The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Khalafala Khalafala, a former state prisoner, proceeding pro se filed a petition for habeas corpus relief under 28 U.S.C. § 2254. At the time Khalafala filed his petition he was in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Solano. Khalafala is currently on parole in the custody of the U.S. Immigration and Customs Enforcement at the Florence Processing Center, Florence, Arizona. Respondent has filed an answer to the petition, and Khalafala has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
After a bench trial Khalafala was convicted in the California Superior Court, Sacramento County, of two counts of assault with the intent to rape [Cal. Penal Code § 220] against two separate victims, Debra P. and Shelly C. on two different dates. The trial court sentenced Khalafala to a term of eight years' imprisonment. Khalafala timely appealed his conviction to the California Court of Appeal, Third District, which affirmed his conviction but vacated his sentence and remanded for re-sentencing in an unpublished reasoned decision.*fn1 The California Supreme Court summarily denied review on July 18, 2007. Following re-sentencing by the Sacramento County Superior Court, Khalafala again timely appealed to the California Court of Appeal, Third District, which dismissed his appeal on a motion of the People on February 9, 2008.
While his direct appeal from his conviction was pending, Khalafala filed a petition for a writ of mandate in the California Supreme Court, which was transferred by the Court to the California Court of Appeal, Third District, and denied by the California Court of Appeal on January 19, 2006. Khalafala filed a second petition for a writ of mandate in the California Court of Appeal, Third District, which was also denied by that court on January 19, 2006.
Khalafala also filed six petitions for a writ of habeas corpus in the California courts while his first direct appeal was pending, all of which were denied.*fn2
Date Filed Court Date Denied May 30, 2006 California Supreme Court February 7, 2007 June 28, 2006 California Court of Appeal, Third District July 13, 2006 September 27, 2006 California Court of Appeal, Third District October 12, 2006 December 1, 2006 California Superior Court, Sacramento County January 23, 2007 December 1, 2006 California Superior Court, Sacramento County January 17, 2007 April 11, 2007 California Court of Appeal, Third District April 19, 2007
Khalafala timely filed his original petition for habeas corpus relief in this Court on May 26, 2006, and his amended petition with leave of court on May 9, 2007.
II. ISSUES RAISED/DEFENSES
In his amended petition Khalafala raises ten grounds: (1) his in-court identification by the victim was tainted by an impermissible pretrial identification procedure; (2) the in-field identification was tainted; (3) suppression by the prosecution of exculpatory evidence; (4) ineffective assistance of trial counsel; (5) insufficiency of the evidence to convict; (6) violation of the Confrontation Clause by the admission of hearsay testimony at the preliminary hearing; (7) violation speedy trial rights; (8) the prosecution improperly motivated the complaining witness; (9) double jeopardy; and (10) trial court improperly denied a motion for a new trial. Respondent contends the first and second grounds are procedurally barred. Respondent does not raise any other affirmative defenses.*fn3
Because Petitioner filed his petition after April 24, 1996, it 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 state court 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."*fn4 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."*fn5 The holding must also be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn6 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.'"*fn7 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn8 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.*fn9 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.*fn10
In applying this standard, this Court reviews the last reasoned decision by the state court,*fn11 which in this case was that of the California Court of Appeal. 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.*fn12
To the extent that the petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law.*fn13 A federal court must accept that state courts correctly applied state laws.*fn14 A petitioner may not transform a state-law issue into a federal one by simply asserting a violation of due process.*fn15 A federal court may not issue a habeas writ based upon a perceived error of state law unless the error is sufficiently egregious to amount to a denial of due process under the Fourteenth Amendment.*fn16
Ground 1: In-Court Identification
Approximately one week before trial, the prosecutor showed one of the complaining witnesses, Shelly C., a photograph of Khalafala. Khalafala contends that this procedure tainted the witness's in-court identification of him as the perpetrator and, therefore, the identification was inadmissible. The California Court of Appeal, after noting that the argument was forfeited by a failure to object in the trial court, nonetheless found the argument to be without merit in its reasoned decision.*fn17
Respondent has raised procedural bar as a defense. Federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment."*fn18 This Court may not reach the merits of procedurally defaulted claims, that is, claims "in which the petitioner failed to follow applicable state procedural rules in raising the claims . . . ."*fn19 "[I]n order to constitute adequate and independent grounds sufficient to support a finding of procedural default, a state rule must be clear, consistently applied, and well established at the time of the petitioner's purported default."*fn20 The California contemporaneous objection rule is "clear, consistently applied, and well-established" where, as here, a party fails to make a proper objection to the admission of evidence.*fn21 The rule is therefore operative in the case at bar as an "adequate and independent" state procedural bar.*fn22 Moreover, the California rule is entirely consistent with federal law, as established by the United States Supreme Court, which also requires the specific ground on which an objection is based.*fn23
The Court agrees with Respondent that, because Khalafala's claim was defaulted in the state court on an adequate and independent state ground, it should not be considered in this federal habeas proceedings unless Petitioner can demonstrate cause for the default and actual prejudice.*fn24 However, because Khalafala also raises this issue in his ineffective counsel claim, to address that claim, the Court must first determine whether the California trial court would be required to exclude the evidence assuming a timely and proper objection were made.*fn25
In a case where the witness makes an in-court identification arguably as a result of pretrial exposure to a suggestive procedure, that identification will be set aside only if the prior identification "procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misrepresentation."*fn26
[T]he central question, whether under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.*fn27
In this case, as the California Court of Appeal noted in its opinion, Shelly C. identified Khalafala the night of the crime, which was the reason the prosecutor had his picture. Her identification of Khalafala at trial was the product of the initial identification, not the picture.*fn28
The Court of Appeal further noted that the initial identification took place on the evening of the assault very shortly after it occurred.*fn29 The facts surrounding the assault clearly indicate that Shelly C. had ample opportunity at the time of the crime to view Khalafala, and her attention was certainly focused on him. Under these facts, this Court cannot say that 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" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn30 Khalafala is not entitled to relief under his first ground.
Ground 2: In-Field Identification
Soon after Shelly C. was assaulted, Khalafala was detained. An officer told Shelly C. there was a possible suspect that may or may not have been the person who assaulted her. Shelly C. was driven to where Khalafala was being detained. The officer put a spotlight on Khalafala, and Shelly C. identified him as her assailant. Khalafala contends that the in-field identification was unduly suggestive and should have been excluded. The California Court of Appeal, after noting that the argument was forfeited by a failure to object in the trial court, nonetheless found the argument to be without merit in its reasoned decision.*fn31
Respondent has asserted that this ground is also procedurally barred. While this Court agrees for the reasons stated above with respect to Khalafala's first ground, the Court must address this ground for the same reason it must address the first ground.
The California Court of Appeal, applying the Biggers factors, found the pretrial identification not to be unduly suggestive. Shelly C. had ample opportunity to view Khalafala, her attention was clearly focused on him. She identified him shortly after the assault. The minor discrepancies between the T-shirt Khalafala was wearing, the lack of a backpack, the presence of the shopping cart at the time of his detention and her description of him earlier in the evening were insignificant. In a recent decision involving similar facts, the Ninth Circuit found a pretrial photographic lineup was not unduly suggestive.*fn32 Consequently, this Court cannot say that 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 ...