FINDINGS AND RECOMMENDATIONS
Petitioner Edward Saunders is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mr. Saunders attacks his January 21, 2005 conviction for second degree robbery with a firearm in the Sacramento County Superior Court, case no. 04F02638.
Mr. Saunders makes the following claims:
A. His conviction was based on unreliable or insufficient evidence; and
B. The trial court erred in instructing the jury.
Upon careful consideration of the record and the applicable law, the undersigned will recommend that Mr. Saunders' petition for habeas corpus relief be denied.
III. FACTUAL AND PROCEDURAL BACKGROUND
Prosecution case-in-chief On March 15, 2004, a Sacramento County Sheriff's deputy responded to a report of a robbery. The deputy met with the 17-year-old victim, S.T., who said that two individuals confronted him in the parking lot of his apartment complex. The victim had gone to the parking lot in order to get a VCR out of his brother's car. The victim recognized defendant from junior high school. Defendant told the victim to give him the keys to the car. The victim refused. Defendant pulled up his shirt and showed the victim a gun. Defendant again said, "Give me your car keys. Don't make me shoot you." The victim again refused, stating, "No," and "I love that car." Defendant asked what else he had, and the victim responded that all he had was a VCR. Defendant took the VCR, told the victim not to tell anyone, and walked away.
Defense The only defense witness was psychologist Bruce Behrman, who testified as to perception and eyewitness memory. The court recognized Dr. Behrman as an expert with respect to eyewitness identification. He testified that there is a generally accepted theory of memory and perception, known as constructive memory. The theory identifies the perception, storage, and retrieval stages of memory. Dr. Behrman described a variety of factors that make eyewitness observation more or less reliable. He explained cross-racial identification and how the accuracy levels are lower when the perpetrator is a different race than the victim or witness.
April 25, 2006 opinion of the California Court of Appeal, Third Appellate District, C049305, lodged with respondent's answer as lodged document 4 at 2-3. Mr. Saunders was convicted on January 21, 2005 of second degree robbery with an enhancement for use of a firearm. CT at 166-67.
B. State Appellate Review
Mr. Saunders appealed his conviction on August 17, 2005 in the California Court of Appeal, Third Appellate District. Answer, Lodged Doc. 1. That appeal was denied on April 26, 2006. Answer, Lodged Doc. 4. Mr. Saunders then sought review in the California Supreme Court on May 22, 2006. Answer, Lodged Doc. 7. The California Supreme Court denied that petition on June 28, 2006. Answer, Lodged Doc. 8. Mr. Saunders filed this federal petition on September 18, 2007.
IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. SeePeltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. SeeEstelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues denovo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). SeeLindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). SeealsoPenry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
V. DISCUSSION OF PETITIONER'S CLAIMS
A. Conviction Based on Unreliable ...