FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on January 22, 2003, in the Solano County Superior Court for selling cocaine base. He seeks relief on the grounds that: (1) he received ineffective assistance of trial and appellate counsel; (2) his "right to discovery" was violated; (3) he was misidentified through the use of a suggestive identification procedure; (4) the prosecutor committed misconduct; (5) his right to confront the witnesses against him was violated; and (6) he is entitled to a new trial on the basis that newly discovered evidence could exonerate him. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
PROCEDURAL AND FACTUAL BACKGROUND*fn1
On March 28, 2002, at approximately 4:00 p.m., officers from the Department of Alcohol Beverage Control (ABC) and the Fairfield Police Department were conducting a joint undercover operation targeting the sale of street narcotics in areas known for such activity. Officer Espinoza from ABC drove her unmarked vehicle into the parking lot of a 7-Eleven store on Tabor Avenue in Fairfield and called a man, later identified as Lavelle Nichols, over to her car. Espinoza asked Nichols if he could "hook [her] up" with $20 worth of cocaine. Nichols instructed her to wait there, walked to the rear of a nearby motel, and returned with another man, later identified as defendant. After a brief discussion, defendant produced a clear plastic baggie containing cocaine. Espinoza asked defendant if he wanted $20 for the baggie, to which he replied, "yes." After the exchange, defendant walked away and Espinoza drove off, advising Fairfield Police Detective Nipper via radio wire-transmission of the completed transaction and a description of the two men. Specifically, Espinoza identified defendant's race, height, weight, and indicated he was wearing a red 49'ers jersey with the number "8." Within several minutes, Fairfield Police Officer Gagliardo entered the 7-Eleven parking lot in an attempt to locate the subjects fitting the descriptions provided by Espinoza. Gagliardo contacted Nichols and observed defendant, whom he also recognized from prior contacts.*fn2 Thirty minutes later, after returning to the police department and getting the subjects' names from Officer Gagliardo, Detective Nipper pulled up a "[m]ug shot[ ]" of each from the police department database and showed them to Officer Espinoza. She identified defendant as the man from whom she purchased the cocaine. An arrest warrant for defendant was issued; and on April 12, 2002, a felony complaint was filed and defendant was taken into custody. Defendant was formally arraigned on May 24, 2002.
He refused to waive time, and a readiness conference was set for July 11, 2002.
When defense counsel appeared on July 11, he informed the trial court he had "a concern, a question as to Mr. Sanders' competency...." The court suspended criminal proceedings and ordered examinations by Herb McGrew, M.D., and Carlton Purviance, Ph.D. The reports of both doctors were presented to the court and counsel. Dr. McGrew, a psychiatrist, found defendant "harbors more psychopathology than meets the eye... and that he is, despite his eagerness to proceed, less competent to do so than he appears." Dr. Purviance, a psychologist, found a "distinct element of grandiosity, overestimation of self-importance, and markedly impaired judgment [ sic ]...." He further indicated defendant likely suffered from a "significant psychiatric disturbance (probably Schizoaffective Disorder) [that] is compromising the Defendant's ability to realistically appraise his case...." Each indicated that defendant was unable to reasonably assist his attorney in his defense and a finding of incompetence was warranted.
On August 2, 2002, defendant's attorney submitted the matter on the record, both counsel waived the right to a trial on the issue of competence, and the court found defendant incompetent to proceed under Penal Code section 1368. During that appearance, the court noted defendant had attempted to file several "motions," one to set aside the information and one indicating his dissatisfaction with his attorney. At that time, defendant objected to the delay in the proceedings and told the court that he had filed his own papers and that his "demand for a speedy trial ha[d] been... denied...." While allowing defendant to state his complaints on the record, the court explained the motions "can't be heard at this time" as the criminal proceedings had been suspended. On August 16, 2002, the court committed defendant to Atascadero State Hospital, and he was admitted on October 2, 2002.
While at Atascadero, defendant participated in a trial competency treatment course, but the record does not indicate he received any psychiatric treatment or medication there. Atascadero reported in early November 2002 that defendant was competent to stand trial, and the court reinstated criminal proceedings on November 22, 2002.
Jury trial commenced on January 21, 2003; and after the prosecutor dismissed count II, the jury found defendant guilty of selling a controlled substance in violation of Health and Safety Code section 11352, subdivision (a). On January 22, 2003, the court found one enhancement under Health and Safety Code section 11370.2, subdivision (a), and three enhancements under Penal Code section 667.5, subdivision (b) to be true. Defendant was sentenced to 10 years in state prison. This timely appeal followed.
After petitioner's judgment of conviction was affirmed on appeal, he filed a timely petition for review in the California Supreme Court, which summarily denied review by order dated August 25, 2004. (Answer, Exs. 6, 7.) Petitioner subsequently filed a petition for a writ of habeas corpus in the Solano County Superior Court, which was denied by written decision dated December 2, 2004. (Pet. at 4(c) - 4(f).) Thereafter, petitioner filed petitions for a writ of habeas corpus in the California Court of Appeal and California Supreme Court, both of which were summarily denied by orders dated October 27, 2005, and September 20, 2006, respectively. (Id. at 4(g), 4(i).)
I. Standards of Review Applicable to Habeas Corpus Claims
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. See Peltier 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. See Estelle 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 de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh 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.
See also Penry 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). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
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). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
A. Violation of Petitioner's Right to Discovery
Petitioner claims that his Fifth Amendment "right to discovery" was violated when the trial court failed to order the prosecutor to turn over petitioner's "booking photo" to the defense prior to trial. (Pet. at 52-54.) Petitioner explains that he filed a discovery motion but that the trial court "never acted on the motion." (Id. at 54.) Petitioner has filed a copy of a discovery motion signed and apparently drafted by him without the involvement of his trial counsel. (Court Doc. 17, entitled "Exhibits in Support of Petition Lodged" (hereinafter Pet'r's Exs.) at 92-99.) The motion does not contain any indication that it was filed in the trial court. (Id.) In that motion, petitioner requests discovery of, among other things, "all relevant real evidence seized or obtained as a part of the investigation of the offenses charged" and "any exculpatory evidence." (Id. at 98.) The motion does not specifically mention a "booking photo." (Id.) The state court record reflects that no discovery motion was filed with the court in petitioner's case. (Answer, Ex. 1.)
The state court record also reflects that a "booking photo" taken of petitioner at the time he was arrested was admitted into evidence at trial during the prosecutor's cross-examination of Laura Queza, petitioner's alibi witness. (Answer, Ex. 15 at 88-91.) Petitioner's trial counsel initially voiced an objection to the admission into evidence of the booking photo, but withdrew his objection after viewing the photo and participating in a sidebar conference. (Id. at 90-91.) At trial, Ms. Queza testified that "most likely" she had lunch with petitioner on the day and at the time of the alleged drug transaction. (Id. at 85.) She also testified that she had never seen petitioner wear a "red and white 49er jersey." (Id. at 86.) The prosecutor then showed Ms. Queza the booking photo and asked whether she recognized petitioner. (Id. at 88.) She answered "yes." (Id.) The prosecutor then asked, "And you see what he's wearing there. Isn't that the top of a red in color 49er's jersey?" (Id.) Ms. Queza responded, "It looks like it, but I don't know." (Id.) Ms. Queza further testified that she had never seen petitioner wearing the red shirt that appeared in the booking photo. (Id. at 89.)
Petitioner argues that the booking photo does not clearly show the shirt he was wearing because "one can barely see the top of petitioner's shoulders." (Pet'r's Exs. at 36.)*fn3
Petitioner explains that the prosecution's failure to produce this photo in discovery earlier prevented him from all cross-examination showing that this was not a 49er shirt petitioner was wearing in the booking photo, that the booking photo appeared to be cropped up to where one cannot see more of the shirt, so one could see for themselves that this was not a red 49er shirt that petitioner was wearing in the booking photo. This denied petitioner the opportunity to prepare and present a defense to counter attack the April 12, 2002 booking photo/discovery violation.
(Pet. at 37.) Petitioner is apparently claiming that if he had obtained the booking photo in discovery, he could have rebutted the prosecutor's assertion that at the time he was arrested he was wearing the same "49er" jersey described by the police as being worn by the perpetrator. He frames this claim as a violation of his "right to discovery" by either the trial court or the prosecutor. (Id. at 54.)
Petitioner raised this claim for the first time in his petition for a writ of habeas corpus filed in the Solano County Superior Court. (Id. at 3, 4B.) As described in more detail below, the Superior Court rejected all of petitioner's claims, except his claims of ineffective assistance of counsel, on the grounds that they should have been raised on appeal. Because the Superior Court did not reach the merits of petitioner's claim of a violation of the "right to discovery," this court will evaluate the claim de novo. Nulph, 333 F.3d at 1056.
The United States Supreme Court has held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963). See also Youngblood v. West Virginia, 547 U.S. 867, 869 (2006) ("A Brady violation occurs when the government fails to disclose evidence materially favorable to the accused"). The duty to disclose such evidence is applicable even though there has been no request by the accused, United States v. Agurs, 427 U.S. 97, 107 (1976), and encompasses impeachment evidence as well as exculpatory evidence. United States v. Bagley, 473 U.S. 667, 676 (1985). There are three components of a Brady violation: "[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; the evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999). See also Banks v. Dretke, 540 U.S. 668, 691 (2004); Silva v. Brown, 416 F.3d 980, 985 (9th Cir. 2005). In order to establish prejudice, petitioner must demonstrate that "'there is a reasonable probability' that the result of the trial would have been different if the suppressed documents had been disclosed to the defense." Strickler, 527 U.S. at 289. "The question is not whether petitioner would more likely than not have received a different verdict with the evidence, but whether "in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Id. (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). See also Silva, 416 F.3d at 986 ("a Brady violation is established where there 'the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'") Once the materiality of the suppressed evidence is established, no further harmless error analysis is required. Kyles, 514 U.S. at 435-36; Silva, 416 F.3d at 986.
On the other hand, "[t]here is no general constitutional right to discovery in a criminal case, and Brady did not create one." Weatherford v. Bursey, 429 U.S. 545, 559 (1977). See also United States v. Fort, 478 F.3d 1099, 1102 (9th Cir. 2007) (same). The Due Process Clause "has little to say regarding the amount of discovery which the parties must be afforded[.]" Wardius v. Oregon, 412 U.S. 470, 474 (1973).
Petitioner has failed to demonstrate a Brady violation or a violation of any "right to discovery." Even if there were a federal constitutional right to discovery in a criminal proceeding, petitioner has failed to demonstrate that the trial court or the prosecutor received, ignored, or denied a request for discovery of the booking photo. Accordingly, there was no violation of any discovery rules. With respect to any potential Brady claim, petitioner has failed to establish that the booking photo was exculpatory. Although the court's copy of the photo is in black and white, petitioner informs the court that when he was arrested he was wearing a red jersey with numbers on the front and back. (See Pet. at 86.) In these respects, petitioner's shirt was very similar to the shirt described by police as having been worn by the person who sold narcotics to Officer Espinoza. (See Answer, Ex. 15 at 88-89.) Therefore, even assuming as petitioner suggests that the shirt in the booking photo does not look like or is not a San Francisco 49ers jersey, the photo is not necessarily exculpatory evidence in this case.
Moreover, there is also no indication that the photo was suppressed by the prosecutor, either willfully or inadvertently. Indeed, petitioner was aware that his photograph was taken at the time he was arrested and could have obtained a copy of it. See Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000) ("there is no Brady violation if the defendant knew or should have known the essential facts permitting him to take advantage of the information in question, or if the information was available to him from another source"). Finally, petitioner has failed to demonstrate prejudice. There is no reasonable probability that the result of the trial would have been different had the "booking photo" been disclosed to the defense prior to trial, nor does the photo put the case in such a different light so as to undermine confidence in the ...