The opinion of the court was delivered by: John W. Sedwick United States District Judge
Petitioner Kevin P. Sample, a state prisoner appearing pro se, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Sample has also requested an evidentiary hearing. Sample is currently in the custody of the California Department of Corrections and Rehabilitation, and is incarcerated at the California State Prison, Solano.
I. BACKGROUND/PRIOR PROCEEDING
Sample was convicted after a jury trial in the Sacramento County Superior Court of first degree burglary (Cal. Penal Code § 459). After a separate court trial, the court found that Sample had suffered two prior convictions for serious or violent felonies. Sample was sentenced under the California three strikes law to an indeterminate prison term of 25 years to life.
Sample appealed his conviction to the California Court of Appeal, Third Appellate District, which affirmed his conviction in a reasoned unpublished decision.*fn1 The California Supreme Court summarily denied review without opinion or citation to authority on February 8, 2006.
On February 6, 2007, Sample filed a petition for habeas relief in the Sacramento County Court, which denied his petition in a reasoned decision. Sample then filed a petition for habeas relief in the California Court of Appeal, which summarily denied the petition without opinion or citation to authority. Sample's subsequent petition to the California Supreme Court was summarily denied without opinion or citation to authority on December 19, 2007. Sample timely filed his petition for relief in this Court on February 22, 2008.
II. ISSUES RAISED/DEFENSES
In his petition Sample raises three grounds: (1) ineffective assistance of counsel in that counsel failed to (a) obtain a color copy of a photographic array used to identify Sample, (b) to object to the introduction of evidence, and (c) adequately investigate misconduct or malfeasance on the part of the investigating detective; (2) ineffective assistance of counsel for failing to properly challenge the victim's identification testimony; and (3) prosecutorial misconduct in eliciting the courtroom identification of Sample. Respondent has not pled any affirmative defenses.*fn2
Sample's petition is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d). Consequently, this Court cannot grant relief unless the decision of the California Court of Appeal was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn3 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn4 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn5 When a claim falls under the "unreasonable application" prong, a state court's application of the Supreme Court precedent must be "objectively unreasonable," "not just incorrect or erroneous."*fn6 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing the state court determination was incorrect.*fn7 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the jury's verdict.*fn8
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn9
Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn10
Grounds 1 & 2: Ineffective Assistance of Counsel
Sample provides a virtual smorgasbord of "deficiencies" in the performance by trial counsel. (1) Failure to obtain a full color copy of the photographic array, ostensibly "to examine for fault or other such reason that his photo was chosen" by the only eyewitness. (2) Failure to examine the photographic array, which together with the eyewitness's in-court identification, is the only evidence that links Sample to the crime. (3) Failure to object to the introduction of the eyewitness identification testimony. (4) Inadequate presentation of a Pitchess motion to establish corruption and misconduct on the part of an investigating detective.*fn11
In responding to his arguments, the Sacramento County Superior Court held:
The petition for writ of habeas corpus has been filed and considered. It is DENIED.
Petitioner contends that he failed to receive effective assistance of counsel when he was convicted of burglary.
In evaluating a claim of ineffective assistance of counsel, the court applies a two-part test:
"[A] defendant must first show counsel's performance was 'deficient' because his 'representation fell below an objective standard of reasonableness ... under prevailing professional norms.'" (In re Harris (1993) 5 Cal.4th 813, 832-833, citing Strickland v. Washington (1984) 466 U.S. 668 and People v. Pope (1979) 23 Cal.3d 412; see also In re Scott (2003) 29 Cal.4th 783, 811-812.)
In applying the first part of the test, courts are directed to be highly deferential. A petitioner claiming ineffective assistance must overcome a presumption that, considering all of the circumstances, counsel's actions "might be considered sound trial strategy." (Strickland, supra, 466 U.S. at p. 689.)
In the second part of the Strickland test, a petitioner "must also show prejudice flowing from counsel's performance or lack thereof. [cites omitted] Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [cites omitted]" (Strickland, supra. 466 U.S. at p. 689.)
Finally, courts are advised that it is frequently easier to resolve an ineffective assistance claim by looking first at the issue of prejudice; if none is established, then it will be unnecessary to consider counsel's performance. (In re Fields (1990) 51 Cal.3d 1063, 1077.)
To determine whether the admission of identification evidence violates a defendant's right to due process, a court considers (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated ...