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August 13, 2004.

D.L. RUNNELS, Warden, Respondent.

The opinion of the court was delivered by: MARTIN JENKINS, District Judge


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 defendants.

  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 percent sure."*fn2

  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.

  Defense Case

  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 closed.

  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 ...

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