The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 18]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Following a jury trial in the Tulare County Superior Court, Petitioner was convicted of robbery with use of a handgun. Cal. Penal Code §§ 211, 12022.53(b). (CT 317.) On December 12, 2005, Petitioner was sentenced to 14 years in state prison. (CT 661-663.)
Petitioner filed a timely notice of appeal. On March 28, 2007, the California Court of Appeal, Fifth Appellate District affirmed the conviction and sentence. (Lodged Doc. No. 4.)
Petitioner filed a petition for review in the California Supreme Court, which was denied on June 27, 2007. (Lodged Doc. Nos. 17 & 18.)
Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court, which was denied on February 25, 2009. (Lodged Doc. Nos. 15 & 16.)
Petitioner filed the instant federal petition for writ of habeas corpus on August 18, 2008, which was stayed and held in abeyance to allow him to return to state court to exhaust his unexhausted claims. (Court Docs. 1 & 9.)
On March 10, 2009, Petitioner filed an amended petition and motion to lift the stay. (Court Docs. 16 & 18.)
On March 18, 2009, the Court vacated the stay and directed Respondent to file a response to the amended petition.
Respondent filed an answer to the amended petition on June 16, 2009, and Petitioner filed a traverse on July 8, 2009. (Court Docs. 28, 30, 31.)
At 7:00 p.m. on December 13, 2004, school bus driver William Catterall was walking home from the Fairway Market on Tulare Street in Visalia. When he reached the corner, he heard someone behind him say, "[H]ey, man, hey, man, hey, man ... I want your wallet." Catterall turned around and saw a man draw a small gun from his side and point it at him with both hands. "I believe it was a .25 caliber, perhaps a .32, chrome, one of those little automatics." Although it was dark, Catterall said he could see because there was a streetlight behind his right shoulder. Catterall said he saw a second man across the street. He then came across the street. At first, Catterall thought he was a bystander seeking to help him. However, the second man stood next to the first and pointed a larger gun "... probably a Glock or a military .45" at Catterall.
Mr. Catterall put his grocery bag down and threw his wallet on the ground between the two men. The second man opened the wallet, removed $413 in cash, and dumped the contents of the wallet on the ground. Catterall asked them to leave his license so he could still drive his school bus. Catterall said, "[H]ey man ... do me a favor.... [Y]ou know, leave the license and stuff 'cause I'm-you know, can't drive no more and stuff...." Catterall said the first man appeared nervous. The first man picked up a final bill on the ground and said, "[T]hank you for your cooperation." The assailants then ran away.
Mr. Catterall called 911 on his cell phone and gave a description of the two assailants. Visalia police officers arrived at the scene while Catterall was still on the phone. Detective Paul Esquibel contacted Catterall and conducted a field interview. Catterall went to the police station that evening for a second interview. At the station, Catterall gave a statement about what had happened and a description of the people who had robbed him. Catterall said he could not identify the second robber. However, Catterall described the first assailant as 18 to 21 years of age, between five-foot six inches and five-foot eight inches in height, and 150 to 160 pounds. He said the first assailant had light complexion, a narrow, pointed nose, thin mustache, and acne or scarring on his cheekbones. The first robber also had a faint mustache, as if he had not shaved very well. According to Catterall, the first assailant was dressed in a dark, hooded sweatshirt and had the hood pulled up over his head. Catterall told officers he thought he could identify the first suspect if he was wearing similar clothing and had a hood pulled over his head.
On December 16, 2004, Detective Paul Esquibel compiled a photographic lineup based on Catterall's description. He placed appellant's picture in position number 3 because another officer told him that appellant lived in the area of the crime. However, a subsequent investigation revealed that appellant did not live at an address in the area. Appellant was 24 years old, five-feet eight inches tall, weighed 140 pounds, and had a broader nose, clear cheeks, and no mustache. Three days after he gave a statement to police, Catterall went back to the police station and met with Detective Esquibel in an attempt to identify the robbers. Detective Esquibel showed Mr. Catterall a number of photographs on a computer. These photos were compiled from "JALAN," a system containing photographs of people previously booked into Tulare County Jail. Catterall failed to identify anyone from the JALAN system photographs. Esquibel then showed Catterall a "six-pack" photographic lineup that he had prepared. Catterall immediately pointed to appellant's photograph in position number 3 and identified appellant as the first robber. Based on Catterall's identification, Detective Esquibel secured a warrant and arrested appellant on December 27, 2004. Appellant was wearing a dark gray, hooded sweatshirt, black pants, and white tennis shoes at the time of his arrest.
Jamie Parker was dating appellant at the time of the crime. While in custody, appellant wrote several letters to Parker. One of the letters outlined a detailed scenario of events for Parker and her friend, Lauren, to follow. The letter included details as to what each person should say upon questioning. The letter described the clothes the trio wore on the evening of the crime, the times they arrived at and departed from Lauren's home, and the statement that Parker took appellant straight to his grandfather's home after departing Lauren's home. Appellant's letter advised Parker: "Make sure this story is air tight so that way I can hurry up and go home to you." He also advised: "Just keep your answer simple but if they do want detail you have it."
Defense Appellant's mother, Yvonne Renteria, testified she saw appellant at least every other day in December 2004 because he lived one street away from her. Yvonne testified she had never seen appellant with a moustache, although he usually wore a goatee.
Scott Fraser, Ph.D., a professor of neurophysiology and psychology, testified about eyewitness memory processes and the effect of lighting on eyewitness identification. Dr. Fraser said lighting affects an individual's ability to detect boundaries, edges, and color. He also said as light gets dim, the eye moves to "photopic vision." As a result, the eye tries to compensate by dilating the pupil to admit more light. As the eye dilates, the distance at which an individual can focus-called the depth of field-gets shorter and shorter. He explained:
"So what the eye does is compensate, but it only can do so at the cost of the objects have to be much closer. What you can see at 20 feet, as light gets dimmer and dimmer and has to now be at 18, 12, 5, 8 inches depending upon how dim the light gets."
Dr. Fraser said he personally looked at the scene of the robbery. He testified that the streetlights had low pressure sodium vapor lamps that give off a golden yellowish glow. Such lamps draw very little electricity but, according to Dr. Fraser, are not very good lights in terms of illumination. Because such a lamp gives off a "goldish, tan, peach glow," rather than a white glow, everything gets distorted in its colors. He said individuals have a less accurate color perception while under such lamps.
At the time of the offense, the sun had set, moonlight would not have been visible, and the only source of illumination would have come from artificial sources. Dr. Fraser said "scatter lights" from vehicle headlights would have bounced off of various objects and added some illumination to the scene. Based on William Catterall's description of the scene, Dr. Fraser said the dominant light source came from behind the robbers. In his opinion, the robbers were back lit, their faces cast their own shadows forward, and their features were masked. He explained in that situation "what you can see normally at 20 feet is now going to have to be two to two and a half feet away to see the same kind of details...."
Dr. Fraser also testified about "weapons focus" and a witness's observations of a suspect when there is a weapon involved in an incident. He explained:
"When the weapon is present or presumed to be present such [that] the person says don't move, I have a gun, they have their hand underneath their jacket, two things occur. One is the weapon is a distractor. It commands our attention. We look down at it, so in the total observation time, there's less time to focus on the face. "The second is it's a stressor. It increases arousal, fear and the rest, and high stress interferes with the actual processing of information."
He also said when more than one individual in the scene is being viewed, the ability to recognize any single person is decreased. According to Dr. Fraser, this is known as the "multiple targets effect."
Dr. Fraser also talked about "distinctive cues." He said this term refers to "any kind of feature of the person that's odd, unique, strange, different that distinguishes that person from others." Such cues include scars, tattoos, facial hair, unusual hairstyles, and behavioral manifestations like a lisp, stutter, or limp. According to Fraser, such cues result in the most accurate identifications. As to the accuracy of facial recognition, Dr. Fraser explained:
"... We're hardwired into that [facial recognition] to do it very well, but by the same token, that's why it's so easily disrupted when the conditions are not adequate for making a clear observation such as lighting, distance, depth of field, stress, weapons focus, those things are very disruptive, and they're understandably more disruptive with a hardwired system than one that's more flexible, but we're very good at it under the right conditions...."
(Lodged Doc. No. 4, Opinion, at 6-10.)
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Tulare County Superior Court, which is located within the jurisdiction of this Court.
28 U.S.C. § 2254(a); 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997; Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
Where a petitioner files his federal habeas petition after the effective date of the Anti- Terrorism and Effective Death Penalty Act ("AEDPA"), he can prevail only if he can show that the state court's adjudication of his 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). A state court decision is "contrary to" federal law if it "applies a rule that contradicts governing law set forth in [Supreme Court] cases" or "confronts a set of facts that are materially indistinguishable from" a Supreme Court case, yet reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005) citing Williams (Terry) v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision will involve an "unreasonable application of" federal law only if it is "objectively unreasonable." Id., quoting Williams, 529 U.S. at 409-10; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam). "A federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, at 1175 (citations omitted). "Rather, that application must be objectively unreasonable." Id.(citations omitted).
"Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceedings, § 2254(d)(2)." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Both subsections (d)(2) and (e)(1) of § 2254 apply to findings of historical or pure fact, not mixed questions of fact and law. SeeLambert v. Blodgett, 393 F.3d 943, 976-77 (2004).
Courts further review the last reasoned state court opinion. SeeYlst v. Nunnemaker, 501 U.S. 979, 803 (1991). However, where the state court decided an issue on the merits but provided no reasoned decision, courts conduct "an independent review of the record . . . to determine whether the state court [was objectively unreasonable] in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). "[A]lthough we independently review the record, we still defer to the state court's ultimate decisions." Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
C. Impermissibly Suggestive Photographic Lineup
Petitioner contends that the photographic lineup was impermissibly suggestive.
Petitioner contends that he was the only potential suspect depicted in the photographic lineup with a dark hooded sweatshirt-as described by the victim in this case.
The appellate court thoroughly summarized the background of the photographic lineup and stated the following:
Immediately after the robbery, William Catterall called the police on his cellular phone and gave a description of the suspect. He said one of the robbers was about 18 to 21 years old, had a lighter complexion was between five-feet six inches and five-feet eight inches tall, weighed between 150 to 160 pounds, had dark colored eyes, and had a thin moustache. Catterall also said the suspect possibly had acne on the cheeks, had a long lean face with a narrow nose bridge, wore a hooded sweatshirt with the hood over his head, and wore sweat pants. Catterall said the suspect carried a small chrome gun. That same day, he told Detective Esquibel he could identify the person "if he saw him again with a hood over his head and if he was wearing similar clothing."
Mr. Catterall met with Detective Esquibel on December 16, 2004, three days after the crime occurred. Esquibel showed Catterall a series of photographs on the JALAN computer program. That program compiles photographs of jail inmates according to requested physical traits. Catterall viewed the number of JALAN photographs but could not identify anyone. Esquibel then had Catterall read and sign an admonishment that he was in no way obligated to identify anyone. After Catterall signed the admonishment, Esquibel showed him a six-picture photographic lineup. Catterall immediately pointed to appellant's photograph in position number 3 and indicated that he "was the individual" who had robbed him. Esquibel then asked Catterall to note on the bottom of the lineup form the reasons for his identification. Catterall wrote:
"Looking at photos - #3 has several features that are what I believe the assa[il]ant had - - the nose area is correct - same as the eye spacing and depth, and dark eyes - - the chin profile is the same -minus the mustache that the person had"
At the January 28, 2005, preliminary hearing, Mr. Catterall identified appellant as the first robber. Catterall testified at one point:
[T]here's a little detail, little more puffy today than what there was, but it looked like a little more gaunt, a little more lean, but judging from the time frame and lack of stress, this is the person I see because I'm also seeing the chin, I'm looking at the nose, I'm looking at the bridge of the nose, forehead, there's enough hair right here. I'm looking at the same person. (Lodged Doc. No. 4, Opinion, at 10-11.)
On May 18, 2005, Petitioner moved to suppress the victim's identification on the following grounds: (1) the lineup was not created based on the victim's identification, but rather on the police officer's unsubstantiated hunch who then hand picked other victims that looked similar to Petitioner; (2) Petitioner was the only potential suspect depicted in the photographic lineup with a dark hooded sweatshirt-as described by the victim in this case; (3) the victim did not explicitly pick the photograph of Petitioner as the suspect but merely noted the similarities and differences between Petitioner and the person who robbed him; and (4) by placing the only suspect (Petitioner) in a jail outfit before the victim, after indicating the suspect was under arrest, and then asking him to identify the sole person sitting at the defense table, persuaded the victim to identify Petitioner.
On May 18, 2005, the court conducted a contested hearing on appellant's motion to suppress. The court "acknowledged that [Petitioner] was the only person depicted in the lineup in a hooded sweatshirt. The court also noted that [Petitioner's] photograph did not evidence a narrow nose or a long face. In addition, the court observed that Mr. Catterall did not identify number 3 as a picture of a robber. Rather, Catterall selected photograph number 3 and then made comments about that picture. The court also observed that [Petitioner] had clear skin with no scars or acne." (Id.; Opinion, at 12.)
After considering all the evidence, the trial court denied the suppression motion, finding:
I've considered the evidence in the case, and there is certainly some validity to a concern that the type of clothing worn by the individual in number 3 may be somewhat suggestive; however, that is not the standard.
"The law is that to be excluded, the court must consider the totality of the circumstances and must find that the photograph procedure was so impermissibly suggestive and unduly suggestive to give rise to a substantial likelihood of misidentification, and ... I cannot and do not come to that conclusion given, again, the totality of the circumstances."
2. Last Reasoned Decision of Appellate Court
After discussing the applicable law, the Fifth District Court of Appeal, held:
William Catterall testified that, as a bus driver, he had received special training in dealing with robberies and highjacking. He said, "[J]ust stay focused, get reference points, you know, heights, I mean, get something you can measure by, notice the voice, notice the hands, movement, I mean, just notice the smallest detail and basically ignore what you can't really describe ...." Catterall said he focused on the features of the assailant he could clearly see - - the hands and the face.
At the preliminary hearing, Mr. Catterall said he was almost 100 percent certain of his identification from the photo lineup. Catterall testified at trial he nevertheless went through a process of elimination and sought ways to validate his identification because "there would be no way that I would say okay, this person did it if I didn't believe it." Catterall said at the preliminary hearing he saw appellant walk in the courtroom and Catterall "could tell it was the body movement" of the first robber. Catterall also attempted to look at appellant's hands because the first robber had "[s]kinny fingers, smaller hands" than the second robber, who had "short, stubby, meaty hands." According to Catterall, during the preliminary hearing, appellant "did a double-take cause there were only two people in the courtroom, and he did a double-take and recognized me." Catterall said that double-take confirmed his identification "far above a reasonable doubt."
The foregoing facts and circumstances do not reflect a substantial likelihood of irreparable misidentification under the totality of the circumstances. William Catterall, a professional bus driver, had received special training in coping with robberies and highjacking. He immediately identified appellant from a six-person photographic lineup. Although appellant's photograph depicted a certain kind of attire, Catterall said "[i]n the scheme of things, clothes meant nothing" because they were generic and he was focusing on the first robber's faces, hands, movements, and voice. Appellant's double-take just prior to the preliminary hearing, combined with Catterall's identification based upon factors other than the hooded sweatshirt, demonstrated that Catterall's description was reliable under the totality of the circumstances.
The trial court did not err in denying appellant's motion to suppress the pretrial identification from the photographic lineup. (Lodged Doc. No. 4; Opinion, at 16-18.)
"[C]onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside . . . only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384 (1968). The court reviews the totality of the circumstances surrounding the challenged procedure for improper suggestiveness. United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985). If the court concludes that the procedure was not impermissibly suggestive, the inquiry ends. Id. However, if the court concludes otherwise, it must determine whether the identification was nevertheless reliable under the totality of the circumstances. Id.
In order to determine whether the admission of identification evidence violates a defendant's right to due process of law, the 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 at the time of the identification, and ...