza restaurant looked open, so he drove
towards it. However, he drove around to the back because
petitioner wanted to smoke some marijuana. The other two
individuals wanted to join petitioner. William walked to the
front of the restaurant and entered to use the ...