The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER (1) ADOPTING REPORT AND RECOMMENDATION IN PART; (2) DENYING PETITION WITH RESPECT TO CLAIMS ONE THROUGH THREE; AND (3) REMANDING PETITION WITH RESPECT TO CLAIM FOUR
Petitioner Kevin Lomack, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition"). Petitioner claims his constitutional rights were violated by a jury instruction regarding eyewitness identification, ineffective assistance of counsel, trial court's failure to sua sponte counter the defense counsel's defective performance, and sentencing based on fact findings made by the judge rather than the jury. The case was referred to United States Magistrate Judge William McCurine, Jr. for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(d). The Magistrate Judge issued a Report and Recommendation, recommending the Petition be denied with respect to the first three claims and the action stayed with respect to claim four pending exhaustion of state court remedies. Petitioner objected. Respondent did not respond. For the reasons which follow, the Report and Recommendation is ADOPTED IN PART. The Petition DENIED with respect to the first three claims, and REMANDED with respect to claim four.
In reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Under this statute, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en banc) (emphasis in original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to habeas review). Petitioner objects to the recommendation to deny the Petition with respect to the first three claims and to stay the action with respect to claim four. He also objects to many of the Magistrate Judge's findings in support of these recommendations. Upon performing the requisite de novo review, the court adopts the Report and Recommendation with respect to the first three claims, and remands it for further consideration with respect to the fourth claim.
On September 10, 2004, Petitioner was found guilty after a jury trial of twelve counts of robbery arising from eight separate incidents. The jury also found Petitioner used a gun during the robberies. Based on three prior felony convictions and enhancement for the firearm, Petitioner was sentenced to 335 years to life in state prison.
Petitioner first objects to the Report and Recommendation with respect to a witness-identification jury instruction. Twelve witnesses identified Petitioner prior to and at trial as the perpetrator. At trial, Petitioner presented expert testimony regarding how to consider eyewitness certainty in identification. (Resp't Lodgment ("Lodgment") Ex. 2 (Reporter's Transcript ("RT")) at 321-22; see also Report and Recommendation ("R&R") at 12). When the trial court instructed the jury, it included, among other things, CALJIC no. 2.92. (RT at 523-24.) Petitioner maintains that this instruction violated his right to due process, right to a fair trial and right to present witnesses under the Sixth and Fourteenth Amendments because it lowered the prosecution's burden of proof, unfairly undermined the defense expert testimony and reinforced a misconception that the witnesses who are more certain in identification are more accurate. In the last reasoned opinion, the California Court of Appeals held that the jury instruction did not violate Petitioner's federal constitutional rights. (Lodgment Ex. 5 at 11-15.) The Magistrate Judge concurred. (R&R at 9-13.)
Under the Antiterrorism and Effective Death Penalty Act of 1996, a state prisoner's habeas corpus petition in this court "may be granted only if he demonstrates that the state court decision denying relief was 'contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'" Irons v. Carey, 505 F.3d 846, 850 (9th Cir. 2007); 28 U.S.C. § 2254(d)(1).
Petitioner objects to the finding in the Report and Recommendation that the state court's decision that the jury instruction "was neither contrary to, nor involved an unreasonable application of, clearly established federal law, and was not based on a unreasonable determination of the facts." (R&R at 13.) Petitioner argues the instruction substantially reduced the prosecution's burden of proof, allowed the jury to consider an invalid factor, undermined the defense expert's testimony, and had a substantial and injurious effect on the verdict. (Objections at 2-5.) The court disagrees.
"Not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is whether the ailing instruction so infected the entire trial that the resulting conviction violates due process." Middleton v. McNeil, 541 U.S. 433, 437 (2004) (internal quotation marks, ellipses and citation omitted). If the instruction, in the context of the jury charge as a whole, "is ambiguous, the question is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution." Id. (internal quotation marks and citations omitted). When the jury instruction affects the burdens of proof, as argued by Petitioner, the clearly established federal law defines the issue as "whether a reasonable juror could have understood" the instruction "shifted to the defendant the burden of persuasion . . . once the State had proved the predicate facts." Francis v. Franklin, 471 U.S. 307, 316 (1985). If so, the instruction violated due process and federal habeas relief is warranted. Id. at 326.
CALJIC No. 2.92, as given, states:
Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crimes charged. In determining the weight to be given to the eyewitness identification testimony, you should consider the believability of the eyewitness, as well as other factors which should bear upon the accuracy of the witness' identification of the defendant, including, but not limited to, any of the following:
The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act;
The stress, if any, to which the witness was subjected at the time of the observation;
The witness' ability, following the observation to provide a description of the perpetrator of the act;
The extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness;
The cross-racial or ethnic nature of the identification;
The witness' capacity to make an identification;
Whether the witness was able to identify the alleged perpetrator in a photographic lineup;
The period of time between the alleged criminal act and the ...