FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner, proceeding through counsel, with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 27, 2003, petitioner was convicted in Placer County Superior Court on the following: two counts of robbery (Cal. Penal Code § 211), two counts of assault with a firearm (Cal. Penal Code § 245(a)(2)), two counts of terrorist threats (Cal. Penal Code § 422), burglary (Cal. Penal Code § 459), false imprisonment (Cal. Penal Code § 236), cutting a utility line (Cal. Penal Code § 591), and being a felon in possession of a firearm (Cal. Penal Code § 12021(a)(1)). (Am. Pet. at 1-2.) With the addition of sentence enhancements for the use of a firearm (Cal. Penal Code §§ 12022.53 & 12022.5), petitioner was sentenced to 18 years in state prison. (Clerk's Transcript on Appeal, (hereinafter CT) at 240).
In the petition now pending before this court, petitioner seeks habeas relief on the grounds that (a) the prosecutor's peremptory strike of an African-American woman from the jury panel was based on race in violation of Batson v. Kentucky, 476 U.S. 79 (1986); (b) his right to due process was violated as a result of an unconstitutionally suggestive identification procedure; and (c) his right to counsel was violated when the prosecutor improperly contacted a defense fingerprint expert. (Am. Pet. at 4, 12, 19.) Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
On November 23, 2004, the California Court of Appeal for the Third Appellate District issued a reasoned opinion affirming petitioner's conviction and sentence. (Answer, Ex. B, hereinafter "Opinion.")
On December 30, 2004, petitioner filed a petition for review to the California Supreme Court which was denied on February 16, 2005. (Answer, Ex. C.)
On May 11, 2006, petitioner, proceeding pro se, filed his first petition in the instant action. (Docket No. 1.) On July 28, 2006, the undersigned ordered the appointment of counsel and petitioner, through counsel, filed his first amended petition. (Docket No. 16 & 26.) On May 4, 2007, respondent filed its answer. (Docket No. 22.) On July 30, 2007, petitioner filed a traverse. (Docket No. 36.)
On July 30, 3007, petitioner filed a motion for an evidentiary hearing to develop the record on his Batson claim. (Docket No. 37.) On November 1, 2007, the undersigned heard arguments on petitioner's motion and ordered an evidentiary hearing. (Docket No. 42.) The evidentiary hearing was held on September 9, 2008; respondent called Estelle Tansey, the trial prosecutor, as a witness. (Docket No. 73.)
The following facts were taken from an unpublished opinion of the California Court of Appeal for the Third Appellate District:
A. The Robbery Harry Starfusky and Heather
Thomas worked as hotel clerks at the Best Western Roseville Inn. During her shift in the early morning hours of August 5, 2002, Thomas went outside to smoke a cigarette.
After her cigarette break, [petitioner] and another man came in the back door. Both men had bandanas partially covering their faces. Thomas testified [petitioner] was wearing dark clothing, a hat, and a bandana. Thomas got a look at [petitioner's] face because his bandana slipped during the robbery.
At the time of the robbery, Starfusky was on the telephone speaking with another hotel employee at a different hotel. He dropped the phone when the robbers entered the room. According to Thomas, one of the robbers ripped the phone wire out of the wall at that point. [Petitioner] approached Thomas, pointed a gun at her head, and asked her where the money was. Thomas responded by telling the robbers to take everything. [Petitioner] then told Thomas to sit down and she did. Thomas told [petitioner] there was money in the register and in the safe in the back office but she did not know how to open the safe. [Petitioner] ordered her back into the room. One of the gunman told Starfusky to hand over his wallet and get on the floor. He did as he was told. Later, Starfusky also went into the back room to help the robbers find more money.
When they were finished, the robbers told Thomas and Starfusky to lie on the ground and not to move for 10 minutes and then left. The robbers made off with some mail, Starfusky's personal canvas bag, and less then $300 in small bills.
Officer Jonathan Glover responded to the scene at approximately 1:37 a.m. When he arrived at the hotel and went into the lobby, Thomas and Starfusky came out of the back office. They provided a description of the suspects to officer Glover who in turn broadcast it to other patrol units.
While Officer Pendergraft was responding to the robbery call, he saw [petitioner] walking down the street about 200 or 300 feet from the back door of the hotel. Officer Pendergraft watched as [petitioner] threw a hat and bandana into the bushes. After Officer Pendergraft detained [petitioner], he found Starfusky's wallet in [petitioner's] pocket but no gun.
While Officer Pendergraft was in the process of apprehending [petitioner], another man (Carter) jumped up and started running away. Several $5 bills flew out of Carter's pocket as he ran. The officers with Pendergraft gave chase and caught Carter.
Carter had about $180 in his pockets and had dropped $95 while he was fleeing from the officers--approximately the same amount of money stolen from the hotel. Further, officers found a small black bag in the area from which Carter had jumped up and taken flight. That bag contained a handset to a cordless phone, a loaded handgun, mail from the hotel, a set of keys, and Starfusky's personal items.
About an hour after the robbery, the police took Thomas and Starfusky separately to field showups of two suspects. A videotape of Thomas' field showup was played for the jury. Officers showed each of the suspects to Thomas separately. During Thomas' showup, officers placed a beanie on [petitioner's] head and a bandana in front of his face. Thomas identified [petitioner] as one of the robbers. She was unable to identify the other person.
The officer who accompanied Starfusky on his field showup testified Starfusky identified [petitioner] as one of the robbers. The officer testified Starfusky focused on [petitioner's] build, jacket, and the type of pants he was wearing. Like Thomas, Starfusky could not identify the other suspect.
Thomas positively identified [petitioner] at trial as one of the robbers. She thought the gun shown to her at trial looked familiar, but she was not sure. Thomas also identified the cap and bandana taken from [petitioner] as consistent with what [petitioner] was wearing during the robbery.
At trial, Starfusky was less certain about his prior identification of [petitioner]. Starfusky testified he told the officers the suspect looked very much like one of the robbers after the officers zipped up [petitioner's] jacket.
I. Standards for a Writ of Habeas Corpus
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.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. 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. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'") The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002).
Petitioner alleges that his conviction should be vacated because the prosecutor exercised a peremptory challenge to strike an African American juror on the basis of race, in violation of Batson v. Kentucky, 476 U.S. 79 (1986). (Am. Pet. at 4-12.)
The last reasoned decision with respect to petitioners' claim is the opinion of the California Court of Appeal for the Third Appellate District on petitioners' direct appeal. (Opinion at 9-16.) The Court of Appeal explained the facts surrounding this claim and its legal analysis as follows:
[Petitioner] Failed To Raise A Prima Facie Batson/Wheeler Error [Petitioner] next argues the trial court erred in rejecting his challenge to the prosecution's peremptory challenge to an African-American juror, [Juror M]. We disagree. This contention is also frivolous.
After [examining Juror M], the prosecutor exercised her peremptory challenge against another juror, and when the challenge returned to her, she thanked and excused Juror M.
The court and [trial] counsel engaged in the following discussion:
Mr. Zimmerman: I believe that there is a reasonable inference under State and Federal law that this juror, [Juror M] is being requested to be excluded because of her group association; that is, she is an African-American woman, and the Court can take clear notice of the fact that there are no other African-American jurors left.
There was one African-American juror [who] was here this morning [who] left because she could not afford to stay. She doesn't get paid, and that was something you applied across the board to everyone. . . .
We have had one African-American juror the entire venue, not just in the entire panel, but in the entire county. In Placer, the demographics are changing. We're getting more minority people. We know [petitioner] is an African-American. We can't get too systematic. We have one juror.
What do we know about this juror, she has a child [who is] a college student. She's educated, intelligent, make a fine juror. In Baxter-Wheeler [sic], line of Wheeler, both Federal and State law and the prosecution should shift the burden, and I don't think there is any viable reason whatsoever other than her group association why this prosecution is excluding this juror.
The Court: Ms. Tansey, do you wish to respond?
Ms. Tansey: Your honor, do you feel that a prima facie case has been made?
The Court: I was a little concerned that I may have misheard the juror. That's why I went back to her to inquire about the proof beyond all possible doubt. I have to say, I found the juror articulate, intelligent, responsive. I saw nothing that I could see for either side to exercise a peremptory challenge.
As the cases make clear, the Baxter-Wheeler [sic] challenge is generally focused on a pattern of exercising a peremptory. We don't have that situation with this challenge. I am sympathetic to the fact that Mr. Zimmerman has raised a concern because we only have one African American juror in the area in the panel, but it's my experience that this is about the third or fourth African-American I've ever had on any jury in 25 years. It just doesn't happen.
I can also take note of the fact that you had not exercised a challenge against the previous juror who was African-American. I have not seen you exercise a challenge against other racial ...