FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner, represented by counsel, proceeding with an application for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his 1999 conviction on charges of second degree robbery (1 count) and second degree attempted robbery (2 counts), as well as various sentencing allegations. Based on the conviction and sentencing allegations, the trial court sentenced petitioner to an indeterminate 75 years to life plus 17 years determinate term of imprisonment. He seeks relief on the grounds that: (1) his Sixth and Fourteenth Amendment rights to a unanimous jury were violated by a jury instruction; (2) his rights under the Fifth and Sixth Amendments were violated by the trial court's denial of a timely pretrial motion for a lineup; and (3) he was denied effective assistance of counsel by his appellate counsel's failure to raise the denial of the pretrial lineup motion as an issue on direct appeal.
On May 13, 1999, an amended information was filed in Sacramento County Superior Court as case number 98F10337, charging petitioner Dwayne Anthony Sullivan as follows: in Counts One and Two, with separate violations of California Penal Code section 211 (robbery); and in counts three and four, with separate violations of sections 664/211 (attempted robbery). The information also contained a number of allegations relevant to the offenses and petitioner's prior convictions. CT 164-169.*fn2
On May 25, 1999, petitioner's jury trial began. CT 201. On June 8, 1999, the jury found petitioner guilty of the offenses charged in Counts Two through Four (the "Dairy Queen robbery") and found the allegations related to those counts to be true. CT 296-298, 304. The court declared a mistrial on Count One (the "Burger King robbery") after the jury declared it was deadlocked on that count. CT 304. In a bifurcated proceeding held on August 12, 1999, the court found the prior conviction and prison term allegations to be true. CT 9.
The following are historical facts underlying the convictions on Counts Two through Four. At about 6 p.m. on November 30, 1998, a man holding a tire iron entered the Dairy Queen on Folsom Boulevard at Notre Dame in Sacramento. RT 84-86, 103, 127-129, 147-148. The man told Jeanine Moore, the clerk at the counter, to give him the money from the register or he would hit her over the head.*fn3 RT 85, 87. Moore told petitioner she did not have the key and went to ask the manager to open the register. RT 87-88. Petitioner then approached two customers, Anna and Clarence Schroeder, who were 69 and 71 years old, respectively.
RT 88, 127, 129, 147, 150. Petitioner asked for Mr. Schroeder's wallet, but Mr. Schroeder refused. RT 129, 150. Petitioner then asked for Mrs. Schroeder's purse. RT 130, 150. After saying he would hurt her if she refused, petitioner grabbed the purse and ran out of the door. RT 129-130, 150. The purse contained, among other things, $18 in cash and a rosary. RT 135. Mr. Schroeder followed petitioner, but lost sight of him as petitioner ran north on Notre Dame. RT 151.
The suspect was described to police as an African American man, in his mid 30s, with a mustache, and wearing a black or dark cap, a black and green flannel shirt and black pants. RT 103. Approximately 15 minutes after the robbery, petitioner was stopped by police a few blocks from the scene at Notre Dame and Bennington. RT 104-105. Petitioner is an African American, mid 30s, with a mustache, and he was wearing a brown knit cap, brown pants and a green and gray flannel shirt at the time he was detained. RT 104, 161. Eighteen dollars in cash and Mrs. Schroeder's rosary were found in petitioner's clothes. RT 165, 200-201. In petitioner's car, which was parked near the location where petitioner was detained, officers found Mrs. Schroeder's purse on the passenger's floor and a tire iron on the backseat. RT 109, 161-163, 181. The three victims were taken to the location where petitioner was detained, and they identified petitioner as the man who committed the robbery at the Dairy Queen. CT 64-67.
On September 1, 1999, the trial court denied probation and sentenced petitioner to state prison for an aggregated term of 92 years. CT 10, 345. On the same day, petitioner filed a timely notice of appeal. CT 346. On July 27, 2000, petitioner filed his opening brief in the California Court of Appeal, Third Appellate District, case number C033604, arguing that the trial court's instruction of the jury with CALJIC No. 17.41.1 impinged upon his Sixth and Fourteenth Amendment rights to a unanimous jury and a jury free to use its power of nullification. Lodged Doc. 1. On January 17, 2001, the Court of Appeal filed an opinion in which it affirmed the judgment. Lodged Doc. 2. On March 28, 2001, the California Supreme Court, in case number S095279, denied petitioner's petition for review that had raised a single issue, that of the jury's instruction with CALJIC 17.41.1. Lodged Docs. 3, 4.
On May 28, 2002, petitioner filed a petition for a writ of habeas corpus in this court. On October 25, 2002, this court ordered the Federal Defender appointed to represent petitioner. On April 29, 2003, this court granted petitioner's motion for a stay of proceedings and directed that the matter be held in abeyance pending the exhaustion of state remedies. On April 13, 2005, the California Supreme Court denied petitioner's state exhaustion petition in case number S128745. Lodged Docs. 5, 6.
On May 16, 2005, petitioner filed an amended petition for a writ of habeas corpus in this court. Respondent filed an answer to the amended petition on August 30, 2005. Petitioner, represented by new counsel, filed a traverse on June 1, 2007.
II. Standards for Habeas Corpus Relief
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). Also, federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's 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) (referenced herein in as "§ 2254(d)" or "AEDPA").*fn4 It is the habeas petitioner's burden to show he is not precluded from obtaining relief by § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) are different. As the Supreme Court has explained:
A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362 (2000)] that an unreasonable application is different from an incorrect one.
Bell v. Cone, 535 U.S. 685, 694 (2002). A state court does not apply a rule different from the law set forth in Supreme Court cases, or unreasonably apply such law, if the state court simply fails to cite or fails to indicate an awareness of federal law. Early v. Packer, 537 U.S. 3, 8 (2002).
The court will look to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003). Where the state court fails to give any reasoning whatsoever in support of the denial of a claim arising under Constitutional or federal law, the Ninth Circuit has held that this court must perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). In other words, the court assumes the state court applied the correct law, and analyzes whether the decision of the state court was based on an objectively unreasonable application of that law.
"Clearly established" federal law is that determined by the Supreme Court. Arredondo v. Ortiz, 365 F.3d 778, 782-83 (9th Cir. 2004). At the same time, it is appropriate to look to lower federal court decisions as persuasive authority in determining what law has been "clearly established" and the reasonableness of a particular application of that law. Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 1999); Clark v. Murphy, 331 F.3d 1062 (9th Cir. 2003), overruled on other grounds, Lockyer v. Andrade, 538 U.S. 63 (2003); cf. ...