The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner was convicted of several property crimes, e.g., forgery, grand theft by false pretenses, perjury in connection with false driver's licenses. Petitioner had prior strikes which were considered at sentencing. On April 27, 2001, petitioner was sentenced to 200 years to life, reduced on appeal to 175 years to life.
The guilt evidence was overwhelming, and the guilt issues raised herein, discussed below, have no merit. However, petitioner raises a troublesome sentencing issue -- the quasi-consideration of a strike which the record demonstrates did not "belong" to petitioner. After careful review, the undersigned recommends that the petition be denied.
This case possesses an involved federal procedural history which is repeated here to correctly arrive at the issues to be decided. The initial federal habeas petition was filed pro se. That petition did not contain a biased juror claim which had been raised in some post-trial state court proceedings. In an amended petition, filed after the AEDPA imitations period had expired (even under a most favorable calculation to petitioner), appointed counsel did attempt to raise an ineffective assistance of appellate counsel claim regarding the biased juror. However, even finding that the ineffective assistance claim was sufficiently related to the "straight" juror bias claim raised in state proceedings, petitioner's juror bias claim remained untimely under any rubric because it could not relate back to the initial federal petition which contained no bias claim whatsoever. It was therefore dismissed. Petitioner's attempt as well to file a second amended petition was denied. Thus, this habeas proceeding involves the (first) amended petition filed March 9, 2006 with the ineffective assistance juror bias claim stricken.
The issues to be decided here are as follows:
1. Insufficiency of the Evidence (Count V);
2. Impermissible, Suggestive Photo Line-Up Procedures;
3. Denial of Right to Counsel at Sentencing When the Trial Court Denied a Continuance for the Purpose of Acquiring New Counsel;
4. Petitioner Was Denied Due Process When the Trial Court Based its Romero Decision on a Strike (Conviction) Not Actually Sustained by Petitioner.
The California Court of Appeal has succinctly detailed the pertinent background facts.
Count one involved an elaborate forgery scheme in April of 1999. Using a deposit refund check he had obtained from T & G Autos, defendant crafted a nearly $29,000 check from T & G made out to one of his aliases, Willy Lewis, and deposited that check into a new account at the Triple S Credit Union. Upon making this deposit, defendant received $2,500 back in the form of a cashier's check from Willy Lewis to another of defendant's aliases, Terry Brown. Defendant then cashed the Terry Brown check at the Money Mart.
Counts two through five involved grand thefts by false pretenses during a one-week span in late July and early August of 1999. During this spree, defendant bought approximately $17,000 worth of goods from Beck's Furniture (count two), Circuit City (count three), Good Guys (count four), and Furniture USA (count five). Defendant purchased these items on credit; for the credit applications, defendant used the social security number and birth date of the professional golfer, Tiger Woods, together with Mr. Woods' less known given first name of Eldrick. In proving these offenses, the prosecution presented the credit application documents defendant had submitted in the name of Eldrick Woods, including a copy of a driver's license with that name but with defendant's picture. In counts two through four (Beck's Furniture, Circuit City and Good Guys), the three salespersons positively identified defendant as the purchaser who claimed to be Eldrick Woods. The salesperson for count five (Furniture USA) did not testify at trial. *2 Count six involved defendant's display of the fake driver's license in the name of Eldrick Woods. Defendant used this license to buy the items on credit from Beck's Furniture (count two), Circuit City (count three), Good Guys (count four), and Furniture USA (count five).
Counts seven and eight, respectively, involved defendant's perjury in applying at the DMV in August 1998 for an identification card in the name of Willy Lewis, and in December 1998 for a driver's license in the name of Eldrick Woods.
In early August 1999, defendant was a parolee at large, and law enforcement was on his trail. On August 6, 1999, he was directly linked to an apartment, a U-Haul truck, a Lexus automobile, and a storage unit. Officers searched these areas and items pursuant to defendant's parole search condition.
In the apartment's living room, officers found a wallet that contained several pieces of identification with defendant's photograph, including two California driver's licenses in the name of Eldrick Woods. Defendant was the only adult in the apartment at the time. Also in the living room, officers found keys to the U-Haul truck and to the Lexus automobile.
The U-Haul truck was parked close to the apartment. The rental agreement for the truck was found in it, in the name of Eldrick Woods and with Tiger Woods' birth date. The officers determined from the license plate on the truck that it had been used to pick up the purchased merchandise at Beck's Furniture involved in count two.
Officers had earlier seen defendant enter the Lexus with a key. The car was registered to one Nanette Duke, but maintenance receipts found in it bore Eldrick Woods' name. Two more California driver's licenses, one in the name of Eldrick Woods, were located in the car, as were a public storage unit rental application, agreement and receipt in the name of Eldrick Woods. A search of the storage unit uncovered much of the property that defendant had purchased, in the guise of Eldrick ...